The question as to whether freedom of religion in all its aspects is adequately protected in any society can be answered by a careful examination of the relevant doctrines and practices of its legal system. There are significant sources for the protection of religious liberty in Israeli law. There have also been various efforts to incorporate religious norms or restrictions that reflect religious sources into the law of the land and an evaluation of these is part of any investigation of Israel's adherence to principles of freedom of conscience and religion.
It is proposed to examine freedom of religion from a number of aspects. In the opening sections, the report will analyze the scope of protection of religious liberty and the constitutional and legal norms which provide that protection. The paper will also discuss the relationship between religion and state in comparative perspectives. Special attention will be paid to the contribution of the Supreme Court to the protection of religious freedom. The latter part of the paper will discuss the state funding of religious institutions.
One in ten Israeli individuals identify themselves as Haredi, and one in ten identify as Orthodox as well. One in seven Israelis identify as Traditional Orthodox, and 23% of the population identifies as Traditional. This shows that a majority of Israelis consider themselves to be religious at least somewhat, and that only 44% identify as secular.
The Scope of Protection of Religious Liberty
The Palestine Mandate of 1922 contained a number of provisions ensuring freedom of religion and conscience and protection of holy places, as well as prohibiting discrimination on religious grounds. Further, the Palestine Order in Council of that same year provided that "all persons ... shall enjoy full liberty of conscience and the free exercise of their forms of worship, subject only to the maintenance of public order and morals." It also lays down that "no ordinance shall be promulgated which shall restrict complete freedom of conscience and the free exercise of all forms of worship."1 These provisions of the Mandate and of the Palestine Orders in Councils have been recognized in the Israeli legal system and are instructive of Israeli policy in safeguarding freedom of conscience and religion.
Israel's Declaration of Independence, promulgated at the termination of the British Mandate in 1948, is another legal source that guarantees freedom of religion and conscience, and equality of social and political rights irrespective of religion. Although the Declaration itself does not confer any legally enforceable rights, the High Court has held that "it provides a pattern of life for citizens of the State and requires every State authority to be guided by its principles."2
To support the fundamental existence of the right of freedom of conscience and religion, the courts have also relied on the fact that Israel is a democratic and enlightened state. In one significant court decision, Justice Moshe Landau stated:
"The freedom of conscience and worship is one of the individual's liberties assured in every enlightened democratic regime."3 In dealing with questions of religious freedom, as well as other human rights, the courts have also resorted to the Universal Declaration of Human Rights and the International Covenant on Political and Civil Rights that reflect "the basic principles of equality, freedom and justice which are the heritage of all modern enlightened states."4
In doing so, the courts have required that two conditions be met: that the principle in question is common to all enlightened countries, and that no contrary domestic law exists. In this regard, Justice Haim Cohn has said:
"It is decided law that rules of International law constitute part of the law prevailing in Israel insofar as they have been accepted by the majority of the nations of the world and are not inconsistent with any enactment of the Knesset (Parliament). The principles of freedom of religion are similar to the other rights of man, as these have been laid down in the Universal Declaration of Human Rights, 1948, and in the Covenant on Political and Civil Rights, 1965. These are now the heritage of all enlightened peoples, whether or not they are members of the United Nations Organization and whether or not they have as yet ratified them. . . for they have been drawn up by legal experts from all countries of the world and been prescribed by the [General] Assembly of the United Nations, in which by far the larger part of the nations of the world participates".5
Justice Landau also emphasized the right of freedom of conscience:
"Every person in Israel enjoys freedom of conscience, of belief, of religion, and of worship. This freedom is guaranteed to every person in every enlightened, democratic regime, and therefore it is guaranteed to every person in Israel. It is one of the fundamental principles upon which the State of Israel is based… This freedom is partly based on Article 83 of the Palestine Order in Council of 1922, and partly it is one of those fundamental rights that "are not written in the book" but derive directly from the nature of out state as a peace-loving, democratic state6'… On the basis of the rules – and in accordance with the Declaration of Independence – every law and every power will be interpreted as recognizing freedom of conscience, of belief, of religion, and of worship"7.
Israel's Supreme Court has not yet ruled squarely on the issue of the protection of religious liberty under the Basic Law: Human Dignity and Liberty. However, several decisions and other writings by some of the Justices indicate support for the view that the general right to human dignity protected by the Basic Law includes, inter alia, freedom of religion and conscience, which consequently has the status of a supreme, constitutional legal norm.8 Thus, for example, during the Gulf War, the Supreme Court ruled that when supplying gas masks, the government should endeavor to supply special masks for religious men who maintain beards out of religious conviction.
The Basic Law: Human Dignity and Liberty refers to a "Jewish and democratic State". However, Judaism has not been proclaimed the official religion of Israel. Rather, the law and practice in Israel regarding religious freedom may best be understood as a sort of hybrid between non-intervention in religious affairs, on the one hand, and the inter-involvement of religion and government in several forms on the other, most notably by legislation establishing the jurisdiction of religious courts of the different faiths in specified matters of "personal status" by government funding of authorities which provide religious services to several of the religious communities; and by a series of legal institutions and practices which apply Jewish religious norms to the Jewish population.
Israel protects the freedom of Jews and non-Jews alike to engage in their chosen form of religious practice or worship. Likewise, in most cases the application of religious precepts by institutions of the State, such as in the prohibition of work on religious days of rest, does not compel Jews or non-Jews to violate the precepts of their chosen faith. However, freedom of religion is not an absolute right, but rather is subject to limitations and derogation. Thus, freedom of religion must be balanced with other rights and interests, and may be restricted for reasons of public order and security. In practice, however, Israeli authorities have exercised their power with great caution.
