1

“Religious institutions that use government power in

support of themselves and force their views on persons of

other faiths, or of no faith, undermine all our civil rights.

Moreover, state support of an established religion tends to

make the clergy unresponsive to their own people, and

leads to corruption within religion itself. Erecting the 'wall

of separation between church and state,' therefore, is

absolutely essential in a free society.”

Thomas Jefferson

Game of Thrones:

The Ongoing Discourse of Religion and State in Israel

Liana Voloch

TABLE OF CONTENTS

I. Introduction ............................................................................................................................... 2

II. Sources of Law in Israel ........................................................................................................ 4

A. The Constitutional Revolution and its Influence in Terms of Religion: .......................................... 6

B. “Jewish and Democratic State” ........................................................................................................ 8

III. The Unique Model of the Status Quo ................................................................................. 13

A. The Exemption of “Yeshiva” Students From Mandatory Military Service: .................................. 15

B. Marital Law in Israel:..................................................................................................................... 19

C. The “Shabbat”: ............................................................................................................................... 25

D. The “Kashrut” ................................................................................................................................ 26

E. The Religious Education System: .................................................................................................. 28

IV. As Israel Develops: Additional Status Quo Disputes.......................................................... 32

A. Status Quo and the Feminist Angle: .............................................................................................. 32

B. Euthanasia in Israel: ....................................................................................................................... 37

V. Euthanasia, Religion and state: Israel and Italy .................................................................. 39

VI. Conclusion .......................................................................................................................... 43

2

I. Introduction

November 1947 was the month when the general assembly of the United Nation

deliberated on the issue of Palestine, finally recommending the dividing of the

territory into two parts: a separate Jewish state and an Arabic state. It has also

mentioned that the two states would function as democratic states; promising not

to infringe the social and political right of different nationals in the borders of the

new states. The global Arabic leadership opposed the decision, and after the

declaration of independence of Israel (1948) an ongoing war has started.

Prior to those events and the foundation of the Israeli state, a vivid dispute

had been going on between the Jewish community members. During the years

Jews spent in “Galut” (Diaspora) different approaches to the notion of “Jewish

State” were developed. One of the main disputes was between orthodox and non

orthodox- Zionsits Jews1. After the UN decision, the first Israeli assembly

gathered in order to decide about the nature of the religion and the new state

relations; though the majority of people were in favor of a non-orthodox state, the

orthodox parties could not be ignored since they were united under Rabbis and

had a significant voting power. In politics, as in politics, a settlement was

achieved. The settlement was named later on the “status quo agreement” and

pointed out four main issues in which the orthodox party demand full jurisdiction

or complete autonomy.

This agreement was a compromise between the parties. As a result, Israel

is not a theocratic state; it did not establish any religion2. However, it has no

separation “de facto” between state and religion; as I will discuss later on, the

status quo agreement result in many laws and social norms which are influenced

by the Jewish biblical law. For example, the Jewish law determines the right of

1 For further information regarding Zionism and orthodox parties pre-foundation of Israel see: The

State of the Jews, introduction, Theodore Herzl. Ahad Ha-Am : The Jewish State and the Jewish

Problem + The Negation of the Diaspora “From an unsolvable dispute to a unifying compromise”,

The Jerusalem center of research, http://bcrfj.revues.org/index6178.html 2 Natan Lerner, Religious Liberty in the State of Israel, 21 EMORY INT'L L. REV. 239, 239

(2007). [Hereinafter Lerner]

3

one to receive citizenship in Israel3 creating religious discrimination between

Jews and other religions4.

My main purpose in this article is to explore the nature of the status quo

agreement; I would like to examine the main disputes regarding the status quo:

the unchained women (“Agunot”), the exemption of the “Yeshiva” students from

mandatory military service; the separation of woman and man in buses; the

biblical prohibitions that have direct affect on non-religious citizens, and more. in

order to do so, I feel like we must understand the political and legal framework

that the relations between state and religion relies upon; Therefore, in the first two

chapters I will explain briefly the sources of law in Israel beginning from the

Turkish and British regime, going through former president of the Supreme Court,

Judge Aharon Barak’s ‘Constitutional Revolution’ of 1992. Then I will discuss

the notion of “Jewish and Democratic state” as suggested in the declaration of

independence; I will suggest that the democratic liberal state model as we know it,

is not compatible with Israel therefore we should “put on different glasses” and

examine Israel as a Jewish-Democracy.

The main chapter of this article is dedicated to review the status-quo

agreement; I will review the original document, than I will focus on the

development of the agreement and the various mutations that it created. The

original status quo agreement declared four matters that would be considered

exclusively orthodox: Shabbat, Kashrut (kosher food), Marital Law and

autonomous Educational system; I will examine each demand as it was originally

stated and its transformation during the years, analyzing central matters that were

widely discussed in the Israeli society. Furthermore, I would like to suggested two

3 Sammy Samoha Jewish State and Jewish Democracy: A Review Article of Alexander Yakobson

and Amnon Rubinstein's Israel and the Family of Nations: Jewish Nation-State and Human

Rights. Mishpat Umimshal (Law and Government in Israel) 10, 13-24,21 (2006). (Hebrew)

[Hereinafter Samoha]. 4 The Jewish population numbers approximately 6.042 million residents (75.3% of the total

population); the Arab population numbers approximately 1.658 million residents (20.7%); and the

population of “others,” referring to non-Arab Christians, members of other religions, and persons

not classified by religion in the Ministry of the Interior, numbers 318,000 (4.0%)4. According to a

survey from the year 2006, among the Jewish population 8% define the selves as ultra-orthodox;

9% as orthodox; 39% as “traditional” Jews; 44% are secular Jews. See:

http://www.ynet.co.il/articles/0,7340,L-3237968,00.html (Hebrew).

4

additional influences of the status quo; though not mentioned in the original

agreement, I will try to show that Euthanasia and Feminism in Israel are directly

affected from the consequences of the political need to preserve the status quo.

Before I will conclude, I would like to suggest a comparative look of separation

of religion and state from Israeli and Italian point of view; though the two

countries do not share the same religion and tradition, I believe both provide

religion a central and most influential place in their political and legal traditions. I

would specifically examine the case of Euthanasia, as it is most relevant and was

a subject of social disputes in both countries.

I would like to mention that the subject of “religion and state” in Israel Is far

more complex issue that the one presented here; I chose to focus on the orthodox

and non-orthodox relations in Israel. Yet, it is obligatory to mention that in Israel

the Arab minority along other minorities are living among a Jewish majority,

naturally producing numerous disagreements which are lengthily discussed in

Israel politics, legal system and society. Unfortunately, this essay is too short to

hold this subject as well.

II. Sources of Law in Israel

In order to understand the origins of the Israeli legal system and the place

religion within it, it is obligatory to explain the foundations of this system. The

state of Israel was established at the 14th

of May 1948, as a result of the United

Nations decision No. 181 from the 29th

of November 1947, which ended the

British mandate and announced Israel has the right to Independence in the borders

accepted5. Israel declared itself on that day as a “Jewish and democratic state”

6.

Alongside the declaration of independence by prime-minister David Ben

Gurion, The war of Independence has started. It was necessary to establish a

judicial system, but the war couldn’t afford the people involved to create a

judicial system ad-hoc. Therefore, it was decided that the British Judicial system

5 United Nations Palestine Commission. First Monthly Progress Report to the Security Council.

A/AC.21/7, January 29, 1948. Available at: http://unispal.un.org/unispal.nsf/0/7F0AF2BD897689B785256C330061D253 6 See Lerner, supra note 2, at 240.

5

will continue to be the main legal system in Israel. This decision seemed to be

temporary: Many of the Judicial Jewish figures that established the Israeli judicial

system came from Europe and were educated by the civil law: Mohse Zemora, the

first president of the Israeli supreme court was educated in Germany.

Furthermore, there is a traditional judicial system which is called “the Hebrew

religious law”. Part of the judicial figures in the young Israel believed that this

system should be the basic ground to establish the Israeli law7. But the reality in

Israel was different- since the declaration of independence, Israel has been in an

on-going state of war. This fact couldn’t allow the establishment of a new system;

therefore in the first years of Israeli the judicial system was practically similar to

the British system. Over the years the Israeli system evolved into a “hybrid”

judicial system, with support of the civil-law judges which were the majority of

judges in Israeli system in the first years. Until 1980, when the “the foundation of

the law” act was established, the Israeli law was “Anglifikised” as former

president of the Supreme Court Aharon Barak said- meaning he was a sibling of

the English law8.

In General, Israel has no formal constitution, though it has created a variety of

laws which are called “Basic Laws”; These Laws gained a constitutional status

from the “Knesset” (the Israeli parliament) and mainly from judicial activism. In

order to understand this peculiar structure, we ought to go back to the sources of

the Israeli legal system. Israel has four principle sources of law: Ottoman law,

which ruled Palestine until the British mandate; The British mandate, which

implemented the common law system, based on equity; Legislation that was

enacted by the Knesset since the establishment of the state of Israel; And the

Religious law, which was partially implemented in several laws, including Basic

Laws. The religious law has also a separate judicial system, which dominates

matters of marriage, divorce, alimony, burial and further more9. These courts are

separated for every religion, so that there are Muslim, Christian, Jewish and other

7 See Lerner, supra note 2, at 240.

8 Aharon Barak “Shitot Mishpat Be-Israel” (Israeli Judicial Methods), Hapraklit B, 197 (1992)

(Hebrew). 9 Warsoff, The Legal System of the State of Israel, 2 N.Y,L.F. 379 (1956).

6

Religious courts. Every court uses its own religious laws for the decisions making

process; In General, all courts function under Ministry of religion affairs10

.

A. The Constitutional Revolution and its Influence in Terms of Religion:

The original decision of the Israeli founders in Israel’s first years

regarding to the constitution was a “Decision not to decide”. In fact, this decision

is well-known to the Jewish people, since in the “Talmud”, the book of

interpretation for the biblical law, there are always ongoing disputes which are not

solved11

. In the absence of any civil authority, the disputes over the nature of the

Jewish state before it was founded were various: From the Zionsits organizations,

to religious and even socialist movements, that were all the results of 2000 years

in the “Gola” (Diaspora). Therefore, this decision “Not to decide” was inevitable.

During the years Legal scholars and Judges started to realize the

importance of having a constitution, mainly because of human rights conflicts that

arose and the incapability of the legal system to handle them without a proper tool

such as constitution. In regarding to religion, serious cases were discussed. For

example, in a 1972 decision in the case of Rogozinsky vs. The state of Israel: two

Israel couples claimed that they had a private marriage ceremony which was not

“Rabbinical”. They claimed that they have the right to be recognized as married

under article 83 of the order in council, which imposed a principle of freedom of

conscience12

. This article was preserved from the Mandate regime and had no

special status. The Supreme Court referred this matter to the rabbinical courts, in

which marriage matters are discussed; basically, the Supreme Court declared it

has no jurisdiction in matters of marriage of a Jewish couple, who wish to avoid

rabbinical marriage13

.

