Natan Lerner, Religious Liberty in the State of Israel

• Citation: Vol. 21 No. 1
• Publication year: 2007
• topic: Constitutional Law

RELIGIOUS LIBERTY IN THE STATE OF ISRAEL

Natan Lerner^*

INTRODUCTION

The frontiers of religious liberty in the State of Israel are often hard to demarcate. Equally difficult to conceptualize is how regulation of religious liberty in Israel fits into the country's generally accepted framework of religion-state relations. Israel is not a theocratic state; it does not have a formally established religion.¹Nor has it adopted a system of separation of religion and state or granted full equality to the religion of the majority of the population and the beliefs of others.²In a report to the United Nations Human Rights Committee, Israel referred to the "labyrinthine"³relationship between religion and state as "a patchwork of laws and practices that are not easily susceptible to generalization."⁴This patchwork comes as the result of "[h]istory, political expediency, party politics, the lack of a constitution . . . and the broad power of the Knesset (the Parliament)."⁵Furthermore, party politics have frequently prevented the Knesset from using its "broad power," thus creating a situation in which the judiciary plays a major role in the protection of basic religious freedoms.

The aim of this Article is to summarize, without exhausting the subject, the state of religious liberty in Israel. Part I recounts briefly the constitutional and political history of Israel, with particular attention to the meaning of its being a Jewish state. Part II provides an overview of a few of the more contested religious liberty issues, many of which divided the country along religious and political lines, often involving intervention by the Israeli Knesset and Supreme Court. The Summary and Conclusions section reflects briefly on how the record of religious liberty in modern Israel squares with the 1981 U.N. Declaration on the Elimination of all Forms of Intolerance and Discrimination

Based on Religion or Belief ("1981 U.N. Declaration" or "Declaration").⁶

I. FOUNDATIONS: THE RELIGIOUS, POLITICAL, AND CONSTITUTIONAL

HISTORY OF ISRAEL

Israel is the youngest of the states discussed in this symposium. But the legal position of religion in Israel cannot be understood by referring to the state as a young political entity loosely connected with the Commonwealth through the influence of the British Mandate in Palestine. Following the 1947 U.N. resolution on partition of the territory under the Mandate, Israel was established as a sovereign "Jewish and democratic state" on May 14, 1948,⁷ fulfilling the program of the Zionist movement.⁸Still, purely in terms of history, the new political entity saw itself as successor to the Jewish state that had existed two millennia earlier, in more or less the same location. As such, Israel considered itself the national state of a globally-scattered community, called the Jewish people, which include the Jews of Israel and the Jews of the

Diaspora.⁹The following paragraphs of the 1948 Declaration of Independence are enlightening:

Eretz-Israel (in Hebrew, the Land of Israel) was the birthplace of the Jewish people. Here, their spiritual, religious and political identity was shaped . . . .

. . .

On the 29th November, 1947, the United Nations General

Assembly passed a resolution calling for the establishment of a

Jewish State in Eretz-Israel . . . . This recognition by the United

Nations of the right of the Jewish people to establish their State is irrevocable.

This right is the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State . . . .

. . .

The State of Israel . . . will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions . . . .

. . .

We appeal to the Jewish people throughout the Diaspora to rally round the Jews of Eretz-Israel in the tasks of immigration and upbuilding and to stand by them in the great struggle for the realization of the age-old dream-the redemption of Israel.¹⁰

The long history of the Jewish people, which now includes the predominantly Jewish population of the sovereign State of Israel and the members of dozens of minority communities in different states all over the world, is closely related to the role of the Jewish religion. Not every Jew, either in Israel or elsewhere, is necessarily an observant, religious individual. But, in collective terms, religion has always been an essential ingredient in the existence and behavior of the Jews, at least for the great majority of them. A person that describes himself or herself as a Jew, even if not religious, will seldom show a complete lack of interest in the expressions of Jewish traditions or symbols.

