[Translated from the Hebrew by Orly Erez-Likhovski]
Supreme Court of Israel
sitting as the High Court of Justice
High Court of Justice case no. 721/94
Before: The Honorable Deputy Chief Justice A. Barak
The Honorable Justice Y. Kedmi
The Honorable Justice D. Dorner
The Petitioner: El Al Israel Airlines Ltd.
The Respondents: 1. Yonatan Danilowitz
2. The National Labor Court
Petition for Order Nisi
Date of oral arguments: May 4, 1994
Argued for the Petitioner: Adv. Y. Winder, Adv. E. Ben Israel
Argued for Respondent no. 1: Adv. S. Dunevitz, Adv. O. Kalamaro
J u d g e m e n t
Deputy Chief Justice A. Barak:
[delivered the opinion of the court]
A collective bargaining agreement and a collective bargaining arrangement grant a benefit to "a spouse" (husband and wife) and to "a common law husband/wife" of an employee. Is this benefit granted to a domestic partner of an employee - this is the issue before us in this case.
The Facts and the Litigation in the Labor Court
1. The respondent is employed as a flight attendant by the petitioner (El-Al Airlines). According to the collective bargaining agreement, each (permanent) employee is entitled to receive, once a year, free (or discounted) flight tickets for himself, and for "his/her spouse (husband/wife)." According to a collective bargaining arrangement (entitled "occupational guidelines"), beginning January 1, 1986 flight tickets were also given to "the common law husband/wife of the employee of the company, if the spouses live together in a common household as husband and wife to all intents and purposes and they are unable to get married according to the law."
2. The respondent asked the petitioner (on January 21, 1988) to acknowledge his domestic partner as "his spouse" for the purpose of receiving, once a year, a free or discounted flight ticket. The respondent explains in his application that he is having a steady and continuous relationship (since 1979) with another man. This relationship is demonstrated by, among other things, a common household and cohabitation in an apartment purchased through shared effort. The respondent's application was rejected.
3. The respondent applied to the regional Labor Court. He asked the court to declare that he is entitled to receive the free or discounted flight tickets for his domestic partner, which El-Al routinely gives to the spouses of its employees. According to a procedural agreement, it was decided that the (fundamental) issue of whether an El-Al employee is entitled to free or discounted flight tickets for "a spouse" of the same sex will be decided first. Regarding this issue, the regional court (Judge Lovutsky and Public Representatives Uzery and Pinhas) decided that the collective bargaining agreement (according to which the benefit is given to "his/her spouse") does not confer a benefit on a domestic partner of an employee, and this should not be regarded as invalid discrimination. On the other hand, the collective bargaining arrangement, which grants a benefit to common law spouses (despite their inability to marry) but does not grant the same benefit to spouses of the same sex (who cannot get married either) is discriminatory. This discrimination is prohibited, in view of the Employment (Equal Opportunities) Law, 1988 (henceforth - the Employment (Equal Opportunities) Law). According to the provisions of this Law (section 2) - as amended (on January 2, 1992) - an employer shall not discriminate between his employees concerning work conditions "on the basis of their sex, sexual orientation, personal status or their being parents." In view of this prohibited discrimination, the discriminatory provision in the collective bargaining arrangement was struck down. According to the procedural agreement, the regional court then went on to decide whether the respondent was in fact sharing his life with his domestic partner.
4. El-Al appealed to the National Labor Court. The National Court (President Goldberg, Vice President Adler, Judge Eliasuf and Public Representatives Ben Israel, Avramovitz, Fridman and Galin) dismissed the appeal. It was decided that the respondent is not within those entitled to the discount according to the collective bargaining agreement, since the phrase "his/her spouse (husband/wife)" does not include a spouse of the same sex. It was further decided that the respondent is not included in the phrase "the common law husband/wife of an employee" in the collective bargaining arrangement, since a common law spouse, in the context of the collective bargaining arrangement, does not include spouses of the same sex. However, it was decided that this constitutes invalid discrimination on the basis of sexual orientation, which violates the principle of Equality embedded in the Employment (Equal Opportunities) Law, as amended in 1992. This invalid discrimination, which violates the provisions of the law, gives the respondent (beginning January 2, 1992) the right to claim for himself the benefit that was unlawfully denied from him.
5. This petition is aimed against the judgment of the National Labor Court. El-Al (the petitioner) asks that we decide that its refusal to give the respondent free flight ticket for his domestic partner is not an invalid discrimination according to the Employment (Equal Opportunities) Law, as amended in 1992. El-Al claims that this Law - as amended in 1992 - added another type of unlawful discrimination ("sexual orientation"), but did not create rights to receive benefits to which an employee was not entitled beforehand. The respondent argued before us that we should not overrule the judgment of the National Labor Court, which decided that a cause of discrimination based on the Employment (Equal Opportunities) Law has crystalized, and that cause justifies the grant of flight tickets to the respondent's domestic partner beginning from the date of the Law's amendment (January 2, 1992).
The Interpretative Structure
6. The respondent (the flight attendant, the employee) may base his argument for the receipt of the benefit (a free or discounted flight ticket) for his domestic partner on two legal structures. According to the first structure, his right derives from the collective bargaining agreement, which confers benefits on "his/her spouse (husband/wife)", and the collective bargaining arrangement, which confers benefits on "the common law husband/wife of the company's employee." According to this structure, the term "spouse" (in the collective bargaining agreement) and the term "common law spouse" (in the collective bargaining arrangement) should be interpreted - in view of their purpose - to include a spouse of the same sex and a common law spouse of the same sex. The respondent's right to receive the benefit is a contractual right, and is derived from the text of the collective bargaining agreement and the collective bargaining arrangement, in a similar fashion to the right of the respondent to receive the benefit for himself. This legal structure is interpretative in essence. It is a structure that is internal to the text itself. According to this structure, the respondent's right to receive benefits - for his domestic partner and for himself - stems from the legal meaning of the contractual text, which is drawn out from the range of its linguistic meanings. Naturally, the employee is entitled to this right upon satisfying the necessary conditions.
7. This interpretative structure was rejected by the Labor Courts. They decided that the (legal) meaning of the term "spouse (husband/wife)" in the collective bargaining agreement does not include spouses of the same sex. The National Labor Court stated that "in the case before us the parties to the collective bargaining agreement explicitly expressed their view that they do not refer to a spouse of the same sex. The collective bargaining agreement stated 'spouse (husband/wife)'. The words 'husband and wife' attached to the term spouse reveal that the parties referred to the term spouse in its narrow sense. Therefore,this term in the collective bargaining agreement does not include common law spouses and spouses of the same sex, who are not, by common consent, 'husband and wife'" (labor court case 53/3-160, par. 6 (forthcoming)). As for the term "common law husband/wife" in the collective bargaining arrangement, the National Labor Court decided that it does not include persons of the same sex who share their lives. The National Court stated that "the term 'common law spouses' does not stand on its own, but is rather linked to the term 'husband/wife'." This linguistic usage shows "that the drafter was not referring to persons of the same sex" (labor court case 53/3-160, par. 7 (forthcoming)).
The Statutory Structure
8. The respondent can rely on a second legal structure. This structure presumes that the contractual right to receive a benefit is given solely to a spouse or a common law spouse who does not belong to the same sex of the employee. According to this structure, the contractual arrangement (the product of the interpretative structure) constitutes a discriminatory arrangement, which violates the provisions of the Employment (Equal Opportunities) Law (as amended in 1992). The remedy of the respondent on account of this discrimination is not the rescission of the contractual arrangement - a remedy that he does not seek - but rather the grant of a (judicial) order, based on the provisions of the law, to rectify the discrimination. The respondent will therefore receive the benefit for his domestic partner as a result of the combination of the discriminatory contractual provision and the amending statutory provision. This structure is not an interpretative one. It is external to the text itself. It exists by virtue of combining the contractual right (of X) with the statutory order to refrain from discriminating (Y). According to this structure, the employee's right exists only from the date of the prohibition against discrimination based on sexual orientation (i.e., January 2, 1992). It can be entitled a statutory (or external) structure. This structure was adopted by the National Labor Court and is criticized before us by El-Al. An analysis of this structure requires two sub‑analyses: the first, does the contractual arrangement (the product of the interpretative structure) constitute an (invalid) discrimination on the basis of sexual orientation; the second, what is the remedy to which an employee, who was discriminated against (unlawfully) on the basis of sexual orientation, is entitled.
9. The respondent did not rely on the interpretative structure before us. Indeed, this structure - which, as aforesaid, was rejected by the National Labor Court - is complicated (concerning the term "spouse", compare: further hearing 13/84 Levi v. The Finance Committee of the Knesset, 41(4) P.D. 921; see also Bowman, Cornish, "A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances", 92 Colum. L. Rev. 1164 (1992); Elbin, "Domestic Partnership Recognition in the Workplace: Equitable Employee Benefits for Gay Couples (and Others)", 51 Ohio State L.J. 1067 (1990)). It would have been necessary to decide the question had the respondent insisted on his (contractual) right to receive the benefit from the day these (contractual) rights have crystalized. As we have seen, the respondent accepts the judgment of the National Labor Court, according to which his right is embedded in the claim of discrimination on the basis of sexual orientation, which is based on the amendment (of January 2, 1992) of the Employment (Equal Opportunities) Law. Thus, we need not confront the interpretative structure. I assume, therefore - without deciding the matter - that the respondent does not have a (contractual) right by virtue of the collective bargaining agreement and the collective bargaining arrangement to receive the benefit for his domestic partner. I will therefore move on to examine the statutory structure, and its two sub-analyses (is there discrimination; what is the appropriate remedy). I will begin with the first question.
