Gila Stopler is Dean of the Law School and an associate professor of law at the College of Law & Business in Ramat Gan (Israel).
Introduction
Simcha Rothman, member of the Israeli Parliament (the Knesset) and chairman of the Constitution, Law and Justice Committee, is working with Justice Minister Yariv Levin to change the Israeli regime by taking over the judiciary and removing checks on the executive branch and its leader. Rothman was quoted in closed conversations in April 2023 saying that Israel is at the start of a religious war and that he has no intention of withdrawing from passing the reform. Rothman’s statement reveals the deep divide in the Jewish-Israeli public regarding the status of religion in the country and religion’s centrality in the current national crisis as well as in the question of the nation’s continued shared existence. The intensity of the intra-Jewish religious rift and its effect on the state are surprising when considering the starting point, in the days of the establishment of the state, when the religious minority in the largely secular Jewish population was small and its political power so scant that Prime Minister David Ben-Gurion believed it would become extinct within a few years. [1]
In this post, I argue that the reason Israel is on the brink of an intra-Jewish religious war in its 75th year is due to lack of proper planning of the relationship between religion and the state. This allowed a zealous Jewish religious minority to gain significant political and institutional power and broad autonomous authority to force its religious views on all citizens in certain areas of law. This minority is currently represented in the coalition through ultra-Orthodox parties and the religious Zionist party, which, despite its name, primarily represents the ultra-Orthodox nationalist stream (Hardalim). [2] Leaders of these parties view the election results as an opportunity, perhaps irreversible, to enforce their religious views on the public in several areas where they previously could not, due to political reality or legal barriers.
In coalition agreements between these religious parties and Netanyahu’s Likud, MK Rothman and his partners seek to enforce a religious vision that includes deepening the exclusion of women from the public sphere; expanding the ability of business owners to discriminate against women and LGBTQ+ people and refuse to provide services on the basis of business owners’ and customers’ religious beliefs; expanding the powers of religious courts to adjudicate civil matters such as contracts, torts, labor law, etc., with the parties’ agreement; subordinating the chief military rabbi to the Chief Rabbinate of the state instead of to the Israeli Army’s Chief of Staff; granting immunity to rabbis from criminal prosecution for any expression, however serious and inciting it may be; transferring huge budgets to expand the influence of the Orthodox Jewish religion; and more. [3]
The fact that, in the 75th year of the state, its democratic character and the human rights of its citizens are in real danger, due to the political power of parties promoting an extreme religious vision, requires an analysis of the reasons why we have reached this point. That is the goal of this post.
Using Religion to Strengthen and Build National Identity
The relationship between religion and the state varies from country to country and can be influenced by several factors, including the desire to use religion to strengthen national identity. The role of religion in national movements has been significant, both in the Western and non-Western world. [4]
Israel is considered a Jewish and democratic state, although there is ongoing debate regarding the extent to which the Jewish religion should be a factor in defining the state as Jewish, or whether it should only be identified with Jewish nationality. [5]
Even before this debate, close relations existed between religion and the state in Israel, from the country’s founding. The Orthodox Jewish religion was established in the country in various ways. This has led its political and religious representatives to gain great power in Israel. These representatives have control over the Chief Rabbinate, Rabbinical Courts, and Religious Councils and are granted huge budgets to promote the ultra-Orthodox lifestyle and the Orthodox-Conservative interpretation of Judaism. Moreover, Orthodox-Jewish precepts are at the root of various pieces of coercive legislation, such as mandatory religious personal laws, the prohibition of public transportation on Shabbat, and the prohibition on presenting chametz (leavened bread) at Passover. [6] The establishment of the Orthodox Jewish religion and the political power its political and religious representatives gained has allowed them to claim a central role in the construction of Jewish national identity in the country. [7]
Countries that use religion to build a national identity assign it two central roles: strengthening national unity and guarding the threshold of the national group. [8] The first role aims to include individuals or groups under one national identity. Conversely, the second role aims to exclude and maintain clear boundaries of the national group and serves to prevent the entrance of those who might dilute or threaten the group’s identity. In Israel, for political reasons, both roles were given to the Orthodox Jewish religion in its conservative interpretation. However, as I have already argued elsewhere, the establishment of the Orthodox Jewish religion in the state has failed to achieve both the goals of strengthening national unity and of guarding the gates. [9]
The establishment of Orthodox Judaism failed to strengthen national unity as the establishment resulted in imposing strict religious rules of marriage and divorce on all Jews, both religious and non-religious. This caused severe human rights violations, including violations of women’s rights, the right to freedom of/from religion, the right to equality, and more. [10] By doing so, the religious establishment created a backlash from those whose rights and entitlements were violated and further deepened the rift between different segments of the population.
