Pablo Lerner is a professor of law at the Zefat Academic College and the College of Law and Business in Ramat-Gan (Israel).
Last year a draft law was presented in the Israeli parliament[1] regulating a variety of issues regarding religion in public spaces. In particular, the law prohibits public authorities from interfering with the putting on of, or the helping of others put on, tefillim[2] (phylacteries) in public spaces. The draft law also prohibits public authorities from impeding the act of praying in a public space or public building. However, in a synagogue or educational institution, authorities may require that any prayer be conducted according to local Jewish custom. The draft law also establishes the duty to install a mezuzah[3] (scroll case) in public buildings.
One can study this draft law as part of a series of legislative initiatives launched by the parliamentary coalition composed of religious and right-oriented parties currently ruling in Israel; in that light, the draft law could be seen as the result of what has been defined as an alliance between religious-infused markers of identity and the current populist assault on constitutional democracy in Israel.[4] This short post does not attempt to enter into cumbersome political questions but rather limits its analysis of the draft law’s text to seminal questions about the relationship between state and religion in Israel.
Freedom of Religion?
According to the draft law’s explanatory notes, the reason for the proposed law is that “in recent years, we have witnessed cases in which the denial of the ability to wear tefillin or conduct Jewish prayer in the Israeli public sphere occurs, whether through bureaucratic restrictions or through public pressure . . . .”
This explanation can hardly be considered sufficient. First, most people who put on tefillin every day do so at home or at the synagogue and not in public places. Second, municipal inspectors do not generally interfere with the putting on of tefillin in public. While they have removed tefillin stands and fined those who set them up without proper authorization, such incidents have been relatively few and have been resolved relatively easily. So, why has the draft law been proposed?
The draft law’s explanatory note states that the proposed law aims to ensure that symbols for which and through which Jews were persecuted throughout generations will not become controversial in the Jewish state. This purported aim is somewhat baffling because it assumes a certain analogy between the persecution of Jews over history and the future enforcement of the law by Israeli authorities. If this analogy reveals the real spirit of the draft law, it also reveals drafters’ ideas of the substance of Israel. According to Section 1 of the draft, the law’s overarching goal is to ensure the ability of the people of Israel to express their national and religious identity in their sovereign state, as “commanded by the Creator of the world.” While this provision could not be characterized as having a specific theocratic flavor, it envisages at least a very particular understanding of the parameters used to define Jewish identity.
Religious or traditional people could see the proposal as strengthening freedom of religion. But secular Israelis could see in the draft an attack on freedom from religion or even legitimization of a practice (offering to wear a tefillin) that could amount to forced, though indirect, imposition of religious values. Even if we put the issue of imposition aside, many may find this practice to be a type of proselytism by Orthodox groups who claim to know what is good not only for themselves but for every Jew.[5] Therefore, the draft law seems to embody the current parliamentary coalition’s religious populism by endorsing values of particular groups interested in fostering a specific lifestyle for the whole Jewish collective.
Religion in Public Spaces
According to the explanatory note, the “Knesset of Israel must stand in the breach and ensure that the public sphere in the State of Israel remains a place where every Jew can express their faith with pride and in public.” The principle contained in Israeli case law is that placing a physical installation in public spaces requires prior approval from the local authority in order for the installation not to constitute a nuisance or unreasonable obstruction of public space. The draft does not distinguish clearly between two types of public spaces: open-air public spaces and public or governmental buildings. Although this distinction might not always be relevant, public space in general is space that is accessible to the whole public but at the same time subject to control and restriction by authorities. An overarching immunity carved out for certain religious practices in public spaces is quite far-reaching, altering the balance between the rights of different members of the public to use it.
The discussion about balancing different interests regarding the use of public space is certainly not unique to Israel and is often connected to the role the state assigns to religion. In countries such as France, where there is a clear-cut separation of religion from state, the use of public space for religious purposes is certainly different from countries such as Italy or Spain, which exhibit more openness to religion and, in particular, the Catholic Church.
In Israel, the regulation of religion in public spaces reflects the status quo that existed during the Mandate.[6] In 1947, the Israeli government reached an agreement with Orthodox groups that the government would not alter the regulations pertaining to Shabbat, kashrut (kosher foods), marriage and divorce, and the autonomy of the religious education system as it existed prior the establishment of the State of Israel. While the goal of this status quo was to find a compromise with Orthodox groups, it also served to protect the autonomy of Orthodox communities.[7] The status quo has never been a static idea, and there have been shifts, clashes, and discussions over issues like the opening of shops, the use of public transportation on Saturdays, or the introduction of hametz (leavened grain products) in hospitals during Passover. Should the draft be approved, it could be seen as a new shift of the status quo in favor of strengthening Orthodox presence in the public space.
The question regarding uses of public spaces is also associated with the idea of equality (equal access of different religious groups to public facilities and spaces), but the draft law disregards equality under the rubric of fostering Jewish identity. If authorities must exercise this power in an equal and proportionate manner, could the possibility of other religious political groups setting up stands in the streets be rejected? And what about placing stands for secular purposes in clearly ultra-Orthodox neighborhoods?