The Right to Equality and Its Violation
10. Equality is a fundamental principle of the Israeli legal system. "It is the basis of our whole constitutional regime" (Justice Landau in High Court 98/69 Bergman v. The Minister of Finance, 23(1) P.D. 693, 698), and it is "of the essence and character of the State of Israel" (Deputy Chief Justice Elon in election appeal 2/88 Ben-Shalom v. The Central Election Committee to the Twelfth Knesset, 43(4) P.D. 221, 272). "The principle that a person should not be discriminated against on the basis of race, sex, nationality, ethnicity, national origin, religion, personal views or class is a basic constitutional principle, which is an indispensable part of our fundamental legal perceptions" (High Court 114/78 Burkan v. The Minister of Finance, 32(2) P.D. 800, 806 (Justice Shamgar)). The principle of Equality is based on considerations of justice and fairness. "The principle of Equality has been recognized in our legal system, long ago, as one of the attributes of justice and fairness" (High Court 453/94 The Israeli Lobby for Women v. The Israeli Government (forthcoming)(Justice Matza)). Equality is a central component of the compact on which society is based (High Court 953/87 Poraz v. The Mayor of Tel-Aviv - Jaffa, 42(2) P.D. 309, 332). "Discrimination is an evil that creates a sense of deprivation and frustration. It impairs the sense of belonging and the positive motivation to participate in and contribute to the society. A society in which discrimination is practiced is not a healthy one, and a country in which discrimination is practiced cannot be called a reformed country (Justice Bach in High Court 104/87 Nevo v. The National Labor Court, 44(4) P.D. 749, 760).
11. The principle of Equality is embedded in Israel in several normative systems. First, it is a judicial principle - the product of "the Israeli Common Law" - which was recognized and developed by the Israeli courts. This principle is injected into the (objective) purpose of every legislative act and constitutes a standard for its interpretation. "A fundamental principle that constitutes a legislative purpose for all legislative acts, is the principle of Equality before the Law... It should therefore be assumed, and interpreted accordingly, that legislative acts are designed to achieve this goal, rather than contradict it" (see High Court 301/63 Shtreit v. The Israeli Chief Rabbi, 18(1) P.D. 598, 612; see also High Court 707/81 Abu-Hatzeira v. The Attorney General, 35(4) P.D. 561, 585). The judicial principle of Equality is projected into the broad notions of the legal system (e.g., reasonability, justice, equality and public policy) and constitutes a normative factor in determining their scope (see High Court 693/91 Efrat v. The Commissioner of Population Registration in the Ministry of Interior, 47(1) P.D. 749). Therefore, a discriminatory collective bargaining agreement may contradict public policy and thus be invalidated (see High Court 104/87 mentioned above and labor court case 33/3-25 Air Crew Flight Attendants Committee - Hazin, 4 P.D.L. 365). The judicial principle of Equality constitutes a normative anchor on the basis of which the right of Equality as a human right in Israel can be recognized. By virtue of this principle, judicial principles that reflect it have crystalized, such as the community of spousal property principle (see High Court 1000/92 Bavli v. Chief Rabbinate Court, Jerusalem (forthcoming)).
12. Second, the Equality principle is anchored in Israeli statutory law. It originates from the Declaration of Independence, which declares that the State of Israel will maintain equality among its citizens "with no difference regarding religion, race or sex." It is also expressed in legislative acts, which inject the principle of Equality into specific relationships. Thus, for instance, the Women's Equal Rights Law, 1951 states that "the same law will apply to a man and a woman concerning any legal act" (section 1). The Employment Service Law, 1959 prohibits discrimination by employment services aregarding referral of a person to a job (section 42). The Male and Female Workers (Equal Pay) Law, 1964 guarantees equal salaries to men and women workers. Special legislation was enacted to enable affirmative action toward women (see section 18a of the Governmental Companies Law, 1975). Another law - which is relevant in our case and will be dealt with separately - is The Employment (Equal Opportunities) Law. This development reached its climax with the enactment of Basic Law: Human Dignity and Liberty, which established the equality as a super-legislative constitutional right within the scope of human dignity. "It is possible today to base the principle of Equality on Basic Law: Human Dignity and Liberty. This means raising the Equality principle to a super-legislative, constitutional normative level" (Justice Orr in High Court 5394/92 Hufert v. "Yad Vashem", Holocaust Memorial Authority (forthcoming)).
13. Naturally, the principle of Equality does not create an absolute right. Every person's right to Equality - as every other right - is relative. "The principle of Equality is not an absolute principle but a relative one" (Justice Orr in High Court 5394/92 mentioned above). The boundaries of the principle of Equality are determined by (an internal) balance of all the human rights and by the public interest (see A. Rubinstein, The Constitutional Law of the State of Israel 299 (vol. I, 199)). The right to Equality can be defeated by virtue of other worthy values (see High Court 246/81 Derech Eretz v. The Broadcasting Authority, 35(4) P.D. 1, 13 and compare section 8 of Basic Law: Human Dignity and Liberty). Indeed, occasionally, the Equality principle is not fully protected. A lawful restriction on Equality can exist if it is compatible with the values of the State of Israel, it is done for a worthy purpose and it does not restrict equality beyond what is necessary.
14. The basic factual premise is that human beings differ from one another. "No one person is exactly like another" (Justice S. Levin in High Court 141/82 Rubinstein v. The Knesset Speaker, 37(3) P.D. 141, 648). Every human being is a world of his own. Society is based on persons who are different from one another. Only the worst dictatorships seek to abolish these differences. Morever, human dignity is based on the premise that every person is free to develop physically and mentally as he wishes (see High Court 5688/92 Vicselbaum v. The Minister of Defense, 47(2) P.D. 812). The principle of Equality emerges from this background of liberty. It means equality before the law, and neutrality of the law toward the diversity of human beings. It is the equality of using the liberty. It is the equality of opportunities. This equality presumes a normative framework which is operated uniformly on all individuals, despite their differences. However, the principle of Equality does not presume a uniform law for everyone. Indeed, the Equality principle does not preclude different laws for different persons. The principle of Equality requires that different laws will be justified by the nature and essence of the issue. The principle of Equality, therefore, assumes the existence of relevant reasons that justify the difference (distinction). Discrimination - which is the opposite of equality - exists, therefore, in those situations where a different law for different persons (factually) is based on reasons that cannot justify a distinction between them in a free and democratic society, as Justice Orr has put it: "a different treatment without a relevant justification" (High Court 5394/92 mentioned above). Chief Justice Agranat has noted:
"The Principle of Equality, which is but the other side of the discrimination coin and which the law of every country seeks to embody, out of reasons of justice and fairness, means that persons between which there are no relevant differences regarding a certain purpose, should be treated alike for that purpose. If they are not treated alike, then this constitutes discrimination. On the other hand, if the difference or differences between different persons are relevant regarding the discussed purpose, then a different treatment concerning that purpose will constitute a permissible distinction, provided the differences justify this different treatment. The term "equality" in this context means, therefore, relevant equality, which requires, regarding the discussed purpose, equality of treatment concerning those to which the said situation applies. In contrast, a permissible distinction will occur if the different treatment of different persons derives from their being in a relevant inequality situation, concerning the purpose of the treatment, and discrimination will occur, if it derives from their being in a situation of inequality, which is not relevant to the purpose of the treatment" (further hearing 10/69 Boronovsky v. Israeli Chief Rabbies, 25(1) P.D. 7, 35).
Thus, a given law creates discrimination when two persons, different from one another (factual inequality) are treated differently by the law, while the factual difference between them cannot justify a different treatment in those circumstances. Discrimination is therefore based on arbitrariness, injustice and unreasonability. As Justice Witkon has said:
"What is discrimination? Not every distinction between types of persons constitutes 'discrimination'; the term discrimination embodies in it the concept of unfairness in treating equals unequally" (High Court 30/55 The Committee for the Protection of Nazareth Expropriated Lands v. The Minister of Finance, 9 P.D. 1261, 1265).
Discrimination - which is, as mentioned above, the other side of equality - means unfair, unjustified, arbitrary treatment (see criminal appeal 112/50 Yosipoff v. The Attorney General, 5 P.D. 481, 490).
15. As we have seen, the contractual regime at El-Al gives every employee a right to receive a benefit (free or discounted flight tickets) for his or her spouse or common law spouse, provided they belong to the opposite sex. Does this constitute discrimination toward the domestic partner of an employee belonging to the same sex? As we have seen, the test in determining whether a treatment is discriminatory or equal lies in the question whether the different sex is relevant to the discussed issue. The relevancy is measured by criteria of arbitrariness, fairness and justice. The grant of the benefit to the employee for his spouse or common law spouse is based on the notion that a benefit - in the form of a flight ticket - should be given to the employee for the one with whom he shares his life, with whom he maintains a common household, with whom he parts when leaving for flights and to whom he returns when the work has ended. This is the common characteristic of the spouse and the common law spouse. The purpose of the benefit is not to strengthen the marriage institution. Indeed, El-Al grants the benefit to an employee who lives with a common law spouse, although the common law spouse is lawfully married to another. Thus, the grant of the benefit is based on the notion of shared life for a certain period (stated in the collective bargaining arrangement) which demonstrates a strong social unit, based on cooperative life. In this context, it is clear in my opinion that denial of this benefit from a same sex domestic partner constitutes discrimination and inequality. Indeed, the sole reason for denying the benefit from a same sex domestic partner is his sexual orientation, and nothing else. This difference is of no relevance whatsoever regarding the discussed issue (supporting a strong social unit, based on shared life). Concerning the issue under discussion, this constitutes an arbitrary and unfair distinction. Is leaving a same sex domestic partner easier than leaving a spouse of the opposite sex? Are shared life of two of the same sex different from those belonging to opposite sexes, concerning the cooperative relationship and the operation of the social unit?
