Homosexual Rights in Israel: Balancing the Religious and the Secular

By Sam Greenberg, From Volume 2, Issue 2

The laws surrounding homosexuality provide a unique case study for examining how the forces of a liberal democracy and a Jewish nation-state are coming to a head in modern Israel. These competing forces are most evident in the contrast between Tel Aviv, which was recently rated the world’s best gay city,1 and Jerusalem, which has many neighborhoods in which it would be un- wise for two men to kiss in public. While sexual minorities enjoy extensive anti-discrimination protections, same sex marriages cannot be performed in the country and many believe that the prospect of fully legalized gay marriage is not on the horizon. The current state of affairs for gay Is- raelis reveals a lot about how Israel’s legal system functions as well as how the country’s citizens and institutions are forging new paths in order to create a state that is both Jew- ish and democratic.
Israel’s attitudes towards homosexuality have followed a path that may seem unconventional to American observ- ers. While homosexuality is still somewhat stigmatized nd considered strange, Israel never experienced the widespread condemnation of homosexuality that Amer- ica has been seeing in the religious right. Homosexuality was not embraced in Israel, but it was not vilified either.
Furthermore, Israel’s legal system has a unique way of dealing with homosexuality. Israel’s parliament has passed many anti-discrimination laws to help the gay community, but the Israeli religious authorities (includ- ing Jewish, Christian, and Muslim institutions) have made sure that gay marriages cannot be carried out in the country. The basic dividing line when it comes to gay rights in Israel, therefore, is rather simple. For those ar- eas of life that fall under religious jurisdiction, gay and lesbian citizens find themselves at a considerable disadvantage. In all other areas, the secular authorities have granted gay and lesbian citizens a remarkable level of equal protection.

Gay Rights and Protections

Israel is structured as a liberal democracy, albeit with a dis- tinct Jewish flair. The country has a democratically elected parliament – the Knesset – along with a prime minister and a Supreme Court. The executive function is carried out by various ministries, of which there are currently more than two dozen. The ministries, like the Knesset and the judici- ary, operate generally on the basis of Western, secular prin- ciples, and these institutions control most aspects of Israeli society. The main exception to this occurs in the realm of “personal status issues” – which include marriage, divorce, and burial. In this realm, the Israeli government has given the religious leadership of each faith community complete jurisdiction. While government officials are accountable to their citizens in the same way that all democratic officials are, there is no taboo against invoking Jewish values or Jew- ish history in discussing policy, as evidenced by a number of political parties that incorporate religion into their plat- form.2
The Knesset has taken a leading role in advancing gay rights in Israel. It is not surprising that Israel stands out among its Arab neighbors, many of which punish homo- sexuality harshly—Israel even has enclaves of homosexual Palestinians who have decided to relocate to Israel to avoid persecution. Israel’s gay rights record even stands out be- yond the Middle East, as Israel’s protection of gay rights has become comparable to that of Western democra- cies.3 Despite its liberalism on gay rights, Israel only officially de- criminalized homosexual intercourse in 1988. Israel inher- ited part of its legal code from the British Empire, which had banned homosexual conduct. However, shortly after the state’s founding, the attorney general issued orders that no acts of homosexuality were to be prosecuted. Currently, Israel’s anti-discrimination laws focus on outlawing dis- crimination based on sexual orientation in the workplace and public spaces, as well as in receiving public services.4 Hate crime laws in Israel also include LGBT citizens as a protected group.5    Though transgender issues are not of- ficially included in the anti-discrimination bill, the state works to protect transgender citizens, and sex reassignment surgery is partially covered by Israel’s public healthcare sys- tem.6
The military serves as an important part of Israeli so- ciety, as citizens are generally required to serve for a number of years beginning at age 18.7 The military has never barred homosexuals from service, though for about a decade it imposed restrictions on homosexuals being placed in sensitive intelligence units (claiming that they could be targets of blackmail because of their sexuality and therefore a security risk). However, in 1993, it be- came legal for openly gay soldiers to serve in any position in the military.
In addition to the above-mentioned protections as indi- viduals, gay couples are given certain rights under Israeli law. Although gay marriages cannot be performed in Is- rael, homosexual couples now experience increasing rec- ognition and legal privileges by the state. For instance, gay couples who marry abroad are now recognized by the state and thereby are eligible to receive the same privileges as heterosexual married couples, including employment ben- efits, tax breaks, and the right to adopt children.8 Second, even unmarried gay couples are legally entitled to many benefits, as long as they show they are in a committed part- nership.9

