ON THE FIRST DAY that New York State allowed same-sex couples to marry, I headed to the main office of the New York City clerk in lower Manhattan. I wasn’t about to exercise my own freedom to marry. Rather, I was there to watch couples march down the aisle set up by the NYPD to facilitate their equality—and to walk the recessional having achieved it.
As in the United States, where ten states and the District of Columbia have marriage equality, Israel has marriage equality of an indeterminate nature, but in a different way. Same-sex couples in Israel cannot get married on Israeli soil. But if they travel abroad to marry in jurisdictions that allow them to, the Israeli government will then register their marriages in Israel.
The Israeli system is the epitome of combina, the colloquial term in Hebrew for contriving a bypass around a blocked highway to reach one’s objective. Many opposite-sex couples in Israel engage in the same combina to be considered married in Israel.
Why? Israeli law puts control of marriage in the hands of religion. For couples who are Jewish—most Israeli couples, of course—Israeli law puts control of marriage in the exclusive hands of the Orthodox, who, in turn, perform Orthodox Jewish ceremonies. Secular couples seeking an alternative, or couples unqualified to marry under Jewish law, cannot go to civil officials, for they have no legal power to marry couples in Israel. Instead, such opposite-sex couples go abroad to marry, commonly to Cyprus, and are declared married back home.
This arrangement harks back to a Supreme Court ruling in 1963 that obliged the state to register out-of-country marriages. Years later, five Israeli same-sex couples traveled to Toronto to marry under Canadian law and then sued the state of Israel to register their marriages at home. In 2006, the Israeli Supreme Court decided in their favor.
So, mazal tov, right? Well, yes. While the required detour is expensive and irksome, the new arrangement, dubbed a “Toronto marriage,” has quickly taken root. Many gay couples travel abroad to marry by law. In Israel they celebrate with family and friends and file their foreign marriage certificate with the interior ministry.
The Israeli state-church mishmash long predates this recent adaptation. Judaism has never been officially established in the Jewish state, but nor has it been separated from the state. Rather than deciding the question, the state has worked around it, and the Israeli marriage institution is a typical consequence of this lingering indecisiveness. This political constipation is not indicative of the religiosity of Israeli society or the power of the rabbinate. With the important exception of the Orthodox and the Arab minorities, Israeli society is by-and-large secular or traditionally Jewish. The rabbinate is irritating, inefficient, and perhaps an embarrassment, but its political influence is limited.
However, despite the rabbinate’s weakness—or perhaps because of it—the institutional framework that controls things like marriage law remains largely intact. But the state has contrived ways around it. In reaction to the rabbinate’s monopoly on personal affairs, the state has gradually devalued full marriage by providing for various marriage substitutes. In particular, domestic partnership, which is really de facto marriage, entitles a couple to most of the rights and benefits of marriage. Israel has no equivalent of the American Defense of Marriage Act (DOMA), which disallows federal tax (and other) benefits. Indeed, Israeli same-sex couples could claim tax breaks even before the court ordered that they be allowed to register as married.
But the 2006 ruling scarcely clarified the situation. To confuse things further, the court emphasized that the question before it was “registration and not recognition—of same-sex marriages conducted outside Israel.” But it was a distinction without a difference, as now couples married outside of Israel could register as “married.” In the 2006 decision, Chief Justice Dorit Beinisch acknowledged: “The approach of our ruling has established a framework which leaves the most intricate legal questions undecided, and the social and moral questions for the Knesset.”
Still, the court decision could and did serve as leverage for further gains. In December 2012, a local court ordered that a gay couple married in Canada and registered in Israel be allowed to divorce in Israel. The court reasoned that Canada is not set up to divorce non-Canadians. Of course, the rabbinate wouldn’t do it either. One can almost hear the judge’s sigh when he agreed to grant the divorce.
