This overview and commentary provides some background and interpretive information to help contextualize for American readers the Israeli Supreme Court's recent ruling in El-Al v. Danilowitz. To do so, I shall divide this discussion into three parts. First, I shall sketch the historical background regarding the protection of rights in Israel under a legal system that does not have a written constitution. Second, I shall outline a brief history specifically of the legal treatment of lesbian and gay people in Israel in recent times. Third, I shall explore the importance of the case for the ongoing protection of lesbian and gay rights in Israel. In this way, I hope to provide to the American reader a sense of the importance of this case for the present and future legal protection of sexual minority persons, groups, and interests in Israel.
I. The Protection of Rights in Israeli Law: General Historical Background2
The Israeli legal system has gone through a major transformation in recent years. This transformation consists both of changes in the judicial mentality regarding traditional norms of statutory construction and radical statutory changes.
Israeli judges have become much more activist in recent years. They are much more willing to interject moral values into legal reasoning: under the influence of Justice Barak, the author of the lead opinion in this case, judicial rulings rely heavily on abstract values such as equality or justice and often avoid detailed, meticulous analyses of statutes or precedents -- a form of analysis that characterized the more traditional justices of the Israeli Supreme Court during the 1950's and 1960's.
At the same time, Israeli law has also undergone major constitutional changes in recent years. The most important was a serious and ongoing attempt, beginning in 1992, to establish incrementally a bill of rights by legislating a series of "basic laws" that would enjoy priority over ordinary statutes legislated by the Parliament. This effort was especially significant because it effectively altered key historic premises underlying the relationship between the legislature and the courts. Traditionally, the Israeli legal system was based on the British principle of the sovereignty of Parliament. Hence, Israeli judges, like British judges, possessed no power to invalidate ordinary legislative statutes; the protection of rights was effected either by interpreting such statutes consistently with human rights, whenever feasible, or by invalidating rules and regulations issued by the executive, administrative agencies, or local municipalities. But, under this arrangement based on the British judicial model, courts did not possess the power to invalidate ordinary legislative statutes even when they explicitly violated human rights.
This basic legal premise is now gradually changing by the slow but continuing enactment of basic laws. The most dramatic move away from a British model and towards an American model of judicial review was achieved in 1992 with the legislation of Basic Law: Human Dignity and Freedom. This basic law, with some important qualifications, now enjoys constitutional priority over regular legislation of the Parliament. It therefore grants tribunals opportunities to invalidate ordinary legislative statutes that conflict with this basic law.
Given the vague nature of some of its sections, this law grants judges enormous powers to scrutinize legislation. The elastic concept of "dignity" in this basic law, Justice Barak has pointed out, provides a basis for wideranging judicial discretion to override ordinary legislation that a court determines infringes on fundamental human rights. As such, this basic law both comports with the Supreme Court's "activist" use of judicial power in recent years generally, and in this case specifically. At the same time, this basic law complicates perceptions of activist judicial activity, which already is decried by some (not necessarily conservative) segments of Israeli society. This basic law therefore exemplifies the contemporary trends and forces that make the El-Al ruling so timely yet so controversial.
II. The Legal Treatment of Gays in Israel: A Brief Overview
While this general transformation was taking place, and perhaps related to it, the legal ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 302---------------------------------
treatment of gays also has changed dramatically in recent years.
Historically, the Israeli criminal code criminalized homosexual inter course between males and numerous other consensual sexual activities. In 1953 and later in 1972, however, the attorney generals of Israel issued instructions not to prosecute for the commission of offenses under this section -- instructions that in fact were followed by the police. Ironically, even though these instructions were relatively liberal and may have been issued for this reason, in retrospect they also may have served to alleviate the build-up of political pressures to change the law in order to eliminate the offense altogether. Thus, several attempts to eliminate the section prohibiting homosexual intercourse altogether, or at least to reduce its punitive sanctions, failed under the strong pressure of the religious parties. It was finally eliminated, but only in 1988.
In a major reform of the sections dealing with sexual crimes, the section specifically prohibiting (male) homosexuality was eliminated, but with no explicit reference to its elimination being made during the Parliamentary proceedings. The elimination of this section was deliberately effected discreetly, and with very little attention drawn to it by the press. This quiet tactic facilitated the elimination of the offense by avoiding the active and focused resistance of the religious parties, which can be quite influential in Israeli politics.
