November 21, 2018

Israel’s Charedi draft: The court as a pundit

Three rulings in one week on matters concerning religion and state relations: that’s the crop of Israel’s Supreme Court.

Ruling number one: the court refuses to compel the state to operate transportation on Shabbat.

Ruling number two: the court strikes down the legislation that exempts Charedi Israelis from military service.

Ruling number three: the court carves a way for businesses to present themselves as Kosher even without having a Kosher certificate from the official rabbinate.

Each of these decisions is interesting and complicated. Taken together, they tell a confusing story.

They tell a story of a court acting with caution. Its ruling on the draft, for example, gives the government a full year to initiate new legislation. But they also tell a story of a court impatient with the state’s lack of ability to make decisions and pass acceptable legislation. They tell a story of an Israel that repeatedly surrenders to the power of the ultra-Orthodox, but also of an Israel that is gradually eroding the power of Charedi-controlled institutions. They tell a story of an Israel still seeking pragmatic solutions — the ruling on public transportation is case in point; go talk to the government first, the court told the plaintiffs. They also tell a story of an Israel unable to bridge the differences in pragmatic ways.

Thus, on Sept. 11, the day after the first ruling, Charedi politicians praised the court for not ruling on transportation, and two days later, the day after the second ruling, when I visited the Knesset, they were holding a show of condemnation of the court’s overstepping its authority for striking down the exemption law. Thus, on Sept. 10 the court seemed conservative and restrained, and on Sept. 12 it seemed revolutionary and activist.

What can be said briefly about each of these decisions?

On transportation: This ruling is just the beginning of a long road. If the government, or the Knesset, cannot reach a reasonable compromise (this is not that difficult on principle, but it is politically tricky), the court will have to re-address the question. A restrained court will say that transportation policy is for the government to decide. A more activist court would find reasons such as freedom of movement, or such vague concepts, to force a new arrangement.

On Kosher certificates: Here we see another proof supporting my very old argument that the rabbinate is not gaining power, it is losing power, and all those who say otherwise are guilty of either ignorance or self-serving interests, as in they want your money to fight a battle that is already won. What the court did in this ruling is clever. It let the rabbinate keep what the politicians can give, as it remains the only body that can use the word “Kosher.”

But the court also made the obvious ruling that a restaurant cannot be prevented from sharing information with its costumers concerning the food it supplies. So, the restaurant can say that it only buys Kosher cheese. And it can say that it does not have meat on the menu and does not let meat into the kitchen. And it can say all sorts of other things that will serve as code signifying, “We are Kosher,” but “we” can’t say the actual word “Kosher” because Kosher is a rabbinate trademark in Israel — it does sound absurd, doesn’t it?

On IDF exemption: The court’s ruling means nothing but headache. Charedi men will not join the military because of a court ruling. That is to say, on the draft issue, the court is barely more than a pundit. It can say what it wants, but cannot force a draft. The year for government deliberation it granted is an indirect acknowledgment of this fact (I will expand on this issue a few paragraphs down).

These three rulings are all a prelude to more negotiation and maneuvering. The Charedi parties might be tempted to join with other members of the coalition in support of legislation that limits the power of the court to strike down laws. On Sept. 13, some of them, still angry because of the draft ruling, suggested as much. Such court-limiting legislation is a dream of many Knesset members, but never enough to let it pass. And Charedi legislators, when they are less angry, know that such a move could be problematic for them down the road. After all, they are the ones representing a not-well-liked minority and thus should be worried about strengthening the unchecked power of a majority.

What else is going to happen as a result of the rulings? Public transportation will remain an unresolved issue with the possibility that the big eruption will come when the Tel Aviv light rail begins operation who-knows-when. Kosher food will be served, with or without rabbinate certificate. In fact, the recent ruling will make it impossible for the rabbinate not to improve its services, as chief rabbi David Lau intends to do anyhow.

The draft is a 100-pound Gorilla at the center of the Israeli room. The draft debate reflects a true and meaningful difference of opinions concerning the value and raison d’etre of Israel as a Jewish State.

For the Israeli Charedi community, the study of Torah, enabled by the exemption from military service and by the parallel prohibition of work (those who do not serve have to stay and study for many years), has become one of the building blocks of Charedi society as a group separated from Israel’s secular society. “Torah study,” as a Jewish People Policy Institute (JPPI) report once explained, is “at the ideological heart of Charedi identity.”

More than 10,000 young Charedis are exempted from army service every year. Advancing the vision of a more equal sharing of the military service burden is not impossible. But it will require determination, planning and long-term implementation of new rules. The court can strike down laws, but it cannot plan and implement, and hence its ability to change the situation is limited.

Thus, its rulings serve as a reminder that the current situation is unsustainable. There must be a tipping point somewhere down the road when the number of Charedis, a growing sector, will be such that the IDF cannot function without them, or when other Israelis will no longer agree to serve when so many others don’t. Its rulings serve as a reminder that the current situation is unjust in the view of most Israelis (Charedi Israelis disagree and see their role as no less important than the role of soldiers). Its rulings serve as a catalyst of political turmoil, following which some change must occur, and hence, theoretically, a chance for positive change.

Change can come in many formats: It can come through the cancelling the people’s military and turning the IDF into a professional military; it can come through a policy that makes it impossible for Charedis to keep resisting the draft; it can come through a realization of Charedi leaders that their role can no longer be limited to taking care of their own communities — that, having such political power, they must think more broadly about Israel’s needs.

Whatever the case, whatever the change, it will not be the prompt result of a court ruling, but rather the result of a long, frustrating, enraging, political process. The court has the ability to carve short cuts when the ruling is simple as in “you can now tell your customers that you only buy Kosher food.”

But the court does not have the ability to carve short cuts when the ruling calls for a complicated, multi-layered alteration of priorities, policies, budgeting decrees and law enforcement directives.