16. One may claim that shared life of persons of different sexes (husband and wife or common law spouses) are so different in essence than shared lifeof persons of the same sex, that every legal regime that grants benefit to the first relationship, does not discriminate the second relationship. Although this seems to me to be a difficult argument, I am willing to leave it undecided, since the question before us is not whether one relationship (shared life of persons of opposite sexes) is different in some respect from the other (shared life of persons of the same sex). As aforesaid, I am willing to assume that such a difference exists in different social contexts. The question before us is whether the different treatment is relevant to the discussed issue. "The discussed issue" is the social unit, the shared life, which justify, according to El-Al, the grant of a benefit to (a permanent) employee in the form of a flight ticket, which will enable him to take with him the one with whom he shares his life. Concerning this issue, the difference between shared life of persons of opposite sexes and shared life of persons of the same sex is a clear and blunt discrimination.
Discrimination on the basis of Sexual Orientation
17. We have seen, therefore, that the grant of a benefit to (a permanent) employee for a spouse or common law spouse and the refusal to grant that benefit to a domestic partner of the same sex, constitutes violation of the Equality principle. What is the nature of this discrimination? Indeed, any discrimination is invalid, but there are different degrees of discrimination. The bluntness of the discrimination derives from the seriousness of the violation of the principle of Equality. Thus, for instance, we treat with great seriousness discrimination on the basis of race, religion, nationality, language, ethnicity, age. In this context, the Israeli legal system attaches great importance to the need of securing equality between the sexes, and of preventing discrimination on the basis of sex (see High Court 953/87 Shakdiel v. The Religions Minister, 42(2) P.D. 221; High Court 953/87 Poraz v. The Mayor of Tel-Aviv - Jaffa, 42(2) P.D. 309). It could be said, that the discrimination in issue in this case is based on invalid considerations of sex. One may argue in contrast, that discrimination on the basis of sex does not exist here, since the same benefit is given to the male (permanent) employee and to the female (permanent) employee. Such an argument, by itself, does not seem to me to be convincing. However, I need not decide the issue, because it seems that one cannot doubt the fact that the discrimination at hand is based on the "sexual orientation" of the (permanent) employee. This discrimination toward the homosexual and the lesbian is invalid. It violates the principle of Equality. This notion derives expressly from the provisions of the Employment (Equal Opportunities) Law, 1988. This Law - as amended in 1992 - states (in section 2):
"(a) An employer shall not discriminate between his employees or those seeking employment on the basis of their sex, sexual orientation, personal status or their being parents, in any of the following respects:
(2) Work conditions;
(4) Basic and advanced professional training;
(5) Dismissal or severance pay.
(b) For the purposes of subsection (a), establishing irrelevant conditions constitutes discrimination.
(c) Discrimination inherent in the nature or character of the office or duty shall not be regarded as such for the purposes of this section."
Explaining the provision against discrimination on the basis of sexual orientation, the chairperson of the Welfare and Labor Committee, Ms. Ora Namir, has noted:
"Passing the bill will contribute, I hope, to equal treatment of men and women notwithstanding their sexual orientation, will enable them to live according to their sexual orientation as equal citizens for all intents and purposes, and will give them the legal protection available to every other member of the public."
This provision does not abolish human diversity. This diversity is natural to the human race. This provision declares that the different sexual orientation of human beings must not be considered relevant to a job, unless it is necessary because of the nature of the duty. Indeed, concerning the work conditions, the employer must employ a neutral attitude regarding the sexual orientation of his employees. He must set the work conditions solely on the basis of criteria that are necessary because of the nature of the duty. Therefore, if a benefit is granted to a male employee who sustains a steady and continuous relationship with a woman, the same benefit must be given to a male employee who sustains a steady and continuous relationship with another man. That is how the employer will fulfil the principle of Equality. That is how he will avoid a violation of the employee's privacy (compare section 7 of Basic Law: Human Dignity and Liberty). The grant of a benefit to a permanent employee for his common law spouse, and the denial of the benefit from a permanent employee for his same sex domestic partner (who will fulfil all the requirements of a common law spouse, except for the sex requirement) constitutes discrimination in the work conditions on the basis of sexual orientation. This discrimination is prohibited. Consider Reuven, a permanent employee at El-Al, who has been sharing his life for the past few years with Lea. They live together and maintain a common household (as required by El-Al to be regarded as a common law spouse). Reuven will receive a flight ticket for Lea. Now consider Reuven who lives with Simon. They live together and maintain a common household. Reuven will not receive a flight ticket for Simon. How can this difference be explained? Does one of them function differently as an employee than the other? The only explanation is the sexual orientation of Reuven. This constitutes discrimination concerning the work conditions on the basis of sexual orientation. No explanation was offered to justify such a discriminatory treatment. There is nothing inherent in the nature of the duty or office that could justify this unequal treatment (see section 2(c) of the Employment (Equal Opportunities) Law). El-Al may indeed believe that a (permanent) employee who lives with a domestic partner (of the same sex) behaves inappropriately. Someone in El-Al perhaps thinks that such shared life should not be encouraged. We need not discuss this argument on a normative level. Whether we consent or not, this cannot constitute a justification that will negate the existence of discrimination. Indeed, discrimination is not determined solely on the basis of the will and thought of the one who created the discriminatory norm. It is determined also on the basis of its actual effect (see High Court 104/87 mentioned above, at p. 759; High Court 1000/92 mentioned above). Sometimes, violation of equality - which, as we have seen, is not an absolute right, but a relative one - may be justified by reasons of a worthy purpose. These reasons must be relevant and weighty. A very heavy weight is laid on the one who wishes to discharge this burden. In our case, the burden has not been discharged. In fact, no attempt was made to discharge it. All that was argued was that the case of two persons of the same sex who live together is different from the case of two persons of opposite sexes who live together. By this, the difference existing between the different situations was demonstrated. Discrimination was not thereby ruled out, and certainly a worthy purpose that might justify it has not been pointed out (see Cameli, "Extending Family Benefits to Gay Men and Lesbian Women", 68 Chicago-Kent L. Rev. 447).
The Remedy for Violation of the Right to Equality
18. I have thus reached the conclusion that the legal regime that was established in the collective bargaining agreement and in the collective bargaining arrangement, concerning the benefit given to an employee by receiving a (free or discounted) flight ticket for a spouse or common law spouse (of the opposite sex), creates discrimination of an employee living with a same sex domestic partner. We shall proceed now to the second issue that has to be deci, regarding the remedy to which the discriminated employee is entitled. It has been decided that a discriminatory contractual regime may establish an argument according to which the contractual provision violates public policy and is therefore invalid (see labor court case 33/3-25 Hazin and Air Crew Flight Attendants Committee - El-Al, 4 P.D.L. 265). This invalidity may cause the whole contract to be invalid. Usually, the whole contract should not be invalidated, and an annulment of the unlawful part, by severing it from the lawful part, is sufficient (see sections 14 and 31 of the Contracts (General Part) Law, 1973). Thus, for instance, in the Nevo case, the contractual regime stated that "the age of retirement is 65 years for a man and 60 years for a woman" (see High Court 104/87 mentioned above). The Supreme Court decided that this constitutes discrimination against women. It was decided that the appropriate remedy - which the petitioner requested there - was the deletion of the invalid part. The result was that the part of the employment agreement that declared that "the age of retirement is 65 years" remained valid. The court, therefore, used the technique of severance. This technique is not possible in this case. Indeed, if the collective bargaining agreement and the collective bargaining arrangement would have declared that a permanent employee is entitled to a benefit for the one he shares his life with, with the exception of a same sex domestic partner, it would have been possible to delete the restricting provision, and thus to reinstate equality. But the contractual text in this case is different. It does not enable an "operation" of the text, which will sever the healthy part from the sick one. What is, therefore, the remedy to which the petitioner [=respondent - O.E.L.] is entitled?
19. As we have seen, a possible remedy is the annulment of the contractual regime concerning the benefit. The result, from the point of view of the petitioner [=respondent], will be "let me die with the Philistines": The petitioner [=respondent] will not receive but the common law spouses of the opposite sex will not receive either. This result is not reasonable under the circumstances of this case. Why should the common law spouses of opposite sexes' share be reduced? What sin have they done? The National Labor Court mentioned, and rightly so, that the petitioner [=respondent] himself has not asked for such a remedy.
20. The appropriate remedy in this situation is the grant of the benefit also to those who share their life and belong to the same sex. This remedy is well known in comparative studies. It was developed mainly concerning laws violating the principle of Equality embedded in the Constitution. It is called in American constitutional scholarship extension of the existing text. Canadian constitutional scholarship refers to it as "reading into" the text or reconstruction of the text. These terms are not very appropriate. The judge does not change the existing text, nor does he reconstruct it or extend it. The judge does not touch the existing text at all. The court acts in a different fashion. It determines that, as long as the existing text is unaltered - and as aforesaid, the judge does not "touch it" at all - similar benefits will be granted to another group, which is beyond the text. The grant of this benefit derives directly from the principle of Equality, which is a normative principle to which the text is subject and which it must obey. Thus, the court does not transplant another organ in the body of the text, which is infected by invalid discrimination. The court decides, rather, that by virtue of the principle of Equality - and as long as the discriminatory contractual regime is unaltered - a remedy of granting the benefit to the type discriminated against is required, in order to remove the discrimination.
