Court Fence Ruling Upholds Rule of Law

In 1832, the U.S. Supreme Court ruled that the United States government could not force the Native American Cherokee tribe out of its Georgia homes and into reservations in Oklahoma. President Andrew Jackson, appalled by the court’s interference in a jurisdiction he considered exclusively his own, vowed that he would ignore the court’s decision with the words: "[Chief Justice] John Marshall has made his decision; now let him enforce it."

The court could not. Jackson pushed ahead with his implementation of the Indian Removal Act, and the Cherokees were force-marched westward. Some 4,000 died along the way.

Jackson’s decision to ignore a Supreme Court ruling is considered a low-water mark in America’s history as a nation governed by the rule of law. But, fortunately, the Jackson precedent did not stand.

By the time the Supreme Court ordered President Richard Nixon to surrender those infamous Watergate tapes, there simply was no possibility that Nixon would respond with a Jacksonesque, "Come and get ’em. I dare you." Today, rulings of the Supreme Court are supreme, although it took many years for us to get to that point.

It has not taken Israel quite as long. Last week, Israel’s High Court of Justice ruled that the route of the security barrier would have to be altered, at significant cost to the state, to eliminate the negative impact the fence had on the lives of some 35,000 Palestinians living adjacent to it. The case was brought by a group of Palestinians, led by the village council of the town of Beit Sourik, just outside Jerusalem.

The unanimous decision stated, "The fence’s current path would separate landowners from tens of thousands of dunams [quarter acres] of land … and would generally burden the entire way of life in the petitioners’ villages."

Adding significance to the ruling is the fact that the court in no way ruled against the concept of the barrier, itself. On the contrary, it endorsed the barrier as a legitimate self-defense measure.

It even conceded that the alterations it was recommending could conceivably reduce security for some Israelis. But, the judges said, "This reduction must be endured for humanitarian considerations."

The judges wrote: "Our job was a difficult one. We are members of Israeli society. Although judges sometimes dwell in an ivory tower, this tower is located inside Jerusalem, which has suffered from unbridled terror. We are aware of the killing and destruction that the terror against the state and its citizens brings. We recognize the need to defend the state and its citizens against terrorism. We are aware that, in the short term, our ruling does not ease the struggle of the state against those who would attack it. This knowledge is difficult for us. But we are judges. When we sit on the bench, we ourselves stand trial…. We are convinced that there is no security without law. Upholding the law is a component of national security."

This decision not only does credit to Israel. It provides a beacon of guidance for all nations struggling to balance security needs and individual rights in the post-Sept. 11 era.

And so does the response of the rest of Israel’s government to the court’s decision. Prime Minister Ariel Sharon and Defense Minister Shaul Mofaz both responded that the court had spoken, and that was that. The route of the fence would be altered.

Sharon even addressed the humanitarian considerations that produced the ruling, touching on the justices concern about the olive groves that were being uprooted to make way for the fence.

Speaking to Cabinet ministers, he said, "I don’t know how many of you are farmers. It is very hard when one harms these groves. People invested hard work and sweat here. People invested all of their lives in these groves."

Then, referring to the possibility of legislation overturning the court’s decision, he said, "There will be no law to bypass the High Court of Justice. Forget about it."

So the route of the barrier will be changed. And, the likelihood is that there will be more cases brought to challenge any portion that unnecessarily interferes with the lives of Palestinians. That probably means that the barrier will move closer to the ’67 border, the Green Line.

That is probably good. The barrier that will best accomplish Israel’s security goals — while simultaneously guarding the rights of the Palestinians — is not one that meanders hither and yon through the West Bank, but one with the shortest (and most defensible) lines. A barrier that adheres fairly closely to the Green Line is also the route that defends Israel’s demography to the greatest extent.

The more it strays from the Green Line, the more Palestinians who are included against their will in the Jewish state. That is why the Palestinian leadership says that a Green Line wall is fine with them.

One Palestinian expressed the common sentiment when he said, "Let them build the wall on the Green Line. That is Israel, and any country can build anything it wants on its own territory. But keep it away from my parents’ olive trees."

But all that is commentary. The most significant aspect of the court’s ruling is the ruling itself, and the fact that it will be implemented. The precedent established, for Israel and for all democracies, is a gift to us all.

M.J. Rosenberg, director of policy analysis for the Israel Policy Forum, is a long-time Capitol Hill staffer and former editor of AIPAC’s Near East Report.

ERA –Israeli Style

The Knesset has passed a landmark law granting equal rights to women in every sphere of Israeli life — after the bill’s sponsor gave up her committee seat to a male colleague.

Along with granting women equality in the workplace, the military and in other spheres of society, the new law also lays out the rights of women over their bodies and protects women from violence and sexual exploitation.

The legislation passed Wednesday is an amendment to a law passed in 1951 that set out in general terms the principle of equality in Israeli society.

After adamantly opposing the bill for a year, the fervently Orthodox Shas Party withdrew its threat to sabotage the legislation after Knesset member Yael Dayan, the bill’s chief sponsor, gave up her place on the influential Foreign Affairs and Defense Committee to a Shas legislator.

“For two years I have been trying to get this law through,” Dayan was quoted as saying. “I spoke for an entire year with rabbis. They demanded revisions. Shas officials told me all the time, ‘It will never be passed.’

