December 12, 2018

The rabbinate’s legal position on the Kotel is far from ridiculous

If you are still interested in the Western Wall controversy, your time has come. Next week, Israel’s High Court will finally discuss a petition aimed at legally changing the status quo near the Kotel. Since the government reversed itself on the Kotel compromise three months ago, the court is currently the only channel still available to make the desired change — that is, to establish a Kotel platform at which non-Orthodox practice is allowed.

What the court is going to do is of course unknown. But two days ago, the rabbinate revealed its legal cards. And this achievement should not be taken lightly. The rabbinate was put in a tough spot by the attorney general, when he clarified that in his view the rabbinate’s position — not to accept any arrangement that allows non-Orthodox practice near the Kotel — is unacceptable to him. So the rabbinate decided to hire its own attorney, not a common procedure for an official body that is usually represented by state attorneys.

To make this very long story short, the rabbinate now has a legal representative and a legal position. And as much as it is an annoying position — in the eyes of those seeking a solution that accommodates non-Orthodox (and liberal Orthodox) practice at the Kotel — it is not a ridiculous position. The rabbinate argues that the court has no legal authority to determine matters of practice near the Kotel.

The term “practice” is key to this argument, and those familiar with the legal history of the battle over the Kotel will easily identify the source of the rabbinate’s position. This position is very similar to the minority position of Justice Izhak Englard from 2003, in a court decision (Hebrew) that forced the government to establish an area for non-Orthodox prayer near Robinson’s Arch. True, Englard was unable to convince the other justices. But this does not mean that his position has no merit. Nor does it mean it does not deserve to have another day in court.

Englard, pure and simple, argued that the court can legally decide matters concerning access to holy sites or criminal acts in holy sites, but cannot legally involve itself in matters concerning religious practice in holy sites.

“Would the court even consider getting involved in the practices of various Christian groups in the Church of the Holy Sepulchre and change the status quo?” Englard asked. His answer was negative. The court would never do such a thing. His answer was that the court has no jurisdiction over such matters. And since the Kotel is defined by law as a holy site, Englard, basing his argument on a previous opinion by Justice Menachem Elon, asserted that the Kotel area should be treated as a synagogue. The court has no place telling a rabbi how, halachically, to run a synagogue.

Of course, there are many good arguments against Englard’s — now the rabbinate’s — position. But the fact that it is based on a mandatory law from a hundred years ago is not necessarily one of them. A 1924 law stipulates that “no cause or matter in connection with the holy places or religious buildings or sites in Palestine or the rights or claims relating to the different religious communities in Palestine shall be heard or determined by any court in Palestine.”

The Reform and Conservative movements mocked this position as outdated. Yizhar Hess, Director of the Masorti Movement in Israel, responded to it by stating: “I assume that the court will remind the honorable chief rabbis not just that ‘there are judges in Jerusalem’ but also that their wages are no longer paid by King George V, but rather the State of Israel.”

Indeed, today the State of Israel has jurisdiction over the Western Wall. Thus, it can alter the mandatory law as it pleases. But since it did not fully annul the mandatory instruction, making an argument based on it is not a good enough reason for ridicule — it might be when it comes to public relations, as it reinforces the image of the rabbinate as an out of touch institution.

Interestingly, and troublingly, Englard and the other justices (Tirkel, Elon) who did not accept the court’s previous majority rulings were religious Orthodox. This could be just a coincidence, or could create the impression that Orthodox justices rule in ways aimed at preserving an Orthodox hegemony over religious matters. Or it could create the opposite impression, that only Orthodox justices understand the complex and problematic nature of a secular court forcing itself on what is essentially a religious matter.

What are the arguments against Englard’s position? There are many. That’s why the High Court in previous decisions, the attorney general today, and many legal scholars, do not agree with him. First, they do not agree that the Kotel area is a synagogue. Second, many do not agree that the issue at hand is Halachic. Third, there is a way to argue that non-Orthodox practice is a matter of “access” and not one of “practice.” There is no debate that the state is legally within its right to regulate “access” to holy sites.

Based on the history of court decisions, it would not be a huge surprise if the justices, yet again, decide in favor of the non-Orthodox position. In fact, it is quite possible that this is the decision that the government expects and hopes for, as it will save it the trouble of having to make a decision on its own and enrage either the ultra-Orthodox parties by establishing the agreed upon platform, or progressive Jews in the U.S. (the current government does not much care about the small number of progressive Jews in Israel). In that sense, the court could be a nuisance and a savior: it will be blamed for the decision that no one else seems able to make.

But there is reason to hope for another decision, one that will, no doubt, make the non-Orthodox Kotel platform less likely in the short term. There is reason to hope that the court will accept Englard’s position, declare itself unfit to decide this matter, and thus force the dilemma of the Kotel’s status on the government and the Knesset.

The Knesset can decide that the Kotel is not a synagogue. The Knesset can decide that the Kotel is a national site at which all Jews should feel at home. The Knesset can decide to clearly revoke the 1924 law. Yes, for the Knesset to do such a thing will take a much longer time than it will take the court. It can even do the opposite and strengthen the Kotel’s status as a synagogue controlled by the rabbinate. And maybe the Knesset will never do any of it. Would this be a satisfactory outcome?

For those like me, who want to see the third, non-Orthodox, platform established as fast as possible, it would not be a satisfactory outcome.

Then again, for those like me, who want to see a court less involved in making decisions that ought to be made by the legislature, it would be a satisfactory outcome.