Religious Limitations on Gay Rights

Beyond the walls of the Knesset lie other authorities—the Israeli Chief Rabbinate, and its Christian and Muslim coun- terparts. While the Knesset controls all civil matters, Israel delegates control over personal status issues to religious bod- ies.
Like other parts of its legal system, Israel partially in- herited its marriage laws from the British and Ottoman Empires. In the Ottoman Empire, religious authorities were put in place to help administer the needs of their followers. The system remained in place, and today each religious authority in Israel oversees issues including mar- riage, conversion, and burial. Jews turn to the rabbini- cal authorities for marriage, Muslims turn to the Muslim authorities, and members of the nine recognized Chris-
tian sects turn to their respective leaders for such mat- ters. Additionally, there exists no option for secular civil marriage—marriages in Israel can be conducted only by religious authorities, none of whom authorize same sex marriages at present.
Gay and lesbian couples are not the first to try to find ways around these religious institutions. Many secular Israelis who prefer not to have a religious wedding travel to Cyprus or other countries to have secular wedding ceremonies and Israel recognizes their marriages for all legal purposes upon their return.10 A similar strategy is used by gay couples, many of whom choose to marry in Canada and receive le- gal recognition of their marriage when they come back to Israel.
Israeli couples can also opt to receive unregistered co- habitation status, which functions much like a common- law marriage.11 Under this setup, both straight and gay couples who prove that they live together can re- ceive most of the benefits accorded to married couples, though some details vary on a case-by-case basis.12
While Israeli citizens are relatively supportive of gay marriage, gay Israelis are not likely to see the official legalization of gay marriage in the near future because of the power of the religious authorities. Various polls show that between 51% and 61% of Israelis support gay marriage compared to slightly less than half of Americans who do.13 Sociological and religious factors may explain why Israel, despite its Jewish character, is relatively open to gay couples. Some Jews believe that Judaism allows room for same sex couples, while more observant Jews tend to think their religion bans homo-sexual acts and unions. Nonetheless, few people in Is- rael view homosexuality in an extremely hateful man- ner. Even those Israelis who oppose gay marriage do not condemn it with vigor.
The debate over gay marriage, more than any other issue of gay rights, shows the ways in which Israel is struggling to understand what it means to be a modern democratic state based on Jewish values. Interestingly enough, this is not simply a debate of civil liberties versus religion. For some, supporting gay marriage is actually an extension of Jewish values, since it encourages gay and lesbian Israe- lis to follow in the traditional institutions of marriage and family.14
Israel’s gay community has grown and become more organ- ized in recent years and as it continues to demand full rights, Israel will be forced to continue to grapple with how its gay citizens fit into the country’s legal system.

 

1. The 2011 survey conducted by GayCities.com and American Air- lines rated Tel Aviv as the world’s top gay city. 2. Most prominently, these include the Shas party and the United Torah Judaism party.
3. For a full discussion of gay rights in Israel and their history, see Lee Walzer, Between Sodom and Eden. Columbia University Press 2000. 4. Equal Opportunities in Employment Bill, 1988.
5. Hate Crime Law (amended 2004). 6. Kaplan H., et al. “Sex Reassignment Surgery” Harefuah, July 2004. 7. Certain exemptions do exist, most notably for the ultra-orthodox and the Arab populations. In addition, anyone can opt to do national service and spend their years doing volunteer work instead of mili- tary service. 8. This has been established by certain decisions within the Israeli State Attorney’s Office, and well as by the court ruling in Jaros- Hakak v. Attorney General. 9. See details about unregistered cohabitation, below. 10. Funk-Schlesinger v. Minister of Interior. 11. There is no one law defining this status, but a range of laws across various ministries provide couples that prove that they live together most of the benefits that are accorded to married couples. 12. Danilovitz v. El Al Israel Airlines, Ltd. 1994 and Berner-Kadish v. Ministry of Interior 2000. 13. Haaretz-Dialog poll, August 8, 2009. 14. For a detailed discussion of the competing Jewish views on ho- mosexuality, see Rabbi Steve Greenberg’s Wrestling with God and Men or Jay Michaleson’s God vs. Gay? The religious case for Equal- ity. 15. Wanderlasss. “Gay Pride Parade.” Tel-Aviv, Israel. June 10, 2011. Flickr Creative Commons. http://www.flickr.com/photos/mycoffee- mug/5835384787/

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