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From:          JUICE <juice@jazo.org.il>
To:            "Jewish University in Cyberspace Course" <isrsoc@shamash.org>
Subject:       JUICE Issues in Israeli Society #5

Jewish University in CyberSpace (JUICE)                   

Issues in Israeli Society #5
Jonathan Kaplan

Religion and State

The issue of religion and state in Israel is one of the most
burning social issues in the country today. While Jewish ethnic
conflict no longer constitutes a source of concern for most social
scientists, the tensions generated by conflicting positions on the
basic nature of the state pose perhaps the greatest internal threat
to Israel's stability. What should be the supreme authority: the
will of the people as expressed through laws passed by a
democratically elected Knesset and interpreted by the judiciary, or
the will of God as passed down through sacred writings and
interpreted by orthodox rabbis and religious courts? As a Jewish
state, should Israeli culture and society conform with "halacha"
(Jewish law) whenever possible or should society be essentially
secular but rely on Jewish tradition for its values, symbols and
ceremonies, or should Israeli society be as similar as possible to
other western countries? The answers to these questions are crucial
in determining laws of marriage and divorce, the status of women,
the definition of a Jew and hence the major criteria for joining
Israeli society, the character and desirability of a constitution,
regulations for the operation of businesses and services, the
nature of the school system, and many other important aspects of
Israeli society.

Reasons for the Connection between Religion and State
The problematic nature of religion and state in Israel is a product
of pre-state developments, the Israeli political system, basic
Zionist premises and contemporary religious activism.

Evolution of Religious Autonomy

Under Turkish rule, religious communities or "millets" were given
their own jurisdiction over religious affairs and matters of
personal status such as marriage, divorce and inheritance. This
system was continued under the British Mandate in Palestine after
World War I. The British recognized a Chief Rabbinate, Rabbinical
Council and Rabbinical Courts, all comprised of orthodox Jews, as
the sole authorities on issues of Jewish law, and invested them
with exclusive jurisdiction over Jews in matters of marriage and
divorce, alimony and confirmation of wills. Thus, in these areas,
Jewish law, which was given an orthodox interpretation, became
binding on the Jews of Palestine with the exception of those who
held foreign nationality and could contract civil marriages before
consular officers. Marriages and divorces effected abroad were
recognized as valid by the courts of Palestine. In other matters of
personal status, rabbinical courts could assume jurisdiction only
with the consent of all parties concerned. Similar jurisdiction was
accorded to various Christian and Moslem courts.
Israel maintained essentially the same arrangement with a few
alterations. The Druze were recognized in 1957 as a separate
religious community and they soon gained authorization for their
own religious courts. All Jews without exception were put under the
jurisdiction of the Jewish religious authorities. At present, all
major religious groups in the country are autonomous in matters of
marriage and divorce, and in some cases also in matters of child
support and inheritance. The Moslem community enjoys more extensive
autonomy than the other communities in these areas. Each community
celebrates its own Sabbath and holidays which are legally
recognized in Israel as business holidays for that particular
community. It can therefore be stated that there is no one
established religion in Israel, although there is certainly a
strong sense of Jewishness within the country. On the other hand,
there has definitely been an established interpretation of Judaism.

Israeli Political System

The Israeli political system is based on the principle of
proportional representation. At election time, votes from the
entire country are tallied up, and any party that succeeds in
crossing a threshold set at 1.5% of the popular vote, will be
represented in the Knesset in direct proportion to the percentage
of votes received. This system facilitates the presence of a large
number of small parties and makes it virtually impossible for any
one party to muster the 61 seats (out of 120) required to pass
legislation and to govern. The resulting need to form coalitions
comprised of several parties gives disproportionate power to
smaller parties that are in a position to make or break a potential
coalition. Religious parties, which together usually receive some
15 seats in the Knesset, have been partners in almost every
coalition, largely due to the fact that their primary concerns have
not centered on crucial foreign or economic policy, but rather on
the religious nature of the state. This made the religious parties
convenient partners who sought "only" to safeguard religious
interests and guarantee that the state would maintain a Jewish
character. In return for their support, the religious parties were
given control of ministries that play an important role in these
areas (usually Religious Affairs, Interior and sometimes Education
and Culture) as well as coalition backing for legislation of a
religious nature. As a result, the Knesset has passed a number of
laws designed to ensure Jewish observance of halacha.

