Originally posted in Haaretz HERE
In the last six months, Israel’s ultra-Orthodox parties have gone on an extremist rampage. They have infuriated Diaspora Jews in two ways: First, by blocking a compromise on non-Orthodox worship at the Western Wall; and second, by passing legislation that bars Reform and Conservative converts from using state-run ritual baths for their conversions.
There was no religious justification for either of these acts. In both cases, the purpose was simply to express scorn for Reform and Conservative Jews and to deny the two non-Orthodox movements even the slightest measure of recognition by the Jewish state.
Haredi politicians, by the way, did not hesitate to acknowledge their motivations. Moshe Gafni, a member of the United Torah Judaism Party and a font of contempt for his fellow Jews, was the sponsor of the bill restricting access to ritual baths. In the Knesset committee considering the bill, Gafni was challenged by members of the opposition who noted that immersion in ritual baths by Reform and Conservative Jews did not detract in any way from the suitability of the baths for religious use by Haredim. No one can argue that halakhah – Jewish religious law – requires barring non-Orthodox Jews from the baths.
Gafni did not deny this, and he also made no attempt to suggest that the bill in question was intended to promote the cause of Torah or advance the sacred character of Israel. The bill’s purpose, he acknowledged, was to prevent Reform Jews from making use of the ritual baths to gain “legitimacy” in Israel.
There is something sad, pathetic, and even tragic about all this. These are the actions of small men with small minds, and Diaspora Jewry looks upon such pettiness with a combination of astonishment and despair. Israel faces a multitude of problems: Her relations with the American administration are strained, terrorism is a daily threat, and Iran is spewing hatred of the Jewish state. Is it really necessary for so-called religious parties to defame the Judaism practiced by the great majority of American Jews? Might their time be better spent on making Jews more Jewish and bringing them back to Torah?
Prohibiting Jews from praying at the Western Wall or using ritual baths is bad enough, of course. But even worse is the bill now being pushed by the Haredi parties that would allow Haredi schools to eliminate virtually all secular studies from their curriculum and still receive government funding. In other words, not only do the Haredim intend to alienate the Jews of the world by deriding their Jewish practice and belief. They also intend to undermine Israel’s economy by denying ultra-Orthodox children the tools they need to function in a modern economy.
And once again, there is no religious justification for such a drastic act of ghettoization. Rabbi Joseph Ber Soloveitchik studied economics and philosophy in Berlin, and the Lubavitcher Rebbe, Menachem Mendel Schneerson, studied mathematics and physics in Berlin and at the Sorbonne. In France today, in addition to religious studies, Haredi schools are obligated to teach the entire public school curriculum. In most communities around the world, in fact, secular authorities impose general education requirements on Haredi schools. Why should this not be the case in Israel, where 10 percent of the population is Haredi and the stakes for the economy are much higher?
To be sure, there are voices that offer a defense of the Haredi position. Evelyn Gordon, writing in Commentary, argues that there is a younger generation of Haredim that disagrees with the current, elderly rabbinic leadership and that over time will promote secular education for their children, along with traditional Torah study. Gordon makes the case that bottom-up change is always better than top-down change. Therefore, she says, it would be best not to impose a secular curriculum on Haredi schools through legislation, as was done by the last Knesset, but to allow the process to develop on its own.
Gordon is correct that younger elements of the Haredi population are more open to secular studies. But she is wrong to suggest that no legislative mandate is needed to bring about truly meaningful change. Even she admits that it would take a very long time for such change to occur, and it could be decades until younger rabbis who favor secular studies rise to positions of leadership. This means that the current law must be kept in place or a similar one enacted. Under any circumstances, abolishing requirements for secular study will be disastrous.
Top-down change is difficult, of course. But given that half of Israel’s fast-growing Haredi population remains out of the workforce, Israel does not have the luxury of waiting a quarter century for its Haredi leaders to come to their senses.
When specific requirements are considered, my own preference would be a grand bargain. For Jewish students, the task of the schools is to help Israel understand its Jewish mission. That is a complicated business, to be sure, and one that is far from defined. But the best way to get there is to pass a core curriculum law that requires Haredi children to study English, math, science, and Shakespeare, and that requires secular children to study Rambam, Shulchan Aruch, Tanach, and Buber. The goal: Serious secular studies for the Haredim and all religious children, and serious religious studies for secular children. If Israel needs a top-down approach, and she does, that’s a good place to start.