Religious institutions in Israel enjoy wide state financial support, in the form of both direct funding and tax exemptions. Both forms of state support are not uniform with regard to the various religious communities. However, the lack of official recognition of religious communities does not affect the ability of these communities to practice their religion freely or to maintain communal institutions. Furthermore, in its endeavor to enhance freedom of religion, Israel has permitted its Muslim citizens, by arranging for them to bear Jordanian travel documents, to pass through countries that do not have relations vis-à-vis Israel, in order to fulfill their commandment of pilgrimage to Mecca. Similarly, leaders of some of the Christian communities in Israel are also leaders of Christian communities in Arab countries; Israel, for its part, consistently maintains a policy of not intervening therein, allowing visits by religious figures across the border to enable these communities to manage their affairs.
Many provisions of Israeli statutory law are devoted to the protection of holy places and sites that serve for prayers and, other religious purposes.9 It is an offense under penal law to cause damage to any place of worship or to any object sacred to any religion with the intention of affronting the religion of any class of persons. There are, for example, penal sanctions for trespass on places of worship and burial, for indignity to corpses, and for disturbances at funeral ceremonies. The Supreme Court has dealt very stringently with acts which offend religious sentiment.
Religion-State Relationship and Freedom of Religion
The prevailing view in comparative international law is that the establishment of religion and its recognition by the state, or the separation of religion from the state do not, as such, violate religious freedom or constitute unlawful discrimination for religious reasons or religious intolerance. The nature of the regulation matters and the measure of statutory protection of religious freedom do not vary with states where separation exists or where there is a state-recognized religion.
Many countries, which separate church and state nevertheless grant exemptions from certain legal duties such as military service on grounds of religious beliefs, while other countries, which have a state-established religion, do not. The relationship between church and state has no significant effect on the free exercise of religion and, thus, the International Draft Convention on the Elimination of All Forms of Religious Intolerance provides that neither the establishment of a religion, nor the separation of church from state, in and of itself, is an interference with the freedom of religion, unlawful discrimination on religious grounds or religious intolerance.
Of course, if in consequence of the state's recognition a particular religion or its adherents are given preferential treatment over other religions or over persons who are not members of it, this involves an infringement of the principle of religious freedom, which requires the equal treatment of all religions. The same applies where the separation of religion and the state lead to preferential treatment of people with no religion, or disbelievers, as against others.
It should be noted that, irrespective of state recognition of a particular religion, the religious beliefs of the majority of the population inevitably affect the life of the state. In the United States, for instance, this phenomenon is reflected in the prescription of Sunday as the weekly day of rest. By contrast, in Israel it is Saturday, and the Jewish festivals are also rest days. (The right is reserved to non-Jews to choose the rest day customary among them.) In Israel, the phenomenon is also manifested in the status enjoyed by the Chief Rabbis.
a. Conceptual and Comparative Analysis
The relationship between state and religion can be reflected in different forms. We can divide these forms into five models: the theocratic model, the absolute-secular model, the separation of state and religion model, the established church model, and the acknowledged religions model.
Two of these mentioned models are non-democratic: the theocratic model and the absolute secular model, which are the most extreme models.
A modern theory of law and government rejects these sorts of non-democratic models. The democratic state must promise and preserve the freedom of religion, which is defined as the freedom of any religion to maintain its religious activity and the freedom of any person to maintain his faith and religion and to fulfill its commandments and rituals10. Another right that a democratic state must promise is the freedom from religion, which is the freedom of any person not to fulfill the commandments of the religion. The private person is not obliged to any religious duty, religious institute, or religious ritual, he is free of any religious restriction, and he has every right of speech, belief and equality in front of the law.
The foundation of the democratic state is a secular law: the law that rules is the secular law, which had been accepted and determined in a democratic way by a legislation in a democratic parliament and which does not contradict to the principles of the democracy11.
The first democratic model is the separation of state and religion model. The idea is that there is a distinction between the government and religious principles.
The second model is the established church model, which means that the state recognizes a certain religion and a certain church as the state's national church. This recognition does not mean that other religions are prohibited or that a person must be a member of the established church, but that the state formally prefers a certain religion and gives it a priority over other religions. It can be expressed in the state's financial support to institutions of this religion, in benefits given to the members of this religion, etc.
Examples for states that adopted this model are: England (the Anglican Church is the Church of England); Denmark, Norway, Iceland, Finland (the Anglo-Lutheran Church); Greece and Bulgaria (the Eastern Orthodox Church).
The third democratic model is the acknowledged religions model. The state in this model does not recognize one formal religion; a formal national state's church does not exist. The state's approach in the matters of state and religion is a neutral approach.
The United States of America adopted the separation of state and religion model, and, in fact, the U.S. is the common example for this model. The first amendment of the federal constitution held that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof". Literally, this clause does not constitute a regime of separation. However, this section was interpreted as the adoption of the separation model. The interpretation was based on two important parts of the section: the Establishment Clause and the Free Exercise Clause.
It should be mentioned that the fact that the United States adopted the separation method does not mean that the approach toward the religion is hostile. On the contrary, the American society is very religious, and anti-religious groups are considered marginal.
The religiousness of the American society can be found in all areas of life, for example: some of the formal holidays are Christian, and in Good Friday the flag is lowered to the memory of Jesus' crucifixion; the words "In God We Trust" are written on every currency and every bill; the oaths of trust of the President, Ministers, judges and Congress members conclude with the words "So Help Me God"; Congress meetings begin with a prayer; Priests and Rabbis serve in the army; and churches are released from paying taxes.