21. As we have seen, this remedy is well known in American constitutional law. In the case of Welsh v. United States, 398 U.S. 333 (1969), a statute exempted a person from military service because of his objection to war on the basis of reasons of religion or faith. The petitioner asked for exemption on the basis of conscientious objection. Several justices decided that the exemption because of reasons of religion or faith includes exemption based on conscientious reasons. Justice Harlan disagreed. In his opinion, exemption based on conscientious reasons was not regulated by the statute. Therefore, the statute has violated the provisions of the Constitution. The appropriate remedy, in his opinion, is not abolishing the exemption because of reasons of religion or faith but rather giving an exemption, according to the Constitution, based on conscientious reasons. Justice Harlan writes:
"Where a statute is defective because of underinclusion there exist two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion... While the necessary remedial operation, extension, is more analogous to a graft than amputation, I think the boundaries of permissible choice may properly be considered by the legislative pronourcement on severability."
Since that case, American courts tend to use this remedy (see Bader-Ginsburg, "Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation", 28 Cl. St. L. Rev. 301 (1979); Miller, "Constitutional Remedies for Underinclusive Statute: A Critical Appraisal of Heckler v. Mathens, 20 Harv. C.R.C.L. L. Rev. 77 (1985)). The court regards this remedy as natural and appropriate and as preferable to annulment. One of the cases discussed a statute that granted support to needy families. The law stated, among other things, that the support will be given to a family consisting of a mother that is not working and a father that used to work but is now unemployed. A family consisting of a father that is not working and a mother that used to work but is currently unemployed was not included among those entitled to support. The court decided that the statute unlawfully discriminates against families consisting of a father that does not work and a mother that used to work but is currently unemployed. In this context, the issue of the remedy was raised. Should the support to the entitled family be nullified, due to the discrimination, or should the scope of the statute be extended to include a family that was not included in it ? It was decided that the family that was discriminated against should be included (see Califano v. Westcott, 443 U.S. 76 (1979)).
22. The Supreme Court of Canada acts in a similar fashion. It often reads into a statute provisions that will negate the unconstitutionality of the statute. In the case of Schachter v. Canada, 93 D.L.R. (4th) 1, 12 (1992) Judge Lamer writes:
"Extension by way of reading in is closely akin to the practice of severance. The difference is the manner in which the extent of the inconsistency is defined. In the usual case of severance the inconsistency is defined as something improperly included in the statute which can be severed and struck down. In the case of reading in the inconsistency is defined as what the statute wrongly excludes rather than what it wrongly includes. Where the inconsistency is defined as what the statute excludes, the logical result of declaring inoperative that inconsistency may be to include the excluded group within the statutory scheme. This has the effect of extending the reach of the statute by way of reading in rather than reading down."
23. These remedies are constitutionally appropriate. They advance the purpose that is the basis of the constitutional scheme. They prevent the need of invalidating the legislative act. The use of this remedy is not a mechanical one. In each case, one should examine whether the extension is possible; if it can be easily applied and if it does not over-interfere with the legislative texture. Budgetary effects should be considered. Indeed, a benefit that is given by law to a marginal group canjustify the grant of a constitutional remedy by way of extending the remedy to a large and substantial group. In addition, this technique should not be used to impose duties on groups of the population exempted from these duties by a favorable statute.
24. These remedies - which were developed in the constitutional sphere - are appropriate in the context of the collective bargaining agreement and the collective bargaining arrangement. They establish a contractual regime, which is subject to a supreme normative principle of Equality. This principle derives its supremacy (with regard to collective bargaining agreements and arrangements) from the Employment (Equal Opportunities) Law. This principle of Equality applies - by virtue of the explicit provisions of the Employment (Equal Opportunities) Law - in the private law as well. It is not solely a principle of public law. It prohibits any employer from discriminating between his employees in the areas of private law. Indeed, concerning the prohibition of discrimination by reason of sexual orientation - as well as the other types of discrimination - there exists an imperative of the law that binds the employer. By virtue of this normative imperative - which is of a supreme status regarding the collective bargaining agreement and arrangement - a duty to refrain from discriminating between his employees concerning the work conditions is imposed on the employer. When a contractual arrangement prepared by him includes an invalid discrimination, the contract is unlawful. It can be nullified according to the provisions concerning the invalid contract. Alternatively, in order to avoid this annulment, the employer can be required to abstain from the invalid discrimination. This abstention will crystalize when the employer will be compelled to grant the benefit to the employee who was discriminated against. In this way, the agreement between the parties is not altered. In this way, we are not reading into the contract something that is not included in it. The sole consequence thereby is that the discrimination is negated and the normative imperative not to discriminate is fulfilled. Indeed, the basic premise is the discriminatory contractual arrangement. Its content is determined by the parties to the contract, and they control it and can alter it. As long as the discriminatory contractual arrangement is unaltered, there exists the supreme normative imperative - originating in the cogent statute - which binds the employer to equality. Indeed, in the same manner as the scope of a law can be extended by virtue of the normative supremacy of the constitution (or the secured basic law), so too the scope of the provisions of a collective bargaining agreement or collective bargaining arrangement can be extended by virtue of the normative validity of the law. By virtue of this normative supremacy, the contractual regime must adapt itself to the principle of Equality (and in this case, the prohibition of discrimination concerning the work conditions by reason of sexual orientation). This adaptation does not justify the annulment of the existing contractual arrangement. This adaptation will occur by granting the benefit - the source of which is not the contractual arrangement but rather the principle of Equality that extends the contractual arrangement to similar situations - to the type discriminated against. This extension corresponds to the contractual pattern. It adds a small group of beneficiaries, and does not impose, therefore, a significant budgetary burden. Justice is both seen and done.
The petition is dismissed. The case is remanded to the regional labor court, as mentioned in the judgment of the National Labor Court. The petitioner will pay the first respondent's costs in the amount of NIS 10,000.
The Deputy Chief Justice
Justice Y. Kedmi: [dissenting]
The issue at hand in this case is whether the term "spouse" used in the labor agreements, includes spouses of the same sex or does not. My honorable colleague concluded that it does. Unfortunately, I cannot concur, and these are my main reasons:
1. "Spouse": The Conceptual Meaning in the Social Sphere
(a) The linguistic term male/female spouse [ben/bat zug] - who together constitute "a family" - means, in the social sphere, the union of two persons of the two sexes which forms "a couple" [zug]; "a couple", in this context, has represented from the dawn of civilization until today - the union of two individuals belonging to two sexes. That is the situation here and everywhere else, and the Bible clearly proves it: "So God created man in his own image, in the image of God He created him; male and female He created them" (Genesis, 1:27).
This is the situation among human beings and among the animals, and the story of Noah's ark leaves no doubt: "And of every living thing of all flesh, you shall bring two of every kind into the ark, to keep them alive with you; male and female they shall be" (Genesis, 2:12 [6:19]).
One can use, of course, the term "couple" to mean a "quantity" of two persons; However, we do not deal here with the quantitative meaning of the term, but rather with the substantive meaning in the social sphere.
In this context, it is impossible to attach to the term "couple" a meaning different from the linguistic meaning it has and always had. Attaching "another meaning" to this term renders it meaningless; and once again, we do not refer here to "a couple" that builds "a family", combining two spouses ("ben zug" and "bat zug") - but rather to "a couple" meaning "quantity" of two persons that were united, whatever their sex is.
The terms "male spouse" and "female spouse" ["ben zug" and "bat zug"] are necessarily connected in our language to the term "family"; There is no "family" unless a "male spouse" and a "female spouse" ["ben zug" and "bat zug"] constitute its basis (henceforth: a bisexual couple).
(b) The bond that makes two persons - of the two sexes - "a couple" in the linguistic-social meaning, is characterized by their decision to share their lives; and "shared" in this context means, among other things and especially, cohabitation, whose primeval - and conceptually necessary - purpose is to bring children into the world: "And God has blessed them and said to them, be fruitful and multiply, and replenish the earth" (Genesis, 1:28).
It is no coincidence, therefore, that the term "couple" [zug] is tightly connected to the verb meaning "mating" ["hizdavgut"]; since "couple" ["zug"] and "mating" [hizdavgut] are the same, and only when those exist can we speak of "a family".
Indeed, not every couple is "capable" of - or wants - to bring children into the world, and not every couple is created for that purpose. However, these "exceptions" do not change the conceptual-principal meaning of the term "couple" in this context; Therefore, a prerequisite for two persons to constitute "a couple" is for them to belong to different sexes.
(c) The bisexual "couple" creates the primary social unit; and, as aforesaid, there is no "family" in its social meaning unless it is based on a bisexual couple.
Indeed, the meaning of basic notions as "couple" and "family" may change. However, the change must first and foremost be a conceptual change of basic linguistic meanings; and the language that exists from ancient days does not recognize "a couple" and "a family" that are not bisexual, other than as an exceptional phenomenon that calls for an additional description beyond using those terms, which lose their primary meaning when a union of the two sexes is not at issue.
(d) Indeed, "two persons" of the same sex may adopt external characteristics that characterize "a couple" and "a family" as mentioned above; and imitate - as far as possible - the manner of behavior of "spouses" and actually establish "a family". However, they do not thereby become "a couple" and "a family" in the basic meaning of these terms in our language; and the language is, ultimately, the mirror in which the face of our society is reflected.
In order for two persons to become "a couple" that establishes "a family", in the conceptual-linguisticmeaning of our language - and a common language is the basis of our existence as a society - a necessary condition is that the two persons who constitute "a couple" belong to the two sexes.