Moreover, the establishment of the Orthodox Jewish religion also failed to fulfill the role of guarding the gates of the national group. This failure is particularly noticeable in the treatment of immigrants from the former Soviet Union by the Israeli religious establishment, which has caused both violations of the immigrants’ human rights and harm to the state’s interest in ensuring their successful absorption into the Jewish national group in Israel. Upon their arrival, many immigrants of Jewish decent were not considered Jews according to local Halachic standards. To resolve this, the state facilitated their conversion into Judaism by establishing special conversion courts. However, contrary to its expectations, the state was soon surprised to discover that its efforts were being thwarted by the Orthodox religious establishment, in particular by State Rabbinical Courts, which refused to recognize these conversions and continued to treat the converts as non-Jewish. [11]
A Typology of Religion-State Relations
An important question is: what is the structural reason for the failure? To clarify my response to this question, I refer to a typology of religion-state relations that distinguishes between three approaches of the state toward religion: authorization, nationalization, and privatization. I have developed this typology in a previous publication. [12]
The typology proposed here describes approaches of the state toward religion that can coexist within the same country, which is contrary to typical typologies that assume that each country has a unitary structure of religion-state relationship, such as a country where religion is institutionalized in public institutions versus a country where religion-state separation is maintained.
A significant advantage of this typology is that it enables us to better understand how the status of religion in a country affects its power, the autonomy granted to it, and its impact on human rights. The increasing global phenomenon of the strengthening of religion, including in Israel, both publicly and privately, highlights the need for a more precise comprehension of how the interplay between religion and the state is regulated. [13] This understanding is critical if we are to prevent religion from gaining undue power and infringing on the human rights of all citizens.
How do religion and the state interplay under the state’s authorization, nationalization, and privatization of religion?
Authorization refers to the practice of giving political power to religious entities while allowing them autonomy to determine the content of the religion and how it will be implemented. An example of this in Israeli law is the use of religious courts to adjudicate matters of personal status. Section 1 of the Rabbinical Court Jurisdiction Law states that marriages and divorces of Jews in Israel are under the exclusive authority of Rabbinical Courts. These courts are comprised of religious judges who apply religious law as they understand it. Section 2 of the Rabbinical Court Jurisdiction Law further specifies that “marriages and divorces of Jews in Israel shall be conducted according to Torah law.” [14] In Israeli law, the phrase “Torah law” is the only term that refers to the substantive content of the marriage and divorce laws implemented by the Rabbinical Courts.
The lack of codification of religious law means that the authority to decide the substantive content of the term “Torah law” and determine the law itself lies solely with Rabbinical Court judges. Civil authorities in the country have no power over the substantive meaning of what these judges interpret as Torah law, nor do they have the authority to challenge the interpretation as long as the religious courts do not overstep the boundaries of their jurisdiction. [15]
As Justice Haim Cohen of the Israeli Supreme Court (sitting as the High Court of Justice) ruled in Boronovski v. Chief Rabbis:
The High Court of Justice does not reflect on the rabbinic courts in matters of Torah law. . . . Whatever they decide is their religious law, and it is not for a civil court to reflect on their standards regarding the essence and nature of this religious law. [16]
Moreover, the rabbinical court system lacks binding precedents, and each court considers itself authorized to rule according to its own understanding. As most court rulings are not published, the system operates in an unpredictable and arbitrary manner. In this system, the personal religious views of the all-male judges are the only factors that matter, and considerations of protecting human and women’s rights are often ignored. [17] Additionally, as I have already mentioned, it is a completely autonomous system, and any intervention by the state is difficult or impossible, both legally and politically.
Nationalization, similar to the authorization of religion, gives governing power to a certain religion. However, unlike authorization, which grants religious entities autonomy in enforcing governmental power as they see fit, nationalization involves taking elements from religion and “implanting/nationalizing them” into civil law while giving civic authorities the authority to interpret and implement them. In Israel, the Law of Return, which establishes the right of Jews and people of Jewish decent to emigrate to Israel, is an example of the nationalization of religion. Section 4b of the law defines a Jew as someone who was born to a Jewish mother or who converts and is not a member of another religion.
