The Right to Family and Marriage in Israel

In Israel's Bill of Constitutional Rights, the derived right to family is given primary status. It is noted that that the right to family is "one of the foundations of human existence. It is difficult to conceptualize any other human right that compares in importance and might...among all human rights, the right of a person to family stands at the highest ranking. It comes before property rights, freedom of occupation, and even personal privacy. Similarly, it is noted that the right to family has "second-to-none legal status," that "nothing is more central." Within the framework of human dignity, the right to family is determined as "at the heart of the right to human dignity," and it is "at its core."

The family unit is created via a relationship of couplehood. Human dignity informs us that it is a recognized right of any person to enter into such a relationship if he/she so desires.

Any law that obligates a person to enter into couplehood against their will undermines the constitutional right to human dignity. Similarly, any law that prevents a person from entering into a relationship with whomever they desire also violates the constitutional right of human dignity. For example, a law that prevents two members of the same gender from entering a relationship of couplehood is a violation of the human dignity of each partner.

Marriage

In a place where marriage is the main route to establish a family unit, Human Dignity requires that this route be made accessible to every individual according to their own choice. This is the constitutional right of the individual regarding marriage. As a result, the recognition of the derived right to marry is given to every person. Every person has "acquired the right to marriage" and from the right to human dignity, we derive that "a person's right to family life…and in it [is embodied] a person's basic right to marry their chosen spouse according to their desire and views." "It is necessary to view the right to have a family and marry as a constitutional right fully protected by the Basic Law." "The society sees freedom of marriage as one of the most important and central freedoms in a person's life and their self-definition;" "The right to family life includes the right to marry." Therefore, any limitation on the capacity to marry is a violation of the constitutional right to marriage.  

Marriage laws in Israel are primarily determined by religious laws and are adjudicated before religious courts. These religious laws place different limitations on the ability of a person to marry. Anyone who is unable to marry according to religious law, and anyone who does not want to marry according to religious law for their own reasons, cannot marry in Israel. Civil marriage is not recognized in Israel. This state of affairs violates the constitutional right to marry. The Universal Declaration of Human Rights states that:

"Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family".

The present law does not only violate the constitutional derived right to marriage, but it also often violates the derived right to freedom of conscience and freedom from religion. Different aspects of the existing law also violate the derived right to equality.

Professor Aharon Barak teaches law at the Interdisciplinary Center in Herzliya, the Hebrew University of Jerusalem, the Yale Law School, Georgetown University Law Center, and the University of Toronto Faculty of Law. Barak was President of the Supreme Court of Israel from 1995 to 2006. Prior to that, he served as a Justice on the Supreme Court of Israel (1978–95), as the Attorney General of Israel (1975–78), and as the Dean of the Law Faculty of the Hebrew University of Jerusalem (1974–75).