It is irrelevant, in this context, that two persons of the same sex, who become "a couple", do so because their natural sexual orientation does not enable them to be "spouses" - in the common conceptual meaning in our language - of the other sex. The "ability" to be a spouse, in the basic linguistic meaning as aforesaid, is not controlling here; but rather - the sex of the partner. The test for two persons to be "spouses" - according to the linguistic meaning of the term - is not the manner of life that they conduct; but, first and foremost, the fact that they belong to different sexes.
(e) The abovementioned views should not be regarded as stemming from a conservative religious attitude: Religion did not dictate the meaning of the term "couple" in the linguistic sphere, but life itself has dictated it; and reality, which reflects life, is the basis of the term "couple" and it is the source of its social meaning.
(f) And it should be noted:
(1) The term: "couple" - which is composed of a "male spouse" ["ben zug"] and a "female spouse" ["bat zug"] - is not necessarily connected to the marriage institution; and the term "couple" can be used in itself, in relation to "a married couple" and in relation to "a non married couple", as long as the union of the spouses makes them "a couple" in the abovementioned meaning.
(2) There is nothing that prevents linking adjectives to the term "couple" - in its basic social meaning as aforesaid - for instance: married and non married; when the adjective "married" has no implication on the basic meaning of the term "couple" as meaning, in this context, two persons of two sexes, who maintain a social unit, based on sexual cooperation, the character of which is determined by its primary purpose.
(3) Therefore - and we shall discuss it later - there is nothing that prevents treating "common law spouses" as "spouses"; because in their case the basic condition of a union of two persons of the two sexes, which forms a family unit in the basic aforesaid meaning, is fulfilled. The common law spouses are not a "married" couple but they constitute "a couple" and "a family"; and as such, there was no conceptual principal difficulty in applying to them legal arrangements that were established regarding "a married" couple, and to treat them, socially and linguistically, as "a couple" for all intents and purposes.
(g) In this situation, the term "couple" in the human language - of all human beings - means, in the social context, a union of two persons of the two sexes, for the purpose of "a shared life", in the primary meaning of the phrase, as mentioned above; and if we seek to change the meaning of the term - we must do it first and foremost in the sphere of the basic linguistic terms of our language, and to establish this change, explicitly, in legislative acts dealing with this matter. Absent an express provision, the law expresses the linguistic meaning of the terms it uses, unless it states otherwise.
The law speaks in human language, since it is meant for human beings; and where we seek to deviate from the human language and speak "legally" - it should be done in an explicit, clear and unambiguous provision by the legislature. In this context, it should be a provision that purposely changes the linguistic meaning of the term "couple" in the social context and attaches to this term, for this matter, another meaning, substantially different from the one used in common language.
2. Marriage and the Institution of Common Law Spouses
(a) As a general rule, where language refers to "spouses" - in the social sphere - the listener or reader immediately thinks of a married couple; since marriage render legal - and social - recognition to shared life of "spouses" as a family unit, in the abovementioned primary meaning.
(b) However, as already said, the formal-external framework of the marriage institution is not what gives the "couple" its abovementioned traditional linguistic meaning: "a couple" within the discussed meaning can be "married" and can be "unmarried", but it must always be "a couple"; and there can be no "couple" in the discussed meaning, unless the two persons it consists of belong to different sexes. Linguistically, there is no "other" couple in the social sphere; and the language is the basis of human communication, and it is the means through which human beings express their ideas.
Thus, marriage as a legal institution does not give the linguistic term "couple" its content and conceptual meaning; it rather adds to it a social recognition as a family unit within the community, and gives the two persons of which the couple consists - the spouses ["ben zug" and "bat zug"] - rights and liabilities in the legal sphere.
(c) Therefore - and this has been said as well - whenever "a couple" meets the basic definition of this term - meaning: whenever there is a union of two persons of different sexes who share their life as a family unit in the abovementioned meaning - there is no logical difficulty in treating them as "a married couple" regarding the rights and liabilities which the law attaches to "a married" couple; because the basis for granting rights and imposing liabilities on a married couple by the law is the fact that they are regarded as "a couple".
In contrast, when two persons live together as "a pair" [in Hebrew,"tsemed"] which is not "a couple" ["zug"] in the abovementioned basic linguistic meaning, common sense does not allow us to treat them, from the legal aspect, as "a couple", since they constitute "another" matter. The "married" couple and "the common law" couple are "a couple", while two who share their life and belong to the same sex are not "a couple" but "a pair of friends".
3. The Collective Bargaining Agreement and The Collective Bargaining Arrangement
(a) From the general to the particular. The collective bargaining agreement - whose provisions we are now interpreting - speaks of "a spouse [ben/bat zug] (husband/wife)" (emphasis added - Y.K.); and we must adopt the traditional linguistic meaning, according to which it refers to persons of the two sexes who create "a couple" as mentioned above.
The addition "husband/wife" does not mean that the reference is to spouses of different sexes, since this does not require an addition of some sort and using the term "spouses [ben/bat zug]" is sufficient. The addition is intended to clarify that this agreement speaks of "a married" couple, solely to whom one may call "husband" and "wife"; and the supplementary addition in the collective bargaining arrangement, which speaks of "the common law husband/wife" proves that this is the case. Absent the supplement - the words "husband/wife" in the collective bargaining agreement might have been construed as narrowing "a spouse [ben/bat zug]" to "a married" couple alone; and it should have been clarified that the reference is also to an unmarried "couple", which is solely a common law couple.
(b) The addition of "the common law spouse" in the collective bargaining arrangement does not break the framework that was established in the collective bargaining agreement; in both cases we speak of "a couple" and "spouses" in the basic social meaning of the term "couple" as mentioned above; and the distinction between "couples" on the basis of marriage has more than a feeling of discrimination. Basically, a married couple and an unmarried couple are "equal" regarding the meaning of the term "couple"; the distinction between them by reason of marriage, which constitutes solely an external formal feature of the shared life as "a couple", constitutes invalid "discrimination" and not a permissible "distinction". This can justify the addition in the collective bargaining arrangement, which was intended to prevent invalid and prohibited discrimination between "couples".
(c) In contrast, the inclusion of a pair consisting of two persons of the same sex (henceforth: a monosexual couple) in the provisions of the agreement and arrangement constitutes the inclusion of an "alien corn" of a unit which is not "a couple", in the uniform orchard of "couples", married and unmarried.
A monosexual "couple" is not "a couple" in its basic linguistic meaning, and in my opinion it should be called, linguistically, "a pair"; and the claim that it was discriminated against with regard to "couples" is without merit: The married and unmarried couple is a couple, and the distinction between them constitutes discrimination; but the "pair" is not "a couple", and the distinction between it and "a couple" (married or solely a common law couple) is not discrimination. And as long as the social and linguistic meaning of the term "couple" remains unaltered, "a pair" cannot become "a couple": since the later merges into one ("Therefore a man leaves his father and his mother and cleaves to his wife, and they become one flesh", Genesis 2:24), and the former will remain forever two.
4. The Interpretative Aspect
(a) The language is the means by which human being communicate with each other; and a prerequisite for people to understand each other is the stability of the linguistic meaning of words, terms and phrases which constitute language.
(b) As mentioned, the law speaks to human beings in an intelligible language; and the basis of interpreting its provisions is, first and foremost, the word. The terms "couple" and "spouses" - and the linguistic connection between them and "family" - are first of all linguistic terms, which mean - concerning the social sphere - as mentioned above: the union of two persons who belong to the two sexes who share their life in a family unit, which is characterized by, among other things, cohabitation, intended conceptually to ensure the continuity of life.
(c) This applies to the interpretation of a statute and to the interpretation of a legal document: "a couple" requires a union of two persons of the two sexes; the same applies even though these two are unable actually or do not wish - for whatever reason - to share their life sexually in order to ensure the continuity of life.
(d) Indeed, one of the basic rules of statutory interpretation is that a statute should be interpreted so as to fulfil the purpose for which it was enacted; and with the necessary modifications - a legal document should be interpreted in a way that will fulfil the intention of its parties.
Where the language is clear, we will not be fulfilling our duty, if we will deviate from the agreed upon linguistic meaning, according to which people direct their lives, and attach to terms mentioned in a statute or in an agreement a meaning which is different from the one existing in the world of the language.
5. The Employment (Equal Opportunities) Law - Discrimination
(a) I wholeheartedly agree with the illustrative opinion of my honorable colleague, the Deputy Chief Justice, concerning the meaning of the principle of Equality and the duty of fulfilling and enforcing it.
However, as my honorable colleague has mentioned, citing further hearing 10/69 and High Court 30/55, there can be no violation of the principle of Equality except between "equals"; and when we speak of those who are not equal, treating them differently than those who are different from them is not an invalid discrimination, but only a tolerated distinction.
(b) My honorable colleague has decided that spouses of the same sex (the monosexual couple) are "equal" to "spouses" of different sexes (the bisexual couple); and from this conclusion, naturally, it is only a short way to the conclusion of "discrimination" between the two types of "couples", when one type receives a benefit and the other does not.
I do not agree with this attitude and, in my opinion - as follows from what I have said thus far - we speak of two totally different "couples" by their nature; the first, the bisexual (married and unmarried) is "a couple", and the other - the monosexual - is but "a pair"; and, therefore, benefiting the first does not constitute discrimination by not benefiting the other.
(c) The common factor, which makes the two "couples" - the monosexual and the bisexual - equal with regard to the principle of Equality, is found by my honorable colleague in the identical features that are characteristic of the shared life of the two: they both maintain a common household, they both constitute a family unit and they both live in a social unit based on sharing and cooperation; and seemingly they do not differ from one another except in an external formal feature, that the monosexual couple cannot get married, and nothing else.
