May we make compromises on the religious character of the state?
By SHLOMO BRODY‘WITHIN ANY arrangement in Israel it is critical to ensure that no one is forced to work on Shabbat, as in the case of bus drivers or construction workers.’(photo credit: MARC ISRAEL SELLEM)
Following the split Israeli election results, coalition negotiations are under way that reportedly include discussions about changing laws relating to religion and state. These include creating an option for civil marriage, allowing certain markets to open on Shabbat, and increasing the number of ultra-Orthodox men serving in the army and the workforce.By their nature, such negotiations require a significant amount of give-and-take, as each side bargains for its interests. The end result, therefore, might entail religious parties or politicians relenting on certain deeply held religious beliefs, such as the sanctity of Shabbat in the public sphere.May we make compromises on the religious character of the state? It’s important to properly categorize the different types of compromises at stake.Clearly, it would be wrong to allow for laws that would force individual Jews to violate prohibitions or prevent them from performing commandments. This is why religious liberty provisions are so important in all Western countries, as seen by the continued struggle in various European countries to ensure protections for circumcision and meat processing rituals alongside provisions for observing religious holidays. Similarly, within any arrangement in Israel, it is critical to ensure that no one is forced to work on Shabbat, as in the case of bus drivers or construction workers.Another category includes matters over whose value the religious community is greatly divided. As I detail in my book, A Guide to the Complex, religious Zionists correctly believe that vocational training and army service are mandated by the Torah, and that the refusal of the ultra-Orthodox community to include these mitzvot within their ideology is a desecration of the Torah. That belief is obviously not held within significant segments of the haredi sector, and it is problematic to impose such behavior on their lifestyle. Therefore, provisions must be made, at the very least, to ensure that ultra-Orthodox Israelis who want to enter the army or workforce have this option.A thornier issue relates to cases in which the suggested law clearly violates a Jewish ritual yet is demanded by members of the secular public as part of their rights. One sensitive case relates to leaving recreational venues open on Shabbat and allowing services like public transportation. In 1957, MK Zorach Warhaftig engaged in extensive talks with the Mapai-led government, including its demand for a “Day of Rest” law to allow for restaurants to remain open. Ashkenazi chief Rabbi Isaac Herzog wrote to Warhaftig and asserted that many of the compromises were against Halacha and therefore this was not a matter requiring a ruling of Jewish law. Instead, religious MKs should do their best to reduce the amount of Shabbat desecration.As Prof. Gideon Sapir has documented, rabbinic discourse on these questions escalated in 1961 when the new government came to an agreement regarding public transportation on Shabbat. In this deal, the de facto status quo was strengthened in which buses were shut down in heavily Jewish areas, with the exception of the city of Haifa, which has many Arab residents alongside a stridently secular Jewish population.The chief rabbi of the city, Yehoshua Kaniel, railed against religious parties for agreeing to such a compromise. Firstly, he argued, such concessions would lead only to increased demands to weaken the Jewish character of the city. More fundamentally, he believed that consenting to this arrangement was equivalent to the types of utilitarian calculations prohibited in the Talmud. The Sages, for example, prohibited a group of Jews from handing over one Jew to bandits, even if that meant all of the group would be killed. Analogously, Kaniel asserted, it is forbidden to “sacrifice” Haifa, even though the agreement would prevent public transportation in the rest of the country.In response, Rabbi Shaul Yisraeli published a detailed essay, aptly titled “The Laws of Coalitions,” in which he asserted that such agreements are permissible because they maximize, within the given circumstances, the religious character of the public sphere. He noted that any concession did not, in practice, increase the amount of Shabbat desecration, while marshaling sources to contend that the religious MKs had no legal culpability for those who would choose to violate Shabbat anyway. The MKs also gained a lot by entrenching into law that public transportation would not take place in most cities, a tenuous arrangement that could have been easily breached without a coalition deal.In more recent years, various attempts have been made to change the “status quo” arrangements, including laws that would reduce feelings of “religious coercion,” by permitting, for example, civil marriage or public transportation. These agreements were included in a well-known covenant made between Rabbi Yaakov Medan and Prof. Ruth Gavison, a secular law professor, to recalibrate religion-state provisions in Israel. Rabbi Shlomo Aviner and others forcefully criticized this agreement because it would permit religious transgressions that had previously been prohibited under Israeli law in earlier agreements.
Rabbi Yisraeli, he asserted, would never have permitted coalition deals that would weaken the status of Halacha in Israeli law.Medan argued, compellingly, that the thrust of Yisraeli’s essay was to allow deals that would improve the general religious character of the state. In this case, concessions should be made that would a) reduce animosity toward religion resulting from laws seen as coercive; and b) achieve reciprocal compromises from the secular public that would, for example, close shopping malls and prevent Shabbat from becoming a national shopping day.In this spirit, it behooves us to look anew at the existing religion-state arrangements and come to mutually acceptable agreements that will enhance the religious character of the state, ensure religious liberty, and facilitate a positive feeling toward Judaism throughout the population.The writer directs the Tikvah Overseas Students Institute and recently received his doctorate from Bar-Ilan University law school.www.facebook.com/RabbiShlomoBrody