While Israel explicitly assumes itself a Jewish state (even if the meaning of Jewish state has always been difficult to define precisely), this fact does not supersede the need to consider how the use of public space should be managed. As mentioned, the draft law seems to ignore this issue.
Adjudication Issues
The draft law establishes particular rules regarding the adjudication of disputes that arise from this law. In the case of conflict regarding the liturgy to be used in a synagogue, the competent authority is the Chief Rabbinate. That might sound logical since the definition of religious practice is a religious question, but Conservative or Reform groups might raise eyebrows at this rule. Making this provision even more controversial, the draft law provides that a dispute brought before the courts, relating to the draft law, should be decided by a judge who passed an evaluation showing that he knows how to use Hebrew Law[8] as a tool for deciding issues of legal lacunae and for resolving disputes relating to this law. The draft law adds that no judge who has not successfully passed this evaluation shall be appointed to any forum.
Discussion of the role of Hebrew law and its place in the Israeli legal system began even before the establishment of the state. In 1980, with the enactment of the Foundations of Law Act,[9] Hebrew law as a basis for lacunae was given a residual role after statutes, case law, and analogy. Even then, Israeli heritage, rather than Hebrew law, was expressly referenced, providing a very open formula that might include different sources of Jewish life and not only Hebrew law. In 2015, Hebrew law was included alongside Israeli Heritage, but even since then, and apart from questions of personal status, Hebrew law has fallen short of playing a significant role in Israeli law.
The draft law seems intended to enhance the importance of Hebrew law. But it may introduce a slippery slope, making it possible to argue that in every adjudicated issue connected to Jewish values or tradition the competent judge should show proficiency in (a specific version of) Hebrew law. At bottom, the draft law expresses very clearly the lack of confidence of Orthodox groups in the judiciary, charging it with being too secular and aiming to strengthen the role of Hebrew law.
Definition of Jew
Since the proposal is intended to defend the freedom of religion of Jews and protect Israelis’ ability to express their national and religious identity, the proposal takes care to define who is a Jew, entering one of the thorniest questions in Israeli law and society. According to the proposal, a Jew is someone whose Judaism has been recognized by the Chief Rabbinate of Israel for marriage purposes according to Israeli law, or who meets the Rabbinate’s requirements for such recognition. This definition is different from the definition found in Section 4b of the Law of Return 1950, where Jew means a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion. In Israel conversion, Reform and Conservative, at least done abroad, is recognized for purposes of immigration according to the Law of Return. However, the draft law attaches the definition of Jew to the definition of the Central Rabbinate, which excludes Reform and Conservative Judaism.
Conclusion
While not its express main purpose, the draft law stresses tensions that have existed from the beginning of the State of Israel and accepts a quite Orthodox approach to questions of religion and state. There is nothing negative in trying to involve more people in liturgy and Jewish practices. Religion and tradition should be allowed to freely practice and thrive. But this should not be done by dodging basic principles of the rule of law and public order.
At the time of this post’s publication, it is unclear whether the draft law will be approved, and if the law does pass, the final text will likely differ from the draft. But even if the draft law is not approved, the discussion about the religious dimension of public space in Israel will certainly not disappear.
References:
[1] The Bill for the Realization of Jewish Identity in Public Space, proposed by MK Galit Distal Atbrian et al, P5807/25 (2 Dec. 2025) (Isr.).
[2] For those unfamiliar with the term, tefillin (also called phylacteries) are two small black leather boxes containing scrolls of parchment inscribed with verses from the Torah. One box is placed on the upper arm while the other is positioned on the forehead. Religious Jewish men (and some reform religious women) wear them during weekday morning prayers as a biblical commandment.
[3] A mezuzah is small case containing a small parchment scroll with verses from the Torah, which is affixed to the doorposts of Jewish homes and buildings.
[4] See Ran Hirschl & Ayelet Shachar, Competing Orders: The Challenge of Religion to Modern Constitutionalism, 85 UNIVERSITY OF CHICAGO LAW REVIEW 425, 441 (2018).
[5] See Raphael Cohen Almagor, Coercion by the Orthodox Minority in Israel, in MULTICULTURAL CITIZENSHIP: LEGACIES AND CRITIQUES 86, 89 (Francois Boucher & Jean-François Caron eds., 2024).
[6] BARAK MEDINA, HUMAN RIGHTS IN ISRAEL 673ff (2016) (in Hebrew).
[7] Yaron Katz, Identity Politics in Israel the Ultra Orthodox Challenge 36 JOURNAL OF INTERDISCIPLINARY STUDIES 69, 73 (2024).
[8] According to the draft law, Hebrew law is Torah law as practiced by the Council of the Chief Rabbinate and in accordance with its directives.
[9] Regarding the Foundation of Law Act, see BENJAMIN PORAT, A PROPOSAL TO AMEND THE FOUNDATION OF LAW ACT WITH ANALYSIS AND CRITIQUE (2016) (in Hebrew).