An analysis of all of these religious characteristics reveals that state religiousness is mostly not of a specific religion, but rather a reflection of the faith in one god [and not particularly in Jesus]. This is a kind of a new religion, a "civil religion" that contains components of many different religions, although it is closer to Christianity than to any other religion12.
Allegedly, this religiousness of the society contradicts the separation principle, or at least the aim of the separation. But, in fact, there is no conflict between those two principles. The separation's aim is to ensure that the pluralism of religions and views is respected and preserved.
England, on the other hand, adopted a different answer to the question of the link between state and religion: the Established Church Model.
The King (or the Queen) is the head of the Established Church, and he must be Anglican in order to rule the kingdom. He cannot convert his religion. In his Coronation Oath, he pledges to maintain the Protestant Reformed Religion established by the law13, and to declare himself as the "Defender of the Faith", which is the Protestant-Christian Faith.
The acknowledgment and support of the state in one formal religion can be illustrated in many other examples: the Established Church organizes the formal state ceremonies, such as the Monarch coronation ceremony or requiem ceremonies for soldiers who died in a war; twenty-six of the senior bishops, including the archbishops of York and Canterbury, sit in the House of Lords as "Lords Spiritual"; all the measures of the Established Church, which are accepted by the General Synod (the general assembly of the church) must get the confirmation of the Parliament; the Book of Common Prayer was confirmed by the Parliament14; and the Monarch appoints the archbishops and bishops at the recommendation of the Prime Minister. Another example is the Law of Blasphemy, which holds that "to reproach the Christian Religion is to speak in subversion of the law."15
b. Religion and State in Israel
When Benjamin Ze'ev Herzl dreamt about the state of the Jewish nation, he had the vision of separation of state and religion16. However, this vision has not become the reality. There is no separation of religion and state in Israel. At the same time, there is no recognized religion in the accepted sense. Some have argued that the peculiar nature of Judaism, which embodies a pattern of daily life and not merely a set of religious dogmas, and which intermingles religious and national elements, is not conducive to separation of religion and state. As David Ben-Gurion puts it, "The convenient solution of separation of church and state, adopted in America not for reasons which are anti-religious but on the contrary because of deep attachment to religion and the desire to assure every citizen full religious freedom, this solution, even if it were adopted in Israel, would not answer the problem."17
The State of Israel recognizes the following religions: Jewish, Christian, Muslim, Druze and Baha'i. Within the Christian religion the following denominations are recognized: Greek Orthodox, Greek Catholic, Latin (Roman Catholic), Armenian Orthodox, Armenian Catholic, Maronite, Syrian Orthodox, Syrian Catholic, Chaldaic (Catholic) and Evangelical Episcopal (Anglican).
Three denominations have applied for State recognition: the Ethiopian Orthodox, the Coptic Orthodox and the United Churches Council of Israel, which is the umbrella organization of Protestant churches in Israel. Their applications are still pending. In the past, three other applications, those of the Druze, the Baha'i and the Evangelical-Episcopal, were accepted.
Apart from the peculiar nature of Judaism, there is the difficulty attending separation, which flows from the approach of the law in Israel to matters of personal status. This approach, predating the establishment of the state, rests on religious affiliation, religious law, and religious jurisdiction.
The integration of religion and state in Israel is visible in many fields, some expressly regulated by statutory law18 and some relying on a legal regulation. Among them are the application of a religious test to the Law of Return19, which provides for automatic Israeli citizenship to Jews wishing to reside permanently in Israel; the exclusive application of religious jurisdiction and religious law in matters of marriage and divorce20; the conduct of religious education financed out of state funds21; and the establishment of a special Ministry of Religious Affairs22.
Role of Religious Norms
The most difficult problem relating to religious liberty in Israel is posed by the imposition of religious norms and restrictions of a religious nature on all Jews, whether or not they are religiously observant.
To determine whether the enforcement of a norm of religious origin infringes freedom of conscience and religion, a distinction must be drawn between a norm of religious origin which is not generally recognized and adopted by the society, and one which is. The enforcement of a norm of the first type – such as the application of religious law in marriage and divorce – involves a violation of religious liberty; the enforcement of a norm of the second type – such as the prescription of a day of rest – does not, for in that case the enforced norm is treated like any norm, regardless of source, which has been accepted by society, and which the state may enforce through legislation. As Justice Simon Agranat, the President of the Supreme Court, has observed:
"This opinion involves the much-debated issue of whether the state may legislate morality or compel a moral norm. With regard to Jewish law, Justice Landau has proposed to distinguish between 'rules which prescribe man's behavior to his fellow man, and those which affect the relationship between man and Divinity.'23 On this view, coercion of the former upon nonbelievers does not derogate from freedom of conscience and religion. The difficulty I find with this distinction is that it implies that there would be nothing wrong with the enforcement of conduct, religious in origin and in substance, provided only that it concerns human relations."
Justice Moshe Silberg has distinguished between the "rational" and the "credal" commandments of Judaism.24 While the former may, in his opinion, rightly be enforced on the public without prejudicing religious freedom, the coercion of the latter does not offend against that freedom. Again, I cannot agree with this distinction. That a religious norm is rational does not justify its compulsion until it has won the social approval required to render it a norm binding upon society. It is possible also for such societal approval to be gained by credal norms.
