Same-Sex Marriage in Israel (Part 4)

Laying the Framework for Same-Sex Marriage in Israel

Israel has had a relatively short but progressive history toward the granting of equal rights to Israel’s gay and lesbian community that rivals the most liberal of countries in some respects.  Israel’s sodomy laws were inherited from the English common law system and remained in effect in the penal code until 1988 when they were repealed by members of the Israeli Knesset.[1]  Compared with the United States Supreme Court’s decision to de-criminalize sodomy throughout the remaining states that still retained sodomy laws in Lawrence v. Texas[2], which didn’t take place until 2003, Israel certainly seems to have taken steps toward protecting its gay and lesbian population at a very early stage in the worldwide lesbian, gay, bisexual, and transgender movement as a whole.

In 1994, Israel took another major step toward equality when the Supreme Court held that same-sex couples must be treated the same as an opposite-sex couple in the context of employee benefits in El-Al Israel Airlines Ltd. v. Danielowitz.[3]  In this case, Jonathan Danielowitz, who was employed by El-Al as a flight attendant, was involved in a committed and stable relationship with another man.[4]  Under a collective agreement, El-Al gave a free airplane ticket each year to their employees and his or her spouse.[5]  El-Al also presented the same gift to a companion recognized publically as the employee’s husband or wife.[6]  When Danielowitz requested a free ticket for his male companion, his request was denied.[7]

The majority opinion, written by Aharon Barak and Dalia Dorner, held that El-Al’s refusal to give Danielowitz an additional plane ticket for his same-sex companion constituted discrimination; a distinction between heterosexual and homosexual relationships was held to be unjustified in the context of employee benefits.[8]  The Supreme Court defined discrimination as “different treatment without an objective justification,” and determined that the difference between a social unit – or a “life of sharing” – between people of different sexes as opposed to between people of the same sex amounts to unjustifiable discrimination.[9]  The Supreme Court concluded that the only acceptable remedy in this particular situation was to confer the benefit of an additional airplane ticket on same-sex cohabitants just as El-Al currently did to opposite-sex couples.[10]

In 1999, Israel’s Supreme Court again ruled in favor of a same-sex couple when it recognized one citizen’s lesbian partner as another legal mother of her partner’s biological son.[11]  Only a year later, Israel also began to recognize same-sex relationships for immigration-related purposes for an Israeli resident’s foreign partner.[12]  In addition and during the same year, the Supreme Court expanded the decision in Berner-Kadish by holding that same-sex second-parent adoption was a possibility under Israeli Law.[13]  Thus, leading up to the Supreme Court’s decision ordering the Population Registry’s officials to begin registering same-sex Israeli couples married abroad for statistical purposes, the Israeli Supreme Court seems to have taken many progressive steps toward ensuring that gay and lesbian citizens are granted equal rights under the law in Israel.

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Previous part: The Israeli Legal System Today: Characteristics

Next part: Ben-Ari v. the Department of the Population Administration in the Ministry of the Interior: Same-Sex Marriage in Israel?

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[1] Lee Walzer, Queer in the Land of Sodom, http://www.thegully.com/essays/gaymundo/020220_gay_israel_history.html (published February 21, 2002).

[2] Lawrence v. Texas, 539 U.S. 558 (2003).

[3] El-Al Israel Airlines Ltd., v. Danielowitz, (1994) HCJ 721/94.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Berner-Kadish v. Minister of the Interior, (2000) 1770/99; Deborah Sontag, Matan Has Two Mommies, and Israel Is Talking, http://www.nytimes.com/2000/06/04/world/matan-has-two-mommies-and-israel-is-talking.html (published June 4, 2000).

[12] LGBTQ Timeline, http://bama.ua.edu/~safezone/ (last updated January 1, 2008).

[13] Jaros-Hakak v. Attorney General, (2001) C.A. 10280/01.