The second period of the constitutional debate in Israel stated at the late

1980’s, when voices demanding formal constitution rise again14

. The enactment

10

Id at 383. 11

Joshua Segev, Who Needs a Constitution? In Defense of the Non- Decision Constitution-Making

Tactic in Israel, 70 ALB. L. REV. 409, 412 (2007) [Hereinafter Segev] 12

CA 450/70 Rogozinsky v. State of Israel (1971) IsrSC 26(1) 129 (Isr.). 13

See Lerner, supra note 2, at 260. 14

See Segev, supra note 11, at 411.

7

of the 1984 Basic Law: Judgment bill15

, in which Basic laws gained supremacy

over ordinary legislation16

. However, up until the revolutionary case of Bank Ha-

Mizrahi, Israel stated itself as having a “substantial” but not formal constitution;

that means that the legislators and Courts are obeying general principles which

derive from the Israeli reality and the existing laws. It was created during the

natural process of development in Israel17

. The case of Bank Mizrahi changed the

view upon several laws who were called “Basic Laws” 18

. Judge Aharon Barak

claimed that these laws have supra statuary status. Barak claimed to view the

“Knesset”, when enacting basic law- “as donning the cap of the constitutional

authority, an authority carrying a different status than that of the ordinary

legislative bodies, and thus being able to grant the Basic Laws a higher status than

ordinary legislation. Any new, ordinary legislation, attempting to change the

Basic Laws, or not conforming to the limitation clauses in the Basic Laws, is to be

annulled”19

.

This higher normative status comes to life in Aharon Barak later

Judgments; Barak uses the proportionality tests in order to find out whether a

certain law violates one of the basic laws. The proportionality tests are stated in

article 8 of “Basic Law- Human Dignity: “there shall be no violation of rights

under this Basic law except by law befitting the values of the state of Israel,

enacted for a proper purpose and to an extent great then required20

”. First this

article suggests a preliminary test: the violation has to be by law. Then it

continues to the three proportionality tests as following: (a) Befitting the values of

the state of Israel; (b) Enacted for proper purpose; (c) (not) To an extant greater

15

Basic law: The judiciary, S.H No. 1348 of 5748, p. 237. 16

See Segev, supra note 11, at 449. 17

Amnon Rubinstein, The constitutional Law of the State Of Israel (5th edition by Amnon

Rubinstein and Barak Medina, 1996), Jerusalem and Tel-Aviv, Shoken, 1,191 pp. 294 (Hebrew).

[Hereinafter Rubinstein] 18

See Aharon Barak, The Constitutionalization of the Israeli Legal System As a Result of the Basic

Laws and Its Effect on Procedural and Substantive Criminal Law, 31 Isr. L. Rev. 1 (1997); CA

6821/93 Bank Mizrahi v. Migdal Cooperative Village (available at

http://elyon1.court.gov.il/files_eng/93/210/068/z01/93068210.z01.pdf) 19

Gavriela Shalev, Interpretation in Law: Chief Justice Barak‘s theory, 36 Isr. L. Rev. 123, 130

(2002). 20

Basic Law: Human Dignity and Liberty, 5752, SH No. 1391 p. 150 (Isr.); Basic Law: Freedom of

Occupation, 1994, S.H. 90 (Isr.).

8

than required. Two basic laws ought to be discussed in this essay since they have

a strong link to religion: Article 1, Basic law of Dignity in which the purpose of

this Basic Law is to protect human dignity and liberty, in order to establish in a

Basic Law the values of the State of Israel as a Jewish and democratic state; and

article 1 in Basic law of Occupation: Fundamental human rights in Israel are

founded upon recognition of the value of the human being, the sanctity of human

life, and the principle that all persons are free; these rights shall be upheld in the

spirit of the principles set forth in the Declaration of the Establishment of the

State of Israel. This revolution and specifically those laws had a direct affect on

the Rabbinical Courts; those affects would be discussed later on.

B. “Jewish and Democratic State”

The Declaration of independence states that: “Land of Israel was the birth

place of the Jewish people. Here, their spiritual, religious and political identity

was shaped…. The United nations general assembly passed a resolution calling

for the establishment of a Jewish state…”

“The state of Israel… will foster the development of the country for benefit of all

its inhabitants; it will be based on freedom, justice and peace as envisaged by the

prophets of Israel; It will ensure complete equality of social and political rights to

all its inhabitants irrespective of religion, conscience, language, education and

culture; it will safeguard the holy places of all religions…”21

In the declaration we

notice elements of Judaism alongside elements of democracy, especially human

right. In order to understand whether this combination is even logical, I would

like to discuss those terms separately, starting with “a Jewish state”.

“Jewish state”: Despite of the declaration of Israel as a Jewish state,

Judaism was never proclaimed as the official religion22

. Still, the Basic Law of

“The Knesset” (The parliament), provides that:

7A. A candidates list shall not participate in elections to the

Knesset, and a person shall not be a candidate for election to

21

The declerarion of the establishment of the state of Israel, 1 LSI at 3-5. 22

Ruth Lapidoth, Freedom of Religion and of Conscience inIsrael, 47 Cat. U. L. Rev. 441,443-

444 (1998). [Hereinafter Lapidoth].

9

the Knesset, if the goals or actions of the list or the actions of

the person, expressly or by implication, include one of the

following: (1) negation of the existence of the State of Israel as

a Jewish and democratic state; (2) incitement to racism; (3)

Support for armed struggle by a hostile state or a terrorist

organization against the State of Israel23

.

The interpretation of this article is that though Judaism is not declared formally as

a Jewish state, one who becomes a member of the Israeli parliament should at

least acknowledge the existence of Israel as a Jewish state. Most scholars differ in

their mind the term “Jewish state” from “Christian/Muslim state”24

. The reason is

based on the Jewish history: throughout decades, Jewish people were gathered in

their communities all around the world, preserving their unique identity.

Therefore, the term “Jewish” could be referred to in two ways: Jewish state as a

matter of religious identity; and Jewish state in a social and historical view, also

referred to as “the Jewish nation”25

. For example, most of the Jewish population

in Israel is not religious; some even consider themselves atheists. Nevertheless, if

they will be asked about their identity they would answer that they consider

themselves as Jews, as a matter of “tradition” and social status. In other states,

this situation would not occur, since there is a clear distinction between religion

and nationality. This lack of observation obviously created and is still creating

different difficulties. It is clearly not a “pure” religious term, but a term that

contains historical and social factors within it.

Furthermore, the word “Jewish” is used in various political and legal

documents relating to the establishment of the state26

, for example the Balfour

Declaration from 1917 declaring the mandate over Palestine27

, as in the UN

declaration in which was written that the Jewish nation has an historical link to

23

Basic Law: The Knesset (Amendment No. 9), 39 L.S.I. 216, (1984-85) (adding section 7A). 24

See Lerner, supra note 2, at 243. 25

Ruth Gavizon, Israel as a Jewish and Democratic State: Tensions and prospects, Tel Aviv: Van

Leer Jerusalem Institue, Hakibutz Hameuhad Publishing, 57 (2000) (Hebrew). 26

See Lerner, supra note 2, at 243. 27

Letter from Lord Arthur James Lord Balfour, British Foreign Secretary, to Lord Rothschild

(Nov. 2, 1917), in The Arab-Israeli Conflicy: Volume 3 (John Norton Moore ed., 1974).

10

the land of Palestine. From these documents we can conclude that in the eyes of

the world, Israel was meant to be a Jewish state with a Jewish majority28

. With

that being said, different political parties in Israel refer to the meaning of “Jewish”

state in different ways according to their believe; in the eyes of the ultra-orthodox,

the Jewish state is a religious state in which laws of religion should apply as the

law of state. The non-orthodox Jews are divided in to two groups: one’s who

believe that a Jewish state can be also democratic by assuring minorities rights;

and others who think that in definition, the Jewish state contradicts the model of a

democratic state and therefore the solution is a double-national, Arabic and

Jewish state29

.

“Democratic state”: Some might consider this a problematic issue

regarding to Israel, but formally Israel is a democratic state. This was decided

unanimous by the political parties that were involved in writing the Declaration of

independence30

, though this term is being continuously intrigued by the clash of

religion and democracy in Israel. Even so, the basic principle of the “Majority

Rule” in Israel is fully achieved; Israel has a functioning democratic election

system. On the other hand, the political parties couldn’t agree upon a written and

formal constitution31

, which is one of the central pillars in strong democracies of

the western world. The democratic principle of neutralism is definitely violated in

Israel; though this principle is violated in other democratic states as well: every

nation has its own symbols, hymen, and ethnical orientation which derive from

their origins. Canada for example, though being a bilingual state, infringes the

principle of neutrality towards immigrants who are not Anglo-Saxons or French.

This principle is constantly violated by numerous democratic states and one can

regard it as a general norm that is not being followed.

The combination of “Jewish and Democratic” state: One of the

suggestions, By Professor Rubinstein and Professor Medina, Is that: “Israel is a

Jewish state… In the sense that it the political framework in which the right of the

28

See Samoha, supra note 3 at 14. 29

Id. at 15 30

See Segev, supra note 11, at 418. 31

Id. at 419.

11

Jewish people to self-determination materializes”32

. This suggests that “Jewish

state” in the context of democracy, Is not about religion; it is about politics and

rights. This observation refers mainly to the claims that there are some laws who

cannot be considered democratic. One of these laws is the “Law of Return

(1950)33

”: article 1 states that “Every Jew has the right to come to this country as

an Oleh”, meaning that every Jew- and only Jew- who arrives to Israel has the

right to citizenship. This, of course, has a direct affect among Palestinians who

were forced out of their homes during the Independence war and could not return

to Israel under the limits of this law. Therefore, it is claimed that this law violates

the value of equality, creating a religion- based wrongful observation between

humans.

A suggestion that was made by Professor Sami Samoha34

and which I find

a plausible solution in order for us to understand this combination is the

following: Israel is a Jewish and a non-western Democracy. In other words, Israel

is a Jewish-Democracy. The law of return is a great example to understand this

definition: this law is not unique to Israel; other democracies, such as Greece and

Germany have the same one. Nevertheless, the proportionality is different. In

Israel, the law of return is absolute, whereas the law of return in Germany is the

following: Article 116 of Basic Law of the Federal Republic of Germany:

“Definition of “German”; restoration of citizenship: “(1) Unless otherwise

provided by a law, a German within the meaning of this Basic Law is a person

who possesses German citizenship or who has been admitted to the territory of the

German Reich within the boundaries of December 31, 1937 as a refugee or

expellee of German ethnic origin or as the spouse or descendant of such person.

(2) Former German citizens who between January 30, 1933 and May 8, 1945

were deprived of their citizenship on political, racial, or religious grounds, and

their descendants, shall on application have their citizenship restored. They shall

be deemed never to have been deprived of their citizenship if they have

established their domicile in Germany after May 8, 1945 and have not expressed a

32

See Rubinstein, supra note 17. 33

Law of Return, 5710-1950, 4 LSI 114 (1949-50) (Isr.). 34

See Samoha, supra note 3 at 19.

