The High Court of Justice on Tuesday rejected a request by the Attorney-General’s Office to postpone recognition of civil marriages of Israelis performed in Utah by video where those marriages implicate specific controversies.
Justice Daphne Barak-Erez did not issue a final decision on the issue, an issue that will continue to be debated before the court, but her ruling paved the way for continuing to register such marriages despite the ongoing appeal proceedings.
Barak-Erez’s rejection of freezing the process came after the state appealed a July ruling by the Lod District Court recognizing the marriages in question.
Cumulatively, these two court decisions could have wide-ranging implications, including opening an additional loophole for LGBTQ+ marriages and other legally disputed situations.
The fact that these marriages can be registered at present could also be crucial as the incoming government could pass new laws or policies to block the process that the previous government was overall in favor of.
Israel has previously recognized LGBTQ+ marriage in various contexts and extended adoption rights to LGBTQ+ couples, especially when such marriages were performed and recognized in the US.
What is unique in this case is that such couples might be able to gain recognition without having to get a visa to fly to the US and cope with having to perform the marriage there physically.
The loophole would also apply to marriages between two persons of different religions and other gray areas where Israel puts up obstacles because the Jewish state does not have civil marriage and generally empowers Jewish, Christian and Muslim clergy to decide who can and cannot marry.
This was the case of the couple that appealed to the Lod court, with one person being Jewish and one defined as not having a religion – meaning not recognized as Jewish and potentially having issues getting an approved marriage before the Israeli rabbinate.
While in the past, couples in these situations flew overseas to perform their marriages, this often became impossible during the coronavirus era.
At one point in December 2020, the Interior Ministry allowed around 500 marriages by video through Utah’s new mechanism.
However, the couple before the court in this case, though their wedding took place in October 2020, did not get an approval under the wire before the ministry froze recognition of those marriages.
Why couldn't the court refuse the registration?
THE COURT said that both because the ministry had already recognized Utah civil marriages by video for some and because it did not have discretion to turn down registering persons who had official valid documentation from foreign countries, the ministry could not refuse the registration.
At the same time, the court said it made no substantive judgment about the validity of civil marriage in Israel itself or about the marriage of the couple if they had tried to get married in Israel.
In June 2021, the Population and Immigration Authority of the Interior Ministry formally informed the Lod District Court that it would not register civil marriages performed in an online ceremony in Utah for Israeli couples.
The authority appended the couple in question to the letter as part of its response to the court in which it said that the couple had not had a representative in Utah when the wedding was performed.
It also said that “the majority of the components of the wedding... relate to actions conducted in Israel,” and that “most of the affiliations of this marriage ceremony are not to the state where the certificate was issued.”
The authority said the wedding was essentially performed in Israel and that since there is no provision for civil marriage in Israel, the marriage could not be registered in the Population and Immigration Authority.
In response to the submission, attorney Vlad Finkelshtein rejected the claim that the wedding was performed in Israel.
When speaking to The Jerusalem Post this past summer, Finkelshtein said that every aspect of the wedding was performed in Utah, the office of the marriage registrar was in Utah, and that the computer and the IP address from which the ceremony was broadcast were in Utah.
He also noted that the issue raised by the Population and Immigration Authority – that the petitioning couple did not have a representative in Utah at the time of the wedding – was relevant to cases of marriage by proxy, in which couples give others power of attorney to marry abroad in their name, which he said was not substantively different from online marriages.
Finkelshtein further pointed out to the court that a couple that married through Utah’s marriage service successfully registered their marriage in the Kfar Saba branch of the Population and Immigration Authority.
He also noted that the authority had failed to contact the relevant officials in Utah to ask them about the details and nature of the service they provide.
It was unclear when the High Court would issue its final ruling.
Jerusalem Post Staff contributed to this report.