When it comes to conversion for the purposes of the Law of Return, civil courts have the final say. However, rabbinic courts claim authority to determine who is a Jew for the purposes of marriage and divorce. This creates a significant gap between conversion recognized for purposes of marriage and divorce, which is strictly Jewish Orthodox, and conversion recognized for all other purposes, such as the Law of Return. While the Israeli High Court of Justice has ordered that Reform and Conservative Jewish conversions be recognized under certain conditions for the purpose of the Law of Return, this is not the case for marriage and divorce purposes. [18]
A particularly difficult example of the gap between authorization and nationalization in this context, and its serious consequences in terms of human rights, is the High Court of Justice’s judgment in Jane Doe v. Rabbi Sherman.[19]
The ruling discussed the case of a woman who converted through Orthodox conversion at the special court for conversion, which was established to expedite the conversion of immigrants from the former Soviet Union. She later came to the rabbinic court for a divorce, but the court declared her and even her children, who were not involved in the divorce process, non-Jews. After a petition to the High Court of Justice, the Rabbinical Court withdrew its decision and recognized her as a Jew. However, the High Court of Justice chose not to intervene further and refrained from giving a general ruling that the Rabbinical Court has no authority to address questions of conversion, thereby leaving the possibility of a recurrence of such cases wide open. This example highlights the significant gap between the authorization of religion, which grants autonomy to religious entities to act in accordance with their interpretation, however extreme it may be, and the nationalization of religion, which allows the state to interpret and dictate the content of the religious mandate in a way that is more compatible with the interests of the state and human rights.
It is important to note that nationalization has yielded positive results over the years, largely due to the involvement of the Israeli High Court of Justice. However, the nationalization of religion may also lead to the imposition of conservative religious precepts, as the power of conservative religious elements grows within civil institutions like the Parliament or civil courts. The difference between nationalization and authorization is that, while the rise of religious power in situations of nationalization may be mitigated by secular political parties, as was the case in Israel until the 2022 elections, religious bodies have absolute control in situations of authorization, and the influence of civil bodies is very limited.
Privatization is the final type of relationship between religion and the state. In this type of relationship, religion is considered a personal matter and the state does not grant political power to any particular religion. However, individuals and religious communities are given the autonomy to exercise their religious views without interference from the state. In liberal countries, most relationships between religion and the state are conducted within the framework of privatization. This allows for the preservation of religious freedom and the neutrality of the state. However, even in privatization, the state has an important role in setting limits to the autonomy of individuals and communities to discriminate and violate rights in the name of religious beliefs.
In some spheres in Israel, religion is privatized and the state does not interfere in individuals’ choices, such as choosing the religious stream in which they worship or the stream in which they choose to educate their children. However, unlike in liberal countries, those who wish to convert must receive official state recognition of their conversion. A person’s religious classification has important legal consequences in areas such as marriage, divorce, and immigration. Some of these consequences were mentioned above. [20]
The Status of Religion in Israel: Where Did We Come from and Where Are We Going?
My argument is that even if we accept the position of Israel’s leaders at the time of the country’s establishment that political or national needs necessitated a partial establishment of the Jewish Orthodox religion in the state, the serious mistake was in the mode of establishment. The state should have established religion only through nationalization, by taking elements from the religion that are beneficial to the interests of Israeli society and preserving their application under the supervision of the civil state with minimal religious influence. Instead, the state of Israel resorted to authorization of religion in important areas, which allowed the leaders of Orthodox Judaism, who control the religious establishment and rabbinic courts, to apply extreme interpretations of Jewish Orthodox law that violate human rights and undermine the rule of law, without any control or restraint by the state.
Consequently, the Israeli legal system, as it is today, places the principles of Orthodox Judaism in some areas of law above civil law and basic values of equality and freedom. At the same time, the Jewish Orthodox religion receives institutional, budgetary, and substantive support. This results in many leaders of the Jewish Orthodox religious establishment viewing themselves as exempt from limitations imposed on other government authorities. These religious leaders believe that the supremacy of religion over the rule of law should extend to many other areas. [21] For example, Rabbi Yitzhak Yosef, Chief Rabbi of Israel and President of the Great Rabbinical Court, has made harsh statements against the civic judicial system, the High Court of Justice, the Reform Movement, immigrants from the former Soviet Union, and women. As a result, the Ombudsman for Judges has called for reconsideration of Yosef’s continued tenure as a judge. [22]
The Ombudsman’s call regarding Yosef provoked widespread criticism in religious circles. The commitment in current coalition agreements to grant immunity to rabbis, including those functioning as state officials, from criminal prosecution for any statement, no matter how serious and inciting, is a result of this criticism. [23]
The authorization approach gives religious entities the autonomy to determine the content of religion and the power to implement it. At first glance, this approach may seem more suitable to the liberal tendency to avoid entanglement with religion in substantive matters than the nationalization approach, which obliges the secular state to determine the religious content it promotes. However, the combination of institutionalizing religion through authorization and selectively applying seemingly liberal protection of religious freedom results in the state and the High Court of Justice protecting the religious freedom and autonomy of religious judges and officials in the Jewish Orthodox establishment in a much stricter manner than they protect the religious freedom of the majority of the country’s residents who are subjected to this establishment. [24]
It is not surprising, therefore, that the political leaders of the ultra-Orthodox parties and ultra-Orthodox nationalist parties, along with many of their voters, believe that the principles of the Orthodox religion should prevail over the values of the rule of law and human rights. Consequently, they consider it appropriate to take advantage of the unprecedented political power they acquired in Netanyahu’s new government. Their goal is to greatly expand the power and autonomy of the Orthodox establishment at the expense of the rule of law and human rights as detailed above. [25]
Coming back to Knesset member Rothman, I think he is correct in saying that the struggle surrounding the deep changes the coalition is attempting to bring about in the Israeli legal system is the start of an intra-Jewish religious war. This war will determine whether Israel will be a Jewish and democratic state that respects the rule of law and protects human rights (hopefully better than it does today) or whether it will become a Jewish theocratic and nationalistic autocracy. In current Israeli parlance that harkens back to ancient history, Israelis will have to choose between the state of Israel and the Kingdom of Judah.
