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 II. ORTHODOX JUDAISM IN ISRAELI SOCIETY A. Orthodox Judaism 's Privileged Position in Israel B. The Erosion of Orthodox Judaism's Privileged Position III. THE TANGLED WEB OF LAW, RELIGION, AND IDENTITY A. Conceptions of National Identity 1. American National Identity 2. Israeli National Identity B. National Identity as a Reflection of Social Conditions 1. American Pluralism 2. Israeli Pluralism IV. RELIGIOUS JURISPRUDENCE AS A REFLECTION OF NATIONAL IDENTITY A. American Separation of Religion and State 1. Free Exercise Clause 2. Establishment Clause B. Israeli Entwinement of Religion and State V. LIMITS TO LIBERALIZING THE LAW IN ISRAEL VI. CONCLUSION 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 Jews (1) enrolled full time as yeshiva (religious school) students. (2) The controversy over military service stemmed from a decision by the High Court of Justice (3) (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 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.

The U.S. Supreme Court often faces cases involving religious matters, including the Free Exercise Clause's guarantee of an individual's freedom of religion (12) and the Establishment Clause's prohibition on government preference for one religion over another or religion over nonreligion, (13) However, in the United States an individual's religious identification remains fully relegated to the private realm, free from government interference. This reflects a liberal discourse of citizenship whereby the nation theoretically and legally belongs equally to citizens of all religions. (14) In Israel, on the other hand, the High Court has decided numerous cases in which it was required to define a Jewish person. (15) The court has not followed the traditional Orthodox interpretation, expressing support for individual autonomy over matters such as religious identification. (16) Yet the very fact that the court needed to decide the issue demonstrates the public nature of religious identification. This reflects an ethnocultural discourse of citizenship whereby individuals are defined by group membership. (17) The determination of "who is a Jew" has important legal ramifications for both an individual's rights and the state's identity as the nation of the Jewish people. While the High Court may be able to reign in the power of the Orthodox, the legal entwinement of religion and state will preclude it from being able to become fully "Americanized" in regards to matters of religion.

This Note begins by summarizing the history of Orthodox Judaism's privileged position in society and the ways in which the High Court has begun to erode that privileged position. Part III then compares the divergent national identities reflected in American and Israeli foundational legal documents and examines how differing social conditions helped to create these national identities. Part IV compares cases from the Supreme Court and the High Court in order to examine how religious jurisprudence both affects and is affected by national identity. Part V examines the High Court's ability to alter the relationship between religion and state in Israel and the limitations to its adoption of an Americanized approach to matters of religion.

2. ORTHODOX JUDAISM IN ISRAELI SOCIETY

   At Israel's independence, Orthodox Judaism was established as the sole official religion of the Jewish people, (18) Israel maintains links with fourteen established religions, (19) but the Jewish nature of the state allowed the Orthodox to obtain a privileged position in the state's social, political, and legal spheres. (20) However, beginning in the 1980s, the High Court began to challenge the religious status quo through the rhetoric of individual rights and religious freedom. (21) The High Court's decisions on religious matters that ran contrary to Orthodox doctrine eroded the Orthodox establishment's monopoly on questions of Judaism. (22) The cases involving the question of "who is a Jew" provoked the greatest controversy because of their implications for national identity.

   1. Orthodox Judaism's Privileged Position in Israel

      While only approximately 20 to 25 percent of Israel's Jewish population is Orthodox, Orthodox Judaism has obtained disproportionate prominence in Israeli public life. (23) This prominence is due to the role played by Orthodox Judaism as a source of legitimacy for the Zionist national project. (24) Before the establishment of the State of Israel in 1948, early Zionists faced a dilemma in their quest to establish a homeland for the Jewish people. (25) Zionism represented a secular nationalist movement, but the only cultural attribute common to the Jewish nation was the Jewish religion, to which a vast majority of the Jewish population adhered. (26) The Zionist leadership needed the cooperation of the Orthodox rabbis, as those universally recognized as the spokesmen for the Jewish people, in order to plausibly claim to speak on behalf of the worldwide Jewish nation. (27) The theological justifications for the nationalist project, offered by Orthodox rabbis, such as Rav Abraham Issac Kook, proved invaluable to the Zionists in earning credibility among the masses of Eastern European Jews. (28)

      In 1947, in return for enhancing the legitimacy of Zionism, David Ben-Gurion, Israel's first Prime Minister, who at the time served as the chairman of the Jewish Agency, sent a letter to the Orthodoxy's executive agency outlining the "status quo agreement." (29) It pledged that the State of Israel would implement the prevailing religious arrangements by designating Saturday (the Jewish Sabbath) as the national day of rest, observing kashrut (Jewish dietary laws) in all government kitchens, reserving exclusive jurisdiction over marriage and divorce to religious courts, and preserving the autonomy of religious education. (30) Ben-Gurion further augmented those privileges by granting military deferments for full-time Orthodox yeshiva students. (31) But Orthodox Judaism's role in the state extended beyond those privileges articulated in the letter. For instance, Orthodox Jewish institutions receive the vast majority of state appropriations because all recognized religions receive state funding on a proportional basis. (32)

      Israel's electoral system of proportional representation has allowed the Orthodox minority to wield a substantial amount of political influence. None of the large secular parties has been able to acquire a majority of seats in the Knesset since 1984. (33) Thus, the parties have relied on smaller religious parties to form coalition governments. (34) In return for their support, the secular parties allow the religious parties to control the Ministry of Religion, as well as various other ministries, such as Education, Interior, and Housing (35) The secular parties' reliance on the religious parties for coalitions means a majority will rarely pass legislation that faces significant Orthodox opposition. (36)

   2. The Erosion of Orthodox Judaism's Privileged Position

      Until 1995, Israel lacked a...