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.
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