Who Is Qualified to Decide on Ideological Questions Pertaining to Religion and State?

The place for deciding on ethical questions should be the Knesset alone, as it is the Knesset that is able to most faithfully reflect the will of the people, and to achieve practical compromises that make coexistence possible.

The State of Israel is defined as a “Jewish and democratic state.” The basis for this definition lies in the Declaration of Independence (although the Declaration does not explicitly use the term “democracy”) and echoes of it can be found in the Basic Laws and in other legislation. The question of how to balance the definition’s two components, Jewish and democratic, has been a major topic of public debate for years. In this article I will address the issue of who should be making decisions about that balance – the Supreme Court or the political system.

For purposes of our discussion, I will make the following generalization (which itself is open to debate): Those who support primacy for the judicial branch give precedence to the state’s democratic values over its Jewish values, while opponents of that approach within the political system give precedence to the Jewish state as the supreme value.

I do not intend to argue that supporters of the judicial branch’s primacy deny the state’s Jewish identity; in my view, their approach stems from a lack of understanding of our brief Jewish history in the State of Israel.


The 75 years of Israeli state sovereignty have been lived in the shadow of a relentless struggle between the institutions of governance over their respective powers. Israel, which lacks a written constitution, is torn between the three branches of government, each of which claims primacy. While the legislative branch, the Knesset, is the sole institution chosen in direct elections by the people and sees itself as representing the will of the people, the Supreme Court, i.e., the judicial branch, sees itself as the “upper house,” the body vested with the authority to supervise, interpret, and strike down Knesset legislation in cases where that legislation deviates from “the system’s fundamental principles” (to use the Court’s terminology).

In the middle stands the third, executive, branch, i.e., the government, which controls the Knesset via two main tools: the Ministerial Committee for Legislative Affairs, which screens all proposed laws and decides in favor or against them, and the Budget Law, which is submitted annually (or biannually) to the Knesset –and requires the support of all coalition members –with a long list of far-reaching reforms for the economy and for Israeli society. These two tools strengthen the government’s position vis-à-vis the Knesset and make the Knesset into the long arm of the government.

There is no question that the Knesset has the authority to shape the state’s public character. As the representative of the people’s will, the Knesset is authorized to decide on ideological issues, including issues of religion and state, the status of language, matters of peace and security, and so forth.

Since the 1990s, however, and especially over the past two decades, we have witnessed a series of Supreme Court rulings that invalidate Knesset legislation. In certain cases, such as the deferment of military service for yeshiva students or the imprisonment of infiltrators, the Court has struck down Knesset legislation on more than one occasion.

This constitutes a serious clash between two central institutions of the state’s leadership. How, therefore, should Israel handle the matter in the decades to come?  


After two thousand years of exile, our ancestors made their way to Israel from the four corners of the earth. Judaism, Jewish tradition and yearning for the ancient homeland were the common threads binding the Jews who arrived here from so many different places. But the immigrants came with diverging value systems. After thousands of years of living in separate communities and diverse cultural contexts, this was only natural.

Most striking of all is the clash between the religiously observant and the secular nationalists; between those who affirm the nation’s dependence on upholding the Torah and its commandments, as written in Deuteronomy 27:9 – “this day thou art become a people unto the Lord thy God” and as noted by Rabbi Saadia Gaon – “Our nation is only a nation by virtue of its Torah,” and the drafters of Israel’s Declaration of Independence, which opens with the idea, mistaken in my view, that “the Land of Israel was the birthplace of the Jewish people,” reflecting a preference for secular Judaism as an alternative to Jewish tradition.

The debate will not be decided by legislation, as it relates to our way of life and raison d’être’. Even the state’s first prime minister, David Ben-Gurion, when meeting with the Chazon Ish [Rabbi Avraham Yeshaya Karelitz] in the hope of reaching a compromise that would mitigate discord, had trouble finding a strong basis for cooperation.

But until such time as the disagreement is resolved, we need to ensure conditions for coexistence in Eretz Israel. And again, we must ask: Who is qualified to decide on issues of religion and state stemming from differences in ideological outlook between the different groups that make up Israeli society? Were it up to me, I would indeed prefer that the halachic sages decide. But until the prayer “Restore our judges as in former times” is fulfilled – who should be the deciding party?

The practical answer, in my view, is that these arguments should be resolved in the political arena, i.e., the legislative branch. That is the branch that represents all segments of the people; that reflects the will of the entire people. It is the arena in which everyone is entitled to participate equally. And because of this, it is where conflicts over questions of values arising from the myriad outlooks prevalent among the people can be most effectively expressed.

