Moshe Jaffe is a constitutional law adjunct professor at the Academic Center of Law and Science in Israel and an adjunct professor at Cardozo School of Law.
Introduction
Judicial reform proposed in 2023 and promoted by the Israeli government has led to turmoil in society. While some support the reform and others oppose it, the offer of this reform has led to extensive public discourse.
One concern of reform opponents is that the reform will turn Israel into a Halakhic (Jewish-law-based) state. This post challenges this concern and argues that the proposed judicial reform, independent of whether or not it passes, will not have a real effect on the relationship between religion and the state in Israel.
I note that this post does not express an opinion regarding the reform or the religious status quo in Israel but only discusses the reform’s impact on the status quo.
Background
On 4 January 2023, Minister of Justice Yariv Levin proposed the first phase of judicial reform. The reform promotes four significant changes: the so-called Override Clause; a change in the structure of the committee for the selection of judges; the prevention of judicial review of Basic Laws, which constitutes the current version of the Israeli constitution; and a repealing of the reasonableness cause for review of administrative actions.
In my view, the two proposed changes that may have direct implications for freedom of religion are the Override Clause and the prevention of judicial review of Basic Laws. [1]
In the proposed reform, the Override Clause stipulates that the legislature (Knesset) may override Supreme Court decisions about the unconstitutionality of laws by a certain majority of Knesset members. At the moment, the reform proposes a majority of 61 out of 120 members of the Knesset [2]—similar to the existing Override Clause in the 1994 Basic Law: Freedom of Occupation. Theoretically, the Override Clause may allow the Knesset to impose religious (Halakhic) laws that may violate freedom from religion and thus be unconstitutional, even if the Court strikes down the unconstitutional law.
The second concern is that the Knesset will use its power to legislate Basic Laws to integrate religious rules into the Israeli constitution and make them immune from judicial review. [3]
Discussion
In Israel, there is a declared and recognized status quo in many matters concerning religion and state. This status quo began with a 1947 letter from the first Israeli prime-minister, David Ben-Gurion, and continued with the legislation promoted by Ben-Gurion’s government in the early years of the state.[4]
Religious parties have been part of almost every Israeli government. [5] In the last 30 years, the political power of ultra-Orthodox Jewish parties [6] has increased in particular, and they started playing an important, even key role in Israel’s governments. [7] However, despite the growing political power of ultra-Orthodox parties, no far-reaching changes have affected the nature of the state of Israel and religion-state relations in the country. Put simply, the growing political weight of religious parties has not resulted in strengthening the religious component of the Israeli legal system.
Besides, in recent decades there has been a shift in the opposite direction—from the “State of Halakha” to a more secular model of religion-state relations. Changes have included operating public transportation on Shabbat, [8] opening shops on Shabbat, reducing the powers of the rabbinic courts, [9] recognizing non-Orthodox conversions, [10] recognizing civil marriages, [11] and much more. Some of the changes were made by the government, some by the Court, and some by private people and organizations.
Israel’s population has changed and significantly grown in the 75 years since its founding. Thus, changes in the status quo are natural. However, these changes did not occur as defensive actions against attempts to change the status quo by the ultra-Orthodox. In light of this, the abovementioned list is not meant to criticize or support these changes in the status quo but to point them out in the context, as some commentators claim, of Israel’s possible becoming a Halakhic state.
Opponents of judicial reform will argue, and rightly so, that the mere fact that radical changes have not been made so far does not mean that the government will not try to make them in the future, with its increased power granted by the reform. According to the proposed reform, 61 Knesset members are needed to activate the Override Clause—the same number the government must hold as a majority in the Knesset to stay in power. However, obtaining 61 Knesset members to support reforms that harm religious freedom or freedom from religion does not appear feasible. It is important to remember that the coalition currently comprises members whose religious affiliations vary. [12] This reduces the risk of an improper use of the Override Clause. Moreover, Israel frequently holds parliamentary elections due to the difficulty of maintaining the majority of 61 in matters simpler than major religious reforms. [13]
Finally, regarding the fear of improper use of Basic Laws: In Israel, constitutional amendments usually do not require an absolute majority of Knesset members or any particular procedure. Therefore, amending is easy and simple. This, however, could function to protect democracy and popular sovereignty: should a government make cynical and improper use of Basic Laws, the people will replace the government in the next elections. Subsequently, the next government may easily reverse the previous government’s actions and return the law to its prior state.
Conclusion
Proposed judicial reform in Israel can be supported and opposed. Likewise, it is possible to support and oppose changes in the relationship between religion and the state in Israel. However, the connection between the two seems unrealistic, and it is difficult to envision a situation in which the reform will indeed have a direct effect on religious freedom and lead to a Halakhic state.
[1] Naturally, it is possible to claim that other parts of the reform will also influence freedom of religion. However, in the short framework of this article, I refer to these two main points only.
[2] In my opinion, this number will be subject to future negotiation.
[3] According to the Supreme Court’s most recent ruling, fundamental laws appear to no longer be immune from judicial review. See HCJ 5969-20 Stav Shapir v. Knesset (23 May 2021) (Isr.). Therefore, if the reform is implemented, an unprecedented constitutional crisis may occur if the Court strikes down a Basic Law of the Knesset.
[4] E.g., The Law of Working Hours and Rest, 5711-1951; The Law of Pig Breeding Prohibition, 5722-1962.
[5] The following governments had at least one religious party as part of the coalition: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 31, 32, 34, 35, and 37.
[6] For example, the Haredi political party “Shas” and the Haredi political alliance “United Torah Judaism” (consisting of Agudat Yisrael and Degel HaTorah).
[7] Ultra-Orthodox Knesset members have held a large number of key positions, such as Minister of Health; Minister of the Economy; Minister of Internal Affairs; Deputy Prime Minister; Minister of Industry, Trade and Labour; Minister of Internal Affairs; chairman of the Knesset’s financial committee; member of the Security Cabinet of Israel; and more.
[8] See, for example, project Noa Tanoa.
[9] See HCJ 8638-03 Sima Amir v. The Great Rabbinical Court in Jerusalem (6 Apr. 2006) (Isr.); Moriah Asraf-Wahlberg, The Supreme Court Ruled: Reducing the Powers of the Rabbinical Courts, Makor Rishon (23 Sept. 2019).
[10] HCJ 11013-05 Natalia Dahan v. Minister of the Interior Ministry of the Interior (1 Mar. 2021) (Isr.).
[11] APA 7368-22 Ministry of Internal Affairs v. Adi Brill (7 Mar. 2023) (Isr.).
[12] At this time of this publication, the government consists of secularists (such as Prime Minister Netanyahu, Minister of Defense Galant, and Minister of Economy Barkat), religious Zionists (such as Minister of Finance Smotrich and Minister of Heritage Eliyahu), and ultra-Orthodox Jews (such as Minister of the Interior Arbel and Minister of Welfare Margi).
[13] E.g., Zvi Zerakhia, The Fighting Newspaper: “Israel Hyom Law” – The Reason for Bringing Forward the Elections to the 20th Knesset, The Marker (9 Jan. 2017).