“If I knew it was possible to resolve the matter this way, I would have done it a long time ago.”

The bill was slated to be brought before the Knesset last month, on International Women’s Day.

But, at the urging of Prime Minister Ehud Barak, Dayan pulled the bill from the agenda at the last minute after Shas threatened to turn the vote into a no-confidence motion in the government.

Barak came to the Knesset to participate in Wednesday’s 49-2 vote.

The bill was backed by all the parties in the Knesset, with the exception of the fervently Orthodox United Torah Judaism (UTJ) bloc.

Knesset member Moshe Gafni, a member of UTJ, said the concept of equal rights for the sexes is inherently wrong.

“There are certain roles for a woman and for a man,” Gafni said. “There is also concern the Supreme Court can take this declaration and use it in a manner that goes against the outlook of the majority of the residents of the country.”

Dayan said the “deal” that removed the final obstacle to the bill’s passage was launched in a casual conversation in the Knesset corridors in which she joked that she was ready to do anything, even give up her position on the committee.

Shas, however, denied any agreement had been reached.

Shas legislator Yair Peretz, who is to assume Dayan’s seat on the committee, said Dayan had asked that Shas withdraw its threat to submit a no-confidence motion if the legislation were presented for a vote.

“I consulted with the rabbis and told her we won’t oppose” the bill, Peretz said.


The government is now trying to pass an updated version of the conversion law, which, it claims, gives consideration to Conservative and Reform Jewry. Yet Rabbi Ehud Bandel, leader of the Israeli Conservative movement, says the new proposal “is merely the old conversion law dressed up in new clothes. If it passes, it will strengthen the Orthodox monopoly on conversion and put a stopper in the effort to introduce religious pluralism in Israel.”

Conversion Conflict, Continued

By trying to pass an updated law, Netanyahu’s government is once again on a collision course with the non-Orthodox movements

By Larry Derfner, Tel Aviv Correspondent

Just when everybody thought the conversion law crisis had somehow miraculously faded away, it burst back into the limelight. The Netanyahu government is once again on a collision course with the Conservative and Reform movements — and, by extension, with American Jewry — over the issue.

The government is now trying to pass an updated version of the conversion law, which, it claims, gives consideration to Conservative and Reform Jewry. Yet Rabbi Ehud Bandel, leader of the Israeli Conservative movement, says the new proposal “is merely the old conversion law dressed up in new clothes. If it passes, it will strengthen the Orthodox monopoly on conversion and put a stopper in the effort to introduce religious pluralism in Israel.”

The initial Knesset hearings on the government’s proposal are scheduled for June 22.

In brief, what happened was this: After the Conservative and Reform accepted the Neeman Commission compromise on conversion last January but the Orthodox chief rabbinate rejected it, the Conservative movement’s legal battle was reactivated. On June 4, the Supreme Court ordered the government to declare its intentions: to let the court decide the matter (which could well result in recognition for Conservative and Reform conversions), or to take the matter out of the court’s hands by trying to pass a law in the Knesset.

The government, under pressure from the religious parties, announced that it would go for the law.

But the Netanyahu government sees it cannot pass the original conversion law, because three of its coalition partners — the right-wing Tsomet (Crossroads), centrist The Third Way, and Natan Sharansky’s Yisrael Ba’Aliyah — oppose it. So the government has come up with a new rendering of the conversion law, which, it claims, includes the conciliatory Neeman recommendations.

Under the new proposal, the chief rabbinate would retain sole conversion authority (which it has always enjoyed, but by agreement, which is open to court challenge, and never by law, which is final). However, a new “Jewish studies institute,” set up by the Jewish Agency and administered jointly by the Orthodox, Conservative and Reform, would be open to conversion candidates.

Nothing in the proposed new law, however, requires the chief rabbinate to convert candidates who learn Judaism at this institute, and here is where the Conservative and Reform balk.

They note that the chief rabbinate rejected the Neeman recommendations precisely because they were unwilling to have anything to do with an institute where Conservative and Reform authorities could teach Judaism. The law now being proposed by the government leaves it up to the rabbinate whether to convert candidates who pass through the institute — and the rabbinate has already made its position absolutely clear.

Yet Finance Minister Yaakov Neeman is blaming the Conservative and Reform movements for rejecting the compromise attempts and throwing the issue back onto the confrontation path. Bandel, who sat on the Neeman Commission, and other Conservative and Reform leaders accuse Neeman of deliberately misrepresenting their position.

And now, with the government selling its new proposal as having something for everyone — the Orthodox, Conservative and Reform — opponents are having a hard time fighting it in the Knesset.

“It’s a difficult informational challenge because people ask us, ‘How can you oppose a law that includes the Neeman recommendations, when you already accepted the Neeman recommendations?’ And we have to explain to them that the Neeman recommendations called for the chief rabbinate’s agreement, while this law does no such thing. The chief rabbis cannot be forced to recognize us; they can only do so voluntarily. You can’t legislate goodwill.

“I’m very scared. I’m scared that the government is going to succeed in deceiving the Knesset and the Israeli public and the Jewish Diaspora.”

Bandel said that he, too, would prefer that the dispute be settled out of court and out of the Knesset — by agreement between the two sides. But with the failure of the Neeman commission, he says, a new way must be found.