Religion and State

Committee Chairman MK Michael Eitan opened the meeting by noting that 16 of the 17 members of the Constitution, Law and Justice committee, agree that Israel should be defined as the Jewish and Democratic state. However, this apparent consensus disappears once the discussion turns to the definition of the term “Jewish State” and the role and meaning of Judaism in the context of the state.

MK Eitan suggested that perhaps the central issue in the constitutional debates, including the Jewish-democratic dichotomy, is the question of who interprets the law and the constitution. MK Eitan explained that current situation is one where the Knesset establishes the language of legislation and the justices establish the reality on the ground. He conceded that the Knesset shares the blame for this situation; there is no question that the court has overstepped its authority but he acknowledged, it has done so in order to fill a leadership vacuum left by the Knesset. MK Eitan suggested that this committee has an opportunity to do the work that the Knesset has too long ignored.

MK Eitan raised two major questions:

1. Can the Jewish state be separated from the Jewish religion?
2. How does the meaning of the Jewish state gain day-to-day expression and how should it be expressed in the constitution?

Professor Ruth Gavison (senior academic advisor to the committee) explained that the goal in this meeting is not to have an encompassing discussion of the entire topic of religion and state, (which cannot be done in 1 or 2 meetings), but rather to deal with the specific issues that arise from religion and state which must be dealt with in order to draft basic principles in the constitution.

She laid out three types of religious tensions that nation-states experience:

1. A nation with one dominant religion (e.g. Muslim Turkey or Catholic France) wherein the tensions are between the orthodox, the traditional, and the secular.
2. The situation in Germany (as well as other places in Europe) where there are several streams of a single religion. She raised the example of the way different types of Christianity have led to war and current cultural friction.
3. Conflicts between religions over places, traditions, and meaning.

Professor Gavison suggested that Israel suffers from all three types of religious tensions and the committee’s solutions must take each of them into account. Additionally, she laid out three sub-topics that the committee should consider:

1. Freedom of religion- an interest of a democratic society and its religious groups.
2. Freedom from religion- the right not to have religion imposed on you, which is part and parcel of freedom of religion when the religion of the person in question is a minority religion. However, this has been extended to secular citizens.
3. Non-establishment- “full separation of church and state.” This is beyond the British system (Church of England) in that it constitutes a wall of separation. Most states in the world do not adopt this approach. Yet in most cases the ties between religion and state are not binding, and are mostly expressed in symbolic or financial terms, for example state funding of churches.

Professor Gavison suggested that those who use the term “separation of church and state” as the only solution for secular citizens do not fully understand the meaning of the concept. She continued to explain that in some cases Israel grants a religious monopoly, for example in burial and marriage, but she argued, even if we want to escape that religious monopoly religious institutions should be able to supply services to those who want them. Additionally, she argued that we should all oppose an American-style separation of church and state. (Not to mention she added, that America is at this point perhaps the most religious country in the Christian world).

MK Eitan asked if we could we have an American-style separation and still call Israel a Jewish Democratic state. Professor Gavison said yes, but she is not sure that MK Ravitz (Degel HaTorah) would agree. She emphasized that the constitution must constitute the “I believe” of the state, and it must represent everyone- religious and secular, Jewish and non-Jewish.

Reshef Chayne (Shinui) agreed with Professor Gavison that total separation of religion and state is not applicable in Israel; that it stands in too stark a contradiction to the definition of Israel as a Jewish state. MK Chayne presented a list of theoretical options:

1. Religious imposition. For instance, forbidding driving on Shabbat and forbidding citizens from eating non-Kosher food.
2. Religious discrimination. Wherein religious Jews are given preference, or Jews are given preference.
3. Preference of religion, or preference of a certain religion. This, MK Chayne explained begins to approach the realm he can live with, given that it does not impose the preferred religion. He proposed that preference of religion could include state funding of synagogues and ritual baths, and nominating a community rabbi. Furthermore, he added, he doesn’t mind if the majority of Jews in Israel are Orthodox, or that the state’s synagogue be Orthodox. However, he pointed out, that if there is a religious Christian community, or a reform Jewish community, which wants their own house of worship and Rabbi, they must be treated equally. He clarified that those communities needn’t be the default, but they must be treated equally upon request.

