Time to Save the Jewish State From the High Court

Supreme Court, Israel

No one was surprised by the High Court of Justice’s blasphemous ruling last week, allowing Tel Aviv to violate the law and the status quo, and operate supermarkets on Shabbos. The court has consistently ruled against religion, whether the issue is the Kosel, kashrus in the public domain, or draft deferrals for yeshivah students.

Moreover, it seems to delight in anti-religious rulings, saving the most controversial ones for festive occasions, like last Thursday’s resignation of Chief Justice Miriam Naor (one of her predecessors, Dorit Beinish, used her final moment in the limelight to rule that the law deferring the draft for full-time yeshivah students was unconstitutional).

Naor claimed that her ruling “does not entail a value judgment and does not seek to reflect a secular or religious viewpoint,” but nothing could be further from the truth. Her ruling is pure value judgment. And it most certainly does express the secular viewpoint.

It is a value judgment that ignores the significance of Shabbos as an eternal covenant that testifies to the Jewish people’s belief in Hashem as Creator of the Universe.

It is a value judgment that puts the need of supermarket chains to increase their profits over the fundamental right of small grocers to close for Shabbos and spend time with their families.

It is a value judgment that gives precedence to the needs of those who can’t be bothered to do their shopping on Friday over the need of a major city in Israel to hold on to some external signs of Judaism.

Proof that the ruling wasn’t just a matter of “the appropriate interpretation of the law,” as Naor claimed, is that the two religious justices voted against her and the majority.

Justice Neal Hendel, a graduate of the Yeshivah of Flatbush, wrote that Shabbos is of paramount importance to Judaism, while the consideration of local authorities seeking to approve commerce on Shabbos is of a limited scope.

Justice Noam Solberg concluded that even from a strictly legal viewpoint, Tel Aviv had no authority to permit the opening of stores on Shabbos. Moreover, he added, Shabbos “has a purpose that all can unite around, without … compromising on religious or secular ideology. With regard to Shabbos, instead of it being another point of argument, its social welfare aspect should serve as a foundation stone for agreement.”

In other words, even those who, unfortunately, can’t appreciate the kedushah of Shabbos can understand its significance as a day of rest, a time to connect to family.

In that sense there is some truth to Naor’s statement that the ruling does not reflect a secular or religious viewpoint. It reflects neither, because even the nonreligious, those who define themselves as traditional and many who claim to be secular, are offended by an attempt to trade in the precious gift of Shabbos for cheap consumerism.

Ultimately, the biggest loser in this string of anti-religious rulings will be the High Court itself, which has seen its standing drop in the eyes of the public. A study last year by the Israel Democracy Institute showed trust in the court dropping from 62 percent to 56 percent in just one year.

The court suffers from two fundamental flaws. One, ever since the so-called Constitutional Revolution of Aharon Barak, the courts have overreached, usurping the role of the democratically elected executive and legislative branches of Israel’s government. It overrules the government on everything from how to deal with illegal migrants to where to build the security fence to issuing licenses to international companies to extract natural gas from offshore sites.

Second, while professing a belief in Israel as a Jewish and democratic state, the justices, who mostly come from the same leftist, secular mold, lack a basic grounding in Judaism.

Last week, Barak was interviewed on Army Radio and asked why he never cited Jewish sources in his rulings, like, say Justice Menachem Elon. His answer said it all: Because I’m not familiar with Jewish sources.

It is time for the Knesset to assert itself and legislate laws that restore Shabbos, as the core value it has always been, to the Jewish people. Legislators cannot remain silent in the face of what Health Minister Rabbi Yaakov Litzman called “an insensitive attempt by the court to harm the Jewish character of the state.”

It won’t be easy. There are those in the coalition, like Avigdor Liberman, who believes, incorrectly, that his constituency benefits from court rulings that undermine Israel as a Jewish state.

But between the chareidi parties, United Torah Judaism and Shas, and Jewish Home, together with a very large number in the Likud who are traditional, and in the Zionist Camp who are socialist and believe in the rights of the workers, changes in the law that protect Shabbos and restore the balance of power in the country are possible.

As UTJ MK Rabbi Uri Maklev put it, “It is time for a law to bypass the High Court, rather than a High Court that bypasses Shabbos.”