[1] See Aviezer Ravitzki, Religious and Secular Jews in Israel: A Culture War?, in Creating the Jewish Future 80, 89–90 (Michael Brown & Bernard Lightman eds., 1999).
[2] On the ultra-Orthodox nationalist stream and the differences between Jewish religious streams in Israel see Daniel Mahla’s recent work, Convergence of Fundamentalisms? Ultra-Orthodox Nationalists (Hardalim) in Israel, Zeitschrift für Religion, Gesellschaft und Politik [Journal for Religion, Society and Politics] (updated 17 Oct. 2022).
[3] The full text of all coalition agreements (in Hebrew) can be found here.
[4] Peter van der Veer & Hartmut Lehmann, Introduction, in Nation and Religion: Perspectives on Europe and Asia 1 (Peter van der Veer & Hartmut Lehmann eds., 1999).
[5] See, for example, the collection of articles on the definition of Israel as a Jewish and Democratic State in 19 Iyunei Mishpat [Tel Aviv Law Review] 477–741 (1995) (Hebrew).
[6] Rabbinical Courts (Marriage and Divorce) Act, 1953; Chief Rabbinate of Israel Law, 1980; Religious Jewish Services Law, 1971; Road Transport Ordinance § 71(7a); Prohibition on Chametz Law, 1986.
[7] Yonatan Shapira, Secular Politicians and the Status of Religion in the State of Israel, in Multiculturalism in a Jewish and Democratic State 663 (M. Mautner et al. eds., 1998) (Hebrew).
[8] Gila Stopler, National Identity and Religion-State Relations: Israel in Comparative Perspective, in Israeli Constitutional Law at a Crossroads 503–516 (Gideon Sapir, Dafna Barak-Erez & Aharon Barak eds., 2013).
[9] Id.
[10] Id. at 511–16.
[11] Id. at 513, 515–16.
[12] Gila Stopler, Religion–State Relations and Their Effects on Human Rights: Nationalization, Authorization, and Privatization, 6 Oxford J. L. & Religion 474 (2017).
[13] Id. at 474–75.
[14] Rabbinical Courts (Marriage and Divorce) Act, 1953 § 2. A similar situation applies to all other religious communities recognized by Israeli law.
[15] Stopler, supra n. 12, at 483–84.
[16] FH 10/69 Boronovski v. Chief Rabbis [1971] IsrSC 25(1) 7, 14. The Supreme Court is authorized to intervene in the judgments of religious courts only where they have clearly overstepped their jurisdiction. Id.
[17] Stopler, supra no. 12, at 484–85.
[18] HCJ 2597/99 Tais Rodriguez-Tushbeim v. Minister of Interior (2005) (English translation); HCJ 7625/06 Rogachova v. Ministry of Interior (2016) (English translation).
[19] HCJ 5079/08 Jane Doe v. Rabbinical Court Judge, Rabbi Sherman 2–3 (2012).
[20] Religious Community Ordinance (Conversion).
[21] Gila Stopler, Semi-Liberal Constitutionalism and Checks and Balances in Israeli Democracy, 44 Iyunei Mishpat [Tel Aviv Law Review] 171–212 (2021).
[22] Ombudsman Calls to Review Sephardi Chief Rabbi’s Status as Rabbinical Judge, Times of Israel (27 Oct. 2020).
[23] Id.
[24] Supra n. 8, at 516.
[25] See supra n. 4 and accompanying text.