Israeli law, at present, provides examples of coercion of religious law that are not accepted norms within Israeli society. The application of Jewish law to marriage and divorce, and the subjection of citizens and residents to the exclusive jurisdiction of the religious courts in such matters, is an improper coercive enforcement of a religious norm. And the very necessity to marry before a religious authority results in a number of restrictions of wider ambit. A woman who has left the faith loses property rights. The marriage of a Cohen, a man whose descent is traditionally traced to the ancient priesthood and a divorcee is forbidden. None of these matters are to be found in any statute.
a. The Secular Primary-Purpose Test
In legal terms, the difference between religious norms, which are not part of the societal consensus, and norms with religious roots, which have been adopted by the society, assumes the form of the secular primary-purpose test. If the primary purpose meant to be served by the law is secular – that is to say, is acceptable to enlightened members of society – no improper coercion is involved, even if a religious purpose is incidentally served. For instance, the designation of Sunday as the general day of rest in the United States would prima facie constitute the coercive enforcement of a Christian religious norm on the entire population, but since the primary purpose is a secular one, the incidental result of enforcing a religious norm does not invalidate such a law.
The secular primary-purpose test is acceptable to the courts in Israel, whether or not they apply it explicitly. Justice Silberg has held that where a religious purpose is not primary to a law but the provisions of that law can be justified by the secular purpose achieved, no infringement of religious freedom occurs, even if the statutory provision also serves some religious purpose.25 And Justice Zvi Berinson has held that the fact that a municipal bylaw, dealing with the opening and closing of businesses, accords with religious demands will not invalidate all or any part of it "if the primary purpose sought to be achieved by means of it is not a religious purpose."26
A legislative or administrative act serving a religious purpose, if effected by an administrative authority, possesses force only on the condition that the religious purpose is incidental or marginal to the secular primary purpose. Thus, the Israeli Supreme Court has decided that the introduction into an import license of a condition whereby the importer of food must produce a certificate of kashrut from the Rabbinate to obtain clearance of the goods from customs does not serve the economic purposes of the law restricting imports. Therefore, the court found that the authority, in imposing such a condition, had improperly exercised its powers in order to attain a religious purpose.27 Similarly, the Supreme Court has denied validity to an order of the Food Controller that prohibited the breeding of pigs in certain areas by virtue of his general power to regulate the inspection of food. In its ruling, the court noted that "the sole firm grounds, or at least the primary and decisive grounds, for the Food Controller's administrative and legal acts in this matter were national-religious and not economic grounds inherent in the purposes of food control."28
b. Cultural-Religious Norms
A special problem arises with what are termed in Israel cultural or national-religious norms. Certainly, religious freedom is consistent with the imposition of national or cultural norms that bind a society to its historic values and cultural heritage. The intermingling of national and religious elements in Judaism requires, however, that a distinction be drawn between purely religious norms and norms which display national features.
National-religious norms are enforceable upon individuals only when they have secured societal consensus. However, their introduction into official state institutions may be warranted, even when their enforcement upon the individual citizen is not justified. Thus, the State of Israel may properly require that Jewish symbols and values should be preserved by governmental authorities and the official representatives of the state in the course of their duty even though these may lack the consensus which would transform them into norms binding on all citizens. Analogously, it is my view that the observance of the dietary laws in the army is justified, not because military standardization and national unity make it undesirable to set up two kitchens in every army unit or because there is no hardship involved in non-observant soldiers eating kosher food while the alternative policy creates severe hardship for many soldiers. The observance of the dietary laws in the army can be justified on the ground that it forges a bond with the past of the Jewish people by means of one of the most conspicuous of Jewish symbols.
In Israeli law, religious matters are regulated only by the national legislature. In the absence of specific legislation, there is no warrant for the enforcement of any religious norm by the executive branch of government. But, in contradistinction to the enforcement of religious norms, governmental administration may, within the scope of its general authority, include religious considerations along with others in the regulation of public life. Such is the case, for example, in ordering the closure, during the hours of prayer, of a section of road adjoining a synagogue. The court held that "in attaching some value to the consideration that motor traffic along the roads concerned on a Jewish festival and the Sabbath disturbs worshippers during their prayers in the Yeshurun Synagogue and prevents them from praying in tranquility, [the Traffic Controller] gave thought to an interest of a religious character. However, this does not invalidate his decision, just as it would not be invalid had he had in mind some cultural, commercial, health or other like interest."29 Consideration of interests having a religious character is justified "provided they affect an appreciable part of the public" and do not impose a "burden which cannot be borne."30 The justification for taking account of religious considerations and interests derives, as has been suggested, from the fact that they fall into a wide category of matters which may properly be given consideration for the purpose of exercising authority.31
Changes in the Protection of Religious Liberty
a. The Basic Laws
The positive contribution of the legislature is significantly reflected in the passage of two new Basic Laws – Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation.32 The uniqueness of these Basic Laws is in the legislation of certain human rights within a Basic Law, which places limits on future Knesset legislation by means of the law's restrictive clause. As such, the Basic Law reduced the ability of religious factions in the coalition to push through laws bypassing the High Court of Justice. Even those rights that are not explicitly mentioned in the Basic Laws are safeguarded, due to the broad interpretation of the catch-all concept of "human dignity" in the Basic Laws. Religious freedom is also included in the category of human dignity. As stated by Justice Aharon Barak: "In the past, freedom of worship and religion did not enjoy a supralegal constitutional status. With the passage of the Basic Law: Human Dignity and Liberty, it includes implied recognition of human dignity."33
The solution to the dilemma faced by religious groups following the passage of the Basic Laws and its near-neutralization of any contradictory legislation, was found in the amendment to the Basic Law: Freedom of Occupation, in the Mitral case.34 This amendment added section 8, which enables the legislature to pass a law that impairs rights that are accorded by the Basic Law: Freedom of Occupation, explicitly or implicitly, without conforming with the strictures of the restrictive clause. The law had to be passed by a majority of 61 Knesset members, and had to contain this rider: "in spite of that which is stated in Basic Law: Freedom of Occupation." This amendment led to the adoption of the Import of Frozen Meat Law, 1994.