R.J. Zwi Werblowsky put it this way at a colloquium on "Religion, Peoplehood, Nation and Land in the History of Religions" that took place in Jerusalem:¹¹

Judaism occupies an interesting half-way position between the primitive, particularistic (tribal or national) religions and the universal type of religion. In fact, Judaism conceived of itself not as a denomination but as the religious dimension of the life of a people. Hence peoplehood is a religious fact in the Jewish universe of discourse. In its traditional self-understanding, Israel is related not to other denominations but to the "nations of the world." Israel's existence has, in its traditional articulation, a religious ground and a religious raison d'être. But its body is the body politic of a nation, and it relates to others as one in a "family of nations" (to use the Psalmist's phrase). Hence Judaism has an instinctive affinity with, and understanding of national aspirations with their both political and cultural dimensions.¹²

According to the most recent Statistical Abstract of Israel, in 2005, Israel's total population was about 6,990,700:¹³5,313,800 (about seventy-five percent) were Jews, 1,140,600 were Muslims, 146,400 were Christians of different denominations, 115,200 were Druze, and 272,200 were described as "not classified by religion."¹⁴In 2000-2004 the same office conducted a study of the attitudes of the population concerning religion.¹⁵It concluded that 44% of Jews above the age of 20 described themselves as "secular" or not practicing,

27% as "traditional," 12% as "traditional-religious," 9% as "religious," and 8% as haredi (ultra-orthodox). Eighty-one percent of the population identified themselves as Jews, 12% as Muslims, 3.5% as Christians (Arab or other), 1.5% as Druze, 1.5% as atheist, and 0.5% as belonging to other groups. In any case, statistics alone cannot adequately reflect the multiplicity of stances and attitudes regarding religion that exist in Israel.

It is against this historic and demographic background-the impact of centuries of Ottoman domination, decades of the British Mandate over Palestine, and a half century of pre-state Zionism-that the subject of religious liberty in Israel must be considered. Additionally, religious liberty in Israel must be measured against human rights laws and principles of religious liberty that prevail elsewhere in the world. In this respect, the 1981 U.N.

Declaration¹⁶presents an adequate frame of reference. The Declaration is the most advanced and detailed international instrument in this area, expanding the principles contained in Article 18 of the 1948 Universal Declaration of Human Rights¹⁷and Article 18 of the 1966 International Covenant on Civil and

Political Rights.¹⁸While this Article does not deal with the Declaration's reach and applicability to Israel-nor with the feasibility of, and need for, a mandatory treaty regulating freedom of religion and belief in general¹⁹-I will attempt to describe generally the law and practice concerning freedom of religion in Israel against the wider background of the democratic world's view of that freedom, as reflected in the 1981 U.N. Declaration.

A. A Jewish State

Are the words "Jewish State" similar in meaning to "Christian State," "Muslim State" or "Atheist State?" Is the term "Jewish" a mere adjective to describe the alleged religious character of the State of Israel, or does the term instead possess a sociological, anthropological, or demographic meaning intended to describe members of the population of the state, and how they associate with Israeli society, culture, idiosyncrasy, folklore, and way of life? Does "Jewish State" have a similar meaning as "French State," "Canadian State," or "Brazilian State"? These are difficult and seminal questions that cannot be answered in a short, descriptive essay such as this one. Still, I shall try to use these questions to quantify the character of the state.

It seems reasonable to interpret the reference to Israel as "a Jewish and democratic state" as coinciding with, in political or historical more than legal terms, the state of the Jewish people, a worldwide community of clear religious origin. While today this Jewish community is still scattered all over the world, nearly 50 percent of the Jewish people are now concentrated in the territory of the State of Israel established in 1948. The word "Jewish" is used in all the political and legal texts related to the establishment of the State, and it certainly cannot have a primary religious meaning in those texts. The 1917

Balfour Declaration issued by the British Government, the Mandate over Palestine granted to Great Britain by the League of Nations in 1922,²⁰the United Nations Special Committee on Palestine (UNSCOP) partition proposal of 1947,²¹and the United Nations General Assembly Resolution 181(II) of November 29, 1947²²all refer to the idea of a Jewish state. In all these texts, the term "Jewish" means pertaining to "Jews" or the Jewish people; it...