All of Israel’s media, whether print, broadcast, or electronic, and much of the world’s media gave prominence to a declaration by Israel’s National Security Minister Itamar Ben-Gvir at the Knesset on Wednesday, July 24. The hullabaloo went on for some three days. His words were pronounced in the context of a conference titled “Israel’s Return to the Temple Mount.” His full remarks also noted that he had visited the Temple Mount the previous week and prayed at the Temple Mount. That he prayed there was not news; neither were his pronouncements on favoring and encouraging Jewish prayer at the site.
At the Jerusalem Day parade on June 5, he had said: “My policy is very clear on this matter: Jews can be anywhere in Jerusalem, pray anywhere. Jews pray on the Temple Mount and that’s a good thing. That’s the ministerial position.”
IN EARLY January this year, the London Times reported that Ben-Gvir had “visited Temple Mount, next to the al-Aqsa mosque, to pray, despite Palestinian warning.” Besides the geographical error – Al-Aqsa mosque, as well as the Dome of the Rock, sit on top of the Temple Mount, a location the Islamic army conquered and occupied in 638 CE – Ben-Gvir had already visited the Temple Mount for the third time as a government minister on Tisha Be’av in July, 2023. His first visit as a minister was in January of last year, when he was filmed ritually swaying, presumably praying.
His full remarks, which not all the media outlets reported, included something of additional importance. He stated, “On my watch, there will be no racist discrimination against Jews, who are the only ones not allowed to pray, and what’s more, in the holiest place for the Jewish people.” In other words, he was framing his policy not only in a religious formulation but also as a human rights issue.
However, in a response from Washington within just a few hours, the Prime Minister’s Office informed that the Temple Mount status quo (which is that Muslims pray; Jews only can visit) will remain unchanged.
The matter of Jewish prayer at the Temple Mount is caught between two fundamentals. First, the political. The status quo was intended by Moshe Dayan to reduce religious tensions over a holy site. Unfortunately, the words “status quo” recalled the discriminatory policy of the British Mandate.
A 1928 White Paper and a pronouncement by the high commissioner in June 1931 fixed that the Western Wall belonged to the Wakf and that Jews had little rights beyond customary prayer rituals. Benches, stools, tables, and other items such as stands for prayer books had to be removed after use. Prohibitions included lanterns and the blowing of the shofar at the Wall. That was the framework that served as the basis for the post-1967 status quo that now is applied to the Temple Mount.
The Palestine Bulletin, on June 9, 1931, summarized the situation thus: “Muslims’ right of ownership and Jews’ right of prayer.” Today, it’s Muslims pray and Jews visit.
High Court of Justice legislation
ISRAEL’S High Court of Justice has heard dozens of appeals to alter that status quo. They are mostly based on the 1967 Protection of Holy Places Law. That legislation guarantees free access and the right of worship for all religious groups at sites sacred to them.
The court, however, has refused to order a change in the status quo. Not that a status quo is “holy,” after all, the court ordered that women be allowed to pray with a Torah scroll at the Western Wall despite the Chief Rabbinate’s opposition.
While the justices are not afraid of Jews, it would seem that it is the fear of Muslims that unnerves them. Their many decisions mostly note that since the site is “sensitive,” that is, Muslims will riot and the Middle East will be set ablaze if Jews pray there – so Jews should not be able to pray at the site.
Well, almost.
In a 1976 deliberation, H.C. J. 99/76, Cohen v. Minister of Police, the Attorney General’s Office instructed the state prosecutor to submit an opinion. It read: “The petitioner’s right of access to the Temple Mount is a fundamental right, which is also enshrined in law, and is not and has never been disputed. It is permissible to assume that no one will even bother to find out whether, during his stay in this sublime place, the petitioner will ask to commune with his Creator. And if he wants, he can do so in a non-demonstrative fashion.”
A later decision, this one by then-Supreme Court justice Aharon Barak in the matter of H.C.J. 2697/2004, Gershon Salomon v. Jerusalem District Police Command M. Levy, further clarified the protected fundamental right of prayer.
Barak wrote: “The starting point, agreed upon by the parties, is that every Jew has the right to go up to the Temple Mount and pray there. This is part of the freedom of religious worship and freedom of expression... There is no dispute that the petitioner also has this right. However, as a human right, the right to access the Temple Mount is not an absolute right either. It can be limited. Admittedly, a hostile audience should not be given the ‘right of veto’ over the exercise of fundamental rights.”
The right to prayer at the Temple Mount was permitted long before Ben-Gvir. It was permitted by the highest court in the land. True, the skittish judges were too fearful of Islamist violence and therefore allowed the police, without the courts reviewing sufficiently the claims, to assert a potential danger of an outbreak of riots.
Yet, nevertheless, the right of a Jew to pray on the Temple Mount has been confirmed by law. It is the politicians who are playing around with Jewish rights.
The writer is a researcher, analyst, and opinion commentator on political, cultural, and media issues.