Passage of the amendment to the Basic Law: Freedom of Occupation constitutes a step back from the passage of the two new Basic Laws. It resulted from the government's desire to appease the religious elements in the Knesset. In addition, prior to the passage of the Basic Laws, there had been a general policy not to allow the import of non-kosher frozen meat, and the new legislation restored the status quo ante.
Ultra-Orthodox circles have dissociated themselves from all Basic Law legislation. They are disturbed by the passage of the Basic Laws and the implications of those laws, and are discomforted by references to the importance of rights guaranteed by the Basic Laws and their effect on existing arrangements in matters of religion. During political negotiations, these circles habitually seek commitments for legislation to nullify judicial decisions that are based on the existing law. In the Velner case, for instance, a coalition agreement was signed between the Labor party and the Shas movement, according to which the Labor faction in the Knesset would work for corrective legislation that would restore the legal situation to its previous status. This coalition demand came in response to the corpus of judicial rulings handed down by the High Court of Justice on matters of religion.35
b. Impact of the judicial rulings of the Supreme Court on the Protection of the Freedom of Religion
Analysis of the measure of protection of civil rights in matters of religious practice indicates that the judicial branch, and first and foremost the Supreme Court, has been the chief contributor over the years toward the enhancement of the quality of civil rights in matters of religious practice in the State of Israel. The judicial rulings of the Supreme Court, primarily in its capacity as the High Court of Justice, are the outgrowth of processes that have been underway in Israeli society over the years, which modified patterns of public behavior in various areas. In the wake of these changes in society, petitions were brought before the Supreme Court by public groups and private citizens. These petitioners have played an important role in enhancing civil rights in matters of religious practice, for it is due to their intervention that the various issues were brought before the High Court of Justice, providing the court an opportunity to give these positive social developments a judicial seal of approval. The dynamic process of providing judicial approval of social processes that enhance civil rights in matters of religious practice applies not only to the High Court of Justice but also to the judicial decisions handed down by the courts and the Supreme Court in civil and criminal actions.
There are numerous examples of favorable judicial rulings by the Supreme Court that have contributed toward enhancement of civil rights in matters of religious practice, in light of processes underway in Israeli society. For example, the court has recognized marriages of Israeli residents performed abroad as well as private ceremonies of individuals forbidden to marry;36 the court ruled that issuance of kashrut certificates by the Chief Rabbinate would be carried out solely in accordance with the "hard core" of the halachic laws; and the court struck down municipal bylaws that forbade the sale of pork.37 The Supreme Court also recognized the right to alternative burial, years before the Knesset set this right into law.38 The Supreme Court was also responsible for clarifying that the Chief Rabbinate and its associated bodies, including religious court judges and rabbinical courts, are public bodies that are subject to the rule of law and the judicial review of the High Court of Justice.39 In the Kaplan case, the Supreme Court ruled that public television could operate on the Sabbath.40 It developed that the Supreme Court also played a primary role in defending the status of female members of public religious bodies.41
In spite of the generally positive trend whereby Supreme Court rulings enhanced the quality of civil rights in matters of religious practice, there are also cases in which the Supreme Court hesitated to intervene, preferring to leave the decision in the hands of other bodies. One example is the issue of conversion. When the question of recognition of Reform conversion performed in Israel was brought before the High Court of Justice, a majority of the justices preferred to defer the ideological task of determining the sum and substance of conversion in Israel.42 Another example of the Supreme Court's hesitancy to rule on issues pertaining to rights in matters of religion is the Bar-Ilan Street case. As noted, the Supreme Court at first avoided ruling on the matter, instead recommending the establishment of a public committee to study the issue.43
As a continuation of this trend, the Supreme Court also avoided handing down any clear decision on the issue of drafting yeshiva students, when the question again came up before it in 1997.44 The Supreme Court justices determined that the present-day arrangement was unreasonable, but they avoided taking the next step of declaring the arrangement null and void. They sufficed by allotting the Knesset one year's time to enact appropriate legislation on this matter, in contrast to the existing situation in which draft exemptions for yeshiva students are regulated by an administrative decision made by the defense minister.
State Funding of Religious Institutions
Governmental funding for religious institutions has different sources within the government. Various ministries provide this financial support, including the Ministry of Religious Affairs, the Ministry of Education, the Ministry of Internal Affairs, the Ministry of Labor and Social Welfare, and other ministries that allocate budgets for specific issues, that eventually contribute to the development of those religious institutions.
The main supporter, however, is still the Ministry of Religious Affairs, whose budget is mostly designated for the ultra-orthodox (Haredi) educational and social services, the religious educational institutions (yeshivot), religious youth movements, the religious culture institutions (which are institutions that hold Torah lessons for the ultra-orthodox public) and the religious research institutions45. A much smaller part of the Ministry's budget is designated for services to the whole public, such as synagogues or mosques, the Chief Rabbinate, the religious courts and development of cemeteries of all religions. It should be mentioned that the religious education system is supported also by the Ministry of Education.
