Violation of the Constitutional Right to Equality - General
- Much has been written about the constitutional right to equality, which is derived in our legal system from the right to human dignity. As is well known, the 'intermediate model' was accepted in this context; regarding it it is stated:
"The intermediate model does not reduce human dignity only to humiliation and humiliation, but it also does not extend it to all human rights [...] According to this approach, human dignity can also include non-humiliating discrimination, provided that it is closely related to human dignity as an expression of autonomy of private will, freedom of choice and freedom of action, and similar aspects of human dignity as a constitutional right" (HCJ 6427/02 The Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619,687 (2006); see also, For example: High Court of Justice 4343/19 Yes to the Elderly - For the Advancement of the Rights of the Elderly v. Knesset of Israel, para. 14 [Nevo] (March 16,2022); On the complex relationship between human dignity, equality, and autonomy, see, for example: Danny Statman, "Two Concepts of Dignity, " Iyunei Mishpat 24 (2001); Compare: Avichai Dorfman, "Respect for Man and Israeli Constitutional Law, " Iyunei Mishpat 36 111 (2013) (hereinafter: Dorfman)).
- These matters are well known, well-known, and have been discussed extensively in case law and literature (see, for example, in the legal literature, from many different directions: Hillel Somer, "The Unenumerated Rights - On the Scope of the Constitutional Revolution, " Mishpatim 28 (1997); Yitzhak Zamir and Moshe Sobel, "Equality before the Law, " Law and Government 165,169 (2000) (hereinafter: Zamir and Sobel); Yitzhak Benbaji, "Equality and Dignity as Competing Ivers: Justice Dorner in the Alice Miller case, " Law Studies 22 445 (2006); Moshe Cohen-Elia, "On the Mental Element Underlying the Prohibition of Discrimination in Supreme Court Rulings: Intention? Result? Apathy?" Law and Governance 17 (2016); Barak Medina, "The Constitutional Right to Equality in Supreme Court Rulings: Human Dignity, Public Interest, and Distributive Justice, " Law and Rule 17 (2016)).
- Despite the extensive practice, there is certainly some ambiguity regarding the essence, boundaries, and manner in which the principle of constitutional equality is applied. Equality is a broad concept, with many facets, and we attribute different meanings to it in a variety of contexts (see, for example: Reem Segev, "Equality and Other Things, " Mishpat Ve-Mishmal 17:191 (2016); Gideon Sapir, "The Constitutional Right to Equality", Law Studies 34 355 (2023) (hereinafter: Sapir)). In one of the cases, my colleague Justice Barak-Erez and I made, in various ways, an effort to inject a slightly more concrete content into the constitutional right to equality, for the benefit of guiding those engaged in the work (High Court of Justice 3390/16 Adalah v. The Legal Center for Arab Minority Rights in Israel v. Knesset [Nevo] (July 8,2021), paragraphs 4-35 of my colleague's opinion and paragraphs 107-136 of my opinion). As I noted there, even though a certain disagreement arose between us, there is a great deal of unification over the separator:
"It seems to me that there is no disagreement between us as to the main tenets of the theory of the constitutional right to equality; what is this about? There is no dispute that constitutional equality is limited to administrative equality; there is no dispute that constitutional equality is limited only to situations in which discrimination is closely related to human dignity; There is no dispute that the rule adopted in our case law from time immemorial is the 'intermediate model', but rather that 'the concretization of the model - as opposed to its recognition - has not yet been fully sharpened' [...]; There is no dispute that 'legislation often includes distinctions where there are disagreements with respect to the rationale underlying them, and the existence of a dispute, or even the claim that the distinction is irrelevant, is not sufficient to justify a discussion of them from the perspective of constitutional equality' [...]; There is no dispute that the question of the violation of the constitutional right to equality must be examined in the light of the question, Does discrimination convey an offensive message, labeling, according to which 'certain individuals are not worthy of being full members of society because of their membership in a certain group' [...]; There is no dispute that at the core of the situations in which the constitutional right to equality is violated are those 'suspicious' situations listed in Israeli constitutions, international documents, and legislation, but there is also no dispute that the 'suspicious' situations are not the end of the story, and should not be considered a 'closed list'. Like my colleague, I too am of the opinion that the constitutional right to equality is likely to spread its wings over a wider spectrum of situations and distinctions" (ibid., paragraph 158 of my opinion).