And my honorable colleague adds: "the inability to marry" is the distinguishing feature also of a married couple and a "common law" couple; and this distinguishing feature did not prevent a complete equalization of the later to the married couple.
(d) In my opinion, shared and cooperative life are not sufficient - as my honorable colleague states - to make a monosexual couple "a couple" in the meaning this term has in our language concerning the discussed context; this is because it lacks a vital element of "being a couple" - that the spouses belong to different sexes. The formal inability to marry - in a formal marriage - does not place the monosexual couple in the same position as the bisexual "common law" unmarried couple; since the later is "a couple" in the linguistic meaning this term has and the former is not.
The distinction between the bisexual couple - including the "common law" couple - and the monosexual couple lies in the basic nature of the term "couple": the first is "a couple" because, as mentioned above, it consists of two persons of different sexes, while the other is not; and the fact that the members of the monosexual couple maintain a social unit "similar" in its external characteristics to the social unit maintained by the bisexual couple - the natural family unit - does not render them a bisexual couple.
As mentioned above, a vital element - that must exist in this context - for turning two persons who maintain shared and cooperative life into "a couple" in its meaning in the Hebrew language, is their being "one flesh" and their - conceptual - capacity to have children. The "married" couple and the "common law" couple fulfil this basic condition and are therefore "equal" concerning the analysis of the discrimination claim; while the monosexual couple, which does not fulfil this basic condition, is different from them in this context.
(e) My honorable colleague recognizes the existence of a major difference that, as mentioned above, distinguishes conceptually, between the two "couples", but in his opinion this difference has no impact on the discussed issue; this is because in his opinion, El-Al has decided to give its employees a benefit "in the form of a flight ticket that will enable him to take with him the one with whom he shares his life" (my emphasis - Y.K.) and regarding this matter, there is no difference between the two couples.
Unfortunately, I cannot concede with this limited and restricted approach concerning the issue at hand as well. Indeed, the issue is interpreting the decision of El-Al. However, this decision does not speak of giving a flight ticket to the one who "shares his life with the employee", but rather to "the male/female spouse [ben/bat zug] of the employee"; and the linguistic difference between the two versions speaks for itself. As I have already said, in my opinion, the term "couple" expresses in our language - in the discussed social context - the union of two persons in shared life, which physically turns them into "one flesh" in the primary meaning of the phrase: "Male and female He created them... and He named them Man..." (Genesis, 5:2); and the union of two persons that a-priori cannot, physically, become "one flesh", as mentioned above, and conceptually cannot fulfil the abovementioned purpose - creates a quantitative couple (since we speak of two) but not a qualitative couple (since the two cannot become one, concerning the command of procreation).
(f) In my opinion, we should consider onlywhat is included in the collective bargaining agreement - and the supplement in the collective bargaining arrangement - stating: "his/her spouse [ben/bat zug] (husband/wife)" in the agreement, and "common law husband/wife of an employee of the company" in the arrangement; I do not think we should substitute this: "the one who shares his life with the employee" or even "the one who maintains a family unit with the employee" for the present version.
The issue is not "shared life" or " a family unit", but rather "spouses" in the basic conceptual meaning this term has in our language; and these must always belong to the two sexes, as long as language has not changed this.
5. Concerning the claim of discrimination between "a monosexual couple" and "a bisexual couple" - I do not believe we should use considerations of social justification; and the distinction between those two does not lie in the sexual orientation of the employees, but in the distinction between "a couple", "a family" and those that do not constitute neither "a couple" nor "a family", in the meaning given to these terms in our language. Bachelor employees - "bisexual" or "monosexual" - may also have close friends with whom they would have liked to spend their vacation abroad; and no one claims that they are discriminated against by denying the benefit from them, only because they are not in a formal relationship of "shared life" with those friends.
El-Al was willing to give a benefit to "spouses" who comprise "a family" in its meaning in the language we use to communicate with each other; and there is no discrimination on the basis of sexual orientation when we do not regard the members of the monosexual couple as included in the linguistic terms of "a couple" and "a family". This is a distinction between "a spouse" and "one who is not a spouse", and it could be argued that from the social aspect, "spouses" are discriminated in favor in relation to those who are not spouses; but discrimination on the basis of sexual orientation does not exist here.
6. More about the Distinction between "Couples"
(a) Between the members of the bisexual couple there exists a comprehensive mutual commitment for sharing and stability, one toward the other and both toward the framework of the couple, in all areas of life; and the law gives effect to this commitment, because society, as such, has a deep interest in maintaining the framework of a couple - which is the basis of the organizational structure of human society - and ensuring its stability.
Society has adopted, in this context, the approach that regards the conversion of the spouses into "one flesh" - which is capable, conceptually, of fulfilling the command of "be fruitful and multiply" - as a condition for two persons who share their life to become "a couple"; and the language expresses this by the meaning it gives to the terms "a couple" and "a family". Society has concurrently created rules for rendering social recognition to the framework of "a couple", and it protects it and interferes where a couple wishes to brake the framework, and also tries to avoid the separation where possible.
This protection and interference are done by legal means; and the law - following the language, which reflects social conventions - treats "a couple" and "a family" in the abovementioned meaning, and the "monosexual" couple is not included within them.
(b) The recognition of the bisexual "common law" couple as "a couple", despite the lack of all the legal guarantees of mutual commitment and stability, stems from the fact that the basic social conditions for the existence of "a couple" - meaning: a union of two persons of different sexes that creates "one flesh", which is conceptually capable of ensuring procreation - are satisfied; and once those are satisfied - there does not exist any social justification to ignore the actual existence of the family unit and the spouses it consists of, but on the contrary, to ensure the maintenance of the mutual commitment and the stability of the unit, even absent the formal status of marriage.
The rules that give the spouses in a common law bisexual couple "mutual benefits" - as prescribed by law - are based on the desire to express the mutual commitment and to ensure the stability of the family unit which the common law "couple" has established, even if not by the formal way of marriage.
(c) The situation is different regarding the monosexual couple: on the one hand, the basic condition of a different sex - without which one cannot speak, physically, of "one flesh" and, conceptually, of procreation and the continuity of life - is not fulfilled, and therefore it does not constitute that primary unit, which is the basis of the organizational structure of human society; on the other hand, there does not exist between the spouses the same mutual commitment for stability of the shared life and its continuance, which would cause society to recognize them as "a special" couple and to place them in the base of the social structure, next to the "indubitable" couple.
When society will conclude that a monosexual couple should also constitute a basic "unit" of the social structure alongside the bisexual couple, and will establish rules concerning its creation, its formal recognition, and ensuring the mutual commitment of its members for shared and stable life - the linguistic conceptual meaning of the term "couple" and "family" would change in this context, and the monosexual couple will exist in a new linguistic framework alongside the bisexual couple.
However, as long as such social acceptance does not exist - the monosexual couple is not within the term "couple" in our language and is not recognized as one of the nuclear units of our society; and naturally, its creation, the mutual commitment of its members for shared and stable life, and their rights and liabilities - are not regulated by the law.
(d) The necessary change is therefore a basic conceptual change of our social conceptions regarding the nature of the basic social unit, which is among the organizational components of the basis of our society. Demonstrating what seems to be "tolerance" toward the exceptional and an effort to prevent a seemingly social deprivation from those exceptional cases - cannot substitute for the required basic conceptual change, of equalizing the monosexual couple to the bisexual couple.
7. Division of the Conceptual Treatment by Areas
(a) In my opinion, there should not be "an independent" and separate meaning of the terms "couple [zug]" and "spouses [ben/bat zug]" in different areas of shared life in the society; and I cannot agree with the attitude that these terms should be treated differently in the area of labor relations, the area of social legislation, the area of nationality and residence, the area of property and obligations law, the area of taxation and so on.
As I said before, in my opinion, taking into account the current social-linguistic aspect, the terms "couple" and "spouses" have a single conceptual meaning: two persons of different sexes that share their life on the basis of the physical capacity of being "one flesh" and the conceptual capacity of fulfilling the command of procreation; and the exclusion of this double feature of the definition of the term "couple" - means the abolition of the meaning this term has in the agreed upon language, which we use in an organized society.
(b) The breaking of the boundaries of the conceptual and linguistic meaning in one area leads, naturally, to its breaking in other areas; and the social framework, which is based on the agreed upon existing meaning, is undermined. The term "couple", in this context, will lose its conceptual meaning in our language, and the center of gravity of this meaning, which is today the different sexes of the spouses, will pass to the personal decision to maintain, in a given period, shared quasi-familial life, while the sex of the spouses will remain in the margins. This result can be achieved, if it will be decided that this is an appropriate path to follow. However, this has to be done by giving "another" meaning to the literm "couple"; and this should not be done by us, but by those who are authorized to change the Hebrew language, even in the legal sphere alone.
(c) I wish not to be misunderstood: I do not wish to challenge the increasing recognition of the sexual orientation of persons who wish to live with those of the same sex, and I do not wish to put barriers in the way of those persons toward self fulfillment, according to their orientations; I wish only to avoid breaking "a conceptual" barrier, to avoid a linguistic "chaos" and "misunderstood" communication, by deviating sharply from the meaning of basic terms, on the basis of which our society exists and operates.
For generations, the term "couple" has been used in the social context to express a bisexual couple. It has been used that way in the spoken and written language and in establishing social frameworks and legal norms. If we wish to change this situation, this should be done directly, and not in a twisted way; since we deal with human language, which we must respect and keep its contents stable.
8. To Sum Up
(a) "A bisexual" couple - married or a common law couple - is "a couple" in the conceptual meaning of the word; and "a monosexual" couple is not.
(b) Therefore, conceptually, these are not "equal" couples; thus, the distinction between the bisexual couple and the monosexual couple is only "a distinction", and not "discrimination".
