Is the High Court the answer to issues of Religion and State in Israel?

Photo screenshot Times of Israel
Photo screenshot Times of Israel

By Maayan Jaffe-Hoffman
eJewish Philanthropy

In Israel, we talk about the status quo, which refers to the political understanding between religious and secular political parties not to alter the communal arrangement in relation to religious matters. However, in recent years, it has become increasingly apparent that when it comes to issues of religion and state – “this is one of the things that will change in the next years,” said Dr. Hanan Mandel, chair of Ne’emanei Torah Va’Avodah, an Israeli NGO that aims to forge a sector of Judaism that successfully integrates a halachic lifestyle with active engagement in Israeli society.

“We are still deciding what it means to be an Israeli and in what kind of society we want to live,” said MK Rachel Azaria (Kulanu). “We are a segregated society and the question is how to take a segregated society and turn it into a pluralistic society.”

The growing pains of a young nation grappling with what it means to be both Jewish and democratic can be acutely seen in the tensions between the Knesset and the High Court. In recent years, the court has become what Jerusalem Post religious affairs correspondent Jeremy Sharon calls “the final battle ground for a lot of these decisions [on religion and state].”

High Court judges have handed down far-reaching decisions that allowed for greater religious pluralism in Israel and, in several cases, shaken the monopoly of the religious establishment. There were a number this past spring – one after the other.

In February 2016, the court ruled that mikvahs in the country must open up to non-Orthodox conversion rites, which until then denied access for conversion immersions to Conservative and Reform Jews.

In May 2016, the court declared that the state must recognize private conversions to Orthodox Judaism that are conducted outside the framework of the Israeli Chief Rabbinate.

Perhaps most famously, in 2012, the High Court overturned the Tal Law, which allowed full-time yeshiva students to defer army service, calling it “unconstitutional.”

“The courts are meant to be a part of Israel’s system of checks and balances,” explained Sharon. “But if it continually goes against the legislative branch or we start to rely on the court to continually uphold a particular principle, it will start to lose legitimacy.”

Mandel, who is also a lecturer in law and conflict resolution at Bar-Ilan University and Ono Academic College, agreed. He said that many Israelis still believe the High Court will be able to “rescue things” if the legislators take them too far. He contends, “That is not right.”

“The Supreme Court plays a very important role in keeping democracy in Israel,” said Mandel. “But when it comes to making changes on issues of religion and state, the Supreme Court alone cannot do it – not through any kind of direct action.”

Mandel’s stance was corroborated as recently as this summer, when in July the Knesset passed the Mikvah Bill. Under the new law, municipal rabbinates can determine who may use the mikvahs in their purview. The measure circumvented the February court ruling that paved the way for non-Orthodox Jewish communities in Israel to use public mikvahs for conversion immersions.

Sharon said Israel saw a similar phenomenon between 2012 and 2016. In the euphoria of the court’s decision on the Tal Bill, members of the then prominent Yesh Atid party managed to pass a number of laws targeted against the ultra-Orthodox, including making budget cuts to yeshivas, demanding heders (elementary school centers of Torah learning) to teach the core curriculum, and requiring Haredim to enlist in the military or national service. All those laws have been overturned by the current ultra-Orthodox-strong government.

“When a law gets struck down [by the court], they [the politicians] pass a new law that circumvents the previous ruling and it takes another three or four years for the High Court to intervene,” said Sharon. “It’s a tactical game.”

MK Azaria said it is time that the government and the Knesset make sure their legislation is good. She said as a member of the Israeli parliament she does not want to turn legislating into the responsibility of the court. She has worked tirelessly with members of her Kulanu party to stop and/or change quite a bit of legislation over the past year – tempering populist or anti-democratic bills.

“There was a lot of legislation that when it was first written up was more radical then when we passed it,” Azaria explained. “We have done this on many issues of religion and state – issues of kashrut and Shabbat.”

She said even with the Mikvah Law, she lightened it and was largely responsible for a clause in the legislation that requires new mikvahs be built for use by Conservative and Reform converts.

“I am a practical politician,” said Azaria, noting how she secured funding for these mikvahs through the Ministry of the Prime Minister.

“I realize that with the ultra-Orthodox, we can fight them head on or realize that we might be more immediately successful by bypassing them,” she said. “We’ll continue to fight and one day everyone will be able to go to any mikvah for conversations. But how many conversions do we do a year? If we have four mikvahs built will it be enough. Yes. That’s practical.”

Azaria said it is because of a historic fear of others different than themselves that the country has stuck to the status quo. However, she sees that a new, younger generation has started to realize that no one segment of society is going to win – rather all streams of Israeli society have to work together.

“Everyone is here to stay, so let’s sit down and discuss the issues,” said Azaria. “I am optimistic.”