Four years later, in 1992, the Equal Employment Opportunity Act ("Act") also was revised. Under this revised statute, discrimination in employment relations on the basis of sexual orientation and marital status was explicitly prohibited. Shortly afterward, political activism by the gay movement in Israel forced the military to change its treatment of homosexuals to comply with this revised law. Thus, in the summer of 1993 the Israeli Defense Force regulations were changed and discrimination based exclusively on the sexual orientation of the soldier was prohibited. Accordingly, sexual orientation no longer may be used to exclude soldiers from access to special information, or from jobs that require access to such information. Currently, new bills are under discussion in the Parliament that would expand the legal rights of same-sex partners of gay men and lesbians. Therefore, administrative and legislative reform on the whole has been favorable to sexual minority rights in Israel-- as the judicial activism of this decision illustrates.
In closing this brief overview, it bears emphasis that these legal reforms were the direct results of political and social changes in recent years. During the past several years, gay men and lesbians generally have secured greater acceptance and visibility in the media, as well as a more diverse and active social life and a more organized and energetic political movement. As a result, gay men and lesbians in Israel have begun to manifest a vibrant and vocal sexual minority culture. No doubt, the impact of these cultural and societal developments will continue to be felt politically and legally.
III. The Case and its Implicaction: A Commentary
The petitioner, Jonathan Danilowitz was a steward in the national air lines, El-Al, which has a policy of granting free tickets to the cross-sex partners of its employees. However, El-Al refused to grant the same benefit to Danilowitz' same-sex partner -- a partner with whom Danilowitz has shared his life since 1979. When Danilowitz challenged this refusal, the lower courts ruled in his favor on the basis of the Act. This ruling was affirmed by the Supreme Court in the opinions discussed here.
The Supreme Court decision is composed of three opinions. The opinion of the Court was authored by Justice Barak (a very influential activist Justice) and was accompanied by a concurrence from Justice Dorner and a dissent by Justice Kedmi (a traditionalist Justice). Faithful to its recent activist, values-oriented orientation, the Court in this case did not rely only on a strict interpretation of the Act. Instead, it also relied on broader values and principles, which are articulated explicitly in the decision. This values-oriented approach was not due to a lack of textual support for the outcome within the statute itself. On the contrary, a straightforward and traditional "black letter" reading of the Act would naturally (although not inevitably) lead to the same outcome because the statute expressly includes "sexual orientation" in its anti-discrimination provisions.
In reading the opinion of Justice Barak, it is remarkable how one barely notices that the decision is about a gay discrimination case. This lead opinion instead focuses on and
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emphasizes the principle of "equality" in general terms and as embodied in the legal system. Justice Barak describes equality as a fundamental value that may be overridden by competing values, but he concludes that the reasons advanced by El-Al are insufficient to override the equality principle in this instance. Consequently, two authoritative legal pillars justified the Court's judgment under Justice Barak's opinion: the fundamental principle of equality generally embodied in Israeli law, and the express provisions of the Act that are addressed specifically to sexual orientation discrimination in employment. Interestingly, it is unclear from this opinion whether in Justice Barak's view the principle of equality in itself would have been sufficient to justify this outcome.
Justice Dorner's concurrence may seem at first sight the most progressive of the three opinions. First, unlike Justice Barak, Justice Dorner relied heavily on the historic and contemporary discrimination towards homosexuals and lesbians in Israeli society. Her opinion therefore is more grounded in the specific context of the case than the analysis articulated by Justice Barak. In particular, this opinion's rhetoric is very sympathetic toward gays and lesbians, and the Justice describes sympathetically the liberalization of legislation in various Western countries. More important from a practical perspective is the fact that Justice Dorner explicitly concludes that the express sexual orientation provisions of the Act were unnecessary to establish and protect the right to equality in this type of scenario. Instead, she reasoned that the Act reflected the principle of equality in employment which preceded the statute.
