The Supreme Court landmark ruling to allow non-Orthodox converts access to all Mikva’ot in Israel – There is more to it than you may think by Rabbi Uri Regev

You may download my highlighted version of the Supreme Court ruling here.

Uri-Regev-profile-photo-e1425932791183This unanimous ruling of the Supreme Court is an important addition to the chain of rulings that uphold the principles of religious freedom & equality. Its importance is not only to the matter at hand (access to the public mikva’ot for the purpose of non-Orthodox conversions), but also for future litigation over matters of religious freedom and equality in general.

On the other hand, a close look at the ruling reveals a number of elements of a mixed nature, which we need to be aware of, as they too will weigh on future litigation involving the clash of religion and state.

While the legal saga is over (10 years after it commenced!), and the final ruling has been handed down, a new front, far more vicious and perilous, has opened up. Now the Chief Rabbinate and ultra-Orthodox politicians are in Pavlovian reaction mode, gearing up to fight back and prevent the implementation of this ruling, as they launch a campaign to further undermine both the Supreme Court and demonize the non-Orthodox movements.


1. The State could have avoided this ruling

The bottom line of the ruling is an order to the religious council in Beer Sheva and the administrator of the mikva to allow access to Reform and Conservative converts for ritual immersion, as part of the process of conversion, including permission for a non-Orthodox bet din to be present at the immersion. Similar access should be allowed, stipulates the ruling, at other public mikva’ot where immersion of converts is conducted, but it would not have taken much for the Court to have decided differently and hand down a much more limited victory for the non-Orthodox movements. In the course of the deliberations the justices repeatedly urged the State to offer a pragmatic solution to the movements’ immersion needs for conversions. The State’s and religious authorities’ uncompromising mindset and obfuscation of the facts ultimately led the court to hand down a much stronger and more encompassing ruling than it preferred.

Justice Rubinstein opined: “If it were possible for the appellants to have dignified and orderly access in Omer, Modi’in and Hannaton (A suburb of Beer Sheba in the south, a city in the center, and a Conservative Kibbutz in the north), as seemingly presented to us, ‘dayeinu’ – this would have sufficed because according to the appellants’ information, [the need] involves fewer than 300 individuals per year, and one mikva in each major region of the country would have sufficed. We have no interest in entering into an ideological dispute in this context. What we sought were pragmatic solutions. [But seeing that the facts as attested to by the appellants stand in contrast to the ambiguity that characterizes the State’s affidavit] there is no recourse other than making a decision on the merits of the case. Such a need to decide the merits of the case could have been avoided if the unfolding of this case [and this is not the only such case] was not a situation of (in Hebrew –(מנעת מרובה לא מנעת: ‘when you try to block them at every turn, you will not block them at all’.” [a play on words on the known phrase: תפסת מרובה – לא תפסת ‘caught lots, got nothing’]

Chief Justice Naor agrees : “Indeed, as we commenced the process, we held that it would be desirable to find a pragmatic solution to answer the problem raised by the appellants (the non-Orthodox movements). A solution that would render a legal decision unnecessary in matters that tend to split the public. At times there are many advantages to pragmatic solutions that do not require that ‘justice pierce the mountain.’ … if mikva’ot were available within a reasonable driving distance, it might have been sufficient.”

This reminds us of the nature of the compromise over the Kotel, in which the Haredi rabbinic and political leadership feared that if a compromise were not found, the court might allow the Women of the Wall to pray in the actual space of the traditional Kotel. Agreeing on the ‘alternative Kotel’ compromise exempted the Orthodox Kotel authorities from having to accommodate the women and non-Orthodox movements at the Kotel itself. The difference being, of course, that in the case of the Kotel, Netanyahu and Mandelblit could come up with an alternative Kotel, which was not controlled by the Orthodox rabbinate, whereas, in the case of the mikva’ot we were dealing with locations that were all controlled by the Rabbinic establishment. Therefore, the refusal of the religious powers that be to compromise and allow access to merely 2 public mikva’ot, resulted in an overarching ruling that orders the authorities to accommodate the non-Orthodox movements in all public mikva’ot where converts immerse.


2. “Religious freedom” with more than a grain of salt

Much of the media’s reporting on the ruling focused on the principles of equality and religious freedom, as reiterated in the ruling. Such statements included: “We state the fundamentals – the principle of equality is one of the core principles of our legal system – its roots are deeply embedded in our identity as Jewish and democratic state… once the state has established public mikva’ot and made them available to the public, including for the purpose of conversion, it cannot practice discriminatory policy in using them. This also emerges from the freedom of religion and freedom of worship granted to all in the State of Israel… the principle of equality constitutes an essential building block in the existence of religious freedom… religious freedom includes within it two imperatives directed at the state – ‘Do’ and ‘Do not do,’ similar to ‘turn away from evil and do good’ (Ps. 34:15). First, to refrain from interfering in a person’s religious life; and second, to provide appropriate infrastructure for maintaining religious life.” This reiteration is of obvious importance. It is praiseworthy for its own sake, especially coming from the Orthodox justice Elyakim Rubinstein; but with all due appreciation for these important statements, we should be reminded of the fact that the justices would not have refrained from imposing severe limitations on these principle of equality and religious freedom if only the State’s religious authorities had been sufficiently forthcoming in offering a meager compromise of two mikva’ot in addition to Hannaton in the north. Just to illustrate the quantitative context, in Beer Sheva alone there are 13 public mikva’ot.