In the past, the government included in the Budget Law a list of the sums allocated to religious institutions by name. This grant system created a great controversy, raised severe political criticism, and therefore was changed by an amendment to the Budget Foundations Law. The amendment provided that the Budget Law would provide for an inclusive sum of support for every category of public institutions, which would be equally distributed to all institutions included in that same category46. Although the amendment apparently aimed at achieving a fair and equal allocation, actually the equal distribution was not achieved. The government could continue the discrimination of different public institutions, and could grant greater allowances to religious education institutions (yeshivot). The discrimination was still possible due to the formulation of the law; the equal allowance duty applied only to the institutions in the same category, and the government was not obliged to equality of different categories. Another deviation from the equality principle was the fact that an explicit section of the law excepted two institutions ("The Independent Education System of the Ashkenazi" and "The Sephardi Centre of Fountain of Religious Education in Israel"), which are religious Haredi education networks, and allowed the government a large support for them. They have become much bigger educational systems as a result of the big budgets they get from state sources. They offer education for lower or no fees, though they do not have a high quality education.
The system of distribution of funds was challenged in the Court. An association named Ma'ale appealed to the Supreme Court after its request for allocations had been denied47. This association was a non-profit organization whose activity focused on "organizing and maintaining religious services by combining the Torah of the Israeli people, the Israeli nation, the land of Israel and the State of Israel". It requested allocations by virtue of the budget section that was concerned with cultural activities for the Haredim. The Supreme Court dismissed the petition. Justice Barak (now the President of the Supreme Court) reviewed the legal arrangement and decided that it is valid. The law, according to his reasoning, properly expressed the principle of equality in distribution of allowances and in the authority's duty to act according to equality and reasonable guidelines and clear, relevant and equal criteria. I respectfully disagree with this approach. In his opinion, Justice Barak failed to examine the actual discrimination in the allowances' distributions and the priority that was clearly given to the categories including the Haredi institutions48. He also dismissed the arguments of Ma'ale association, by determining that the association is not a Haredi one49, and therefore is not allowed to receive the allocations.
The question was raised again in 1995, when the State Auditor Report was published50. The report showed that the Amendment to the Budget Foundations Law had not solved the serious disorders in the field of financial support given to religious institutions. The Ministry of Religious Affairs could still support "preferred" institutions, motivated by political considerations, in the disguise of legal equal criteria. The Report described and criticized serious violations and disorders in the allocation system. For example, the Ministry paid for various organizations for their activity despite the fact that it was clearly known that these organizations' reports had been false. In many cases, the Ministry disregarded the fact that organizations had not fulfilled the required terms. Another violation was the fact that the Ministry ignored the finding of its own internal audit unit. Even when the Ministry found there had been almost no activity in the institutions of the organizations that requested support, the Ministry supported them. The report found that the Ministry had failed in its duty as a public trustee and as responsible party for public funds and their fair and equal distribution51.
At that time, this author was appointed as Minister of Religious Affairs. I decided to set up a public committee, headed by Professor Avraham Friedman, to review the appropriate criteria for financial support of the Ministry. Another decision was to cut off immediately the support until the committee had published its Report. The Committee's Report was published in August 199552.
State and Religion in Israel: Challenges and Problems
The population's religious needs are supplied by authorities established by law (the religious councils)53, budgets are allocated for religious purposes, and there is a Minister of the Cabinet responsible for religious affairs. The religion's involvement in the state's matters is expressed, for example, in the fact that kosher food is by law provided in IDF (Israeli Defense Forces), and in the government facilities, and special orders in the matters of religion were set in the IDF.54 Many laws are of religious nature, such as the laws limiting the raising of swine, or the laws forbidding the public showing of leaven (hametz) in Passover.55
This situation causes a continuous debate. There are scholars who claim that the lack of separation results in the absence of "freedom from religion", which is, as described above, a fundamental value in a democratic state, and in the system of fundamental civil rights.
Thus, every citizen in Israel is subject to the authority of religious institutions in matters of marriage and divorce even against his will56. There is no civil alternative for religious marriage. The situation creates difficulties, especially when religion forbids the marriage of a couple (such as in the case of a divorced woman and a Cohen), but also in the case of a secular couple that refuses to marry in a religious ceremony57. This legislature's choice of an exclusive form of religious marriage violates freedom of marriage, but also freedom from religion, because it obliges the couple to get the services of a religious agency in its most intimate hour58.
Another example of the deprivation of the freedom from religion which results from the lack of separation, can be found in the subject of the "Sabbath" (Saturday) the day of rest, and especially concerning the issue of opening businesses on the Sabbath. Until 1990, the law authorized the municipalities to regulate the opening and closing of shops, workshops, cinemas and other places of public entertainment and to decide the opening and closing hours on holidays59. According to this law, many municipal bylaws were enacted, which forbade the opening of businesses on the Sabbath60. This bylaw was reviewed in the court61 and was declared void, because it limited the freedom of religion (which also includes the freedom not to believe); this limitation can only be effected by the authorization of the legislature (the Knesset). In response to this decision, the Government, which was supported by a coalition composed also of religious parties, advanced an amendment to the Municipalities Ordinances, that in fact reversed the court's decision, and allowed the municipalities to forbid businesses' opening on the Sabbath62. This development in the law has shown that the lack of separation between law and religion enables the legislature, influenced by political considerations to command the support of the religious parties in the Knesset to diminish the civil rights and freedom from religion.
Sources: Israeli Foreign Ministry
1 See Articles 2, 13-18 of the Mandate for Palestine, and Articles 83 and 17 (1) (a) of the Palestine Order in Council of 1922.
