Court Tells State: Either You Implement Kosel Plan, or We Will

The Israeli High Court on Thursday morning slammed the state over its failure to provide mixed-gender prayer areas for Reform and Conservative groups. Three members of the court — Chief Justice Miriam Naor and Judges Chanan Meltzer and Yoram Danziger — criticized the state for its June decision to freeze plans to provide the alternative prayer area.

The plan that had previously been approved by the government in January 2016 involved setting up a prayer area adjacent to the Kosel, in the area known as Robinson’s Arch. An alternative plan to improve an area on the southern side of Har HaBayis for mixed-gender prayers has been rejected by the groups.

In Thursday’s hearing, the court essentially gave the state a choice: either implement the plan or we will force it to be implemented. If the state continues to fail to implement the plan, the court could also impose an alternative solution — forcing the opening of a mixed-gender prayer area in the Kosel plaza.

During Thursday’s hearing, the Reform and Conservative groups detailed their attempts to force the state to provide a mixed-gender prayer area. The judges asked the petitioners if they would be willing to drop their demand for a prayer area in the Kosel plaza if the Robinson’s Arch area were developed for them, and they replied that they would.

Naor then slammed the state, telling attorneys that the process — in which the plan was approved, and then pulled — was “strange. What happened here? There was a plan that everybody worked on and approved, and now the government says there is no plan.” The “freeze” that the government had declared was also unacceptable.

“Is it not proper to reconsider this in light of the history we have heard today? Freezes are made as part of a legal process. Is the government prepared to return to the original plan? If the state does not cancel this freeze, it will have to respond to us on whether we have the authority to require the plan to be put into effect.”

In a lengthy response to the High Court last week, the Chief Rabbinate wrote that the court did not have the authority to adjudicate the policies at a holy place, and neither did it have any standing to decide matters of Jewish law. In their response, Chief Rabbis Harav David Lau and Harav Yitzchak Yosef said that the issues on which Reform groups demanded policy adjustments — such as mixed-gender prayers, the reading of a sefer Torah by women and the celebration of holidays with various ceremonies and rituals — are all matters covered by Halachah, which the court has no basis to adjudicate.

In Israel, religious policies at holy places are set by the religious authority that is in charge of them. The court would certainly never consider intervening in an intra-religious dispute, l’havdil, at a Christian or Muslim site, based on custom, a lack of knowledge and the law — and there is no reason the same standard should not apply to Jewish holy places, the response said.