In addition, Gordon says nothing about Haredi Diaspora-bashing. World Jewry will not tolerate 25 more years of Haredi-led public attacks. If the ultra-Orthodox do not like Reform and Conservative Jews, that is their business, but the Knesset must not be the instrument that Haredim use to pour out abuse on Israel’s most devoted supporters. Prime Minister Netanyahu, are you listening?
Since last week’s bulletin, there have been a number of developments in the ultra-Orthodox political and rabbinical leadership’s battle against the implementation of the Kotel agreement, as well as their battle against the Supreme Court’s ruling to make Israel’s public mikva’ot available for non-Orthodox conversion ceremonies.
These developments reflect, in essence, an escalation in anti-Reform rhetoric and the pressure faced by Haredi politicians to withdraw their unspoken consent to the framework of the Kotel agreement. Thus, due to these increasing tensions, Israel’s political system is being pulled in opposite directions – torn between the demands of the ultra-Orthodox politicians and the consequences of reneging on the Government’s agreement with the non-Orthodox streams and Women of the Wall, not to mention reversing the Supreme Court’s ruling by legislative action.
RRFEI aims to deepen our members’ understandings of current events, and answer all of your questions and requests for additional background materials. In the meantime, we note the following developments since last week’s bulletin:
THE MIKVAH BILL
THE KOTEL AGREEMENT
Minister Rabbi Litzman: “Netanyahu either loves the Reform Jews of the Diaspora, or the Haredim of Israel; it’s either-or. There are no two ways about it… The Supreme Court is destroying everything good related to religion & state, and… the only way to stand against it is by passing legislation.” [Hebrew link]
Last week, I emphasized that the battle over the Kotel agreement and Supreme Court ruling to allow non-Orthodox converts access to Israel’s public mikva’ot is not really over the Women of the Wall’s prayer services or the non-Orthodox movements and their converts. Rather, it is over contrasting visions for the State of Israel on matters of religion and state.
The recent Pew report, as I wrote at length, indicates that the population represented by Gafni, Litzman, Azoulay, Deri and their colleagues, strongly desires to turn Israel into a theocracy, or as close to one as possible. In such cases when religious edicts clash with the rule of law and democratic principles, they believe themselves to be obligated to follow their interpretations of halakha, rather than civil law. Their political clout allows them to “dance between the raindrops,” and bend the law to suit them, even if this flies in the face of democracy, religious freedom, equality, etc. They aim to fashion Israel into a state not unlike those run by sharia law. Minister Azoulay’s declaration that he would not sign the regulations passed by the Government in the Kotel agreement “because his rabbi told him not to sign” is only one more recent example of this intolerable situation.
PM Netanyahu finds himself a rock and a hard place, for he does not support the vision for a theocracy, and would like to make good on his promise to Diaspora Jewry that “all Jews should feel at home in Israel.” However, the threat to the integrity of his coalition government is rising due to forces that aim to unravel Israel’s democracy; forces for whom Israel-Diaspora relations and the rule of law are meaningless; forces whose only considerations are utilitarian. The clearest expression of this is that the battles against the non-Orthodox movements and against the supreme court are the same battle. This was made utterly clear in a radio interview with Minister Rabbi Litzman (quoted above) about the upcoming vote to reverse the Supreme Court’s ruling on the mikva’ot (you may read about the details of the vote and its outcome here (in Hebrew), including responses from Hiddush, the non-Orthodox streams, and representatives of the Jewish Home and Kulanu parties).
These issues are again rising to the fore, which is why we believe it is so urgent for RRFEI members and friends of Israel in the Diaspora to mobilize in this existential battle. This is not simply a struggle for the rights of the non-Orthodox streams. It is a battle for the future of Israel’s soul, and the extent to which the Jewish state will be able to sustain its partnership with the Diaspora.
