Freedom of Religion
by Professor Shimon Shetreet
Introduction
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) |