News that the High Court has ordered the government to explain why women can‘t pray as they wish in the women’s section at the Kotel is not the triumph some activists are proclaiming.
By Allison Kaplan Sommer
It’s hard to blame Women of the Wall – whose members have been leading the fight to pray as they see fit at the Western Wall – being desperate for something to cheer. The same holds true for their loyal supporters overseas.
After all, it’s been a long and exhausting few years. Following three long years of negotiations, the government headed by Prime Minister Benjamin Netanyahu finally agreed to provide the Reform and Conservative movements (as well as Women of the Wall) with a permanent egalitarian prayer space – a decision that was widely hailed as historic.
True, not all were thrilled. A group that included some of Women of the Wall’s founders split from the organization and decried the agreement as selling out women’s ability to pray freely in the existing prayer space in exchange for a mixed-gender area. But ultimately, and disappointingly, all parties watched the product of their hard work crash against the rocks after the ultra-Orthodox (or Haredi) parties decided to dig in their heels and flex their political muscles, knowing that Netanyahu wasn’t about to risk his political future by confronting them on the issue.
Meanwhile, every month, the women worshippers are engaged in a ridiculous cat-and-mouse game of smuggling Torah scrolls to the Kotel for their prayer ceremonies, without drawing the attention of security guards, as well as unending nasty clashes with Haredi harassers.
Still, the celebration of the High Court of Justice decision last Wednesday was extremely premature, to put it mildly.
“This is a momentous ruling,” cheered Shulamit Magnus – a founder of Women of the Wall and the lead plaintiff in the High Court case – when news of the decision came in. “This is 1967 for Jewish women,” she wrote in The Jerusalem Post, referring to the historical liberation of the Wall, claiming that “In its ruling, the court put the onus on the defendants to justify withholding Jewish women’s rights to full religious expression, rather than asking us to defend that we have them.”
And Women of the Wall Director Anat Hoffman breathlessly declared: “Just when it seemed the Rabbinate’s power was overwhelming, the court’s verdict regarding our demand to read Torah at [the] women’s section of the Western Wall reflects both courage and wisdom.” Hoffman said she was “elated” because “we have come much closer toward implementation of the Western Wall agreement on gender equality and religious freedom at the Wall.”
Most of the Jewish media struck a similarly joyous tone.
JTA reported: “Israeli Supreme Court [sic] ruling favors women’s prayer at Western Wall.” The Times of Israel wrote: “In landmark decision, High Court rules for women’s Western Wall prayer.” The Forward wrote that it “gives women long-sought access to ‘sacred space’ at the Western Wall.” American Jewish organizations – the Reform and Conservative movements, followed by the AJC and ADL – similarly hailed the ruling.
No one wants to be the Debbie Downer at a victory parade, but the real progress achieved by the ruling was far smaller, and the undeserved superlatives greeting it create a false impression of progress (emphasis added).
Baby steps should not be treated as giant leaps, no matter how much that benefits morale and boosts fundraising efforts for the long and expensive political and legal fight.
Sure, there were some small victories in the ruling. It is definitely good news that women will no longer be pawed at the Western Wall Plaza entrance by guards searching for contraband Torah scrolls. As my colleague Judy Maltz reported, the High Court ruled that Rabbi Shmuel Rabinowitz – the chief custodian of the Kotel – could no longer subject women to invasive body checks when coming to the site. The body checks had occurred over recent months after Women of the Wall worshippers started smuggling in Torah scrolls, in blatant defiance of his regulations.
But here’s the part that has been distorted and unjustifiably celebrated: The fact that the High Court announced the issuing of an “interim injunction,” with the four respondents in the case – including Rabinowitz; the director of the Prime Minister’s Office; and the Religious Services Ministry – being given 30 days to explain why they don’t allow women to read from the Torah in the women’s section.
Those familiar with Israeli law know that an interim injunction is far from a victory. It is, instead, a highly standard procedure – giving the other side a chance to make their argument – and is not in any way a ruling in favor of one side or the other.
Perhaps the most interesting aspect of the High Court’s decision is technical, and involves the three separate petitions about the Western Wall situation.
The petition in this particular High Court ruling was submitted by the Center for Women’s Justice on behalf of four women from Original Women of the Wall (a splinter group of Women of the Wall). They are demanding the right to read from the Torah in the women’s section. Since women are already allowed to wear tefillin and prayer shawls at the Kotel based on a 2013 Jerusalem District Court ruling, which found that such practices do not constitute a violation of “local custom,” the fight to read Torah is their main concern.
A separate, second petition before the court comes from the Reform and Conservative movement in Israel, along with Women of the Wall, and this has a wider scope: It demands that the government follow through with its promise to provide them with a permanent egalitarian prayer space at the southern end of the Western Wall (known as Robinson’s Arch). If this is deemed unfeasible, they ask that the existing gender-segregated spaces be redivided so that a portion of it can be used for mixed-prayer services.
It should be noted that government respondents in this second petition have already asked – and received – several extensions to prepare their response to the court: the exact same “interim injunction” that the Original Women of the Wall are popping their champagne corks over. The last deadline, which the government responders failed to meet, was on January 1.
There is a third petition, filed by an Orthodox organization called the Liba Center, which objects to the government plan to provide the Reform and Conservative movements with their own prayer plaza at the Kotel.
The High Court decided that all three of these petitions should be bundled into one ruling. A date has yet to be determined for any hearings on the matters.
Taking a step back and viewing the situation on a macro scale, it is depressing that the Netanyahu government has clearly decided that it needs to be forced by the court to officially acknowledge the right to hold women’s, egalitarian or mixed-gender prayer at the Western Wall, and that standing up for it openly is politically impossible. It is also ominous.
Ultra-Orthodox parties already have counterattacking legislation poised to move forward if it appears advocates of egalitarian prayer have the High Court on their side and could win in the legal arena.
As Netanyahu’s governing coalition teeters under the weight of his current scandals and with a new election potentially in the offing, none of the major political players may have the spine to vote against such legislation and stand up for religious freedom that the majority of Israelis support – out of fear that the Haredi parties will refuse to form a coalition with them.
An opinion piece in the ultra-Orthodox Hamodia newspaper last week threatened as much: “It is clear that the government will block the intervention of the High Court in this matter. The law that Interior Minister Rabbi Arye Dery has proposed is already drafted and ready. No Israeli government coalition would be able to survive in the face of a High Court ruling such as this, without recourse to a law that will circumvent the court and put it in its place.”
The unnecessary cheers over the “interim injunction” will only give such efforts more momentum, much the same way that celebratory hoopla over the Western Wall compromise a year ago – while justifiable – also helped inspire the fierce opposition.
If it wasn’t already clear after decades of struggle, the fight for a Western Wall where all Jews can worship freely according to their custom is not a sprint but a long and exhausting marathon – one that will take both stamina and strategy. Celebrating victories where they don’t exist is certainly understandable and tempting, but ultimately unhelpful.