Desire for a Jewish Society

It would be a mistake, however, to conclude that the role of
religion in Israel is only a result of a political game with
religious parties pressuring the ruling party for concessions. A
basic goal for many secular Zionists was the creation of a new
Jewish culture. The intention of these Zionists was not to create
a society based on religious observance, but rather to develop a
new culture based on the interaction with the Land of Israel, the
Hebrew language, historical Jewish symbols and ceremonies as well
as values and motifs taken from Jewish literature, including sacred
literature. Traditional Jewish elements would thus become part of
the national culture. Due to the intimate connection between Jewish
culture and Jewish religion, it is hard to imagine how any Jewish
society could be empty of religious elements.
Even today, it is doubtful whether most non-observant Israelis
would prefer a society devoid of Jewish ritual or symbolism. This
is especially the case among those who came from traditional
religious backgrounds in Asia and North Africa. Many aspects of
Israeli life - Saturday as a day of rest without public
transportation in most areas of Jewish residence, Jewish wedding
rituals, Yom Kippur observance and customs pertaining to burial and
mourning - reflect the general population's acceptance of a certain
degree of Jewish observance.

National Unity

Zionism emphasized the national character of the Jewish people and
sought to bring about its reunification. In practice, this has
meant that Zionist and Israeli leaders have tried to find a way for
Jews to live together by seeking an operative consensus that would
reduce to a minimum the extent to which any group is offended or
provoked. Although only some 20% of Israelis could be classified as
orthodox, a much larger percentage has traditionalist leanings.
This in itself might suggest a policy of compromise when it comes
to religious questions. With regard to certain issues, national
unity is seen to be at stake. If, for example, marriage, divorce
and conversion laws are not kept in line with halacha, many people
who might consider themselves Jews would not be regarded as such by
orthodox Israelis, who would be unable to marry such individuals
and would therefore be forced to maintain independent lists of
"authentic" Jews. Such a split within the Jewish people would be a
terrible blow to national unity.

Religious Activism in the Jewish State

It should not be assumed that the religious parties wish only the
opportunities and resources necessary to pursue an orthodox
life-style. This may be the case in the diaspora, where orthodox
Jewry cannot radically affect the surrounding society and has only
a limited capability of bringing "wayward" Jews back to the fold.
The social and political structures of the state offer a more
realistic possibility for creating a religious society. Religious
Zionism has also been influenced by messianic ideas associated with
Rabbi Abraham Isaac Kook, who contended that the return to Israel
was part of the unfolding messianic process. Thus, just as
socialist Zionist pioneers saw the Jewish settlement in Palestine
as an opportunity to realize their ideological goals, so have
religious parties, Zionist and non-Zionist, felt compelled to
implement their vision for the Jewish state. This accounts for the
desire to pass laws that enforce compliance with religious
tradition.

Basic Policy

The Executive of the Jewish Agency spelled out its policy on the
issue of religion and state on June 19, 1947, in a letter to the
ultra-orthodox Agudat Israel, which, it was hoped, would cooperate
in supporting the case put before the United Nations for a Jewish
state. Four issues were clarified. The official day of rest in the
Jewish state would be on Saturday - the Sabbath for other religious
groups would be celebrated on the appropriate days. State kitchens
for Jews would be kosher. The Jewish Agency would do all in its
power to ensure that matters of personal status would be regulated
by Jewish law "to prevent the division of the people." Finally, the
autonomy of the different educational systems (including the
religious one) was to be continued. This policy came to be known as
the "status quo" in religious affairs.
Specific laws have since been enacted by the Knesset to implement
this policy. In this regard, the Supreme Court has played an
important role by upholding the view that when there is no Knesset
legislation, local government is not justified in making
regulations that would enforce a religious law. The Knesset has
thus been the source of legislation designed to ensure compliance
with halacha on a number of issues.