MK Chayne continued to argue that holidays and symbols including the Sabbath, which are religious, should remain so. (He added that he is one of the few in his party who think, for social reasons, that we should have a single day of rest in this country. And if so, it should be Saturday.) MK Chayne argued that public figures should respect Judaism, but no one should be invading anyone’s private life. Additionally, he argued that Israel is below the “red line” of what constitutes democracy in that democracy implies the respect of someone’s faith, whatever it should be. He raised two issues to be addressed in order to have a truly democratic society:

1. The religious monopoly on marriage and divorce (this should be available and funded but not required). Furthermore he added that Israel should be the place with a solution to agunot [literally, “chained women” whose husbands deny them a religious divorce.]
2. The law prohibiting the ownership and sale of pigs in Israel should be overturned.

MK Eliezer (Cheetah) Cohen (Ichud Haleumi) pointed out two major problems:

1. Religion and Nationhood are identical for Jews. He argued that we must have Jewish State, whose method of government, (at least now), is Democracy.
2. Different streams of Judaism must be recognized.

Professor Hillel Shoval (Chairman of Chemdat, Association for freedom of information, religion and culture) agreed with MK Cohen regarding the recognition of different streams of Judaism and added that the Jewish collective is a religion as well as a people, and a culture. Shoval argued that the Jewish Diaspora must see emerging from Israel a respect of the various religious streams. He pointed out that 75-80% of organized Jews in the Diaspora are Conservative and Reform, and they see Israel as, paradoxically, the spiritual center that rejects them.

MK Levy (National Religious Party) argued that in drafting these principals in the constitution we must think about the connection between the private and public spheres. There is a fine line, he stated between eating pork in the home and selling it in the marketplace.

MK Levy added that the Constitution must be forward-looking, that we should not make decisions based on current compromises; we need a document that will hold up in twenty years. He continued by expressing the idea that we must choose the direction in which we are heading, that the greatest tragedy would be boxing ourselves in, and limiting our future options with the Constitution.

MK Levy cited two examples to elucidate his position:

1. Conversion – he argued that by allowing “giyur bkfitza”, [literally, conversion in a jump, whereby individuals converting to Judaism through non-Orthodox institutions in Israel are considered Jewish under the law of return when they perform the actual conversion process outside of the state] we would be opening the door to religious and national problems down the road.
2. Marriage- according to MK Levy civil marriage will lead us to a socially impossible situation in a couple of decades. He acknowledged that it is a private matter – but it has public repercussions.

MK Eitan responded by saying that it is impossible to see the future, but we should write the permanent rules of the game. The question is, are we trying to limit future generations, or give them something to work with and develop? MK Eitan then asked if a constitution could entrench the status quo or would an attempt to use it this way backfire? He explained that there are some things that cannot be accomplished by the constitution [coercively]; they are accomplished in practice through the national mood and views of society.

MK Levy suggested seeing the constitution as something that will influence society. He argued that you cannot say “if things improve or change then we will amend the constitution to make it more ideal”. He continued by stating that the constitution is supposed to be the document that effects change, not just reflects it. MK Levy expressed fear of a constitution which sets consensus in stone and prevents people from rethinking important issues.

MK Ravitz emphasized that it was a mistake to legislate coercive religious laws related to strictly private matters.

Dalit Dror (Justice Ministry) suggested that the constitution should be thought of as essentially immutable; MK Eitan disagreed vehemently. He argued that we should not allow such thoughts scare us away from, for instance, considering electoral reform or governmental reform.

Gideon Sapir (Bar Ilan University) agreed with MK Eitan that today, the Court, not the Knesset, resolves issues of religion and state. He argued this is a result of the constitutional revolution where the Court has become more active, as well as the Knesset's own irresponsibility. He expressed dissatisfaction with this situation and argued that the legislator should be the body defining the character of the state, not the court. Furthermore, he stated, the reality is that we have a constitution [the basic laws], and the court is using it and using its authority to interfere in primary legislation.

Sapir proposed three solutions:

1. Solve the major issues in the constitution and the details in regular law. According to Sapir this option hands a “blank cheque” to a court that has not proven itself consistent.
2. Give immunity to religious issues, not allowing them to be covered by judicial review. As for option 2, Sapir stated perhaps in the early years of statehood there was an opportunity to bracket these questions, but he argued, we cannot ignore them forever as a way of avoiding confrontation. He suggested the committee think about the way Professor Gavison and Rabbi Medan were able to compromise. [See main principals of the Gavison-Medan convent http://www.gavison-medan.org.il/english.htm]
3. Give all details full expression in the constitution.

