Background
David Cohen, age 34, was born into a Modern Orthodox Jewish family in Montreal. Though he distanced himself from religious practice as a young adult, he maintained strong cultural and community connections to his Jewish identity. After establishing a successful career as an architect, David met and fell in love with Thomas Chen, a Taiwanese-Canadian graphic designer with no Jewish background.
The couple married in Canada in 2019 after five years together. While Thomas had no interest in converting to Judaism, he respectfully participated in Jewish cultural celebrations with David’s family and supported David’s ongoing connection to his heritage. As antisemitism increased in their city, including an incident where their home was vandalized with antisemitic graffiti, David began seriously considering aliyah to Israel.
While the Law of Return clearly established David’s eligibility for aliyah, Thomas’s status presented a complex challenge. As amendments to the Law of Return extended immigration rights to spouses of Jews, the provision had been primarily applied to heterosexual spouses. Though Israel recognized same-sex marriages performed abroad, there was limited precedent regarding non-Jewish same-sex spouses in the aliyah process.
For David, moving to Israel without his husband was unthinkable, yet uncertainty about Thomas’s immigration status created a significant barrier to their planning.
The Challenge
The couple’s application faced several significant obstacles:
- Limited precedent existed for applying spousal provisions of the Law of Return to same-sex couples
- Thomas had no independent basis for Israeli immigration status outside his marriage to David
- Conservative religious influence in certain government offices created potential resistance
- The couple needed clarity on Thomas’s long-term status security independent of political changes
- Questions arose about whether Thomas would qualify for the same benefits as other spouses
- Their case risked becoming entangled in broader political debates about both LGBT rights and immigration
- They needed assurance that Thomas’s status would remain secure even if something happened to David
Precedent Case: The Equal Protection Spousal Principle (2017)
Their situation found resolution through the landmark “Equal Protection Spousal Principle” established by the Israeli Supreme Court in 2017, which addressed similar cases involving same-sex spouses of eligible Jewish immigrants.
The principle established that: “The spousal provisions of the Law of Return must be applied equally regardless of sexual orientation. When the Law extends immigration rights to ‘spouses of Jews,’ this language is neutral regarding gender and must be interpreted in accordance with Israel’s commitment to equality under law. Same-sex marriages legally performed in foreign jurisdictions and recognized by Israel for other legal purposes must similarly be recognized for immigration purposes under the Law of Return. The rights, benefits, and status afforded to spouses under the Law of Return apply equally to same-sex spouses who meet all other relevant criteria.”
Resolution Process
Working with legal advocates specializing in both immigration and LGBT rights, David and Thomas developed a comprehensive application addressing both legal rights and practical considerations:
- Legal Status Documentation:
- Complete documentation of their legal marriage in Canada
- Evidence of Israel’s recognition of foreign same-sex marriages for other legal purposes
- Legal analysis of relevant Supreme Court precedents regarding equal application of laws
- Documentation of other cases where same-sex spouses had received status
- Expert testimony on the neutral language of the relevant legal provisions
- Relationship Verification:
- Evidence of their five-year relationship prior to marriage
- Documentation of their shared financial and domestic life
- Testimonials from family members regarding the authenticity of their relationship
- Evidence of Thomas’s supportive participation in Jewish cultural traditions
- Documentation of their joint response to antisemitic incidents
- Jewish Eligibility Confirmation:
- David’s birth certificate confirming Jewish parentage
- Documentation of his bar mitzvah and Jewish education
- Letters from his rabbi and community members
- Evidence of his continued Jewish cultural identification
- Documentation of antisemitic incidents targeting him as a Jew
- Integration Planning:
- Research on LGBT-friendly communities in Israel
- Professional licensing transfer planning for both careers
- Language study plans for Thomas
- Connections with organizations supporting diverse olim
- Housing research in Tel Aviv’s inclusive neighborhoods
Outcome
After a six-month review process, the Ministry of Interior approved the couple’s application, explicitly citing the Equal Protection Spousal Principle. The approval recognized Thomas’s right to immigrate as David’s spouse under Section 4A of the Law of Return, granting him the same status, rights, and benefits afforded to any spouse of a Jewish immigrant.
The approval stated: “In accordance with established legal precedent and Israel’s commitment to equality under law, the spousal provisions of the Law of Return apply without discrimination based on sexual orientation. The applicant David Cohen clearly qualifies for aliyah based on his Jewish heritage, and his legally recognized spouse Thomas Chen therefore qualifies for status under Section 4A of the Law of Return. This equality of application ensures that Jewish individuals are not forced to choose between their right of return and their legally recognized family bonds.”
David and Thomas successfully made aliyah in 2023 and settled in Tel Aviv, where they found a welcoming community. David established an architectural practice specializing in sustainable urban design, while Thomas found work with an international design firm. While they occasionally encounter traditional perspectives challenging their family structure, they have generally found Israeli society’s diversity accommodates their relationship. Thomas has embraced learning Hebrew and participates in cultural aspects of Jewish life while maintaining his own spiritual traditions.
Key Principles Established
This case reinforced several important principles regarding aliyah approval for same-sex couples:
- The spousal provisions of the Law of Return apply equally regardless of sexual orientation
- Same-sex marriages legally performed abroad are recognized for immigration purposes
- The neutral language of the Law of Return is interpreted in accordance with equality principles
- Jewish individuals need not choose between their right of return and their same-sex spouses
- The rights, benefits, and status afforded to spouses apply equally to same-sex partners
- Israel’s recognition of foreign same-sex marriages extends to immigration contexts
- Sexual orientation does not affect the application of family unification principles
This case is now referenced when counseling same-sex couples considering aliyah, demonstrating that the spousal provisions of the Law of Return apply equally regardless of sexual orientation when marriages are legally recognized.