Controversial Issues

The connection between religion and state has been especially
controversial with regard to certain issues such as marriage and
divorce, Sabbath observance, dietary laws and the question of "Who
is a Jew?"

Marriage and Divorce

The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law of
1953 placed matters of marriage and divorce involving Jewish
residents or nationals in Israel under the exclusive jurisdiction
of rabbinical courts which act in accordance with Jewish law. In
other words, Jews in Israel can only marry or divorce according to
Jewish religious law as interpreted by orthodox rabbinical courts:
civil marriage and divorce do not exist. The marriage ceremony must
be according to Jewish law and religious intermarriage cannot take
place. A cohen (member of the priestly class in Judaism) is
prohibited from marrying a divorcee or a woman who has converted to
Judaism. If a husband dies leaving his wife childless, and he is
survived by a brother who has not yet married, the widow may not
remarry until released by the surviving relative, an act that can
be carried out only after his thirteenth birthday. Divorce
proceedings take place in a rabbinical court, but the court cannot
dissolve a marriage. It can only supervise a procedure in which the
husband delivers a "get" or bill of divorce to the wife who agrees
to accept it. If one of the parties persistently refuses a divorce
considered to be warranted by the court, the latter may order the
unwilling spouse to carry out the procedure. However, if the order
is not obeyed, the divorce does not take effect. In this instance,
the situation for men is radically different than that for women.
A husband whose wife refuses or is mentally unable to accept the
"get", can be simply allowed to remarry without the termination of
his prior marriage, since a Jewish man may have more than one wife.
The wife of a husband who refuses to deliver the "get" is in a more
difficult situation: though the courts may employ severe measures
such as imprisonment to compel the husband to comply with the
order, until he does so, his wife is regarded as being married and
cannot remarry. A woman who is deserted by her husband cannot
remarry as long as he is presumed to be alive, unless of course she
receives a divorce from him. One of the most painful situations has
to do with "mamzerim," the offspring of incestuous or adulterous
unions (ie. extra-marital relations involving a married woman). A
divorce which is not in accord with Jewish law is not recognized by
the rabbinate as a divorce at all, and hence the woman in such a
situation would be considered to be still married and any children
she had from another man, including her second husband, would also
be considered "mamzerim." By the same token, women who are denied
a divorce or who have been deserted by their husbands are deterred
from having children from other men. Men have less concerns in this
regard because a child resulting from relations between a married
man and a single woman would not be a "mamzer" due to the fact that
in Jewish law, a man can be polygamous. As "Mamzerim" are permitted
to marry only other "mamzerim" or converts to Judaism, their
chances of getting married in Israel are very slim.

Day of Rest

The Provisional Council of State (the predecessor of the Knesset)
enacted the Days of Rest Ordinance, 1948, which defined the
Sabbath, the High Holidays and the Pilgrimage Festivals (Sukkot,
Pesach and Shavuot) as days of rest. Non-Jews were to have the
right to observe their own Sabbaths and festivals as days of rest.
In 1951, the Knesset passed the Hours of Work and Rest Law which
gave workers at least 36 consecutive hours of rest a week. For
Jews, Saturday was to be the weekly day of rest and for non-Jews
the respective Sabbath day was recognized. Special provisions were
made for the supply of essential services on Shabbat. The
provisions of this law were extended to self-employed individuals
and members of cooperatives in 1969. The power to regulate the
opening and closing of shops, restaurants and places of
entertainment was left up to the local authorities by the
Municipalities Ordinance of 1964, and municipalities pursued
different policies in this regard. In 1987, the municipality of
Jerusalem pressed charges against the owners of certain local
cinemas for operating places of entertainment on Friday nights in
contravention of a city bylaw. The presiding judge invalidated the
bylaw and dismissed the charges on the grounds that (1) the
municipality lacked the authority to enact bylaws limiting the
citizen's freedom of recreation on Shabbat for religious reasons:
such power rested solely with the Knesset; and (2) the municipal
bylaw was "extremely unreasonable" as it constituted "an
unwarranted interference in the civil rights and a violation of the
basic rights of the secular population without appropriate weight
being given to the respective interests of the various sections of
the population and to the necessity of properly balancing among
them." As a result, the Minister of Religion initiated in the
Knesset an amendment to the Municipalities Ordinance, which became
known as the "Law of Empowerment" according to which municipalities
were empowered to close businesses on rest days "in consideration
of the claims of religious tradition." In other cases, the effort
to enforce Shabbat laws met with greater success, for example the
Likud government decision in 1981-82 to shut down El Al, the
national airline, on Saturdays and certain Jewish holidays.

