Israel’s Supreme Court is not a believer in the separation of powers, not when it comes to respecting the independence of the executive and legislative branches of government and not, l’havdil, when it comes to respecting the halachic authority of the Rabbinate.
Back in 1989, the Supreme Court headed by Aharon (“everything is judicable”) Barak ordered the Interior Ministry to recognize any person who converted abroad to be registered in Israel as a Jew for the purpose of immigration. This precedent-setting case was followed by a series of rulings that had one common goal: to “put the Rabbis in their place” and turn Israel from a Jewish state into a country of all its citizens.
Over the years, the Supreme Court has trampled Shabbos, allowing stores to open in violation of the status quo and municipal bylaws, sought to undo arrangements that allowed full-time yeshivah students to defer their army service, and made tarfus more accessible to all Israelis — all under the pretense of democracy.
But the court’s vision of democracy didn’t extend to opening its ranks to those who held different worldviews. And it didn’t extend to the right of voters to elect leaders who could formulate and execute policies in keeping with their moral and religious standards — not those of the ultra-secular, leftist “old boys’ club” that dominated the court.
Instead, the court believed, as Barak revealed in a 1994 slip of the tongue, that contradictions between the democratic and Jewish values of the state should be resolved “according to the views of the enlightened community in Israel.”
Over the years, the Supreme Court opened its doors wide to other similarly “enlightened” elements like human rights groups that were prepared to jeopardize the lives of Israeli soldiers and civilians to protect those of the enemy and the Reform movement that sought to bypass the public and win recognition through the legal system.
The latest battlegrounds of the Reform are the Kosel and the issue of recognition for their “conversions” in Israel. And the Chief Rabbinate is acting responsibly in fighting back.
This week, in a learned, 166-page response to a Reform petition to the High Court demanding an egalitarian prayer area at the Kosel, the Rabbinate stressed that the court has no authority over the holy site and no standing to decide matters of Jewish law. Just as the court has no authority to come into a shul and order the mechitzah to be taken down, it has no right to come to the Kosel, the most important shul in the world, and order mixed-gender prayers and reading from a sefer Torah by women.
“Each religion has its own laws and customs that are specific to it, and what is considered proper conduct of that religion’s holy places,” the Chief Rabbis said in their response. “It is reasonable to assume that the court would not intervene in religious ceremonies among Christian groups at churches in Yerushalayim that could change the status quo that existed at those sites for many years.
“It would also not intervene in matters such as a decision by Muslim authorities to cancel the custom of requiring that shoes be removed when entering the Al-Aqsa mosque, or attempt to force mixed-gender prayers in that mosque.”
In addition, argue the Chief Rabbis, the ability to pray together is a religious preference, but not a requirement, even according to the Reform. On the other hand, imposing mixed-gender prayer at the Kosel impinges on the rights of the religious who will not be able to daven there.
As for the ludicrous claim that separation is — by definition — discriminatory, the Rabbis state that “separate prayers are not discriminatory, as men are as much ‘separated’ as women.”
Public confidence in the Supreme Court has steadily dropped over the years because of the court’s overreaching, as it did last week when it ruled that women can serve as directors general of the country’s batei din.
As UTJ MK Rabbi Uri Maklev correctly noted, “The job of director general of the beis din is not merely administrative, it is a position that requires a broad knowledge of Halachah.” Furthermore, he noted, the Supreme Court itself has never had a woman director general.
“It is inconceivable that we would approve someone for such a sensitive position who lacks a depth of halachic knowledge or who is hostile toward religion, toward the rabbinic establishment or toward Jewish law as it has always been practiced.”
The court must rein itself in, for the sake of democracy as well as for the sake of Judaism.