12

contrary intention”35

. Though this law provides advantage to German nationals, it

does not prevent the citizenship of others; this is the main claim against the Israeli

law of return. Moreover, the German law allows the right of return only to

Germans who were “deprived of the citizenship on political, racial or religious

grounds” so it does not apply to German’s who chose to live in Canada or the US

as they are considered to be “Free Immigrants”. Furthermore, it does not deny the

right of non-German nationals to return to Germany on the basis of religion, as

the Israeli law does36

.

An additional scope to having a non-western democracy is the debate

about the law of return between orthodox and non-orthodox. According to the

“Halacha”, a Jew is considered to be one only if he has a Jewish mother. In the

late 1960’s, Bynyamin Shalit, and officer in the Israeli army who was married to a

Christian woman filed a petition to the High Court Of Justice claiming to

recognize his children as “Jewish nationals”. In an outstanding decision, the Court

ordered to accept his claims and to enlist his children as Jews, disregarding the

rules of “Halacha”37

. The Israeli Knesset reacted by changing the law of return

and declaring that: “4B. Definition: For the purpose of this Law, "Jew" means a

person who was born of a Jewish mother or has become converted to Judaism and

who is not a member of another religion”38

.

Still, this definition was not following the strict “Halacha” rules since it

did not demand that a conversion would be made by an orthodox rabbi.

Additionally, a great change has been made since in a further amendment it was

declared that the rights would be also vested to a child and a grandchild of a Jew,

the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild

of a Jew, except for a person who has been a Jew and has voluntarily changed his

religion”39

.

We can conclude from the adjustments that were made by the Court that

though Israel has a Jewish nature, it is also a democracy applying the general

35

Available at: http://www.iuscomp.org/gla/statutes/GG.htm#116 36

See Samoha, supra note 3 at 20. 37

HCJ 58/68 Shalit v. Minister of Interior [1969] IsrSC 23(2) 477 (Isr.). 38

Law of Return (Amendment No. 2), 5730-1970,24 LSI 28 (1969-1970) (Isr.). 39

Law of Return (Amendment No. 2), 24 LSI at 28.

13

principles of separation of power, preserving human rights; however, it has those

democratic failures which prevent us from declaring it as a western democracy,

especially since it fails to create constitution and to separate religion from state.

Provided that Israel maintains this strong connection between Judaism and state, it

will remain a non-western democracy. This conclusion leads us directly to the

next chapter, in which I will present the status-quo agreement and its affect which

prevents the separation of religion and state in Israel.

III. The Unique Model of the Status Quo

The status quo is a special agreement between religious and non religious

political groups in Israel, which dates back to the years before the state of Israel

was founded40

. The status-quo letter was sent from the orthodox organizations to

the temporary council of Jews in Israel by the year 1947, one year before the UN

declaration 181. This document included the main demands of the ultra orthodox

community regarding the implementation of religion in the state law41

. The Letter

referred to four main subjects. The ultra orthodox demanded full responsibility

upon them, as drafted in the letter: “A. Shabbat. It is clear that Shabbat will be the

legal day of rest in the Jewish state. Permission will naturally be given to Christians and

to those practicing other religions to rest on their weekly day of rest.

B. Kashrut. All means should be pursued to ensure that every state-run kitchen for

the use of Jews serve kosher food.

C. Marital Law. All the members of the Executive appreciate the seriousness of the

problem and the grave difficulties pertaining to it, and all the bodies represented in the

Agency’s Executive will do whatever possible to satisfy the deep need of the religiously

observant in this matter, lest the House of Israel be divided in two.

D. Education. Full autonomy will be guaranteed to every education network

(incidentally, this policy already exists in the Zionist Federation and Knesset Yisroel) and

the state will not infringe on the religious philosophy or the religious conscience of any

part of the Jewish people. The state will naturally determine the minimum requirement of

40

Gideon Sapir Religion and State in Israel - The Case for Reevaluation and Constitutional

Entrenchment, 22 Hastings Int'l & Comp. L. Rev. 617 (1999). [hereinafter Sapir]. 41

Daphne Barak-Erez, Law and Religion Under the Status Quo Model: Between Past

Compromises and Constant Change, 30 Cardozo L.Rev. 2495, 2496 (2009).

14

compulsory studies in Hebrew language, history, science, and so forth, and will supervise

this minimum, but will allow full independence to each network to educate according to

its outlook and will avoid any injury to the religious conscience.42

”

This letter has no official stamp. It is a special kind of agreement, which

was never officially accepted. Even so, it was regarded as the fundamental

agreement in those issues, and later on was translated into several laws, including

The hours of work and rest law of 1951, recognizing the Shabat as the official day

of rest in Israel43

; The Rabbinical Courts Jurisdiction (Marriage and divorce) Law

of 195344

, Promising the Rabbinical Court full and unique responsibility over

matters of Personal status regarding Jews; The state education Law of 195345

that

assures the existence of a separate and autonomous educational system for

orthodox Jews.

Israel has also established several religious institutes: The religious

council which exists in different areas of Israel and is in charge of providing the

religious services for the community. Another institute is the Chief Rabbinical

institute: It is composed of two chiefs, one Ashkenazi and one Sefaradi, and a

central council. It enjoys the jurisdiction in deciding upon “Kashrut” matters, as

established in the conformity with dietary law46

. This provides the council

monopoly over the kosher food in Israel, which involved a great amount of power

since most of the Israeli population tend to eat kosher food.

The acceptance of a non-formal agreement such as the status quo

agreement that has no legal grounds, to be the corner stone of the relations

between state and religion was explained by two different claims: First, is that the

subject of law and religion is so complicated, that trying to reach a formal legal

agreement is an actual risk for the stability of the Israeli society47

. The second

suggestion is that the dispute over state and religion in Israel is irreconcilable;

42

Available at: http://strangeside.com/israels-status-quo-agreement/ 43

Hours of Work and Rest Law, 5711-1951, 5 LSI 125 (1950-51). 44

Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, 7 LSI 139 (1952-53). 45

State Education Law, 5713-1953, 7 LSI 113 (1952-53) [hereinafter State Education Law]. 46

The Kashrut (Prohibition of Deceit) Law, 37 L.S.I. 147 (1982-83). 47

See Sapir, supra note 40 at 625.

15

therefore the status quo is the only way to achieve compromise48

. These

propositions did not take into account that as Israel developet the status quo has

constantly changed. Moreover, the status quo is no longer agreed upon all; though

some of the orthodox Jews believe that strictly preserving the status quo is the

best way of handling problem between religion and state. Others think that it is

necessary to challenge the status quo, since it is not compatible to the the dynamic

situation in Israel49

.

I would like to discuss the influences of the status quo agreement,

focusing on the main subjects that are directly affected by it: the exemption of

“yeshiva” students from military service, the personal status in marital law, the

Shabbat, the “Kashrut” laws, the orthodox educational system and their

implication upon the right to freedom of religion.

A. The Exemption of “Yeshiva” Students from Mandatory Military Service:

An important and main idea that derives from the status quo, though not

specifically mentioned in the letter, is the de facto exemption from the mandatory

army service that is granted to the orthodox “yeshiva” students. “Yeshiva

students” are the ones who are being recognized by the state as belonging to a

certain religious institute, in which they learn religious studies50

. Therefore, in

order not to harm their studies, the state postpones their mandatory service.

According to the defense Service Law of 194951

, every male who has turned 18

has to do 3 years of mandatory military service, whereas every female has to

serve for two years. The “yeshiva” students arrangements were not a part of this

law. This arrangement was created when the first Prime Minister David Ben-

Gurion decided to excuse the “yeshiva” students from the military service; back

then, this decision concerned a was a small amount of people. During the years,

more and more orthodox declared themselves as “yeshiva” students, and as a

result not serving at all in the army, or serving for less than a year. According to

48

Nathan Zucker, Secularization Conflicts in Israel, in Religion and Political Modernization 95

(Donald E. Smith ed., 1974). 49

See Sapir, supra note 40. 50

See Sapir, supra note 40 at 624. 51

Defense Service Law, 5709-1049, 3 LSI 112 (1949).

16

official statistics of the “Knesset”, the number of “yeshiva” students that were

exempt from service in 1948 is 400; by the 1990’s, this number increased and

reached 61,00052

.

This situation that was created at first to satisfy the orthodox community

and as a result of the status quo had been a subject for harsh legal disputes, and

had also implications on the unity of the Israeli society; Since the beginning of the

1970’s, the High Supreme Court is constantly dealing with petitions served by

non-religious parties, demanding equality considering the military service, and

asking the Minister of Security to use his legal power in order to stop the

exemption of the “yeshiva” students53

.

On the other hand, the ultra orthodox claim that they have a right to

protect their society from entering the non religious world; and that if the

orthodox will serve in the army they will be exposed to this world, which is

tempting and therefore holds a substantive threat to the orthodox community;

they also claim that learning and analyzing the “Torah” is traditionally a part of

the Jewish nation, therefore they are playing a different but nevertheless important

role in the Jewish state since they believe that their prayers are keeping the Israeli

soldiers safe54

.

A third group of thought did not contradict the idea that in order to defend

freedom of religion the orthodox ought to be exempt from military service; but

they point out the fear of young non-orthodox taking use of this exemption and

becoming orthodox only in order to be exempted. This is a problematic argument

since the lives of the young orthodox are full of demands. Being a “yeshiva”

student demands following strict every-day rules, and moreover avoiding the

comfort of non-orthodox life55

.

These contradicting claims from both sides were lengthily examined by

the High Court of Justice. At first, the Court rejected most of the claims on the

52

HC 3267/97 Rubinstein v. Minister of Defense, 52(5) PD 481 (1998) (Hebrew). 53

Daphna Barak Erez The Military Service of Yeshiva Students: Between the Citizenship and

Justiciability Dilemma, 22 Bar-Ilan L. Rev. 227,231 (2006) 54

Id at 233-234. 55

Gideon Sapir Drafting Yeshiva Students in Israel: A Proposed Framework of the Relevant

Normative Considerations, 9 Plilim 217, 252 (2001).

17

ground of the Court’s reluctance to interfere with matters concerning the

“political sphere”, as a part of the democratic general principle of separation of

powers. In the past, the Court would accept only petitions in which the petitioner

has a direct connection and is will be directly affected by the decision; in the case

of Beker V. The Minister of Defense, the petitioner claimed to have personal affect

since he is a student as well, but served a full military service56

. The court rejected

the petition on the ground that the petitioner has no “special interest”. Up until the

1980’s, numerous petitions that were served and declined on the same grounds.

In the 1980’s, a change occurred. As I mentioned in former chapters, the

1980’s symbolized a wind of a change in the judicial system, moving towards

judicial activism. This was expressed also in the new rulings regarding the

“yeshiva” students. In the ruling of the Court as delivered in Resler V. Minister of

defense57

, a “Public Petitioner" was allowed to file a petition to the High Court of

Justice. This led to a wave of numerous petitions, and forced the legislator to

confront the problems.