Dietary Laws

The Provisional Council of State enacted the Kosher Food for
Soldiers Ordinance in 1948 which ensured ritually acceptable food
for all Jewish soldiers in the Israel Defense Forces. In 1962, the
Knesset passed the Pig-Raising Prohibition Law which stated that "a
person shall not raise, keep or slaughter pigs" although exception
was made for Christian communities. A recent attempt to prohibit
the sale of pork altogether was blocked in Knesset after the 1992
elections. A 1986 law, The Festival of Matzot Law (Prohibition of
Leaven), prohibited the display of all leavened products (bread for
example) for sale or consumption, in localities with a Jewish
majority during the holiday of Passover although since then, the
law has fallen into general disuse.

Who is a Jew?

The issue of "who is a Jew?" arises in cases of marriage,
citizenship and registration with the Ministry of Interior. As
marriage is under the authority of orthodox rabbinical authorities,
the definition of a Jew for the purposes of marriage is strictly in
accord with Jewish law: a Jew is someone born of a Jewish mother or
someone who has converted to Judaism according to an orthodox
interpretation of Jewish law.
The most common way for Jews to acquire Israeli citizenship is by
virtue of the Law of Return (1950) which allows Jews, irrespective
of their age or material status, to settle in Israel. According to
the Nationality Law of 1952, Jews who enter Israel under the Law of
Return are automatically eligible for Israeli citizenship. Over the
years there has been considerable debate over how the Law of Return
should define who is a Jew: in 1962 the Supreme Court ruled that a
Jew born of a Jewish mother who had converted to another religion
was not to be considered a Jew for the purposes of this law. The
law does not stipulate a particular form of conversion with the
result that at present, any type of conversion to Judaism is
recognized.

The Registration of Inhabitance Ordinance of 1949, replaced by the
Population Registry Law of 1965, enjoined all residents age 16 and
above to provide the Registry Office of the Ministry of Interior
with personal information, including religion and national-ethnic
group ("leom"). From the beginning of 1960, the government's policy
was to register as Jews (in both the religious and national-ethnic
categories) only those born to a Jewish mother. This was challenged
in 1968 by a Jewish naval officer, who insisted on registering his
two children from his non-Jewish wife as having no religion at all
but as Jewish in terms of "leom." In its ruling, the Supreme Court
disallowed the 1960 policy as not having the sanction of law, and
ordered the Registry Office to register the children as demanded by
the plaintiff. This led the Knesset in 1970 to amend the Population
Registry Law so as to link its definition of a Jew to that of the
Law of Return. The latter was also amended and the section defining
a Jew was made to read: "For the purposes of this law, "Jew" means
a person who was born of a Jewish mother or has become converted to
Judaism and who is not a member of another religion." Efforts in
the Knesset to amend the wording to "converted to Judaism according
to Halacha" have not succeeded so far, and more recent attempts by
the religious parties to prevent Jews converted by Conservative or
Reform rabbis from being registered as Jews have been prevented by
the courts.

Other Issues

Other questions continue to be matters of religious contention. The
demand for Shabbat closure of major thoroughfares used by
non-observant or even non-Jewish individuals, the ultra-orthodox
opposition to archaeological excavations in ancient grave sites,
the pressure for more stringent abortion laws and the opposition to
any recognition of non-orthodox streams in Judaism will no doubt
continue to attract considerable attention.

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