America may have gotten universal gay marriage last month, but Israel won’t be doing the same in the near future.
A bill proposed by Yesh Atid party MK Aliza Lavie that would have instituted civil marriage, including for gays, was voted down in the Knesset plenum Wednesday by an 11-vote margin, with 39 for and 50 against.
Despite widespread public support for same-sex marriage – a 2013 poll by the daily Haaretz found 70 percent of Israelis backing it – Israel’s contentious parliamentary politics have not been able to translate that support into legislation.
“Nobody really estimated that this bill could pass,” said Hebrew University professor of family law Ram Rivlin. “Not in this coalition.”
Israeli marriages are performed under laws inherited from Ottoman times that grant each Israeli religious community’s state-recognized leadership sole jurisdiction over marriage. These Ottoman religious communal structures, called millets, were continued by the British mandate. After Israel’s 1948 independence, Israel too maintained the system, citing among other considerations its obligations to the country’s minorities.
As a consequence, marriages in Israel are performed only through religious institutions. Jewish couples must marry through the Chief Rabbinate, whereas Catholics, Druze and Muslims all marry through their own state-sanctioned and publicly funded religious legal systems.
The result: any couple whose marriage is not in keeping with the religious law of their respective religions, or who belong to a religious tradition that does not have its own state hierarchy, simply falls outside the boundaries of marriages recognized by the Israeli state.
Gay marriage is not actually illegal in Israel. There simply isn’t any institution empowered to carry it out. One signal that this may be more lacuna than conscious marginalization lies in the stark fact that no Protestants can marry in Israel either, not even each other; under British rule, Protestants married through British mandatory institutions, and a separate Israeli Protestant Christian hierarchy was never established.
Lavie’s bill was intended to fill all the gaps in this religious millet system — for “unrecognized” religions, interfaith couples, Jewish converts whose conversions are contested by the Israeli rabbinate, and for gays.
“We have to allow a civil alternative for all of the couples [who] prefer not to go through the rabbinate,” she said in an email to The Times of Israel. “Many couples do not have the ability to marry under the rabbinate.”
While the religious framework is restrictive, Israeli secular courts have created, through a series of legal precedents over the years, strong judicial recognition for “common law” marriage. Couples that do not have any state-recognized marriage can nevertheless sue in court for some marital protections if they can prove they have shared a household and a sexual relationship with their partner.
Thus, while the state does not formally recognize tens of thousands — the exact number is not known — of cohabiting Israelis, these couples have the power to sue each other in case of a break-up for custody, alimony, inheritance and other marriage-related rights and protections.
In light of that informal track for marriage-like partnerships, many Israeli couples have taken to signing cohabitation agreements, and marriage liberalization advocacy groups distribute so-called Domestic Union Cards intended to convey intent in the case of any future court proceeding.
They are still excluded, however, from some marital rights. For instance, in such common law partnerships, one partner’s retirement or disability does not confer tax breaks on the other, as it does in a recognized marriage.
But common-law marriage is not the only loophole. The state is required by international agreements to recognize marriages performed abroad that are recognized by those jurisdictions. Many couples, consequently, simply choose to marry elsewhere, according to Rivlin.
In 2006, the High Court clarified that this requirement also applied to gay marriages conducted overseas.
“There is a trend of marrying abroad and then coming back to Israel to be recognized,” Rivlin said.
There is an irony here, he notes. “Religious marriages are so difficult for so many Israelis, it makes the possibility of gay marriages easier. Right now there is no option for gay marriage, but also [no option for] a very wide segment of society. The feeling of being stigmatized for not being able to marry … a lot of people suffer from it.”
And so, despite Israel’s restrictive religious marriage laws, or perhaps because of it, gay couples enjoy a relatively high level of partnership protections.
Since the Israeli marriage debate is not about a particular subset of society, but between supporters of an open civil system generally and those who favor a narrow religious one, civil marriage advocates have viewed gay marriage as simply another constituency on their side of issue, according to Rivlin.
“A paradox for moral conservatives is that religious restraints have led to more rights for gay couples,” he noted.
Lavie, herself an observant Orthodox Jew, has also argued that offering Israelis a civil marriage option would not only expand access to the institution, but in forcing the state religious institutions to compete for Israelis’ hearts and minds it would pressure them to become more efficient and welcoming, and in the end would convince more people to choose a religious wedding.
Lavie’s argument notwithstanding, in a parliament in which the coalition has a minuscule two-vote majority, and is dependent on ultra-Orthodox parties Shas and United Torah Judaism, her optimistic assertion is unlikely to be tested anytime soon.
Haviv Rettig Gur contributed to this report.