In order to respond to the questions raised by the public petitioner’s in the

court, the “Tal” commission appointed at 1999 by the “Knesset”. The goal was

had to create a new settlement regarding this dispute. The solution that the

committee came up with is as following: the “yeshiva” students will continue to

be exempt from the service in the first 4 years; after that, they will have to decide:

either to stay in the “yeshiva” and continue dedicating their lives to learning

“Torah”; the second option is that they will attempt to get another work in the

regular work market. If they will decide to continue working and choose not to go

back to the “yeshiva”, they will go through a short military service and then they

would be allowed to go back to the work market. The main purpose of this

settlement was to respond to the claims that rise in the Israeli society regarding to

the orthodox as taking advantage of religion in order to avoid public duties and

therefore being a financial and moral burden upon the Israeli society. In 2002 the

recommendations of the commission were formed into a temporary law (“Horaat

56

HCJ 40/70 Baker v. Defense Minister 24(1) PD 238. 57

HC 6298/07 Resler v. Knesset (Feb. 21, 2012), 2, Nevo Legal Database, (by subscription; in

Hebrew). [Hereinafter Resler].

18

Hashaa”); the actual meaning of “temporary” is that the law will be examined in a

period of 5 years. After several extensions from the Court, in 2012 the Court ruled

that the “Tal” law is unconstitutional and therefore the legislator must change it.

The judges, almost unanimous, claimed that the law is violating and contradicting

the Basic Law of Human Dignity (1992)58

; the judges did not claim that the

purpose of the law is unconstitutional, whereas the application of the law could

not achieve its goals and therefore a new settlement should take place59

. Judge

Rubinstein referred to freedom of religion in his ruling: “Israel is a Jewish and

Democratic state, therefore this Court is obliged to adhere to the principle of

“freedom of religion”, which contains among others the right to fulfill the

demands of the religion (the “Mitzvot”). Prohibiting a religious Jew to study the

“Torah” is a violation of Human rights as mentioned in Basic Law: Human

Dignity (1992). With that being said, there is an obligation to balance between

the value of freedom of religion, and the value of equality in a democratic state”60

.

The court concluded after reviewing the proportionality tests, that the “Tal” law

did not complete its targets since the right to equality has suffered more damage

than the right to practice religion. The law was declared unconstitutional and

therefore is formally canceled. However, this result has still not affected the

“yeshiva” students; until this day, 8 months after the Court delivered the decision,

no change or new law took place. Moreover, the government continues to

financially support the “yeshivot”, using different channels to deliver the same

amount of money. This relies partially on the fact that the orthodox have an

influential political power; the government cannot allow the orthodox parties to

turn against her, and on the other hand cannot ignore the Court’s decision. The

solution as always, is postponing the postponed decision to decide. This

avoidance of the government is also a part of the status quo, which became a part

of the legal and political culture of Israel; no government has provoked the status

quo so far, and all governments are afraid to do so as it would be considered as in

infringement of the long-lasting agreement.

58

See supra note 20. 59

See Resler, supra note 57. 60

Id. at 83-85.

19

An additional interesting point was mentioned by Judge Mishael Cheshin

that pointed out the connection between the “yeshivot” students to the Israeli

society: “we shall remind ourselves, that the “yeshiva” students are involved in

the Israeli social life, and I wonder how is that they are exempt from mandatory

military service but still manage to deliver their representatives to the Knesset and

the government in order to decide about matters of life and death and other issues

which directly affect those who are doing the mandatory military service”61

. This

emphasizes yet another difficulty in separation between religion and state, since

many Israelis consider the military service as a sign of being a loyal citizen in

Israel.

B. Marital Law in Israel:

An historical review of the marital law in Israel goes back to the ottoman

law, as mentioned in the first chapter. The ottoman system granted autonomy to

each religious community upon matters of marriage and divorce62

. As was

mentioned before, the nature of having a religious autonomy on issues of personal

status is one of the reasons why Israel could not be conceived as a democratic

state, and moreover it cannot be perceived as an illiberal one. At the certain issues

of marriage and divorce the jurisdiction of the Rabbinical Courts is exclusive; in

others it depends on the consent of the parties involved. However, both religious

and civil courts would first apply the religious law, in addition to several laws

regarding to personal status who were enacted by the “Knesset”63

. The Rabbinical

Courts Jurisdiction Law (1953) states that: (1) Matters of marriage and divorce of

Jews who are Israeli citizens or residents will be under the exclusive jurisdiction

of the rabbinic courts. (2) Marriage and divorce of Jews will be carried out in

Israel according to the law of the Torah64

. This law obtains the Jewish law

autonomy upon marriage and divorce, and imposes two illiberal consequences:

first, a Jew is not allowed to marry a non-Jew. Second, the Jewish law is

61

HCJ 6427/02 Movement for Quality Government in Israel v. Knesset PD 61(1) 619 (2006). 62

Gidi Sapir & Daniel Statman Religious Marriage in a Liberal State, 30 Cardozo L. Rev. 2855,

2868 (2008-2009) [Hereinafter Statman]. 63

See Lapidoth, supra note 22 at 464. 64

Rabbinical Court Jurisdiction (Marriage and Divorce) Law 5713-1953, S.H165.

20

patriarchal; therefore violating fundamental right to equality for women65

. Section

two also implies that all Jews in Israel must be married according to religion; that

means that all Jews have to be married with the presence and authorization of an

orthodox rabbi. Also, a woman has to pure herself in the “Mikveh” (a pool) before

the wedding, completely naked and supervised by an orthodox woman, which

clearly holds a violation of the right to privacy66

.

Another system who has jurisdiction upon marital matters is the Civil

Court for Family Matters. Though the Rabbinical Courts has autonomy on issues

of marriage and divorce, couples can decide in a pre-marriage contract that they

would like the Civil Court to have jurisdiction upon their case. Also, a couple can

be divorced in the Rabbinical Court, but property issues can be deliberated in the

Civil Court. If one of the parties desires, he can announce that he wants the

property issues to be “attached” to the claim for divorce in the Rabbinical Courts.

This created a phenomenon called “the chase for jurisdiction”. In most of the

cases the man would prefer the case to stay inside the Rabbinical Courts

jurisdiction, since it is a patriarchal system in view of the fact that it will probably

be in favor of the man. The Knesset made an attempt to prevent this situation.

Therefore, in article 3 of the Rabbinical Courts Law, the demand for the

attachment is that it should be an “honest” attachment, meaning that the purpose

of the attachment is to make an easier and accessible law process and to reduce its

costs. The “honesty” of the claim is a very problematic demand since the burden

of proof is high and almost unreachable. Moreover, the Rabbinical Courts are the

one to decide if the attachment was sincere, and since they have a clear motive to

strengthen their jurisdiction they approve the “attachment” in the majority of the

cases.

High Court of Justice had to intervene in order to diminish the damage that was

caused by the “honesty” exam, so in the case of Bavli v. Grand Rabbinical Court

(1994) the Court declared that when deliberating in matters of property the

Rabbinical Court has to decide according to the general principle of equality

65

See Statman, supra note 62 at 2870. 66

See Statman, supra note 62 at 2870

21

between spouses67

. The Rabbinical Court reacted in a judgment of its own, stating

that the Jewish law has an unrestricted monopoly and there for is not obliged by

any general principles68

.

A different development was made in the case of Funk Shlezinger v.

Minister of the Interior69

. This case dealt with a Jewish woman and a Christian man

that got married in Cyprus in a civil marriage procedure. They went to the

ministry of interior and ask to be enlisted as a married couple in the population

registry. The officer refused to register them since they weren’t married according

to Israeli law. The couple filed a petition claiming to have a right to be registered

in Israel as a married couple in the population registry. In an unusual decision,

the Court ordered the ministry of interior to register the couple; according to the

court the registration is a technical procedure that does not involve religion or

affects the autonomy of the Rabbinical Court. However, this decision was

criticized by the orthodox parties since it clearly had a wider affect than only a

technical one: it meant that marriage between Christians and Jews are somewhat

recognized in the state of Israel. The dramatic development changed the former

reality that only married couples according to religion can have a marriage status.

Nevertheless, we have to bear in mind that even though civil marriage has gained

some recognition by the state, civil marriage cannot be performed in Israel; one

must travel abroad to get married. This necessarily means that Israel is relying on

other jurisdictions in those matters and not enabling its own citizens this option,

therefore infringing their freedom and right to be married70

.

Different solution to this violation lies in the option of recognition of the

Court of non-marital cohabitants. The Israeli legal system created a possibility

for the unmarried couples who share a household to claim their right in case of

separation. This option is not creating any further burden on the couple, at list not

67

HCJ 1000/92, Bavli v. Grand Rabbinical Court [1994] IsrSC 48(2) 6. 68

Dikhovsky, The Principle of Common Ownership-Is it the Law of the Land? 18 Techunim, 18

(1998). 69

HCJ 143/62 Funk Shlezinger v. Minister of the Interior [1963], Isr SC 17, 225. 70

See Statman, supra note 62 at 2877.

22

more than the burden of the Rabbinical Courts, hence becoming the popular

solution for couple who want to skip the rabbinical system71

.

The impact of the constitutional revolution on marital law:

As we discussed before, the constitutional revolution made by Aharon

Barak changed the face of the legal system in Israel; the Rabbinical Court as

being a part of that system is faced with a new threat of autonomy. By declaring

the superiority of the Basic Laws, the High Court of Justice ordered the

Rabbinical Courts to apply the principles states in the basic laws, taking into

consideration the high normative status they were given. This was and still is a

hard task for the Rabbinical Courts. The Judges of the Rabbinical Court have to

consider balancing between the religious law and the constitutional law; for

example, thinning the “Mesoravot get” and “Agunot” phenomenon. “Mesoravot

get” are women that were denied a divorce their husband for any reason, an act

which is allowed by Jewish law that requires that the divorce will be given out of

free will. There is a difference between these women and the “Agunot”

phenomenon which refers to women that their husband cannot give them a

divorce because he is absent and cannot be found or that he is in a mental state

that cannot allow him to give a divorce “in clear mind”. In the last years, the term

“Aguna” is used also for women who are “Mesoravot get”72

. These two situations

obviously hurt basic human rights, since the woman is subject to a man’s decision

and mercy. The Rabbinical Court is also dealing with a conflict: from the one

hand it is expected to apply harsh sanctions including imprisonment of men who

refuse to divorce their women according to the proportionality tests, and from the

other hand the court is obliged to “Halcha” laws in which the divorce ought to be

given voluntarily and therefore coercion is forbidden. The Israeli legislator has

tried to settle this situation in law. According to article 6 of the Rabbinical Courts

Law, if the Rabbinical Court has given the man an order to divorce, and the man

71

Id. at 2878. 72

Y. S. Kaplan Basic Law: Human Dignity and Liberty in the Rabbinical Court: The Balance

Between Conflicting Jewish Values and Conflicting Human Rights, 8 Kiryat Mishpat, 145-250,

170 (2009) (Hebrew) [Hereinafter Kaplan].

