Liberalizing the Law in the Land of the Lord: Limits to the Americanization of Israeli Religious Jurisprudence

• Author: Andrea Brooke Jenkins

233

NOTES

Liberalizing the Law in the Land

of the Lord:

Limits to the Americanization of

Israeli Religious Jurisprudence

ABSTRACT

This Note presents an analysis of American and Israeli

constitutional jurisprudence concerning matters of religion.

Recently, there has been a shift in Israel’s High Court of Justice

toward implementing values of individual rights and religious

pluralism. Some have analogized this shift in focus to the role

played by the U.S. Supreme Court. However, fundamental

differences remain between the American and Israeli

approaches, stemming from divergent conceptions of national

identity encapsulated in the states’ respective foundational legal

documents.

This Note examines the interplay of national identity and

religious jurisprudence and its effect on individuals’ legal

rights. In doing so, it demonstrates how the legal entwinement

of religion and state will prevent Israel from fully implementing

American norms regarding matters of religion.

TABLE OF CONTENTS

I. INTRODUCTION .............................................................. 234

II. ORTHODOX JUDAISM IN ISRAELI SOCIETY ..................... 237

A. Orthodox Judaism’s Privileged Position

in Israel ............................................................... 237

B. The Erosion of Orthodox Judaism’s

Privileged Position .............................................. 239

III. THE TANGLED WEB OF LAW, RELIGION, AND

IDENTITY ........................................................................ 243

A. Conceptions of National Identity ....................... 243

234 vanderbilt journal of transnational law [vol. 46:233

1. American National Identity ........................ 244

2. Israeli National Identity .............................. 246

B. National Identity as a Reflection of Social

Conditions ........................................................... 248

1. American Pluralism ..................................... 248

2. Israeli Pluralism .......................................... 251

IV. RELIGIOUS JURISPRUDENCE AS A REFLECTION OF

NATIONAL IDENTITY ...................................................... 255

A. American Separation of Religion and State ...... 256

1. Free Exercise Clause ................................... 256

2. Establishment Clause .................................. 259

B. Israeli Entwinement of Religion and State ....... 261

V. LIMITS TO LIBERALIZING THE LAW IN ISRAEL ............... 265

VI. CONCLUSION .................................................................. 268

I. INTRODUCTION

In July 2012, Israel’s largest coalition government in recent

history fell apart over the failure of Israel’s Parliament, the Knesset,

to enact an alternative to the Tal Law, which granted military draft

deferments to Orthodox Jews1 enrolled full time as yeshiva (religious

school) students. 2 The controversy over military service stemmed

from a decision by the High Court of Justice3 (the High Court) that

found the deferment arrangement illegal and gave the Knesset twelve

months to fix the situation.4 The decision sparked a divisive national

1. Members of the Orthodox Jewish religion conform their behavior to

Halakha (Jewish religious law). Martin Edelman, A Portion of Animosity: The Politics

of the Disestablishment of Religion in Israel, 5 ISR. STUD. 204, 210 (2000). The most

conservative Orthodox Jews are also referred to as ultra-Orthodox or haredim. See, e.g.,

GERSHON SHAFIR & YOAV PELED, BEING ISRAELI: THE DYNAMICS OF MULTIPLE

CITIZENSHIP 41 (2002) (referencing Orthodox Jews as charedim). Although Orthodox

Judaism can be divided into many subsects, this Note will use the general term

Orthodox because Israeli laws generally treat Orthodox Jews as a singular group.

2. See Jodi Rudoren, Israel’s Unity Government Is Disbanding over Dispute on

Draft, N.Y. TIMES, July 12, 2005, http://www.nytimes.com/2012/07/18/world/

middleeast/unity-government-in-israel-disbanding-over-dispute-on-draft.html?_r=1&

ref=jodirudoren (examining the unity coalition split between Israeli Prime Minister

Benjamin Netanyahu and Shaul Mofaz, Kadima Party leader). See generally Policies

and Implementation Challenges in Israel Towards Conscription of Ultra-Orthodox Men,

HORNSTEIN BLOG PROGRAM (Dec. 20, 2010), http://hornstein2011.blogspot.com/2010/12/

policies-and-implementation-challenges.html [hereinafter Conscription of Ultra-

Orthodox Men] (providing history of deferments for yeshiva students).

3. The High Court of Justice is Israel’s Supreme Court.

4. See SHAFIR & PELED, supra note 1, at 275 (identifying instances of activism

demonstrated by the High Court); Edelman, supra note 1, at 215–16 (describing the

High Court’s holding that granting deferments to full-time yeshiva students is illegal);

2013] Liberalizing the Law in the Land of the Lord 235

debate about the place of religion in Israeli society, as well as the

proper role of the High Court over religious issues.5 Orthodox leaders

voiced vehement opposition to the Israeli legal system. Rabbi Ovadia

Yosef, spiritual leader of the Orthodox political party Shas, claimed

that Israeli judges “hate the Torah.”6

Clashes between Orthodox Jews and the High Court did not

begin with the Tal Law. Orthodox animosity stems from the judicial

system’s role as a mechanism for changing the relationship between

religion and state within Israel.7 Beginning in the 1980s, the High

Court became increasingly willing to intervene in matters not

previously considered appropriate for judicial review and began

deciding issues on the basis of individual rights, including freedom of

religion.8 Numerous High Court cases helped to erode the privileged

position occupied by the Orthodox establishment by virtue of its

status as the sole official religion of Israel’s Jewish population.9

In its promotion of liberal individualistic values, the High Court

increasingly utilized American precedent.10 This led a number of

commentators to refer to the “Americanization” of Israeli law. 11

However, the High Court faces severe limitations in its ability to

adopt an American approach to matters of religion. This Note

compares American and Israeli judicial approaches to the matter of

religion and state in order to illustrate the means through which the

High Court can change the religious status quo and the many

impediments to it doing so.

Examining American and Israeli religious jurisprudence

demonstrates how the two nations differ with respect to the

relationship between religion and state and how that relationship

affects and is affected by divergent conceptions of national identity.

Conscription of Ultra-Orthodox Men, supra note 2, (providing subsequent history about

implementation).

5. See Aluf Benn, Influence of Israeli Arabs, Haredim on Israeli Society Spells

End of Mandatory IDF Service, HAARETZ, July 3, 2012, http://www.haaretz.com/

news/national/influence-of-israeli-arabs-haredim-on-israeli-society-spells-end-of-mandatory-

idf-service-1.448570 (discuss ing the Tal Law’ s implications for Isra eli national id entity);

Jodi Rudoren, Israeli Identity Is at the Heart of a Debate on Service, N.Y. TIMES, July

12, 2005, http://www.nytimes.com/2012/07/06/world/middleeast/national-identity-at-

heart-of-debate-on-israeli-military-service.html?ref=jodirudoren (discussing social

tensions behind the Tal Law debate).

6. Yair Ettinger, Rabbi Ovadia Yosef Bashes Israeli Legal System, Calling It

‘Court of Gentiles,’ HAARETZ, Aug. 19, 2012, http://www.haaretz.com/news/national/rabbi-

ovadia-yosef-bashes-israeli-legal-system-calling-it-court-of -gentiles.premium-1.459202.

7. See Edelman, supra note 1, at 209 (“As a result of their value orientation

and their willingness to take an activist role, the courts, especially the Supreme Court,

were being asked to rule on an ever-wider range of matters.”).

8. SHAFIR & PELED, supra note 1, at 267–68; Edelman, supra note 1, at 209.

9. See Edelman, supra note 1, at 204, 217 (examining the transformation from

collectivism to individualism within Judaism).

10. Id. at 209.

11. Id.