Sapir supported option 3 as the way to confront these issues.

Professor Pinhas Shifman (Hebrew University Law School) agreed with Sapir regarding the necessity of details in the constitution. He emphasized the importance of full freedom of conscience despite the place that religion should have in the legislative discourse.

Additionally he argued that the religious camp is shortsighted and overly concerned with symbols. As an example, he raised the issue of the right of return where he suggested that because the religious camp wouldn’t give up the symbolism of halachic status [Jewish identiy confirmed by Orthodox law] a huge number of people who have no connection to Judaism were brought into Israel. He stated that they “gave up the reality at the expense of the symbol”.

Yaacov Shapira clarified that the Israeli Democracy Institute's proposal for immunity of religious issues is not overarching- he explained that it is not that the court cannot consider religious issues, but rather the court can not strike down laws from the Knesset regarding religion.

Gilad Kariv (Israel Religious Action Center) disagreed with Sapir regarding the court's role in religion and state. He expressed the opinion that the court has been careful and in fact unable to overturn many laws. Kariv argued that the court and has become a punching bag for the Haredi and nationalist populations.

He added that the issues of personal status – marriage and divorce – are just as critical and impossible to give up for the liberals as they are for the religious. He stressed that the solution can be one of compromise; that it is necessary to look at a range of options. Kariv stated that he is ready to compromise, that as a reform Rabbi in Israel he will not give up his requirement to be able to perform weddings for Israelis, but he is willing to make compromises.

Moshe Koppel (Israel Policy Center) explained that according to him there are two major issues:

1. The power we give to a religious institution, and the role of religion in the public discourse surrounding legislation.
2. Should religion even have a role? Or should the traditions and values of Israel be left out.

Koppel suggested that an historic compromise could be reached if the religious agree that the institutions' powers should be somewhat limited, and if the secular agree that religious issues have some place in the public discourse. In terms of marriage and divorce Koppel suggested that whoever is married religiously must be divorced religiously.

Professor Shachar Lifshitz (Bar-Ilan University) suggested using the term "marriage" to refer to the religious institution of marriage. He explained that then, there would be no such thing as intermarriage as "marriage" will be Jewish and Orthodox. However, he added that there would also be a partnership covenant to allow whoever wants to "marry" to register as civil partners, and have equal rights in every way. Lifshitz explained that in this way it would be an issue of the label. He recognized that his solution involves difficult compromises, but argued that it could the solve one of the most complex questions.

Rabbi Ehud Bandel (Conservative movement) clarified that contrary to popular belief, the Conservative movement agrees that separation of church and state is neither appropriate nor desirable In Israel. However, he emphasized that the liberty to marry, not some alternative, but to marry in a Jewish ceremony is a freedom of religion that he wants; that the choice should be between different options of marriage, not limited to a single option—Orthodox.

Professor Gavison summed up the debate with a number of key points:

• The question of “who decides” took up a majority of time in the debate. She expressed concern over the fact that people see the constitution as a way to get around the legislative minefield and argued that this process should not be understood as a means to resolve these issues for good. That she stated, would ruin the dialogue between people and the Knesset, and between the Knesset and the court.
• The religious and secular should reach a consensus- then the court will only have one decision to make, which will be whether their agreement violates any human rights. This she suggested, is a far more reasonable thing to ask the court to do, and furthermore, it keeps the court out of the ideological battle.
• We need a better understanding of what the arrangement and separation of responsibilities is between the Knesset and the court. However, she stated that more importantly, before we adopt a constitution we need to have consensus on the major and basic issues, not the details. She warned that if there is no basic consensus on these issues, we will find the court interfering to referee the debates
• She cited the Binyamin Shalit case as an ideal relationship between the Knesset and the court, where after a landmark decision, the court was able to say: the law exists, and now we must follow the law. [Commander Shalit, a Jewish, non-religious navy officer born in Israel, married a non-Jewish, Scottish woman. When the registration offices refused his request to register his two children as Jewish, he appealed in 1970 to the Supreme Court which supported his claim, and ruled that according to the Law of Return, his children were to be registered as belonging to the Jewish ethnic community.]