23

does not obey this order within a period of six months, the Civil District Court is

allowed to imprison that man in a special junction73

. This was agreed upon

orthodox Rabbis, since they took into consideration that imprisonment now days

is not as harsh as it was in the old days and therefore would not be considerate as

coercion74

.

Though it seemed to be a solution that is fair to both parties, the problem

that arose is that the Judges in the Rabbinical Court do not tend to give an order to

coerce divorce that easily; they usually will use their right to only “recommend”

the divorce. This is actually the most problematic issue since giving this coercive

order is only under certain circumstances that have to be fulfilled: either the man

is in a incurable health state, or he has converted his religion and not longer a Jew,

either the man has cheated on his wife (obligatory at least two witnesses to

approve it), either he was physically violent towards the wife or he cannot support

her financially. The court demand the woman to achieve a high standard of proof,

sometimes making it impossible for her. Another solution to avoid coercion is to

force a man to pay the woman “Mezonot” (financial support), as according to

“Halacha” the man has to support his wife75

.

One more right which is infringed by the court’s decisions and therefore

ought to be discussed is the right to “Marital Freedom”: all Judges of the High

Court of Justice agreed that the right to family life is enshrined in Basic Law:

Human dignity and Liberty76

. The basic element of this right, is that one has a

right to shape freely his or hers family life77

. Other Judges even claimed that the

right to marry and enjoy family life is an integral part of the fundamental right to

life, declaring this right as a “raison d’etre”78

; when depriving the right to divorce

the right to re-marry is also deprived and holds an unconstitutional act. Moreover,

73

See supra note 64 at Article 6. 74

See Kaplan, supra note 72 at 177. 75

Id. at 199. 76

HCJ 3648/97 Stamka v. Minister of Interior [1999] lsrSC 53(2). 77

Karin C. Yeffet ‘Unchaining the Agunot: Enlisting the Israeli Constitution in the Service of

Women’s Marital Freedom.’ Yale Journal of Law and Feminism 20(2): 441-504, 462 (2009). 78

Id at 463.

24

it violates the constitutional protected right of a human being having freedom in

his or hers basic life choices79

.

In the end, we can observe the high tension between the “Halachic” laws

and Basic Law of human dignity: from the one hand, “Mesoravot get” are

experiencing infringement of their dignity and equality towards man. On the other

hand forcing imprisonment of man infringes his right to freedom of movement.

Therefore, the proportionality test has to apply to each case individually, going

through the tests that were mentioned above.

An additional and innovative solution to the “Agunot” problem is

filing a tort lawsuit against the husband. A lawsuit like that can be justified in

tort’s law as a “corrective justice”, as compensation usually used as a public

declaration that the act was wrong, whereas under corrective justice the focus

remains solely on the two parties of the tort80

. The reason for this justification is

that a public declaration would threaten the status quo. A further justification for

using torts law is deterrence; this claim is persistent with the economic argument

as especially in “Agunot” cases, the tortfeasor is the cheapest and most efficient

avoider of harm81

.

The innovation about torts law is that even if the divorce is only “recommended”

a woman can still use the tort’s law because it has no demand of coerced divorce.

The first lawsuits in Israel were filed from the year 2004 and regarded only to

coerced divorce and were allowed as the husband broke a court junction.

However, from 2008 also women who were only recommended to get a divorce

have managed to bring their case to the civil court and even get compensation:

Judge Wiezman, one of the first judges that gave compensation in those cases,

said that as far as the Court understanding goes, if a rabbi recommended to give a

divorce and even if he did not coerced it, it should be a “Lighthouse” for the Civil

Court marking that the divorce is justified and should take place82

.

79

Id. at 465. 80

Benjamin Shmueli, Tort Litigation between Spouses: Let’s Meet Somewhere in the Middle, 15

Harv. Negot. L. Rev. 195, 205 (2010) 81

Id, at 209; See e.g: G. Calabresi and J. T. Hirschoff, Toward a Test for Strict Liability in

Torts, 81 YALE L. J. 1055 (1972). 82

Id at 194.

25

One last problem still remains: does the civil court will be able to

acknowledge a lawsuit when the Rabbinical court does not acknowledge even a

recommendation for divorce? It is claimed that the negligence suit should be filed

as an independent cause, regardless of the Rabbinical Courts decision. That of

course somehow diminishes the autonomy of the Rabbinical Court, and will be a

subject to dispute in the next couple of years.

C. The “Shabbat”:

The Shabbat (Saturday) is the official rest day of Israel according to the

Law and Administration Ordinance83

. This law is also giving the non-Jews the

right to observe their own days of rest and holidays. An additional law is “the

hours of work and rest law”84

which established the Shabbat as the official day of

rest for the Jews. As for other religions, they can choose the day of rest according

to their religion. It is forbidden for employers to deny his employees from their

entitled day of rest according to their religion.

The religious parties were not satisfied with these laws; they demanded to

enact a “Shabbat” law that will establish the centralized part of the Shabbat in the

Jewish nation life, since the other laws did not mention it specifically. Their claim

was denied85

. The main dispute about the Shabbat in relation with religion and

state is the obligatory demand to close businesses on this day. In 1987, the court

decided that a municipal order to close cinemas on Shabbat is ultra-vires to the

Knesset decisions and therefore forbidden86

. In 2005, a bigger clash has occurred:

a furniture company filed a petition to the High Court of Justice, Claiming that the

Hours of Work and Rest Law is not consistent with the Basic Law of Freedom of

Occupation87

. President Aharon Barak, using the proportionality tests claimed that

the law is constitutional, providing that: "if the law would permit every worker to

choose his day of rest, in many cases the actual choice would be in the hands of

83

Law and Administration Ordinance, 5708-1948, 1 LSI 7 (1948) (Isr.). 84

Hours of Work and Rest Law, 5711-1951, 5 LSI 125 (1950-51) (Isr.). 85

Eliezer Don-Yehiya, Religion and Political Accommodation in Israel, in

Jerusalem: Floersheimer Institute for Policy Studies, 42(1999) (Hebrew). 86

CrimA (Jer) 3471/87 State of Israel v. Kaplan et al., [19881 IsrDC 5748(2) 206. 87

HCJ 5026/04 Design v. Rosenzweig Zvika [April 4, 2005] (Isr.), available at

http://elyonl.court.gov.il/FilesIO4/260/050/aO2/04050260.aO2.pdf.

26

the employer and not the worker”88

. In the case of Horev v. Minister of

Transportation89

the orthodox demanded to close areas with massive religious

population to vehicles coming in or out. In this case, it was a controversial road

since it was one of the main streets of Jerusalem. Closing it would cause

difficulties for the non-orthodox people who were also living around it and drive

their vehicle during Shabbat. Eventually the court decided that during times of

prayers the street would be closed, but not for the whole Shabbat90

.

About 20 years ago, the secular community began pushing towards having

entertainment and commercial activities during Shabbat. It is ought to be said, that

up until then everything was closed on Shabbat. Now days, many restaurants,

coffee shops, cinemas and even malls open their gates on Shabbat. In fact this is a

clear infringement of the status quo. The non-orthodox Jews had slowly changed

the reality of the first years in Israel; they have claimed not to accept the

“Religious Coercion”. In addition to the claim of religious coercion, they also

claimed that there are convenience and financial influences of not having public

transportation on Shabbat, therefore it should be allowed91

.

The Shabbat is yet another proof of the wide gap between religious and non

religious communities in Israel. In a recent survey that was conducted by an

Israeli newspaper it was shown that 73% of the Israeli would want public

transportation on Shabbat92

. However, the Shabbat is a symbol of Judaism and is

a crucial part of the status quo. This has not yet decided in the Israeli society, and

is still a subject for public discussions.

D. The “Kashrut”

As already was mentioned above, the Rabbinical Institutes have complete

monopoly over kosher food in Israel. The Rabbinical Institutes are solely

responsible of giving Kashrut authorizations to factories and restaurants, a

88

See Lerner, supra note 2, at 263. 89

HCJ 5016/96 Horev v. Minister of Transportation [1997] lsrSC 51(4) 53 (Isr.). 90

Yaffa Zilbershatz "Freedom of Movement Within a State" Mishpat U'mimshal, vol.4. 793, 796

(1998) (Hebrew). 91

Sasson, Theodore; Tabory, Ephraim; Selinger-Abutbul, Dana, Framing Religious Conflict: Popular

Israeli Discourse on Religion and State, Journal of Church & State, Vol. 52 Issue 4, 662, 667 (2010).

676. http://jcs.oxfordjournals.org.ezprimo1.idc.ac.il/content/52/4/662.full.pdf+html 92

See: http://www.ynet.co.il/articles/0,7340,L-4337381,00.html (Hebrew)

27

procedure that costs a lot of money and has very strict rules. I would like to

discuss a controversial subject regarding to Kashrut, which is the prohibition to

eat pork. Until the constitutional revolution, it was prohibited to sell or import

pork to Israel. It has all changed after 1992, when non-orthodox could now claim

that these laws do not consist with the Basic Law: Freedom of occupation.

The dispute over pork meat can somehow be compared to the dispute over

crucifix in public spaces in the Christian world, since these disputes are not only

about the narrow religious implications but to the religion as a symbol and its

importance in the western society. It emphasizes the connection between religion

and culture, and also its centralism of the political and legal systems93

. In the

Jewish culture, the prohibition of pork meat is fundamental since it is one of the

prohibitions that are explicitly mentioned in the “Torah”. There is no debate about

it among the “Halacha” commentators, which is quiet rare. Moreover. This

prohibition is essential for understanding the Jews in the period of the diaspora,

since it created a clear distinction between them and the other nations (except the

Muslims)94

.

The legal dispute about the pork meat dates back to the 1950’s. The first

laws that prohibited distribution of pork were municipal laws. Up until the 1980’s,

no further discussion was suggested as most of the population respected this

prohibition under the status quo agreement. Moreover, the hegemonic left winged

party “Mapai” that has ruled in Israel since its foundation, had no special interest

in religious laws, however the political revolution that occurred in 1977, when the

“Likud”- a right winged party won, changed the focus on religion. It is commonly

claimed that the “Likud” win was partly because the orthodox parties supported it.

Even then, no fundamental changes have been made95

.

The changing point lies as mentioned above in the constitutional revolution. An

extra reason that gave rise to the conflict is the immigration wave from the former

USSR, which brought approximately 1,000,000 Russian-Jews to Israel, most of

93

Daphna Barak Erez The Transformation of the Pig Laws: From a National Symbol to a Religious

Interest?, 33 Mishpatim 403,410 (2003). 94

Id at 413. 95

Id at 404.