3. Counter-legislation already in the works, but will it do the trick?

The Haredi politicians are already gearing up to pass counter-legislation that will explicitly subject the function of the mikva’ot to the Chief Rabbinate according to the Shulchan Arukh. Their assumption is that such explicit legislation regarding the rules and authority over the mikva’ot would suffice to block the implementation of the Supreme Court ruling. The Haredi opponents would be wise to realize that such legislation may not do the trick. The respondents (the State and Religious Council) already argued before the court that the law governing religious services requires that the Religious Council operate according to the rulings of the local and Chief rabbinates. Justice Rubinstein points out that such a provision in the law “cannot make kosher” the exclusion of non-Orthodox converts from public mikva’ot, because “the Rabbinate is not authorized to establish a discriminatory policy. The court holds respect for the Chief Rabbinate, but it is clear that as with all administrative authorities, it is subject to the rules of administrative law, which forbids discrimination. The claim that one administrative authority has the power to instruct another administrative authority to exercise discriminatory policy is incompatible with the basic principles of public law.”


4. This ruling has nothing to do with whether the Supreme Court accepts non-Orthodox conversions

While we may be tempted to interpret the ruling as giving credence to the legal acceptance of non-Orthodox conversions, we should realize that the ruling explicitly rejects such interpretation. It makes a clear distinction between the extent of legal recognition of non-Orthodox conversions, which is still pending before the Court, and has been for many years now, and the exercise of religious freedom regarding religious rituals. Moreover, Rubinstein alludes to his own preference for universal norms for conversion in Israel that would be acceptable to all. While not explicitly referring to it, we should recall that Rubinstein, while he was Attorney General, was behind proposed legislation that attempted to enforce the outline proposed by Prof. Ya’akov Ne’eman, which would have led to the exclusion of State recognition of Israeli Reform and Conservative conversions. Ne’eman misrepresented this framework as a mutually agreed upon recommendation of the ‘Ne’eman Commission’, while in truth the Reform and Conservative movements had not consented to the framework, which was vehemently rejected by the Chief Rabbinate. I served at the time as the representative of the Reform movement to the Ne’eman Commission and watched with fascination Prof. Ne’eman’s total commitment to see his vision through, regardless of whether it was endorsed by all members of the commission, as had been stipulated when it was founded. There is no surprise Ne’eman, a cabinet minister at the time, was able to get the Government to embrace the recommendations as if they were formally agreed upon by the Ne’eman commission. He had no interest in acknowledging that was not the case. Given this, we should be aware of a number of comments that Rubinstein makes, reflecting his own continued preference for a “unified”, Orthodox, conversion process:

  1. “When a person wishes to immerse for the purpose of conversion, why deny him that, so long as there is no – unfortunately, as far as I am concerned – a State conversion acceptable to all?”
  2. In rejecting the State’s argument that was based on the distinction between a ‘State sanctioned conversion’ and a ‘private conversion,’ Rubinstein maintains: “I fear that these arguments, even though they cannot be ignored in some respects, and, as stated above, if we merited appropriate legislation maybe it would be possible to achieve conversion harmony, which is ‘not in heaven’, cannot justify preventing immersion for private conversions in public mikva’ot… This is stated before the Court has ruled on the pending conversion cases (where the extent of legal recognition of non-Orthodox conversions is being debated – UR), and of course our decision here is subject to the decisions that may be made there, without predicting what that ruling may be.” (This somewhat cumbersome language may actually mean that if the ruling on the substantive recognition of non-Orthodox conversions will be against the Movements, it may impact affect the future of this ruling on mikva’ot.)


5. A disturbing side issue

One of the things that emerged from the facts outlined in the ruling is that the Jerusalem Religious Council does not allow the use of the many Jerusalem mikva’ot for the purpose of conversion at all (even by the governmental Conversion Authority). While this is a side issue, it is a very disturbing revelation, which points to the fact that the Jerusalem Rabbinate follows an extreme religious path, probably based on their ambivalence (to say the least) regarding the validity of the somewhat more lenient Conversion Authority process. It’s difficult to understand what reason may account for this rigid policy, other than halakhic ambivalence as to whether even the State Conversion Authority’s conversions are legitimate. Hopefully this will be further explored because it represents an intolerable void between one State authority and another, both funded by taxpayers’ funds, especially if it is based on a fundamentalist, extreme interpretation of halakha that not only rejects the non-Orthodox movements, but also modern Orthodoxy. In this context, we should also remember the battle that is being waged over the entitlement of non-married Orthodox single women to use the mikva, and the intrusive conduct of the mikva attendants at many of the public mikva’ot.


In conclusion

This landmark ruling is very important on its own merits. A closer look at the details reveals that it’s more complex than first meets the eye. It reveals the reluctance of the court to fully pursue all-encompassing principles when a pragmatic, practical solution can be found, even if it’s only partially satisfactory. In the face of the obstinacy and the withholding of the truth on the part of the State and religious establishment, the court felt forced “to do the right thing.” Yet even this ruling, beyond the welcomed interim impact, hints to the uncertainty that still lies ahead, as to the substantive recognition of non-Orthodox conversions performed in Israel. This is quickly becoming the battleground for a larger State/religion clash in which not only the Orthodox establishment’s animosity towards non-Orthodox Judaism is reflected, but also its deeply rooted rejection of the basic principles of the rule of law and democracy. Israeli policymakers as well as diaspora leadership would be well advised to understand that these reminders (such as this ruling, the recent Kotel debate, the battle over drafting yeshiva students, the enforcement of core curricular studies, etc.) are testing Israel’s democratic character and exposing who its foes are.

This is a battle we cannot afford to lose, and while many of us would like to avoid confrontation, I believe, for the sake of ensuring Israel’s future, it cannot be avoided. This is not only my conclusion, but a similar conclusion was offered by Israel’s first President Chaim Weitzman, as he anticipated the inevitable clash between religion and state even before Israel’s founding, as did Herzl before him: “There will be a great struggle. I foresee something which will be perhaps reminiscent of the kulturkampf in Germany, but we must be firm if we are to survive.”