When Enforcing ‘Equality’ Results in Inequality

In Israel on Tishah B’Av, restaurants and places of entertainment are mostly closed. But at least some government offices were open for business. The courts, for instance.

The Nazareth District Court on Sunday was notably active. Judge Jonathan Abraham made headlines with his ruling that a concert for the chareidi community in the northern city of Afula scheduled for August 15 could not be held as planned because it called for separate seating for men and women.

The judge was explicit: “I forbid segregation on the grounds of gender, race or any other category during the event. Each person who attends the event will be allowed at his or her discretion to be at any place at the event. Any ushers, security guards, or any other authorities at the event are prohibited from carrying out any segregation based on gender.”

And lest the police turn a blind eye to brazen inequality, he also ordered them to enforce the ruling: “I instruct the Israeli police that its representatives be present to secure the event and to assist anyone who turns to them with a complaint of gender segregation.” Offenders should be summarily removed, he said.

The judiciary has taken on the principle of equality as an absolute value that obliterates all others. Yet the philosophers of the modern state from the beginning made the point that, while all people should be equal before the law, liberty must be preserved as well. Not all groups and individuals are the same, and their differences in “life, liberty and the pursuit of happiness” must be recognized and respected.

The nineteenth century French writer Alexis de Tocqueville was perhaps the first to point out the inherent tension in democracy between equality and freedom. Democracy was intended to sweep away classes of royalty, nobility and peasantry, and treat all equally. Tocqueville perceived that equality was not created equal among other democratic values. He defined equality uniquely as a “passion”; and one that is never satisfied, because inequality is a ubiquitous, ineradicable part of the human condition, and can never be eliminated entirely. Or, as columnist George Will put it, “an egalitarian’s work is never done.”

Of all places, in the state of Israel, which appropriates for itself the appellation “the Jewish state,” the liberty of the religious community to observe the principle of tznius should be respected. Nor need it infringe on anyone else’s freedom to attend public events, which as the Afula municipality noted, are almost all with mixed seating, which effectively excludes chareidi citizens from participating.

The chareidim of Afula did not protest or seek to hinder the parade of immodest, licentious public events that are held under the name of entertainment, as offensive as they are to anyone of a decent — let alone a religious — sensibility. No one interferes.

The Afula municipality, which endorsed the chareidi event, said that out of hundreds of public events being held in the city during the summer — 360, it said — the chareidim were entitled to hold one according to their customs.

Judge Abraham decided that even one was too much.

The judge made what seemed to be an important distinction between those who voluntarily comply with separate seating and those who are coerced. The impression given is of a liberal, enlightened mind, tolerant of those who think differently, and only opposed to those who wish to impose their ways on others.

The distinction is specious, however, since people who attend such an event do so of their own volition, knowing in advance of the seating arrangements. They want to participate only in a public gathering that conforms to the high standards of the chareidi community. Nobody is forced to go. And as mentioned previously, people have a wide array of entertainment options in Afula, with which no one interferes.

That the ruling was made on Tishah B’Av cannot escape notice. One of the reasons given for the great tragedy of the Spanish Expulsion that occurred on Tishah B’Av — apart from the fanatical anti-Semitism of the Spanish church and royalty — was the lack of tznius, indeed a widespread immorality, in the Jewish community of that period (Sefer Akeidas Yitzchak). Surely, if we want to see the Bayis Shelishi, the Jewish people will have to have some measure of tznius.

United Torah Judaism MK Rabbi Moshe Gafni denounced it as “evil” and “appropriate for Tishah B’Av, the day of the destruction, and will cause many people and youth not to participate in the event.”

In fact, as of this writing, the event may be called off. The featured performer, Motti Steinmetz, responded with an unambiguous kiddush Hashem, saying that he will not appear before a mixed audience or in a hall without a mechitzah.

Afula Mayor Avi Elkabetz said the city would appeal the outrageous court decision.

“We have had discussions with representatives of the chareidi public in Afula — we will find the golden path and the way to hold the event according to the court’s decision,” the mayor promised, although he did not explain how that was to be done.

Meanwhile on Monday, Shas filed a petition with the High Court asking that the ruling by the Nazareth court be struck down.

There is still time to right this wrong, and for the state of Israel to recognize that allowing people to live by the precepts of the Torah threatens no one; indeed it will bring the Geulah.

But refusing to do so threatens the Jewish character of the state, and its democratic nature as well.