28

them costumed to eat pork meat. The consequence was that many un-kosher

stores were opened in cities with big immigration community. The proportionality

test was again needed in order to decide: from the one hand stands the freedom of

occupation allowing citizens to open stores and sell any products that they wish to

sell. From the other hand stands the democratic interest to consider the feelings of

the religious community96

.

In her essay, Daphna Barak Erez suggests two perspectives about the

change that has been made during the years. If the proportionality test is presumed

only in order to consider the feelings of the religious population, than it should be

localized; meaning the restriction should apply only in those areas that have large

religious population. However, if the test should consider a broader approach

towards it, such as taking into consideration that not eating pork meat is an

essential part of the Jewish nation symbols and cultures, there should be a whole

new set of arguments to balance. The Court has yet to decide on those grounds,

but the fact is that pork meat is distributed and consumed in Israel for several

years now, so in reality the decision is already made97

.

E. The Religious Education System:

As was stated in the status quo, the orthodox claimed to have an

autonomic education system. In order to fulfill the agreement, in 1950 it was

decided that several orthodox institutes will be exempt from the Compulsory

Education Law98

. In fact that means that they do not have to include in their

curriculum the “core studies”: mathematics, language, science and more. In most

religious schools, mathematics and Hebrew are being taught in a basic level,

whereas English is not being taught at all99

. At first, the number of the students in

the orthodox system was quiet insignificant, but during the years and the

strengthening of the orthodox parties, they have managed to create a system that

now days constitutes 26.5% of the Israeli education system100

. The orthodox

96

Id at 458. 97

Id at 472. 98

State Education Law, 5713-1953, 7 LSI 113 (1952-53) (lsr.). 99

Moshe Cohen Eliya Self Defending Democracy and Democratic Education in Ultra-Orthodox

Jews Schools 11 Law and Government 367, 388 (2008) (Hebrew). [Hereinafter Cohen]. 100

Id at 387.

29

institutes are separated for boys and girls; they also divided by ages. They are

recognized by the ministry of education as “exempt institutes” and therefore the

supervision upon them is different than regular institutes.

The orthodox young women have better educational system in high

school, as the women are considered to be the ones who should support the future

husband when he is in the “Yeshiva” studying “Torah”, so they ought to have

proper general education. The problem however lies in the orthodox high schools

for the young men. The young orthodox men have no approach to technological

studies; they are devoted only to the religious studies. This is in affect a process of

detaching these men from the modern world, making them enter the world of the

“torah” enthusiastically and wholeheartedly101

. Furthermore, the entire orthodox

community attributes great attention to the religious studies. Though in the last

few years some of the Rabbis of the communities have allowed their students to

try and study technological studies after their graduated from the “yeshiva” high

school, they are facing huge gaps of knowledge since they do not know English

and their level of mathematics is the level of an elementary school. Moreover, the

studies in the technological colleges are expensive, and the orthodox students

mostly have financial problems since they do not work and mainly live on social

security allowance102

.

The problems mentioned above are mainly problems related to individual

education and success. But the main problem, regarding to religion and state is

that the orthodox institutes ignore democratic values as they are not obligated to

teach them, since they are considered to be exempt institutes. In light of the

statistics that shows that every 1 of 4 young people today are educated in this

system, it contains a n actual threat to the Israeli democratic society. Also, those

kids are not exposed to other groups since they are in a separate system, so they

are do not experience the “hidden curriculum” which holds inside the

101

Id at 389. 102

Yaakov Lupo A Shift in Haredi Society: Vocational Training and Academic Studies,

Jerusalem: Floersheimer institute for Policy Studies (2003) (Hebrew).

30

opportunities to interact and live in a pluralistic environment103

. This lack of

democratic education leads to harsh results in the orthodox community, ones that

democratic state could not stand. In 2009 a famous petition was filed to the High

Court of Justice; this is the case of “Noar ka-Halacha” v. Minestry of

education104

. During the years, many complaints had been sent to the Ministry of

Education claiming that in several orthodox high schools there is a discriminative

policy against “sepharedic”. It was claimed that when students nominated for the

school, except of their skills the school takes into consideration also a limit of

“Sepharadic” students. This limit is not published and is not discussed in open

doors. According to this limit as the “Sepharadic” students will constitute a

maximum of 30% from the total students. One of this High Schools was “Beit

Imanuel”, an orthodox religious school for girls. During the summer of 2007

construction works were made at “Beit Imanuel”, eventually separating the school

in to two different parts. The purpose of the separation was that the girls who

learned in the “regular” study plan and had contained 77% Sepharadic girls were

learning in one side of the building, and the girls that were studying “Hassidic”

studies and had 73% “Ashkenzi” girls studied in the other part of the building.

Even though it was told to the parents that the teachers would stay the same, they

and also the head of the school were replaced as well. Some of the parents of the

Sepharadic girls had complaint to the Ministry of Education, claiming that the

separation creates prohibited discrimination on ethnic grounds. The Ministry of

Education had appointed a legal advisor to check the parent’s claims, and he

eventually filed a report concluding that he found no discrimination in the school

since the separation is based solely on educational needs. On these grounds, a

petition to the High Court of Justice was filed. The petitioners claimed that the

separation is based on unacceptable differentiation between the girls. The court

ordered the Ministry of Education to provide him answers. Eventually, the

Ministry of Education demanded of the school to remove the wall between the

103

Naftaly Rothenberg Mutual Education Core Studies for The Children of Israel: Overcoming

Obstacales, in Towards Educational Revolution? [Dan Inbar Editor] 214, 221-222 (2005)

(Hebrew). 104

HCJ 1067/08 Noar Ka’Halacha v. Ministry of Education (decision released Aug. 6 2009).

31

two parts of the school; to unite the teacher’s room and the secretary so it will be

one school; and most important, to give the girls a free choice of the study plan

they prefer to participate in. The school accepted the terms, but made harsh rules

regarding the “Hassidic” study plan, among other things demanding from the

Sepharadic girls to change their prayers pronunciation to an Ashkenazi one. Judge

Levi has put the discrimination on the scales of the proportionality test once

again; he balanced the right to equality against the freedom of practicing religion

based on ethnical relevance. He concluded that the school and the Ministry of

Education had failed in preventing this kind of discrimination105

. This is a result

of the independent educational system, which is under supervised by the Ministry

of Education, allowing clearly anti democratic phenomenon to occur.

After examining the tension between religion and state regarding the

internal tensions of the orthodox community and the difficulties supervising it, I

would now like to discuss the attempt of the non-religious system to try and

implement the democratic values in this separate educational system. One of the

attempts was examined in the case of Union of Teachers in High Schools,

Seminars and Colleges V. Minister of education. The teachers filed a petition

asking the court to oblige the ministry of education to create a special program for

the orthodox schools in order to teach them the “core” study plan, as in non-

religious schools106

. The Court accepted the petition however gave the Ministry of

Education three years in order to prepare itself. The reasoning behind the decision

to grant the Ministry three years is that when this kind of regulation is performed,

it has to be done in a very sensitive and gradual process that also corresponds to

democratic values107

. The ruling was given in 2002; the current situation is that a

plan for “core” studies had been designed only for elementary school, as for high

school there is not yet any plan. Moreover, even the elementary school program

has no classes that give any democratic education. So eventually the status quo

remains standing as the children educated in the religious system are left with no

105

Id at paragraph 29. 106

HCJ 10296/02 Union of Teachers in High Schools, Seminars and Colleges V. Minister Of

Education (2004) Isr SC 59(3) 224. 107

See Cohen supra note 99 at 397.

32

knowledge in order to integrate in the Israel society. Also, they are not exposed to

democratic values, therefore becoming somewhat a threat to the democratic

society. The next step for the Israeli non-religious community would be to decide

whether it respects certain democratic values such as freedom of religion, taking

the risk that the same values would eventually hurt the already questionable

stability of the Israeli democracy.

IV. As Israel Develops: Additional Status Quo Disputes

A. Status Quo and the Feminist Angle:

The discrimination of women in Israel originated from both Halacha and

tradition. Orthodox Jewish law considers the man to be absolutely dominant;

women are not allowed to participate in military activities, receive public

leadership roles, they are not allowed to actively participate in religious

ceremonies or even hold religious administrative positions. As already discussed,

in matters of personal status preserves the patriarchal concept of the Halacha, at

the expense of violation of women individual rights108

. In the first decade in Israel

women were absent from the public sphere; they did not take any active part in

political roles. Nonetheless, women in Israel at that point did not see themselves

as being discriminated since they did take active part in the process of “building

the Jewish state”, but in fact they weren’t equal to men since their role was

“typical” feminine- raising the kids, making food, working as teachers and nurses.

Israel did not take part in this feminist wave of the 1970’s because of this mis-

perception that there is no discrimination. In the Mid 1970’s feminist wave awoke

in Israel when women realized that they are excluded from the masculine sphere.

During ‘Yom Kippur’ War, the women took ‘manly’ roles as all the men were

drafted and went to war immediately. The women had to take over the market and

managed to handle it. After that, women were exposed to Judith Butler’s feminist

theory of gender, understanding that it is not physical but social diversity. The

Gulf War (1991) reinforced the status of women as necessary in public sphere as

108

Ruth Halperin-Kaddari, Women, Religion and Multiculturalism in Israel, 5 Uvla J. Intl L. &

Foreign Aff. 339, 343-344 (2000) [Hereinafter Halperin].

33

the men haven’t gone to war and the women were managing the inside procedures

of protecting the people from the missiles. Feminist voices demanded recognition

of female discrimination and gender-based understanding of the society109

. Two

main events occurred and discussed in Israel recently regarding to equality

between Genders. The claims of inequality partially derive from the consistent

preservation of the status quo; I will examine them in the following paragraphs

discussing two examples: the women of the western wall and the gender based

separation in public transportation.

“Neshot Ha-kotel” (the women of the western wall) are religious women

that imitate the Jewish prayer habits who are preserved for men only; they wrap a

“Talit” around them and pray in loud voice and in groups. Their purpose is to

redefine women in the patriarchal religious sphere; they demand equality within

the border of the orthodox community. Their fight focuses in the western wall in

Jerusalem, were women are being separated and not allowed to pray as the men

do, as it is the a central and significant place for the Jewish religion. It also ought

to mention that the prayer habits of the men are not forbidden for women

according to the Halacha; it is just not normatively acceptable by the orthodox

community110

. The strong emotional reaction from the rabbis in the orthodox

community is the group prayers. The source of it relies in the “Talmud”, where it

was said that a woman should not carry her voice in the open, in order to keep her

modesty and to prevent her from acting in a sensual way (for example: singing

that might provoke sexual reactions). As opposing to these perceptions, in the 9th

of December 1988, a group of women made its first group prayer at the western

wall. They were yelled at, almost violently attacked by the men. In 1989, the

violent threat came to life: the women were being pushed and hit and objects were

thrown at them111

. The western wall is protected by the Protection of Holy spaces

109

Hanna Herzog “Israel’s Road to Feminism 1973-2000: Analysis” in Rabinovich, Itamar and

Jehuda Reinharz (eds.) Israel in the Middle East: Documents and Readings on Society, Politics,

and Foreign Relations, Pre-1948 to the Present, Waltham, Massachusetts: Brandeis University

Press: 287-296.