2 H.C. 262/62, Perez v. Kfar Shmaryahu Local Council 16 Piskei Din 2101, 2116 (per Justice Summon).
3 Cr. A. 112/50, Yosifof v. Attorney General, 2 Piskei Din 486, 598, 612 (per Justice Landau).
4 H.C. 301/63, Streit v. Chief Rabbi, 18(1) Piskei Din 598, 612.
5 H.C. 103/67, American Orphan Beth El Mission v. Minister of Social Welfare, 21(2] Piskei Din 325.
6 Justice Landau in H.C.243-62, Filming Studios in Israel Ltd. V. Guery et al., 16 P.D., p.2407
7 Justice Zamir in H.C.7128/96, Movement of the Faithful of the Temple Mount et al. v. Government of Israel et al., Takdeen-Elyon, 97(1), 5757/5758-1997, p.480
8 H.C.J. 501/96 Horev v. Minister of Transportation (97 Takdin 421, (1997)), H.C.J. 5394/92, Huppert v. "Yad Vashem", 48(3) P.D. 353.
9 E.g., Section 3 of the Local Authorities (Vesting of Public Property) Law, 1958, excludes property used for religious purposes and services from that which a local authority is empowered to acquire compulsorily for public purposes.
10 See: B. Neuberger, Religion and Democracy in Israel (1997), 16 (Hebrew). The freedom of religion will be limited only when the fulfillment of the religious commandments would result in violence, in breach of the public order, or in deprivation of civil rights.
11 See: B. Neuberger, Religion and Democracy in Israel (1997), 17 (Hebrew).
12 See: E. Gutmann "Links between Church and State in the Democratic West" in: D. Arieli- Horvitz (ed.) Religion and State in Israel (Jerusalem, the Center of Pluralist Judaism) 7-20.
13 Coronation Oath Act, 1688
14 In 1588, 1662, 1872, 1990 and 1994- see: Cumper (1996) pp. 28.
15 See: R. Post "Blasphemy, the first amendment and the concept of intrinsic harm" 8 Tel Aviv University Studies in Law 293-324 (1988).
16 See: A. Rubinstein, "State and Religion in Israel", J. of Contem. History, Vol. 2 No. 4, p. 107, at p. 108 (1969).
17 Nezah Yisrael, 154-55.
18 Such as the expression "Jewish and democratic state" in: Basic Law: Human Dignity and Liberty (1992), s. 1A; Basic Law: Freedom of Occupation (1994), s. 2. ; These laws are relatively recent, but the principle of a Jewish state existed from the day of the establishment of the State, in the Declaration of Independence, and later in various judgments. See for example: Elections Appeal 1/65 Yardor v. The Chairman of the Election Committee, 19(3) P.D. 365. However, there is the claim that the expression "Jewish" refers to the cultural and historical belonging, and has no direct connection to the Jewish religion. see : See: R. Gavizon, " Religion and State: Separation and Privatization", 2 Mishpat v' Mimshal (1994) 55, at 57 (Hebrew). About the "Jewish" term see: A. Maoz "The Rabbinate and the Courts: Between the hammer of law and the anvil of ' Halakah' " 16-17 Hebrew Law Yearbook (1991) 289, 308 (Hebrew); "The Role of Religion in Public Debate in a Liberal Society" 30 San Diego L. Rev. (1993) 643. There is a common claim that the Jewish values (that The Justice Foundations Law refers to) are broad enough to include all matters that seem related to our culture and heritage. In this context see: H. Cohen "The Law of Remnant" 13 Hebrew Law Yearbook (1987) 285, 300; A. Barak, Commentary in Law, (1992, Vol. I) 528-529.
19 The Law of Return (1950).
20 The Rabbinical Courts Adjudication Law [Marriage and Divorce] (1953); Also see: P. Shifman "State Recognition of Religious Marriage: Symbols and Content" 21 Isr. L. Rev. 501 (1986).
21 State Education Law (1953); see: S. Goldstein "The Teaching of Religion in Government Funded Schools in Israel" 20(1) Isr. L. Rev. 36-64 (1992).
22 Further see: The Religious Councils Act by the Jewish Religious Services Law (1949).
23 H.C. 51/69, Rodnitzki v. Rabbinical Court of Appeal, 24(1) Piskei Din 704, 712.
24 Cr. A. 217/68, Izramax v. State of Israel, 22(2) Piskei Din 343, 354 et seq.
25 In Cr. A. 217/68, Izramax, 353, Justice Silberg sums up the secular primary-purpose test adopted in the United States.
26 Cr. A. 217/68, Izramax, 362
27 H.C. 231/63, Retef Ltd. v. Minister of Commerce and Industry, 17 Piskei Din 2730.
28 H.C. 105/54, Lazarovitz v. Food Controller, 10 Piskei Din 44, 55, per Justice Berinson. It may be contended, however, that prohibition of pig breeding in respect of Jews is warranted, because the entire matter is rooted in Jewish national tradition.
29 H.C. 174/62, League for Prevention of Religious Coercion v. Jerusalem City Council 16 Piskei Din 2665, 2668.
30 Cr. A. 217/18, Izramax, 362. Justice Berinson states: "As between one way of doing things in disregard of religious considerations and another way having regard for religious considerations but without placing upon the public too heavy a burden, the second is certainly to be preferred."
31 A similar reason serves in the United States to justify government acts supportive of religion. See P. Kurland in Law and Religion 18, 122 (1962).
