‘With this ring I thee wed’: The turbulent battle for same-sex marriage in Israel

Marriage, probably more than any other institution in Israel, binds religion and state. The quest to fulfill the ageless tradition, sanctioned only through the Orthodox rabbinate, thereby lumps a whole swath of society — mostly non-Jews and gays — into a murky area when it comes to the state’s view of their marriages, and even their divorces.

It is within that amorphous environment that the struggle for same-sex marriage in Israel operates. For now, it seems that so long as religion and state are inextricably tied in Israel, the quest for same-sex marriage will forever prove elusive.

The push for same-sex marriage in the country does have its cheerleaders — some adamant and some a bit more skeptical. Yet even inside the gay community itself, the question of same-sex marriage is divisive because many gay Orthodox Jews agree with the Orthodox rabbinate on the issue: Marriage is reserved purely for man and a woman, the way the Torah describes it.

With Jewish law considered immutable on the topic, the most likely option for gay couples is civil marriages. Yet also on this point there are varying degrees of support from the Orthodox Jewish community — from strong disapproval to tacit support of the option so long as it is wholly unaffiliated with Judaism.

A main aspect of the struggle, however, is the notion that the right to marriage is a basic civil right. A 2009 poll published in Haaretz found that some 60 percent of Israelis — or three in five people in the country — support same-sex marriage. Much of the public’s backing of the notion is derived from the concept that gay couples are excluded from the right to marriage, which constitutes discrimination.

“The oppression of religious law paved the way for Israel’s pioneering on common law marriages,” Yakir said, explaining that in the 1950s, the number of unregistered domestic partnerships between heterosexuals were growing and the state was forced to address a range of correlative issues, such as pension, inheritance, and so on.

The American Conservative and Reform movements recently made the landmark decision to embrace same-sex marriages — and US President Barack Obama just came out in support of same-sex marriages — a first for an American President. The two events caused the American Orthodox establishment to declare that while they may express “admiration” for the President’s tikkun olam message (the idea of trying to repair the world) they staunchly denounce the notion of marriage between people of the same sex.

As for Israel’s Orthodox rabbinate, the idea of same-sex marriage is clearly implausible. They say that intercourse between people of the same sex is clearly forbidden, as is marriage between people of the same sex, according to the halacha (“religious law”).

Rabbi Elli Fischer, an Orthodox American rabbi who worked as a university campus rabbi in the states and now lives in Israel, put the rabbinate’s view on legalizing same-sex marriage this way: “They’ll never, ever go for it.”

Fischer is one of the rabbis who advocates a separation of religion and state on the issue of marriage. A civil union wouldn’t infringe on Jewish tradition yet it would give gay couples equal social rights, he explained. His rather liberal view, however, isn’t shared by all Orthodox rabbis in Israel or even in the US. Others may support the idea of a same-sex union — with all the benefits of a civil marriage — but would refrain from calling it marriage.

“I think the movement to legalize same-sex marriage in Israel is wrong…The halacha doesn’t recognize it, and Judaism needs to maintain its rituals, its bible,” said Rabbi Ron Yoses of HOD, an Orthodox gay support group based in Netanya that operates around the country. He termed his views as “progressive” in terms of sexual liberation, but not at the expense of religion. “We cannot force the Orthodox community to break its laws,” said Yoses. “It hasn’t happened over 5,000 years and it won’t happen now.”

When asked if the Conservative or Reform movement would ever gain control of the rabbinate, and help solve this issue, Yoses said definitely not: “Even though most Israelis are not Orthodox, they are connected to the Orthodoxy movement.” The issues that are important, said Yoses, is how gay couples handle having children, and how devout a life they lead while being gay.

The curious, litigious reality facing gays in Israel

Israel’s gay couples are waging a unique struggle for marriage equality in a country that lacks civil marriages and whose marriage procedures are dominated by the Orthodox rabbinate.

Gay couples who marry outside of Israel — and who are recognized as married by the government where their wedding took place — are then registered as married by the Ministry of the Interior despite not being recognized as married by the rabbinate. They enjoy most of the rights and benefits accorded to opposite-sex married couples.

The precedent came about when Dan Yakir, chief legal counsel of the Association for Civil Rights in Israel, represented two gay couples at the High Court of Justice in 2005. The couples had married in Toronto and were demanding that Israel register them as married. In 2006, a court panel voted 6-1 that gay couples who married elsewhere would be registered as married.

He explained that the restrictions of the religious law that precludes many couples from getting married in Israel has, absurdly, helped same-sex unmarried couples with regards to attaining most of the rights and benefits accorded to opposite sex couples: “The oppression of religious law paved the way for Israel’s pioneering on common law marriages,” Yakir said, explaining that in the 1950s, the number of unregistered domestic partnerships between heterosexuals were growing and the state was forced to address a range of correlative issues, such as pension, inheritance, and so on. It then amended some 40 laws to allow the couples to enjoy their civil rights.

One group, Anachnu (“us”), launched a groundbreaking approach to help gay members of the Orthodox community who want to get married and build a family according to halachic tradition — through gay matchmaking — by openly coupling lesbians with gay men.