110 Frances Raday, Claiming Equality in Religious Identity – the Case of the Women of the

Western Wall: a Supreme Court , 24 Hamishpat 10 (2007) (Hebrew) [Hereinafter Raday]. 111

Id at 13.

34

Law112

which states that: “The Holy Places shall be protected from desecration

and any other violation and from anything likely to violate the freedom of access

of the members of the different religions to the places sacred to them or their

feelings with regard to those places”. Therefore the western wall is a holy space,

and it is subject to public law. As a reaction to a junction that was published by

Rabbi Gatz which prohibits women practicing public prayers, the women of the

western wall filed a petition to the High Court of Justice claiming to remove this

prohibition. They claimed that the junction violates their right to practice their

religion, the principle of equality and their freedom of movement. The court had

rejected the petition, stating that it has not found itself compatible forum to

deliberate on this issue113

. Nevertheless it has stated the opinion that the

government should appoint a committee in order to find a solution which will

balance between the freedom of movement and the feeling of the male-orthodox

prayers. The government had responded to the Court’s request: numerous

committees were appointed. After several deliberations it was agreed that the

women could pray, but not in the western wall but in an archeological sight close

to the wall. The women turned to the court once again. The court concluded that

as in the first ruling in this case the right of the women to pray in the western wall

was recognized, the government had not found an acceptable solution since

praying in a different place is not a proper alternative114

. The court ordered the

government to apply the women’s right to pray in the western wall in six months.

This, of course, caused a massive political crisis. The orthodox parties proposed a

law that prohibited the prayers of non-orthodox ritual in the western wall

surroundings; according to this proposal of law, if a woman should enter the

closed area, a seven years imprisonment time is suggested. The legal advisor of

the government has asked the court to change its decision, which is a very unusual

act115

.

112

Protection of Holy Places Law, 5727-1967, 21 LSI 76 (1967) (Isr.). 113

HCJ 257/89 Hoffman V. Appiontee of the Western Wall, 48(2) PD265. 114

HCJ 3358/95 Hoffman V. Director General Prime Minister’s Office, 54(2) PD 345. 115

See Raday supra note 110 at 17

35

Due to the political chaos that the decision of the court created, and due to

political interests regarding the maintenance of the status-quo, the court

eventually delivered a further decision116

. The court had descending opinion’s and

different conclusions; Judges Cheshin, Barak and Or delivered the majority

opinion and recognized the first committee decision to provide an alternative

place for prayers as the rightful decision. The minority view leaned towards

recognizing the women right to prayer in the western wall. Eventually it was

stated that only if the government will not be able to turn the alternative place into

a decent prayer’s area in one year from the Courts decision, the women would be

allowed to pray in the western wall. The actual meaning of the decision is that in

fact the court supports the estrangement of the women from the western wall117

.

After that decision, some construction works were made at the archeological site,

allowing prayers to be performed.

This decision puts in question the recognition of the women freedom to

perform religious rituals in Israel. The judges had obviously chosen to validate the

orthodox claims to religious apostasy. Moreover, the court avoided the discussion

in terms of gender equality, concentrating on values of religion. The sole judge

who delivered opinion regarding to this subject was judge Menachem Elon who

was considered to be the representative of the Jewish Law in the court; yet he

concluded that the western wall is not the suitable place to practice the value of

equality since the risk of hurting the orthodox feelings and rituals is too high. Yet

again, the political pressure of the orthodox parties and the lack of unity among

the non-orthodox parties had supported to preserve the status quo on the account

of a strong general principle of equality in the Israeli Jewish-democracy.

Another example for gender inequality in Israel is the gender based

separation in public transportation of the orthodox community. In July 1997, as a

part of a committee that its purpose was to encourage the use of public

transportation, the ministry of traffic adopted a policy of sex segregation in

several lines which mainly serve the ultra orthodox population on Jerusalem and

116

FHC 4128/00 Director General Prime Minister’s Office V. Hoffman, 57(3) PD 289. 117

See Raday supra note 110 at 18.

36

Bnei-Brak, both cities with high concentration of this population. The

arrangement was to allow men to enter and sit at the front of the buses, while the

women should enter from the back of the bus and also remain sited in the back. It

is in need to point out that this committee had included only one woman among

its sixteen participants, and that there were also few ultra-orthodox

representatives118

. The Israeli Women’s Network appealed to the High Court of

Justice119

, claiming that the policy was discriminatory against women as it is

physically relegates them to the rear parts of society. It has also argued that this

arrangement violated the principle of gender equality. The state denied the

networks allegations, stating that the arrangement was to the overall satisfaction

of the passengers and the members of the committee. Another argument was that

the orthodox women themselves are comfortable with the arrangement since it

helps them to practice their own beliefs of modesty and the role of the women

according to Halachic law.

Three years after the appeal, the network was convinced by the High

Court of Justice to dismiss the appeal. As in the case of the women of the western

wall, the court once again declined to use its power in order to deal with issues

regarding religion. The obvious conclusion is that the court itself also takes into

consideration the maintenance of the status quo arrangement even on the account

of marginalization upon the women’s physical and geographical space120

.

With that being said, I would like to suggest a different point of view that

was suggested by Alon Harel121

. Harel examined the bus lines with separated

seating’s for men and women from the perspective of moral and political theory.

During the article, Harel claims that some ultra-orthodox woman support the

practice as it allows them to avoid the discomfort as in being harassed by man; it

might even create a situation where the ultra-orthodox women are more

comfortable with sharing their experiences from their marriage or even sexual

lives without the hazard that a man would hear them and they would become

118

See Halperin supra note 108 at 363. 119

Israel Women's Network appeal to the High Court of Justice in H.C. 5079/97 120

See Halperin supra note 110 at 364. 121

Alon Harel, Benign Segregation - A Case Study of the Practice of Gender Separation in Buses

in the Ultra-Orthodox Community in Israel, 20 S. Afr. J. on Hum. Rts. 64 (2004)

37

subject for hate since they live in this strict environment122

. It is also claimed that

Orthodox Judaism rest on the belief that women and men are fundamentally

different, so it can be claimed that the democratic value of respecting the culture

of the minorities up to some extent is necessary123

. Finally, Harel suggests a

different solution: instead of separation to the forth and back seats of the bus, the

separation will take place on the right and the left side of the buses. Personally, I

do not believe that this solution will be accepted in the religious community;

nevertheless I believe Harel’s point of view is giving food for thought for the non-

religious population in Israel.

B. Euthanasia in Israel:

Euthanasia is a rare event and alienated to the spirit of Judaism: Halacha

position in relation to the question of euthanasia is not discussed extensively in

the Talmud and other Jewish commenter’s books. However, the question can be

discussed under the Jewish law view upon the value of “human life”. Halachic

view is that human life cannot be rated; that a man should hope for God’s

salvation. The Halacha does not distinguish between murder out of rage and

murder in a state of despair124

. When regarding euthanasia, the Jewish

interpretations observe the Halachic term "sanctity of life". This term almost

never appeared in rabbinic literature; Judaism has a central value of the sanctity of

life, it means mainly fulfilling the will of the God understanding that it is beyond

our comprehension. Therefore, this concept allows a narrow window for

permitting euthanasia as prolonging life in an artificial way may be interpreted as

not respecting God’s will. However, there is a clear distinction between

accelerating death and removal of artificial instrument that prolongs life: God

does not desire a life that is supported artificially but also cannot allow an active

acceleration just in order to prevent neither pain nor misery125

.

122

Id at 84. 123

Id at 70. 124

Abraham Streinberg, Euthanasia in the light of the Halacha Asia 3, 424 (1982) (Hebrew). 125

Yardena Kop-Yosef, A patients right no to be treated, Daat (2003) (Hebrew) available at

www.daat.ac.il/encyclopedia/value.asp?id1=211

38

Before enacting the Dying Patient Act (2005)126

which instituted the

matter euthanasia in law, the court had two cases regarding this issue: In the case

of Shefer V. state of Israel127

the appellant was diagnosed with an incurable

genetic disease known as Tay-Sachs. The appellant’s mother using her guardian’s

right filed a request for a declaratory judgment, which would declare that if the

appellant's condition gets worse and she will need respiratory drugs, she will be

entitled to refuse treatment. The District Court rejected the request. The Supreme

Court dismissed the appeal as well. In the Lubatzki case128

the son of 91 year old

patient in constant coma filed a petition asking to unplug her from the probe- an

artificial feeding device. He claimed that in the past the mother said that she does

not want to remain in a vegetative state, and wished to not be connected to

devices that would prolong her life artificially. Supreme Court overturned the

decision of the District Court holding that there is no sufficient factual basis

demonstrating that the patient wants to end her life, therefore dismissing the

request. One of the main reasons for those dismissals was the protests of orthodox

Rabbis and orthodox members of the Knesset, which have dismissed the notion of

euthanasia completely with the help of religious justifications.

But the change had occurred in 2001, when the court affirmed for the first

time euthanasia in a terminal state of a patient that suffered from ALS disease; in

2002 the Legal Advisor of the Parliament had delivered his opinion regarding

euthanasia in a case that was in ongoing procedure in Court, and has concluded

that euthanasia in a terminal state is allowed. This caused a great dispute in the

Knesset as well as in the Israeli society; orthodox parties and the Rabbis of the

communities sent letters containing harsh complaints regarding this decision.

After several years of harsh disputes, Israel enacted the Dying Patient Act

in 2005. The law attempts to regulate medical care for terminal patients, based

"on the values of Israel as a Jewish and democratic state." Article 3 regards the

question of the law concerning the fate of a dying patient who does not want his

126

The Dying Patient Law 2005, S.H. 330. Available at

http://98.131.138.124/articles/JME/JMEM12/JMEM.12.2.asp 127

CA 506/88, Sheffer v. State of Israel, 48(1) PD 87. 128

CA 3031/99 Attorney-General v. Lubetzky [May 30, 1999] (unpublished).

39

life prolonged: the law distinguishes between patients who are able to express

their request and ones which are not since they are in a hard physical or mental

condition. The law states that a request of the patient that is given in clear mind

must be respected. In the case of a patient that is not capable of expressing his

will the law offers three options: either the patient has given an advanced order, or

it was given by an authorized representative on his behalf or an ethics committee

of the hospital will determine his fate; this is actually the renewal of the law since

previously all these options were not allowed. Regarding to the duty of a doctor to

save life, the law removes any responsibility regarding to the approval or rejection

of the request for euthanasia and thus solves the doctor’s dilemma: the role of the

physician is to strictly to diagnose a patient, to offer the best medical care and a to

deliver full explanation about his condition, to him and to his family. The law

prohibited the killing or extermination assistance based on the treating physician's

opinion only129

.