Despite this opinion's progressive tone, it is important to mention one important qualification: Justice Dorner's ruling emphasizes that the legal rights of gay men and lesbians should be acknowledged because of the more tolerant societal attitudes towards them. It therefore follows from reasoning that rights need not be recognized unless the society develops tolerant attitudes towards a discriminated group. Under this position, courts generally should follow social norms rather than initiate changes in these norms, which on the whole weakens the legitimacy of judicial activism. In this respect, this concurrence therefore is less promising than that of Justice Barak, who believes that the Israeli legal system endorses a principle of equality that is overarching and independent of prevailing cultural norms and attitudes.
Finally, Justice Kedmi's dissent relies principally on what he believes the term "couple" ("zug") means, and especially what it meant biblically. To develop this position, Justice Kedmi employs a variety of biblical sources to establish the point that the term "zug" does not apply to family units composed of two men or two women. Given the emphasis of this dissent, it is important to mention to the American reader that, irrespective of whether this interpretation of the biblical sources is correct, in modern Hebrew the term "zug" generally does apply to same-sex couples This interpretive note is particularly important because traditional Israeli legal canons of statutory construction rely more on current usage than on biblical usages of terms employed in the law.
What are the prospects for the future given the current legal situation and this recent ground-breaking decision? The prospects are mixed, both judicially and legislatively. This mix results from the combination of several factors: the way in which this decision was framed, the reactions that it has sparked, the ongoing activities of some Israeli legislators, and the growing strength of Israel's lesbian and gay community. Thus, one way or the other, the next few years are likely to be critical.
Despite the fact that the high Court's decision in this case could have rested on the relative narrow and conventional grounds of the Act's text, both Justice Barak and Justice Dorner relied significantly on principles of equality embodied in the Israeli legal system as a whole. This decisional emphasis, characteristic of the Supreme Court in recent years, in turn may prepare or signal the grounds for bold steps in areas beyond employment, which are not covered expressly by the Act. For instance, one tool that the courts may use to take bold steps beyond employment settings covered by the Act is the private law doctrine of "good faith," which requires parties to a contract to negotiate and perform its provisions literally in good faith. Thus, in the coming years we may witness the courts taking the lead in reforming
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this area of law and life in Israeli society.
On the other hand, this ruling has triggered public criticism of judicial activism generally; ironically, a decision plainly required by a "black letter" reading of the relevant statute was the judicial action that has generated the current backlash against the activism of the Court. Because of these public pressures, activist Israeli judges may decide to be more selective in the scope of civil rights subjects they pursue in the near-term future. And, of course, it is unclear whether courts will choose gay and lesbian subjects as a major subject matter of continuing activism. Ultimately, their choice may depend upon a well-organized gay and lesbian community capable of bringing strong test cases for adjudication On balance, judicial prospects in this area therefore are tentative.
Recent legislative developments perhaps raise promising hopes for the future. Most importantly, a very active member of the Parliament, Yael Dayan, recently established a Parliamentary committee on gay and lesbian issues that has recommended, and may lead to, the enactment of legislative reforms. As a result of these recommendations, several new bills are now being prepared for introduction in the Parliament including equalizing pension rights for same sex partners. However, these new bills are not going to pass without resistance: the issue of gay and lesbian rights has become politicized, and it is generally expected that attempts to broaden equality to new areas of civic life for sexual minorities will be resisted by the religious parties and the conservative elements in Israeli society. Therefore, legislative prospects in this area also are presently tentative.
In any event, this Supreme Court ruling represents an enormous stride forward in the consolidation of lesbian and gay rights in Israel. It also represents a significant advance in the development of equality as a guiding principle of Israeli law and society. Thus, both as legal precedent and as a measure of progressive cultural attitudes, this ruling will help to empower the growing political strength and sophistication of Israeli sexual minorities. One can expect (and hope) therefore that this brief overview will be outdated in the very near future.
1.David Ben Gurion Scholar in Residence, University of Southern California Law Center,
1994-95; Lecturer, Faculty of Law, Hebrew University. Thanks to Frank Valdes and Arthur
Leonard for helpful comments and to Alex Stein for translating the opinions discussed here.
2. For two recent detailed surveys of the protection of rights under the Israeli legal system,
see Zeev Segal, A Constitution Without a Constitution: The Israeli Experience and the
American Impact, 21 Cap. U. L. Rev. 1 (1992); Stephen Goldstein, Protection of Human
Rights By Judges: The Israeli Experience 38 St. Louis U. L. J. 605 (1994).
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