Religion and State

The Religion and Law Wars endanger us

A long line of cases have left it to the court to decide matters that are essentially social-ideological. This is harmful to the state

The Jerusalem District Court ruled that the new public swimming pool in Har Homa should be open on Shabbat. This is in stark contrast to the position of a large majority on the local community council, who fear that the neighborhood’s distinctive Shabbat atmosphere will be compromised.

On the surface, this is just another local incident in a Jerusalem neighborhood. In reality, however, it is emblematic of the religion-and-judiciary wars that have roiled the Israeli public for many years, but lately the flames seem to have intensified and this wildfire threatens to consume us. On both the religious and the judicial fronts, victories, whether legal or political, are Pyrrhic. The only way we can continue to live together is to show more mutual respect and reach compromises.

In the Har Homa neighborhood, where a quarter of the residents are secular, the Jerusalem Municipality built a pool. From the outset, the Municipality intended that it be open on Shabbat for use by the secular residents. Out of consideration for the neighborhood’s character, the Municipality decided that more limited pool services would be available on Shabbat than during the week – no lessons or music, and the refreshments kiosk would be closed. Just swimming for its “health benefits.”

The District Court of Jerusalem. Photo: The Israeli Judicial Authority

None of this satisfied the neighborhood’s religious residents, who raised an outcry and brought the issue before the community council, where a large majority voted to close the pool on Shabbat. The matter then ended up in the hands of the court to decide. It ruled that, because the pool is a municipal facility meant to serve all residents, and because the negative impact on the neighborhood’s Shabbat atmosphere would be minor, the pool should be open on Shabbat, subject to the restrictions imposed by the Municipality. It is a safe bet that the matter will end up at the High Court’s door.

This dispute joins a very long line of cases that have left it to the court to decide matters that are social-ideological in essence. The city of Jerusalem itself, and other municipalities as well, have referred many Shabbat-related conflicts to the court, such as movie theater screenings, street closings, business closings and more. It is important to note that the rulings have been inconsistent. Sometimes the justices decide in favor of the “religious side,” and sometimes in favor of the “secular side.”

These rulings are sometimes necessary in the absence of minority protections, but from a broader perspective the dynamic is harmful to Israeli society. In fact, there are two struggles at play that fuel each other: a struggle over identity and values, and a struggle over who is authorized to decide on such matters.

The first struggle has been going on in Israel since its founding, but it has been intensifying before our eyes. along with changes in the character of Israeli society. On the one hand, there is a secular-traditional majority that wants to live in a state that is Jewish in character but not governed by Jewish law — halakha. On the other hand, there is a Haredi-Religious population strongly represented in the present coalition, with unprecedented power to impose halakha on the public realm.

The second struggle is over the role of the courts in deciding these issues. One side, often when in distress, wants to give the courts authority on such matters. The other side, the side currently in power, wants to exclude the courts from decisions pertaining to the protection of minority groups, and to relegate all such decisions to the political sphere.

The protest against the government. Photo: The Movement for Quality Government

At the core of both struggles lie a desire to overwhelm the other side. To achieve a clear and unequivocal victory. Who wins and who loses? Who gets everything he wants, and who’s stuck in his apartment feeling that he’s lost his rightful place in his home and his neighborhood? If we desire life, we have to change this dynamic, and seek compromise and consensus rather than victory. If we do this at the community, municipal, and state levels, the perpetual need for conflict resolution via the courts will be significantly reduced.

And if we indeed make such a change, and the need for rulings like last week’s become rare and unique, only then the controversy over the role of the courts will simmer down.

First published by ARUTZ SHEVA.