It is apparent that the law does recognize the sanctity of life, and stipulate the

possession of the person who wants to live unless proven otherwise. With that

being said, it seems that while the law treats a dying patient that suffers and seeks

his death, in fact it allows the patient to decide about his fate only when he is in

his right mind; this decision relies on future medical knowledge and assessments,

all in order to avoid conflict with religious parties in Israel. Menachem Elon, a

Judge of the Supreme Court which as I already mentioned was known as the

representative of the Jewish Law among the Judges, stated in his essay that: “The

balance in the issue of euthanasia is to find the middle way between Jewish Law

and Democratic Law”130

.

V. Euthanasia, Religion and state: Israel and Italy

Italy is a catholic country at most; 90% of the Italian’s declare themselves as

catholic, though only 30% declare themselves as religious and fulfill the

obligation of going to the weakly mass. The cooperation between the Catholic

129

Dying Patient Law, 2005, S.H. 330. 130

Menachem Elon, “Modes of Halakhic Creativity in the Solution of Legal and Social Problems

in the Jewish Community" Yitzhak F. Baer Memorial Volume [Zion 44] (1979) (Hebrew).

40

Church and the state was established within the approval of the concordats. Like

in Italy, most of the people relate to one religion but do not declare themselves as

being “religious”131

.

After the First World War, the Fascist party began a conciliatoriness policy

towards the Catholic Church; it has resulted in the Lateran Pact (concordat

agreement) of 1929. The problem of Rome was resolved and the state of Vatican

was founded. The fall of the Fascism and the establishment of the Constitution in

1948 changed few of the concordat articles which contradicted fundamental

principles of equality and freedom of religion; as years went by Italy became

more secular which was shown by enacting legislation that allows the right to

divorce (1970) and to go through abortion (1978)132

. In 1984 the Lateran pacts

were amended, and Catholicism was no longer described as the “religion of the

state”133

. The approach of the Italian legal system is often called “positive

secularism”; in one of the Courts rulings it stated that the principle of secularism

implies the impartiality of the law against all religions134

. Several articles in the

constitution are protecting freedom of religion and creating cooperation between

the state and numerous religious groups; though none of the articles state the word

“secularism” specifically. Article 19 guarantees the freedom of religion: “All have

the right to profess freely their own religious faith in whatever form, individual or

associate, to propagate it and to exercise it in private or public cult, provided that

the rites are not contrary to morality”; Article 2 which protects the “the inviolable

rights of man, as an individual, and in the social groups where he expresses his

personality, and demands the fulfillment of the intransgressible duties of political,

economic, and social solidarity”; Article 3 guarantees equality before the law.

Though it is not specifically mentioned, the court sees secularism as one of

the fundamental principles of the Italian legal system. The court interpreted the

idea of secularism not only in the perspective of freedom of religion but in a

131

Silvian Colombo, Religion and State in Italy Compared to Israel- Institutional Aspects,

Mishpat VeMimshal 199,200 (1997). 132

Id. at 201. 133

Carlo Panara, In the Name of God: State and Religion in Contemporary Italy, 6 Religion &

Hum. Rts. 75, 79 (2011) [Hereinafter Panara]. 134

Id at 80.

41

wider scope. Therefore every law should be consistent with both secularism and

freedom of religion, as both are fundamental constitutional provisions135

.

Both states do not imply complete secularism. With that being said, both

states do have strong rules that were established by legislation and the Courts

judgments. As mentioned above, Israel has no constitution but in the

independence declaration it was declared that Israel would promise to its citizen’s

freedom of religion and conscience. This promise had been officially recognizes

in the 1994 amendment to Basic Law: Human Dignity and Liberty and Basic

Law: Freedom of Occupation, stating that: “The purpose of this Basic Law is to

protect human dignity and liberty, in order to establish in a Basic Law the values

of the State of Israel as a Jewish and democratic state”. When mentioned “the

values of the state” it remained unclear if the legislator meant to give the

declaration of independence a constitutional status; but nevertheless we can relate

to freedom of religion as a right that derives from the human dignity.

I would like to examine religion and state in both countries regarding a

disturbing subject that recently was discussed in Israel- the permission to perform

euthanasia, which had been issue to discussion in Italy as well. In Italy there is no

law similar to the Israeli Law; therefore a physician which decides to help an ill

person to die will is facing liability for murder, according to article 579 and 580

of the Italian Penal code136

. Nevertheless, two extraordinary cases were

deliberated in the Italian Courts, bringing religion and state matters into the front

of the stage, creating social discourse.

Piergiorgio Welby was in a terminal phase of muscular dystrophy. In

2006, he filed a claim to the Tribunal of Rome in order to oblige the doctors to

unplug the ventilating tube which kept him alive. The tribunal dismissed the

claim; though pointed out that according to Article 32.2 of the Italian Constitution

“no man is obliged to undergo any health treatment except under the provision of

the law”. However the court stated that this right is not enforceable, given that the

law does not provide any settlement regarding euthanasia. On December 20th

of

135

Susanna Mancini, “Taking Secularism (Not Too) Seriously: The Italian “Crucifix Case”, 1

Religion & Hum. Rts. 179, 180-181 (2006). 136

See Panara supra note 133 at 81.

42

that year, a doctor has agreed to unplug Welby. The doctor was prosecuted for

murder, but was acquitted since the judge pointed out Welby had the right to

refuse medical treatment137

.

Eluana Englaro was a young 21 years old that was involved in an accident

and stayed in a vegetative state for 17 years. After numerous legal procedures her

father appealed the decision not to unplug her to the Court of Cassation. The court

defined the artificial treatment as “medical treatment”, and given Article 32.2 the

court stated that two conditions must be complied in order to stop artificial

feeding: (1) the vegetative state is irreversible; (2) the decision must be in

accordance with the presumable will of the patient drawn from his early

declarations, his personality and beliefs. In the case of Eluana both conditions

were fulfilled since the father declared that Eluana would never suffer this

situation138

. As in Israel, the dispute about euthanasia is clearly not pure legal

dispute; it is also a political dispute, and so it was in the case of Eluana. In

September 2008 Parliament claimed that the Court of Cassation has acted ultra

vires and entered the area reserved to the legislator. Furthermore, the regional

administration of Lombardy (Eluana’s region) forbade the suspension of the

artificial feeding as the regional governor Formigioni, who is considered to be a

conservative catholic, had described the act as “unimaginable”139

. Eluana’s father

reacted by hospitalizing her in the city of Udine, in a clinic which was willing to

host his daughter and suspend artificial feeding. At this point the story became a

national problem, as Prime Minister Silvio Berlosconi intervened: at the 6th

of

February 2008, as the clinic in Udine announced of progressive reduction of the

artificial feeding, he convened the Council of Ministers in order to enact a decree

law that immediately prohibited suspension of artificial feeding. The government

started the examination of the law only three days later, but during those days

Eluana passed away.

137

Decision of the Judge of the Preliminary Hearing at the Tribunal of Rome 23 July 2007. 138

Court of Cassation (First Civil Division) Ruling No. 21748 16 October 2007; Panara 84 139

See Panara supra note 133 at 85.

43

The connecting dots between the two countries are clear: both Catholicism

and Judaism beliefs that "each human life is a manifestation of God"140

. But not

only the will of God plays a role in this dispute; it is a direct affect of countries

where religion and state relations often clash. In Israel, it is a clash inside the

political system, between orthodox and non orthodox parties, as the Court stands

to protect the fundamental right of the people. In Italy, the Court stands alone as

state and religion cooperate, but that is also on behalf of political interests, since

the Catholic parties are strong and stable in Italy. For the meanwhile, people who

face this poor situation have to turn to a solution of ‘death tourism’, meaning

traveling to other countries in order to practice their fundamental right of freedom

of choice141. The answer to this ongoing dispute is still in question, though the

Italian Judge Amedeo Santosuosso states: “As for myself, a Judge serving in a

State Court and having sworn to uphold the Italian Constitution, I respect

religious beliefs. But, in cases where the law conflicts with religious beliefs, I

must give priority to the Constitution and laws which allow everybody to make

choices according to their religious, moral, and philosophical beliefs, whatever

they may be”142

.

VI. Conclusion

I have started the essay with a quote from Thomas Jefferson, explaining the

difficulty or even the impossibility of religious values to coexist with democratic

values in the same state; I believe that this suggestion had accompanied us

throughout this essay.

Nevertheless, the orthodox community has managed to be a part of the Israeli

society while maintaining their strict religious rituals and way of life. One of the

important questions that this essay brings upon is the necessity to keep Israel as a

democracy while the religious community ignores democratic values but yet

140

Nicholas A. Secara, Has Italy Discovered Virgil? Utilizing the British Archetype to Create

End-of-Life Legislation in Italy 19 Cardozo J. Int'l & Comp. L. 127, 165 (2011). 141

Id. at 164. 142

A. Santosuosso, End of life decisions in Italy and in Europe, in Selected Publications of the

International Seminar Matters of Life and Death: religion and Law at the Crossroads, Boston

College Law School, Law and Religion Program, 2008, pp. 37-53.

44

remains an active player in the public sphere. It might be suggested that in order

to protect itself, the democracy should limit the power of the orthodox parties in

the Knesset143

. Against this argument, I would also suggest that the orthodox

minority is vital to the Israeli democracy; since it is the anti-democratic parties

that eventually strengthen democracies. This argument was already proven in the

past, when the entrance of the Catholic parties into the European politics

eventually led to softening their strict religious approach towards non-religious

parties144

.

Observing the peculiar status-quo agreement, I have shown that it has influenced

lives of every Israeli national, in a direct and indirect way; the everyday lives of

Israelis are directly affected by status quo agreement regarding the Shabbat and

the Kashrut. Moreover, moral social disputes have been widely examined by the

Israeli society regarding the exemption of the “Yeshiva” students, the women of

the western wall, separation in public transportation, euthanasia and more. I have

shown that during the years, as Israel became less religious and more modern, the

non-religious majority had claimed to change the status quo and regarded it as a

coercive agreement by nature. A significant development in this discussion had

been made by the constitutional revolution, eventually changing the “rules of the

game”. Now more than ever, the dispute went from behind the scenes into the

main stage; the cases that I have discussed in this essay are the tip of the iceberg.

On the one hand, Israel is adopting more democratic values. On the other hand,

one can argue that it is also becoming less tolerable to the orthodox minority

therefore undermining democratic values.

Regarding the religious minority views, the road is yet open and can go

both directions: there is a possibility that the non-tolerable orthodox community

will become more understanding; but there is the chance that it would only take

advantage of the tolerable democratic society and would expand its anti

democratic views. Observing the last few years, I cannot point towards positive

developments in the orthodox society; the last few years had been flooded with

143

See Cohen supra note 99 at 394 144

Id.

45

anti-democratic declaration from the leaders of the orthodox community, starting

from the condemnation of same-sex relations, followed by ethnical discrimination

and up to physical violence against women and girls who were not “modest”

according to the strict rules.

As the title suggests, this is an ongoing discourse or might even dispute,

that is far from end, between the two thrones that constitute the Jewish

democracy.