It is indeed in the nature of politics, unlike the law, to steer clear of unequivocal ethical decisions in favor of compromise and consensus aimed at promoting coexistence. Although the compromises stem from disagreements over the two identities struggling together within the “Jewish” and the “democratic” state, Knesset decisions are ultimately not unequivocal ideological determinations; rather, they represent consensus regarding a shared arrangement for all the country’s citizens, based on the need to strike a practical balance that does not trample the most cherished beliefs of the other factions.

By contrast, the Supreme Court, as reflected in its rulings over the years, has thus far aimed to draw ideological conclusions while showing an absolute preference for democratic values. The Court uses the same ideological approach even when different arrangements have been reached on the political plane, arrangements acceptable to all parties. The most striking example of this was a political arrangement for the non-conscription of yeshiva students (the Tal Law) that was invalidated by the Court in 2012 in the name of equality. The Tal Law was the product of a committee headed by retired Supreme Court justice Tzvi Tal; the committee members included representatives of all of Israeli society’s Jewish subgroups. After protracted discussion, the Knesset decided to adopt the committee’s recommendations and enacted them as a temporary order for five years, at which time it would be determined whether to extend it. In 2017 the Knesset decided to extend the law for an additional period and to create supervisory mechanisms for its implementation. Yet despite all of the above, the Supreme Court ruled the law unconstitutional.

Note: the majority representatives in the Knesset reached a consensus with the representatives of the Haredi minority on a framework for coexistence, but the Court forced the majority representatives to withdraw from that consensus. One need hardly add that this decision by the Court was a major contributor to the past decade’s political instability.

What makes the situation even more absurd is that the right to equality in whose name a worthy political arrangement was stricken off was itself intentionally deleted from the Basic Law: Human Dignity and Liberty, enacted in the waning days of the 12th Knesset (1992). Although supporters and opponents of the judicial revolution disagree about the legislative process and about how Knesset members should understand the legislation of Basic Laws, there is nevertheless one thing on which all agree: the “right to equality” was deliberately removed from the draft of the bill out of real concern that it would be misused by the Court to strike down legislation and agreements with religious elected officials. Yet despite this, the Court, which interpreted the Basic Laws as a constitution and invalidated laws on that basis, introduced the right to equality into a law as part of “human dignity,” contrary to the position of the legislators themselves.

As Israel’s 37th government took office, a religious-political dispute erupted over the matching of budgets for Haredi educational institutions with those of Israel’s state schools. This, too, poses difficulties for the government-ministry legal advisors, who have hastened to raise the issue of equality in response to the Haredi parties’ demand for higher educational budgeting. While we, the Haredim, champion as supreme the value expressed in Genesis 18:19 – “that he may command his children and his household after him, that they may keep the way of the Lord” – Israeli jurists automatically counter with the idea of equal budgeting for Christian educational institutions or general private institutions.

These two examples are notable not just in and of themselves, but because they illuminate the theoretical issue of how ideological matters should be resolved between different social groups with differing visions, in a divided society. The Court has arrogated to itself the right to decide, and has done this against the will of the Knesset. The problem is magnified by the fact that Israeli judges are appointed by a committee that includes representatives of the Court itself, meaning that the judicial branch essentially has veto power over the appointment of justices to the Supreme Court.

One thing is clear: Just as Israeli citizens who do not observe Torah and mitzvot would not want the Council of Torah Sages to be the deciding factor on constitutional questions pertaining to the tension between “Jewish” and “democratic,” as the Council would always decide in favor of “Jewish,” so is it unreasonable and illogical for the council of liberal and democratic justices to always be the deciding entity regarding that tension, and to continually place the values of democracy, as they see it, above Jewish values. The place for deciding on ethical questions should be the Knesset alone, as it is the Knesset that is able to most faithfully reflect the will of the people, and to achieve practical compromises that make coexistence possible.

This path is the correct one for the state’s future as well. Formulating arrangements through arm-twisting and decisive victories in which one group surrenders to the other will result in a perpetual tug-of-war and create rifts in Israeli society that will worsen as the country’s population grows and the battle over public resources intensifies. The Knesset has the mandate and the tools necessary to regulate the relationship between the myriad groups living here together, and without making ideological decisions between different ideas of the good. It has the ability to periodically revisit those decisions and to balance them based on the needs of society and of the hour, and with consideration for all the different attributes of Israeli society.


MK Yitzhak Pindrus is a member of the Knesset for Degel HaTorah and chairman of the United Torah Judaism faction in the Knesset.