(c) There should not be a partial restricted recognition of the "monosexual" couple, for the purpose of labor agreements, but not for other purposes, such as taxation, personal status, nationality, evidence and so on.
Changing the content of the term "couple" should be general and unlimited; and it should be done in such a way that everyone will be aware of the new meaning and its consequences.
(d) An employer may offer "a benefit" only to a bisexual couple, without engaging in discrimination; because the monosexual couple is not "a couple", and the distinction between employees who are "spouses", in the aforesaid basic linguistic meaning, and those employees who are not, is "a distinction" and not "discrimination".
(e) The discrimination which the respondent claims in this case is only "illusory", and it concerns what is seemed to be "social deprivation". However, every distinction with regard to awarding benefits involves "social deprivation"; and the principle of Equality as a bar against discrimination was not intended for this purpose.
If my opinion would have prevailed, the petition would have been allowed and the judgment of the National Labor Court would have been set aside.
J u s t i c e
Justice D. Dorner:
[concurring with Deputy Chief Justice a. Barak]
1. The French philosopher Michel Foucault has dealt with the impact of social norms - which reflect the accepted, the "normal", and change from time to time and from one society to another - on the use of formal and transcendental laws
(the legal norms).
"...le pouvoir de la Norme...est venu s'ajouter a d'autres pouvoirs en les obligeant a de nouvelles delimitations; celui de la Loi...et du Texte...
...le pouvoir de la norme fonctionne facilement a l'interieur d'un systeme de l'egalite formelle, puisque a l'interieur... la regle, il introduit...des differences individuelles."
(M. Foucault, Surveiller et Punir (1975) 186)
("The power of the Norm... has joined other powers - the Law... and the Text... -
imposing new delimitations upon them...
the power of the norm functions within a system of formal equality, since within... the rule, the norm introduces... individual differences".
M. Foucault, Discipline and Punish: The Birth of the Prison (1979, Alan Sheridan trans.) 184).
It seems to me that the case at hand cannot be resolved without considering the changes that have occurred in the norms of Israeli society concerning homosexuality.
2. The respondent requested that the petitioner will acknowledge the man with whom he shared his life as "a spouse", for whom he is entitled to receive flight tickets, beginning from the year 1989, on the basis of the collective bargaining arrangement. His claim was accepted by the labor court on the basis of the Employment (Equal Opportunities) Law (Amendment), 1992. This Law, which took effect on January 2, 1992, added to section 2(a) of the Employment (Equal Opportunities) Law, 1988 (henceforth: The Equal Opportunities Law) a prohibition on discriminating employees by reason of their sexual orientation. The court decided that the Law has changed the existing law and created a right that the respondent did not have beforehand, and he is therefore entitled to receive the flight tickets beginning from the date in which the amending Law took effect.
My colleague, Deputy Chief Justice Barak, has assumed - absent a contrary argument by the respondent - that the respondent's right does not derive from the collective bargaining arrangement itself. In Justice Barak's view, the respondent's right derives from the amending Law, which reflects the principle of Equality and the prohibition against discrimination of employees by reason of their sexual orientation.
My colleague, Justice Kedmi, believes that the term "spouses" cannot have varied meanings in different laws. In his opinion, this term has a single meaning: a man and a woman who share their life. This interpretation is acceptable both linguistically and socially. Thus, without an express legal provision, that a same sex domestic partner is "a spouse", a same sex domestic partner should not receive benefits afforded to "a spouse", on the basis of a provision that prohibits discrimination of the employee himself by reason of sexual orientation.
3. I agree with the result proposed by the Deputy Chief Justice. However, in my opinion, the respondent's right does not derive solely from the Equal Opportunities Law, but it derives from the general principle of Equality, that has long ago been accepted in the realm of labor relations.
In my view, the original version of the Equal Opportunities Law reflected the principle of Equality between the sexes, but did not establish it. Thus, for instance, in High Court 104/87 Nevo v. The National Labor Court, 44(4) P.D. 749, a provision that established different retirement ages for men and women was struck down. This invalidation was based on the legal situation that preceded the Male and Female Workers (Equal Retirement Age) Law, 1987, which equalized the retirement age of male and female workers, while preserving the female workers' right to an early retirement. Compare, also, Justice Matza's judgment in High Court 453,454/94 The Israeli Lobby for Women v. The Israeli Government (forthcoming) 22-24.
Similarly, the amending Law has not changed the existing law regarding the equal rights of homosexuals, but only expressed it. Therefore, had the respondent insisted on his original claim to receive the benefit for his spouse since 1989, namely before the enactment of the amendment, I would have granted his request. In contrast, were it not for the development of the norms in Israeli society, which do not totally object to homosexual relationship anymore, the Equal Opportunities Law might have been construed narrowly - as my colleague, Justice Kedmi, has construed it - in a way that would not have granted the respondent the benefits he has claimed.
4. The principle of Equality does not operate in an empty social space. The question whether in a certain case there exists discrimination between equals, or different treatment toward different persons, is decided on the basis of the accepted social concepts. Justice Wilson has noted this fact in the Canadian case of R. v. Turpin, (1989) 1 S.C.R. 1296, 1331:
"In determining whether there is discrimination in grounds relating to personal characteristics of the individual or group, it is important to look... to the larger social and political context. Accordingly, it is only by examining the larger context that a court can determine whether differential treatment results in inequality."
See also the judgment of Justice Denning in the case of Dyson Holdings Ltd. v. Fox, (1975) 3 All E.R. , 1033.
5. In the past, intimate relations between persons of the same sex - relations which are regarded by all monotheistic religions as a sin - constituted a criminal offense. Distinction on the basis of sexual orientation was considered legitimate even outside the scope of criminal law. Homosexuals (meaning lesbians as well) were fired from their workplaces, were not hired for jobs that involved confidential security positions, and were not allowed to raise their children. In the United States, they were classified as psychopaths, and were not allowed to immigrate to the country (The Editors of the Harvard Law Review, Sexual Orientation and the Law, (1990) 44, 65, 119, 132, 139, 150, 153).
This attitude has gradually changed. Legal scholarship has criticized the definition of homosexual relations as a criminal offense and the discrimination of homosexuals in all areas of life, including the area of employment (R.A. Posner, Sex and Reason (1992) 308). Movements for equal rights for homosexuals have emerged. The current trend, which begun in the 1970's, is a liberal attitude toward the sexual orientations of a person, which are regarded as his private concern.
These changes in social concepts have been expressed in the law of the Western world, and homosexual couples obtained equality, according to the norms of the society in each country.
6. European countries have abolished the criminal prohibition against homosexual relations. The legislation in the public and labor law of France, Denmark, Sweden and Norway prohibits discrimination by reason of sexual orientation. Laws in Sweden, the Netherlands and Norway equate rights and obligations of homosexual couples with the rights and obligations of heterosexual couples, including tax benefits and division of property upon separation. Swedish law also recognizes the right of intestacy of the homosexual spouse (L.R. Helfer, "Lesbian and Gay Rights as Human Rights: Strategies for a United Europe", 32 Virginia Jour. of International L. (1991) 157, 168). Homosexuals in Denmark have received the greatest degree of recognition. The law of this country allows "marriage" of two persons of the same sex by registering the shared life relationship. This registration affords the homosexual couple the social rights granted to married couples (M.H. Pedersen "Denmark: Homosexual Marriages and New Rules Regarding Separation and Divorce", 30 Jour. of Family L. (1991-2) 289).
The European Convention for the Protection of Human Rights and Fundamental Freedoms protects in section 8 homosexual relations, as a part of the protection of the right of privacy (see the cases of the European Court of Human Rights: Norris v. Ireland, 142 Eur. Ct. H.R. (ser a) (1988); Modinos v. Cyprus, Case No 7/1992/352/426 (1993)). Recently, a proposal for amending the Convention so as to prohibit any kind of discrimination by reason of sexual orientation has been submitted (Draft Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms).
7. In Canada, section 15(1) of the Canadian Charter of Rights and Freedoms, which is a part of the Constitution Act, 1982, protects every person's right to equality. Case law has interpreted this section as prohibiting discrimination on the basis of sexual orientation (Vriend v. Alberta, (1994) 6 W.W.R. 414; Egan v. Canada, (1993) 103 D.L.R. (4th) 336; Haig v. Canada, (1992) 94 D.L.R. (4th) 1). In contrast, claims by homosexual couples for rights which are given to married couples have been rejected. It has been decided, that since the purpose of marriage is to raise children, a different treatment of a homosexual couple does not violate the Charter (Haig v. Canada, supra, at p. 340; Layland v. Ontario (Consumer & Commercial Relations), (1993) 104 D.L.R. (4th) 214, 231 (Ontario)).
8. The change in the United States is a more moderate one. In some states there still exists a criminal prohibition - which is not enforced - on homosexual relations. As late as 1967, the United States Supreme Court decided that since a homosexual is a psychopath person, as defined in the Immigration and Naturalization Act, his immigration to the United States is prohibited, and he is subject to an immediate deportation (Boutilier v. Immigration and Naturalization Services, 387 U.S. 118, 87 S.Ct. 1563 (1967)). However, six years later, in 1973, the American Psychiatric Association had abolished the definition of homosexuality as a mental disorder, and in 1981 the decision of Boutilier was reversed. It was decided, that homosexuality is not a mental disorder and is not an evidence of bad character. Therefore, it does not constitute a reason for denying a request for naturalization (Nometz v. Immigration and Naturalization Services, 647 F.2d 432 (4th Cir. (1981))).