Two weeks ago, the RRFEI bulletin [link] included an analysis of the Supreme Court landmark ruling on access for non-Orthodox converts to public mikva’ot, demonstrating that there is a lot more to this than first met the media’s eyes. We reported on the immediate, horrific backlash from ultra-Orthodox circles. The three religious parties (namely the Zionist Orthodox Jewish Home and the two ultra-Orthodox parties) have joined forces in submitting a legislative proposal that would undo the Supreme Court ruling. This is their attempt to grant absolute control of the publicly funded mikva’ot to the Chief Rabbinate.
As Hiddush has noted [link], this is yet another case of Dr. Jekyll / Mr. Hyde syndrome, exemplifying the Jewish Home party’s head & Minister of Diaspora Affairs Naftali Bennett’s split personality. He goes out of his way to appear inclusive, tolerant and pluralistic outside of Israel, to you, our friends and colleagues in North America; but he has no problem swerving 180 degrees when it comes to our non-Orthodox colleagues, converts and movements in Israel.
An important, further development occurred in the last few days, as the Chief Rabbinate publicly turned to Israel’s religious councils that operate the public mikva’ot [link in Hebrew], instructing them not to abide by the Supreme Court ruling. What was self-evident to the Supreme Court, as Hiddush indicated in its analysis [link], namely:“the rabbinate is not authorized to establish a discriminatory policy” is not only not self-evident to the Chief Rabbinate (a state organ established by civil law and subject to the rule of law!), but it openly and rebelliously flaunts this! We have repeatedly suggested that the battle over religious freedom and equality is not merely a battle over religious diversity, but is -at the core- a battle over the rule of law and democracy. The Chief Rabbinate’s gall is but another compelling demonstration of the serious problem we face.
We would like to share with you another dimension of that very challenge; it so happens that this week the Israeli public radio commissioned a poll, which included the question “In a situation when Jewish religious edicts were in conflict with civil court rulings, which would you follow?” Looking at these graphs (above), we get a quantitative perspective of the extent of the challenge. While the overwhelming majority of Israeli Jews respect the law, the ultra-Orthodox and most of the Zionist Orthodox indicate clearly that they would view the civil court’s rulings as merely advisory, not to be adhered to, in the case of such a clash. Obviously there would be instances in which all of us would maintain such a position. For instance, if, under unimaginable circumstances, the court ordered the public to violate the Sabbath or eat treif… But these are NOT the questions that come before the judicial bench. The mikva’ot case (as an example) involves state funded public mikva’ot, and their use by non-Orthodox converts does not make them impure, regardless of whether the Rabbinate likes it.
The Chief Rabbinate under Rabbi David Lau has instructed all the public mikvahs in Israel to not permit any conversions from any movement [link in Hebrew], and in that manner to prevent Reform conversions to Judaism. This in the aftermath of the Israeli Supreme Court decision two weeks ago permitting conversions in public mikvahs by all of the streams equally. The Orthodox would, under Rabbi Lau’s request, continue to have access to private mikvahs, to which Reform Jews have no access.
The attacks on Reform Judaism and Liberal Judaism in general are heating up in the aftermath of the Kotel decision by the Israeli government, the mikvah decision by the Supreme Court, and the CCAR convention just held in Israel, which organized a liberal prayer service at the Southern Wall involving hundreds of participants.
In Dr. Alexander Guttmann’s book The Struggle over Reform in Rabbinic Literature he states that the early debates between the Reformers and the Orthodox ultimately had little effect, and when they figured that out, the leaders stopped arguing and proceeded to work within their own movements. He also stated that the common people had little interest in the arguments, and continued to intermingle with one another. Why have the disputes started up again? Obviously, the principle question is who controls the religious lives of Jews. It’s not primarily theological: everyone may continue to hold their own theology privately and may continue his/her own practice. The question is: who controls the religious life of the Jewish people?
While there have been other epochs in Jewish history in which specific issues rose to the fore, only now has this fight occurred in the first Jewish State in 2 millennia. The flash points of conflict, the use of mikvahs or the Kotel, are not as important as the right of Jews to control our own religious lives. This struggle involves the destiny of all Jews, even though they may be unaware it’s occurring. How ironic that the principle battle for the right of Jews to control their religious lives is taking place in Israel. But it’s our destiny as rabbis to play a critical role in that existential battle on behalf of all of our people. Jews must be allowed the right to religious self-determination.
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This 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:
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.
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.”