Hence, Israel litigiously carved out a sidedoor entrance for the recognition of gay couples and others who are not allowed to marry through the rabbinate. The makeshift solution, however, has not addressed certain practical issues of recognizing, but not officiating, same-sex marriages.

“Gay couples can’t get divorced in Israel,” said Joel Veksler, 32, a Tel Aviv gay man who is about to marry his fiance in Toronto. “It’s actually a major tactical problem because certain places that marry gay couples won’t divorce them if they’re not residents of the place, and it leaves them in a sort of no-man’s land.” With the rise in openly same-sex relationships, the issue may become a major nuisance.

It is true that Israel — in certain capacities — is ahead of, say, the United States, who has thus far refused to recognize same-sex marriages on the federal level, said Veksler. He cited former US President Bill Clinton’s signing of the Defense of Marriage Act in 1996 — which stipulated that marriage is, exclusively, a union between a man and a woman.

But as for officiating same-sex marriages in Israel? Most say: not a chance.

“We’re not holding our breath,” joked one lesbian couple. Another couple said “it’s never going to happen,” and didn’t want to discuss the issue further when approached for the article.

Tel Aviv resident Elad David, 30, and his husband, Gil Diamant, were recently married in Tel Aviv in a non-state-sanctioned wedding ceremony amongst friends and family. They are flying to New York City in the fall to get legally married and then returning to Israel to claim their rights. While it’s not ideal — they’d rather get married in Israel — it’s the best alternative, said David.

“Same-sex marriage is definitely a big issue in the gay community — it’s at the forefront of the public’s consciousness — but the problem is it’s unrealistic to expect it to move forward at this moment,” explained David. The religious political parties have a lot of power now, said David, and the parties with same-sex marriage on their agenda are too small to get the initiatives passed.

For example, the Knesset recently voted on two motions put forward by gay MK Nitzan Horowitz (Meretz) — one was aimed at establishing civil marriage in Israel and the other sought to reimburse couples who, by default, are forced to marry abroad — but both failed.

While many are disheartened and say the same-sex marriage struggle is dead from the start, there are a few optimistic voices in the crowd.

“Sure, the gay community has a long way to go in its struggle,” Veksler pointed out, “but it’s not so bad here — we do have rights… It’s a process, and as public opinion shifts, I do believe same-sex marriage will happen here — but civil marriage will come first,” he explained.

“Ten years ago we wouldn’t have been talking about gay marriage on the federal level in America, where the battleground of same-sex marriage is currently being waged… Obama made his recent statements in support of gay marriage because public opinion has shifted in America,” Veksler added, “and it will shift here too. These things take time,” he said.

Trends among Gay Orthodox Jews

While the tenets on sex and marriage in Judaism are clear, other attributes of homosexuality are still sort of a grey area, said Yoses, because Judaism never really had to deal with the topic before. For example, the idea of loving someone of the same sex is not explicitly disallowed.

Openly gay but not ready to give up fulfilling Jewish rituals, Orthodox gay men and women bridge the divide that others may deem impossible. There are disagreements among the ranks of the Orthodox community itself, but generally, the struggle is for acceptance and against discrimination — ideals they share with their LGBT partners in more secular centers like Tel Aviv. Same-sex marriage is not a battle Orthodox gays want to wage. Many Orthodox gays don’t support the gay pride parade, for example, and believe in living according to the halacha. 

There are different trends popping up among gays in the Orthodox community that serve as alternatives to same-sex marriages. Some gay men and women even seek corrective therapy to “cure” them of their homosexuality — a practice that is not so uncommon in the Orthodox and ultra-Orthodox communities.

One group, Anachnu (“us”), launched a groundbreaking approach to help gay members of the Orthodox community who want to get married and build a family according to halachic tradition — through gay matchmaking — by openly coupling lesbians with gay men. Started by Rabbi Arale Harel some seven years ago, Anachnu has successfully married 15 couples, and another three are in the middle of the process.

He started the initiative after students in his yeshiva approached him with the personal pleas for help because they were gay. “They didn’t know what to do,” said Harel, who explained that he wanted to find a solution for them to keep them from walking away from religion altogether. While the initiative is not his full-time job, Harel said he believes the importance of being upfront and truthful about their sexuality is important, because otherwise cheating and lying occur. This way, he said, it’s a partnership that allows the gay man and woman to create a family but also be true to their sexual identities.

There are other revolutionary currents popping up in the wider Orthodox gay community as well. For example, an Orthodox lesbian couple who recently married in an unofficial (non-rabbinate sanctioned) ceremony in a West Bank settlement is living according to the halacha — they even intend to keep the tradition of taharat mishpacha (“family purity laws”), in which a women cannot be touched by her partner during and after her menstruation. Like ordinary Orthodox women, they too cover their heads now that they’re married.

Lesbians, in the eyes of the rabbinate, are a secondary issue compared to gay men because the halacha is more concerned with the physical act of intercourse — i.e. penetration — that happens between two gay men. As Rabbi Yoses put it, in the eyes of the rabbinate, once the issue of gay men is worked out, so to speak, it will influence the standing of lesbians too. For now, their main contention is still with gay men.

Be it progress or adapting to the times, the foraying gay members of the Orthodox community represent a new chapter in Judaism’s encounter with, and understanding of, homosexuality.