יום רביעי 14 ספטמבר 2016
Ha'aretz, September 13, 2016
By Rabbi Gilad Kariv, IMPJ President and CEO
Israel’s High Court has signaled in unusually harsh language that ultra-Orthodoxy cannot own and control Judaism’s holiest sites. But Netanyahu could still flee his responsibility to protect religious pluralism in Israel.
When two senior High Court judges used unusually strong language to criticize the interminable saga of access to the Western Wall for non-Orthodox groups and Women of the Wall, it was a surprise.
And for those of us who were party to the case, it was a most welcome one. It was also a clear reprimand to Israel’s government and Prime Minister Benjamin Netanyahu.
The reprimand was all the more authentic coming from Justice Elyakim Rubinstein, whose long years of service alongside prime ministers Yitzhak Shamir, Yitzhak Rabin and Netanyahu (as cabinet secretary and for the latter as legal adviser) taught him that complicated compromises ultimately depend on the leader’s ability to pound the table and say: Enough!
In their judgment handed down this week, justices Rubinstein and Miriam Naor wondered how following years of negotiations, and 10 months after the cabinet decision on the Western Wall, no progress had been made.
Rubinstein queried whether a headline in a Haredi (ultra-Orthodox) newspaper or a tweet by a Haredi journalist had more influence than a cabinet decision.
In contrast to the government’s attempts to plug holes in the crumbling Orthodox monopoly at the Western Wall, the High Court signaled clearly to the government that the time had come to take responsibility.
Many of us involved in the negotiations with the government predicted that the High Court would probably have to get involved. But very few of us expected the judges to send such a clear message to the government:
The time had come to recognize that the opinions of the Western Wall’s ultra-Orthodox rabbi, and of the ultra-Orthodox-controlled Chief Rabbinate, do not represent the views of many of the Jews of Israel and most of the Jews of the Diaspora.
The High Court invited Women of the Wall and the Reform and Conservative movements to request the court’s direct intervention in the Western Wall issue. This was a courageous and in some respects unexpected step.
The judges groups emphasized the cabinet’s failure to implement its own decisions, and called for the issue to be brought to the court on an expedited timetable. We are planning to bring this new petition by Rosh HaShanah.
This directive stemmed from the government’s embarrassing foot-dragging on the Western Wall compromise, which repeatedly led to crises brought to the court’s doorstep.
These included the composition of the body operating the Western Wall, the refusal to allow Torah scrolls into the women’s section, the building of the temporary platform near Robinson’s Arch without permits, and many more examples.
The judges did not hide their anger that yet again, while the government was bringing another religion-and-state hot potato for the court to adjudicate, it was hypocritically attacking the court for its intervention.
Worse, the government was developing laws designed to sidestep and undermine High Court rulings on these issues when the results don’t work out in its favor, such as in the case of non-Orthodox use of state-funded mikva’ot – ritual baths.
The court has been unusually willing to intervene in issues of religion and state – in contrast to its reticence on issues concerning the territories or immigration policy.
Perhaps this is because the judges realize that most Israelis support pluralism, and that structural failures in Israel’s democratic system give the unrepresentative ultra-Orthodox veto power that paralyzes progress.
The High Court’s ruling asks us to alter our petition; we shouldn’t focus on the makeup of the body operating the Western Wall, but rather on the fact that the cabinet decision to create an egalitarian section at the Wall has not yet been implemented.
To a great extent, this moves the issue to the legal sphere in which values of pluralism, equality and religious tolerance have a greater weight. At the same time, the issue will continue to be dealt with in the political sphere.
The pressure of the Haredi political parties (or more precisely, the burgeoning pressure of Haredi media that for a long time has set the tone for Haredi politicians) is likely to make Netanyahu adopt one of two possible strategies:
1. Annulling the cabinet decision, or worse, changing the laws that currently govern the operations of the Western Wall, as was done recently in the case of the mikva’ot;
2. Trying to convince the court to accept a slight upgrade in the Robinson’s Arch prayer area to fulfill the demands of the non-Orthodox movements for equality.
A clue to this intent was in the government’s announcement to the court that it intends to make progress in building the new area while ignoring the compromise's main focus.
That focus was not the prayer area’s physical aspect but the legal stature of the Western Wall’s pluralistic character. It was also the creation of a body to operate the pluralistic area with representatives of all the streams and Women of the Wall, and the definition of the pluralistic prayer area as an integral part of the Western Wall, not only of the archaeological site.
Whether the government sticks to the Wall compromise that ensures space for all Jews to pray largely depends on whether public pressure in Israel and the Diaspora counters the pressure by the ultra-Orthodox on Israel’s government.
Lawyers will put forward the case for pluralism to the courts, but it is up to Jews in Israel and abroad to loudly signal to the government that enough is enough. Netanyahu can’t retreat from the historic compromise that he has already agreed to.
The High Court judges have stated clearly to the government that they are prepared to fulfill their duty. Now we, the Israeli and Jewish majority that believes in freedom of religion and pluralism, must fulfill ours too.