This week, the Israeli daily, Haaretz reported:
In a precedent-setting ruling, the High Court of Justice yesterday ruled that five gay couples who wed outside of Israel can be registered as married couples in the Population Registry.
A majority of six justices to one ruled that the Interior Ministry would have to register five gay couples as married based on the civil ceremonies performed in Toronto, Canada. However, the former High Court president, Justice Aharon Barak, said the ruling does not mean the state is recognizing the validity of such marriages, and that listing the couples as married in the Population Registry was a "technical procedure" for "statistical" purposes only…However, Barak conceded "the court should not rule on the question of whether same-sex couples can have civil marriage in Israel itself. I accept that the question of civil marriage in Israel, including same-sex marriages, should be determined first and foremost by the legislature. This is not the que! stion before us."…
Justice Elyakim Rubinstein wrote the sole dissenting opinion. "This is not a statistical registry but a public-social symbol, and that is the real goal of the petitioners. The issue of same-sex couples is relatively new in public discourse and is unfamiliar in most countries in the world, and by its nature it raises difficulties because of the attitude of some parts of the population to it. It is in the realm of the legislature and not in creative interpretation by the court."
Rubinstein wrote that ordinary people do not differentiate between the registration of a marriage and the recognition of its status. He also noted that only six out of 190 countries recognized same-sex marriage, and warned of a public loss of confidence in the court following the ruling.
Nothing better illustrates the peculiar nature of the State of Israel than this ruling coming a week after ultra-Orthodox Jews, combining with Muslims and Christians, succeeded in curtailing a Gay Parade in Jerusalem. Here you have the ‘perfect clash’ between libertarian, democratic values that respect individual choices as represented by the totally secular Supreme Court, and, on the other hand, religious values based on an authority perceived to be beyond the human realm and therefore unchangeable and, indeed, unimpeachable.
The fact is that in general religion often needs to be challenged precisely because it is so bad at dealing with exceptions and a secular court based on Human Rights is one way of doing this. What’s more the political nature of Israeli life is built on a deal whereby religion imposes itself in certain areas and has a monopoly on matters of status and rites of passage. I believe that there ought to be civil! marriage in Israel and that rites of passage should be as free and open as they are in the Diaspora. On the other hand the secular world needs to accommodate to the Jewishness of the majority of its citizens.
Although, when push cones to shove, my loyalty is with the religious camp, I actually belong in both. I would like to see people choose a religious way of life, democratically, freely and without pressure; in such a society religious values would hold sway. But, at the same time, I believe that for those who have not chosen a religious lifestyle or belief system, religion has no right to impose it.
But Israel is an anomaly. Its secular values are not only alien to Judaism but place it in the top 6 of all libertarian, free societies in the world today. From a purely secular point of view, one should derive pride from our having a Jewish State that is in the vanguard of freedom. Nothing validates the aims of secular Zionism as much as allowing maximum freedom to individuals to live as they please.
Israel was not established as a Jewish state. Its declaration of Independence is not a religious or even specifically Jewish document. It has always been rather a state for Jews. My delight in its freedom is only tempered by the fact that such freedoms seem to be reserved primarily for its Jewish inhabitants. The honest, consistent approach would be to extend this freedom and equality to all its citizens, regardless of religion or sex or identity card. So there is an inconsistency in Israel’s moral position secularly. It is true that the constant state of war and the declared aim of dismantling a Jewish state go some way in mitigation. But if purely secular libertarian values are at the root of this decision of the Supreme Court, then secular Israeli society needs to be consistent and it isn’t.
On the other hand, many in the religious camp argue that there are endless other countries to go and act in any way a person wants to in private matters. Surely establishing a Jewish state was what true Love of Zion was all about; one in which Jewish values as opposed to Christian, Muslim or secular ones would play a determining role in the type of society to be established. It is this issue that the religious hotheads take advantage of to stage their violent protests. It is true all major rabbis have protested against and discouraged violence. But it is also true that they totally sympathize with the aims of the protestors, if not their methods.
It is important and necessary for a society to have different streams and attitudes, political and religious. The Rabbinate and the Supreme Court represent different poles, each one containing significant numbers of supporters and strong arguments. This sort of check-and-balance system, that one sees at work in the United States too. A swing in one direction usually leads to a swing back in the other.
But such a system can only work well where both sides are sensitive to each other ( and I know full well this is a pipe dream and I can’t think of anywhere where it really works that way). If an ultra-Orthodox Jew tries to ensure his area is traffic-free on Shabbat, that strikes me as perfectly legitimate. If he tries to stop people driving in secular areas, it is not. Similarly, people have the right to practice whatever form of sex they prefer. But if they try to push their sexuality, whether it is hetero or homo, in the face of people who have other values, that strikes me as provocation and insensitivity. It is legitimate to parade one's different sexuality or nudity in Tel Aviv, just as it is legitimate to block off Shabbat traffic in Meah Shearim. But for either to invade the other’s space is, to my mind, dangerous and threatens a break in society that will impoverish both sides. If I am expected to accept Supreme Co! urt decisions I think I can also expect them to take cognizance of the Jewish religious position too; cognizance ‘though not necessarily total or constant deference.
I am happy that the Supreme Court allowed civil, gay, marriages rights in a democratic society. I am sad they could not show understanding of those who saw a gay Parade in Jerusalem as an unnecessary provocation. I like the nuances and varieties in Israeli life but, sadly, the overall tense situation makes for a society of fanatics, provocateurs and even, on rare occasions, murderers, rather than responsible citizens.
Visit Rabbi Jeremy Rosen on the web: www.JeremyRosen.com