In the 1980's, 139 jurisdictions (states and localities) have enacted laws prohibiting discrimination on the basis of sexual orientation in the areas of employment, housing and education ("Constitutional Limits on Anti-Gay Initiatives", 106 Harvard L. R. 1905, 1923-25 (1993)). Municipal laws in 12 municipalities allowed homosexual couples to register in the municipality as "domestic partners" in order to receive social rights given to families (Note, "A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances", 92 Columbia. L. Rev. 1164, 118).
Concurrently, courts in some states have recognized the rights of a same sex spouse on the basis of the purpose test (called "a functional test"). According to this test, the recognition of a homosexual couple depends on the purpose of the law which affords a benefit to "a family or a spouse". The homosexual spouse will receive the rights granted by the law if it conforms to its purpose.
Thus, for instance, the New York State Court of Appeals has recognized a domestic partner of a tenant that passed away, as a tenant for the purpose of Rent Control law, by virtue of his being the spouse of the deceased. It was decided that, for the purpose of Rent Control law, the difference between a heterosexual couple and a homosexual couple is irrelevant. If the domestic partner will not be recognized as a spouse, the purpose of the law will be frustrated, since a distant relative will receive the right of tenancy, while the person who shared his life with the deceased will be expelled from the apartment in which he has lived for years (Braschi v. Stahl Associates Company, 544 N.Y.S. 2d 784, 788-789. See also Yorkshire Towers Company v. Harpster, 510 N.Y.S. 2d 976 (1986); Two Associates v. Brown, 502 N.Y.S. 2d 604 (1986); East 10th Street Associates v. Estate of Stuart Goldstein, 552 N.Y.S. 2d 257 (1990)).
The prevailing view in the United States was summarized in an essay by C. Bowman and B. Cornush, "A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances", 92 Columbia. L. Rev. 1164, 1175-1177, as follows:
"There is a general tendency to look at the characteristics of the particular relationship to determine whether it qualifies as a family for the purposes of the particular statutory scheme, especially when a statute uses a term such as 'family','spouse', or 'parent' without defining it... Courts have identified certain elements as indicia of a 'family like relationship' including financial commitment, exclusivity of the relationship, the reliance members place on each other, the length of the relationship, and the presentation of the relationship to the outside."
9. Israeli law dealing with homosexuals reflects the social changes that have occurred during the years.
Sodomy was considered in the past an offense contrary to the law of nature, that was to be punished by imprisonment for 10 years (Section 351(3) of the Penal Law, 1977, the new version of section 152 (2) of the Mandatory Criminal Code Ordinance, 1936). This prohibition was never enforced. As early as 1963, in criminal appeal 224/63 Yosef Ben Ami v. The Attorney General, 18 P.D. 225, 238, this court has decided that this offense has no place in contemporary reality. These were the words of Justice Chaim Cohen, who wrote the opinion:
"Sodomy (of men and women), when done privately and willingly by adults, is not an act of infamy, and does not constitute evidence that the persons engaging in such conduct are criminals worth of punishment. These are offenses that we have inherited from ancient systems and past generations, and they should not exist in the penal laws of a modern country... "nature" as such no longer requires the protection of penal laws. What do require their protection are human dignity, person and liberty... One of the basic rights of a citizen is that the state shall not interfere with his private life and his hidden conduct..."
However, the offense was stiil in effect and was not abolished for many years. Even in 1980, when the Penal Law Bill (Amendment no. 14), 1980 - which, as it explained, was intended to substitute modern legislation for the Mandatory statutory provisions - was introduced to the Knesset, it was proposed to leave the prohibition of sodomy unaltered. However, it was proposed to reduce the penalty for this offense to one year imprisonment. The explanation stated: "The question whether the penal law should interfere with sexual acts between adults, done willingly and privately, is disputed" (1980 Bills, 392).
This bill was not discussed in the Knesset, and the criminal prohibition was abolished eight years later by Penal Law (Amendment no. 22), 1988.
This formal abolition reflects the current attitude of Israeli society, according to which the law (as differentiated from religions) should treat the sexual orientation of a person with indifference, as long as he does not harm anyone. There is a broad consensus that homosexuals should not be restricted or discriminated against (A. Rubinstein, The Constitutional Law of The State of Israel, (Vol. I, 4th ed., 1991) 334). The amendment to the Equal Opportunities Law reflects this attitude. Member of the Knesset M. Wirshuvsky has noted, during the discussion of the bill in the first reading:
"We thereby comply with the rules accepted today by the enlightened world and enable persons to live according to their sexual orientations, and not suffer or be deprived of something as a result.."
(Proceedings of the Knesset (vol. 123, 1990) 1034).
10. In this case, it is clear that there is a difference between a homosexual couple and a heterosexual couple. However, the "difference" that justifies different treatment should be relevant (further hearing 10/69 Boronovsky v. Israeli Chief Rabbies, 25(1) P.D. 7,35; High Court 720/82 Elitzur v. The Municipality of Nahariya, 37(2) P.D. 17, 21; High Court 4169/93 Yelin v. The State of Israel (forthcoming)).
The appropriate test should therefore address the relevance of sexual orientation to the benefit accorded to the spouse. The purpose test fulfills this requirement. According to this test, a distinction between a homosexual spouse and a heterosexual spouse should not be made if the spousal bond between the same sex spouses satisfies the criteria that fulfil the purpose for which the benefit is granted. In contrast, when sexual orientation is relevant to the fulfillment of the purpose of the benefit, e.g. if the purpose is the encouragement of childbirth, then denying the benefit from a same sex spouse will not constitute discrimination. Justice L'Heureux Dube has dealt with this issue in the Canadian Supreme Court case Canada v. Mossop  S.C.R. 554, 560:
"...'family status' may have varied meanings depending on the context or purpose for which the definition is desired... The Tribunal concluded that the potential scope of the term 'family status' is broad enough that it does not prima facie exclude same sex couples. In making this finding the Tribunal used the proper interpretational approach, considered the purpose of the Act and the values at the base of the protection of families..."
And compare also labor court case 54/0-85 Ornan v. The National Insurance Authority (forthcoming). In that case, it was decided that a common law spouse is exempted from paying national insurance payments by virtue of section 8 of the National Insurance Law [Consolidated Version], 1968, which exempts from national insurance payments "a married woman, whose spouse is insured". Judge Goldberg, who wrote the opinion of the court, explained that considering the purpose of the Law - to equalize the status of the common law wife to the "legal wife" - and the definition in the Law of the term "his wife" as including "a common law wife", the common law wife should be regarded as "a married woman" as well.
11. The principle of Equality binds, first and foremost, public authorities, but it applies also to the area of labor relations in general (see, for instance. S. Almog, "A Guide to Labor Law", The Employee's Guidebook (1993) 35-36). The contractual freedom of the employer retreates before the employee's right to Equality (labor court case 33/3-25 Air Crew Flight Attendants Committee - Hazin, 4 P.D.L. 365; High Court 410/76 Herut v. The National Labor Court, 34(3) P.D. 124; High Court 104/74, ibid). The legislation that prohibits discrimination in the area of labor relations reflects this principle, but it did not create it. See also F. Raday, "'Privatization of Human Rights' and the Abuse of Power", 23 Mishpatim (1994) 21, 41.
12. In this case, the flight ticket was not intended for the married spouse of the employee, and in any case the purpose of the benefit was not to encourage living in a traditional family unit. The benefit was given to the employee for the spouse with whom he actually shares his life. It is true that the petitioner did not intend to implement this arrangement to spouses of the same sex, but the sex of the spouse is not relevant to the purpose for which the benefit is given.
Benefits for a spouse constitute a significant part of the salary of an employee. Professor Albin has calculated that in the United States 27 % of the employee's salary are embodied in benefits (R. Elbin, "Domestic Partnership Recognition in the Workplace: Equitable Employee Benefits for Gay Couples", 51 (2) Ohio State L.J. (1990) 1067, 1068-1069).
In Israel, benefits (including "accompanying terms") may multiply the salary (Heshev Monthly (M. Katzin ed., October 1994, 50)). A considerable part of these benefits - such as pension rights and life insurance - are given for the spouse, including the common law spouse, and denying those benefits from the spouse with whom a homosexual lives means reducing his salary. Denial of these benefit constitutes, therefore, discrimination of the employee himself. As professor Albin has noted:
"Unable to marry, gay couples are generally excluded from the benefits afforded married couples in our society, including benefits commonly accorded spouses in employee and public benefit programs. For gay employees, the result is total compensation lower than that of their married co-workers performing the same job. Domestic partner provisions lessen the economic discrimination that results from the ban on same sex marriage... An employer who does not offer domestic partner benefits is, in fact, paying less in total compensation than he should be, because employees with domestic partners are not being compensated equally."
(Ibid, at pp. 1068-1069, 1082).
In this case, denying the benefit from the respondent will reduce his salary in the amount of the value of the ticket, and this cannot be justified.
I therefore agree that the petition be dismissed.
J u s t i c e
It is decided by a majority according to the opinion of the Deputy Chief Justice A. Barak.
Decided today, November 30, 1994.
 Translator's note: In Israeli law, a collective bargaining arrangement differs from a collective bargaining agreement in that it does not fulfill all the conditions necessary to create a collective bargaining agreement (certain parties; certain subject-matters; formal requirements). The collective bargaining arrangement has an inferior status as against a collective bargaining agreement.
 Translator's note: The Hebrew term for "spouse" is gender specific. A male spouse is called "ben zug." A female spouse is called "bat zug." A couple is simply "zug."
 Translator's note: In Hebrew, the term "zug" (couple) and the term "hizdavgut" (mating) originate from the same grammatical stem.