32 (1992) S.H. no. 1387, p. 114 and no. 1391, p. 150. Regarding the way in which the new Basic Laws are being passed and the model of split legislation, see below.
33 Barak, Interpretation in Law - Vol. 3: Constitutional Interpretation, 1994, p. 225, and Hillel Somer, "The Non-Enumerated Rights: On the Scope of the Constitutional Revolution" in Mishpatim (1997), vol. 28, pp. 324-326.
34 H.C. 397/88 Menucha Nechona v. Minister of Religious Affairs (not published).
35 H.C. 5364/94 Attorney Ze'ev Velner v. "The Alignment" The Labor Party, (1995) 49(1) P.D. 758.
36 State Comptroller, Annual Report for 1990, No. 40.
37 H.C. 117/55; 72/55 Siegfried Avraham Fraidi v. Tel Aviv-Jaffa Municipality and others, Shmuel Mendelsson v. Tel Aviv-Jaffa Municipality, (1956) 10(2) P.D. 734.
38 H.C. 397/88 Menucha Nechona v. Minister of Religious Affairs (not published).
39 H.C. 732/84 Tzaban v. Minister of Religious Affairs, (1986) 40(4) P.D. 141 H.C. 3269/95 Katz v. Jerusalem Regional Rabbinical Court (1996) 50(4) P.D. 590. The case involved the issue of a writ of denial by the rabbinical court against an individual who refused to have his civil matter be adjudicated by the rabbinical court in accordance with the terms of a complaint filed according to the Torah code
40 H.C. 708/69 Adi Kaplan v. Prime Minister and Broadcasting Authority, (1969) 23(2) P.D. 394.
41 H.C. 153/87 Shakdiel v. Minister of Religious Affairs, (1988) 42(2) P.D. 221. H.C. 953/87 Poraz v. Tel Aviv-Jaffa City Council, (1988) 42(2) P.D. 309.
42 H.C. 1031/93 Pissaro (Goldstein) v. Minister of the Interior, (1995) 49(4) P.D. 661.
43 H.C. 5016/96, 5025/96, 5090/96, 5434/96, Horev and others v. Minister of Transport and others, (1997) 51(4), P.D.1.
44 H.C. 3267/97 Rubinstein and others v. Minister of Defense (1998) 52(5) P.D. 481.
45 For the numerical review, see: S. Shetreet, The Good Land between Power and Religion (Tel- Aviv, 1998), at page 230.
46 Budget Foundations Law (1985), sec. 3(a)(9), 3(a)(10). Note that the equality duty is explicit in the words of the law.
47 H/C 4346/92 Ma'ale, the center of religious Zionism v. The Education and Culture Minister, 46 (5) PD 590.
48 See: Y. Aviram "Religion and State in Israel- a Legal Review" in State and Religion Yearbook (1993) 124, at 130 (in Hebrew).
49 Because he defined, "Haredis" as Jews who keep the commandments, whose unity is the fact that they are religiously stricter in the matters of education, community character and lifestyle than other religious Jews.
50 The State Auditor, Annual Report no. 45 (The Governmental Printer, Jerusalem, 1995), at p. 236.
51 Ibid, at p. 261.
52 Amendment no. 10 of the criteria of the Ministry of Religious Affairs Allocating of Funds to Public Institutions, Y.P. 1995, 500.
53 The religious councils act under the Jewish Religious Services Law (1949). See: H/C 62/69 Asraf v. Eilat's Religious Council, 23(1) P.D. 655 and in this matter: S. Shetreet, Freedom of Conscience and Religion: Theoretic Elements and the Situation in the Israeli Law (1975), p. 106, at footnote 25 (Hebrew).
54 Such as orders that forbid entertainment activities that involve desecration of the Sabbath, the soldier's burial is a religious ceremony, etc.
55 Swine Growing Prohibition Law (1962) and the amendment to this law from 1990; Matzoth Holiday Law [Hametz Prohibition] (1986). In this subject of religious legislation see: A. Shaki "Religious Legislation- For and Against" 7 Tchumin (1986) 521-525 (Hebrew).
56 The Rabbinical Courts Jurisdiction Law [Marriage and Divorce] (1953) apply on all Jewish citizens and residents by the " 'Halachah' of Israel religious law criteria", even despite their will. About religious marriage see: P. Shifman "State Recognition of Religious Marriage: Symbols and Content", 21 Isr. L. Rev. 501 (1986).
57 In the matter of marriage and the democratic right for civil marriage and divorce, see: Y. Berlin, " The Judaism and Israel as a Democracy" Secular Humanistic Judaism (1988) 2, 4-7 (Hebrew).
58 See: P. Shifman, Who is Afraid of Civil Marriage? (Jerusalem, 1995) (Hebrew); S. Shetreet, "Freedom of Conscience and Religion: The Freedom from Coercion of Religious Norms, The Compulsory Recourse to a Religious Authority and Imposition of Religious Restrictions" 3 Mishpatim 467 (Hebrew).
59 The Municipalities Order, s. 249(20).
60 For Example, The Bylaw of Jerusalem (Businesses opening and closing), 1955.
61 Cr. P (Jerusalem) 3471,3472/87 State of Israel v. Kaplan, 1988(2) P.M. 265.
62 The Municipalities Order Amendment Law (No. 40), 1990. However, the municipalities usually do not force the law in this field, and by this allow the opening of cinemas and restaurants in Saturday. See: S. Shetreet, Between The Three Branches of Government- The Balance of Rights in Matters of Religion in Israel, (The Floersheimer Institute For Policy Studies, Jerusalem, 1998) at pages 25-26 (Hebrew)