Ben-Ari v. Director of Population Administration, Israeli Supreme Court Sitting as the High Court of Justice (21 November 2006)
The petitioners brought a civil challenge to the Director of Population. Three justices heard the original oral arguments, but the panel was then expanded to seven.
Five same-sex couples who were legally married in Canada returned to Israel where they applied to have their marriages registered by the population registrar. The registrar refused to grant the application. Israel did not perform legally recognised same-sex marriages.
Whether the registrar of the Director of Population had to register as married any couple (regardless of sex, gender, or sexual orientation) that presented valid documentation.
Population Registry Law, 5725-1965, Article 2.
Funk-Schlesinger v. Minister of Interior, Israeli Supreme Court, 1963 (holding that a registration official was only a statistician and had no authority to make decisions regarding who was eligible to marry).
Reasoning of the Court
The couples argued that, based on Funk-Schlesinger v. Minister of Interior, the registration official’s only duty was to act as a statistician; he or she was not authorised to deny recognition of an authenticated marriage certificate unless its authenticity was doubtful. Furthermore, because the judiciary had never decided on the issue of same-sex marriages performed in Canada, the registrar had no legal basis for refusing the registration.
The Government argued that there was no basis for registering same-sex marriages performed in foreign jurisdictions. It argued on three grounds. First, Israel ought only to recognise those foreign marriages that broadly respected the same legal framework as Israeli marriages and, because Israel did not perform same-sex marriages, same-sex marriages performed abroad should not be recognised. Second, most countries did not perform or recognise same-sex marriage. Therefore, there was no comparative law justification for recognising the marriages in Israel. Third, because registration of same-sex marriages was an issue for the legislature, the Court should not decide the case.
Basing its opinion heavily on Funk-Schlesinger, the Court found that the registrar had only to perform the duty of statistician. The registrar had no authority to reject an authentic application, unless there was an obvious error in the facts presented. For example, a registrar had the authority to deny registration of an adult man who identified as a five-year-old boy. The Court noted that legal incorrectness is not to be treated as a form of factual incorrectness; accordingly, it rejected the respondents’ argument that the applicants’ sex represented a factual mistake stemming from Israel’s non-recognition of same-sex marriage. This was rather a situation of legal incorrectness, the Court concluded, that the legislature must address.
In refusing to register same-sex marriages performed legally in Canada, the registrar had exceeded his authority. The marriages should have been registered in Israel.
The Court stressed repeatedly that its decision addressed only the extent of the registrar’s powers. While its opinion affected the registration of same-sex marriages performed abroad, it had absolutely no bearing on the recognition of same-sex marriage in Israel. The Court stated: “[W]e are not deciding that marriage between persons of the same sex is recognised in Israel; we are not recognising a new status of such marriages; we are not adopting any position with regard to recognition in Israel of marriages between persons of the same sex that take place outside of Israel … The answer to these questions, to which we are giving no answer today, is difficult and complex.”
Ben-Ari v. Director of Population Administration, Israeli Supreme Court Sitting as the High Court of Justice (full text of judgment, PDF)