To be sure, GLBT people in Israel have had an odd trajectory. When it became a state in 1948, Israel had inherited British Palestine’s penal code, which included an anti-sodomy law. Although Israel did not strike down the sodomy law until 1988, the law hadn’t been applied at least as far back as 1953, when Israel’s Attorney General considered the law obsolete and instructed law enforcement authorities to ignore it. His successors did the same. An uneasy equilibrium took effect. The authorities would try not to pay attention to gay people, and gay people wouldn’t draw too much attention to themselves. It was an early version of “Don’t ask, don’t tell.”
As in the U.S., the policy had a bumpy ride in Israel. Academics Yuval Yonay and Dori Spivak (the latter is Israel’s first openly gay judge), surveying the decisions of the Israeli Supreme Court over the years, discovered that the country’s anti-sodomy law was still occasionally cited by the court in cases of sexual assault. Moreover, the police sometimes harassed gay people—not as a policy, but simply because they could. Gays, for their part, knew better than to expect authorities to care for their safety. It was only in the 1970s, following Stonewall and the rise of the American gay liberation movement, that a systematic Israeli GLBT rights movement began. The first Israel organization was founded in 1975 and focused more on empowering gay people and helping victims of homophobia than on changing the law. Meanwhile, the visibility of the GLBT community was rising in Tel Aviv, which was already home to a thriving gay nightlife.
When the anti-sodomy law was repealed in 1988, it was largely anticlimactic. It was in that year that the Knesset, Israel’s Parliament, finally set about to overhaul the country’s entire penal code. A handful of progressive members adopted the strategy of thoughtful silence: They simply and carefully kept the sodomy law, hitherto part of the penal code, off the agenda. The Knesset adopted the new penal code with no mention of homosexuality, which no longer was illegal.
Since the repeal, Israel has adopted generally progressive measures on GLBT rights. In 1992, the Knesset amended its ban on anti-discrimination at work to include sexual orientation. A series of legal cases expanded GLBT rights in economic and personal affairs, such as inheritance and adoption. Israel was one of the first countries to allow openly gay men and women to serve in the military, a policy shift that came about in 1993, and the army has been a symbol of the integration of GLBT Israelis into mainstream society. Israel’s experience with gay integration in the military was even held up as a positive example during the debate over repealing “Don’t ask, don’t tell” in the U.S.
The army can also serve as a prism for understanding the dynamics of change in the highly informal Israeli society. Danny Kaplan, a sociologist at Bar Ilan University and the author of Brothers and Others in Arms, referred to this situation in a phone interview: “It’s the cultural climate [that accounted for GLBT integration in the army]; policy is but a very minor part of this. The order was not promulgated, commanders on the ground did not know about it”—not because of the content of the order, but because even the Israeli army is not a very hierarchical organization.
The discussion of GLBT issues in Israel has been confounded by the meta-discussion of “pinkwashing,” the charge that the Israeli government manages or even manipulates its approach to gay rights in order to paper over or “pinkwash” its treatment of the Palestinians. I find this claim unpersuasive. If the Israeli government has a general approach on gay issues, it is not pinkwashing but a lack of seriousness in the implementation of pro-gay policies.
This lack of seriousness is tolerated because private or familial means of solving problems tend to trump public commitment and policy. A case in point is the shooting in 2009 in the Aguda, Israel’s GLBT Association, when two members were murdered and fifteen injured by a gunmen who opened fire during a youth group meeting. The event failed to mobilize the government to re-examine its policies and introduce measures for the welfare and security of sexual minorities. This neglect is especially troubling because in 2005 three participants had been stabbed at a pride parade in Jerusalem.
Prime Minster Binyamin Netanyahu rightly takes pride in the democratic culture of Israel, of which the burgeoning gay life is a fine example. “In a region where women are stoned, gays are persecuted,” he told the U.S. Congress in 2011, “Israel stands out.” But Netanyahu would not speak in Hebrew this way in the Knesset. Does this suggest that he is “pinkwashing” Israel for an international audience? If so, talk is cheap, and I doubt that such statements convey any more meaning or commitment than countless statements he made on that occasion. Rather than criticize the prime minister or other politicians for statements such as these, we should encourage and applaud them—and then hold our leaders accountable to make good on their words.
Yoav Sivan is an Israeli journalist based in New York City.
