Vienna 2014 INTERNATIONAL ACADEMY OF COMPARATIVE LAW. Vienna July Subject. Applicable Religious Rules according to the Law of the State

Transcription

1 Vienna 2014 INTERNATIONAL ACADEMY OF COMPARATIVE LAW 19 TH INTERNATIONAL CONGRESS OF COMPARATIVE LAW Vienna July 2014 Subject. Applicable Religious Rules according to the Law of the State Israel Asher Maoz* * Dean, Peres Academic Center Law School & Tel-Aviv University Faculty of Law I wish to thank Ehud Becker for his excellent research assistance and Arthur Blaer for his assistance with the chapter of family law. The research was made possible through a generous grant from the Cegla Center for Interdisciplinary Research of the Law, Tel-Aviv University Faculty of Law. I am grateful to the Director of the Center Prof. Sharon Hannes. Introduction The approach to religion in the State of Israel is inherently eclectic. It combines traditional and new theories, communal and individual rights, freedom from religion and religious coercion, freedom of religion from state intervention, equality among religions and 1

2 differential treatment of them. These eclectic principles are rooted in historical, theological, political and national grounds. Perhaps the most significant factor contributing to the complexity of relations between religion and state in Israel is that this part of the world the Holy Land is the birthplace of monotheism. It occupies a central place in the theology of many religions, including the three main monotheistic religions, each religion having its own view of the relationship of state and religion, which sometimes come into conflict. Moreover, the principles and practices of previous regimes that governed the Holy Land still have their influence, even though today Israel is predominantly Jewish in culture and religion. Religious Demography and Structure On the eve of its 65 rd Independence Day (April 2013) the permanent population ("population de jure") of the State of Israel consisted of 8,018,000 people: 75.3% (6,042,000) Jews (including Israeli settlers in the Occupied Territories); 20.7% (1,658,000) Arabs; 4.0% (318,000) "other people" (which include people not classified by religion and non-arab Christians)- out of which the Druze population, including residents of the Golan Heights, was approximately 133,000. On top of them there were 202,000 foreign workers. There were also some 60,000 illegal immigrants from Africa, mainly from North-Sudan and Eritrea. In spite of the substantial Jewish immigration to Israel the percentage of Arabs grew from 18% at the establishment of the State of Israel to 20.7%. This is due to several reasons such as the annexation of East Jerusalem in 1967 and the influx of Palestinians into Israel. A major source of this growth is the difference in birth rate. While the total growth of the Israeli population in 2009 was 1.8%, the growth of the Jewish population was 1.7%, including Jewish immigration. On the other hand, Arab growth was at the rate of 2.4%. There is a distinction also within the Arab population. While the Moslem growth was at the rate of 2.8% the growth of the Christian population was merely 1%. This tendency is expected to continue. It is expected that by the year 2030 the Jewish population will drop by 0.53%-1.23% and constitute 71.3%-72.2% of the total population. At the same time the Arabs will constitute 23.7%-24.3% of the population. According to the Israeli Central Bureau of Statistics, within the Arab population the Moslem population will grow to 20.4%-21.1% of the population while the Christian Arabs will decrees to 1.4%-1.6%. The Druze population will grow to 1.7%-1.8% of the total population. 2

3 Among the Jewish population in Israel age twenty and above, 43.9 percent defined themselves as not religious, 36.2 percent as traditional, 9.9 percent as religious, and 9.4 percent as Ultra- Orthodox. Alongside the Jewish population there are two small communities, the Karaites, a movement that sticks to the Written Torah and rejects the Oral, or Rabbinic, Law, and the Samaritans, an ethno religious group that asserts their religion to be the authentic religion of the ancient Israelites. There are some 40,000 Karaites worldwide, about 25,000 of them residing in Israel. The Samaritans who numbered circa 2,000,000 at the beginning of the fifth century consist of merely 750, half of whom reside on the holy Mount Gerizim in Samaria and the rest in the city of Holon near Tel- Aviv. The Moslem population in Israel is also diverse: most of the Moslems adhere to the Sunnite rite. Out of the four schools of faith within Sunnite Islam, the Shafi'i mazhab is most common among rural Moslems while the Hanafi mazhab is prominent in urban areas. The latter is also followed in the Shari'a religious courts. Most Moslems are Arabs. There exists, however, the Circassian community whose origin is from the Caucasus who are also Sunnites. Unlike the Arabs they are enlisted to the Israeli army. Another non Arabic sect is the Ahmedans whose origin is in Punjab, India. Their Middle Eastern center is located in Haifa. Currently there are some 300 Ahmedans living in Israel. Two communities which stem from Islam and are no longer considered Moslem are the Druze community, which is approximately 133,000, and the Bahai faith, which includes approximately 300 members, most of them foreign citizens who serve in the community's institutions. Many of the Moslems in Israel live in villages. There are also towns with a large Moslem population. There are a few mixed Jewish - Arabic townships. The Moslems live mainly within a traditional community and are characterized by strong religious sentiments that might have been strengthened via nationalistic motivation. The fundamentalism which flooded the Moslems, especially in this part of the world, did not skip over Israeli Arabs. A political religious movement, called "The Islamic Movement", was created. It combines religious fundamentalism with nationalistic ideology. The movement gained strength and heads the local councils in some of the largest Arab settlements. In spite of their relative small number the Christians are divided into some 35 different churches and denominations. The variety of churches in Israel should not be of a surprise in 3

4 view of the central role of the Holy Land in Christianity and of the vast number of holy Christian sites in Israel. There are several estimations as to the division of the Christians among the various churches but no exact figures are available. The largest churches are the Greek Catholic and the Greek Orthodox, each of them including close to one third of the Christian population. Another large community is the Latin (the Roman Catholic) Church. Way behind comes the Maronite Church. Other churches have rather small numbers of followers in some cases no more than dozens and in a few cases even less. Besides the established churches there are representatives of several overseas churches. The number of Christians and of Christian churches grew substantially following the 1967 War and the unification of Jerusalem under Israeli rule. Most of the Christians in Israel are Arabs. The various churches may be classified into four main groups: The Catholic Churches, with the largest number of adherents; The Orthodox Churches, the most important of which is the Greek Orthodox; The Monophysite, or pre - Chalcedonian churches, who originated in the fifth century following a theological split regarding Christ's nature; and the Anglican Church which is new in the Holy Land and dates back to early 19 th century. 4

5 Historical Background A key to the understanding of the position of the State of Israel towards religion and towards state and religion relationship is the status quo, the preservation of the existing status. The basic structure of state - church relations is the legal position laid down during the Ottoman era, which preceded the British occupation of Palestine. During that period Islam was the established religion of the Empire. Moslem religious law was applied in the area of personal status, being family law in its broad sense, by Moslem Religious Courts, the sharia, which enjoyed the status of State Courts. As to non Moslems, a distinction was drawn between "the heathens" on one hand and on the other hand religions based on the Sacred Book (the Kitabaia), namely Jews ("The people of the book", as they had been called by Mohammad) and the Christians. With respect to the latter the Turkish Sultan adopted a system of millet or "nation". Under this system organizational autonomy and jurisdiction in matters of personal status were granted to recognized religious communities. The law applicable was the religious law of the concerned community. The basic structure of law and jurisdiction in the area of personal status was preserved by the British. The Palestine Order in Council of 1922 applied personal law and communal jurisdiction. The statute recognized eleven religious communities which had been established and were exercising self-jurisdiction during the Ottoman rule over Palestine. These were: the Moslem, the Jewish and nine Christian Churches - the Eastern (Orthodox) Community, the Latin (Catholic) Community, the Gregorian Armenian Community, the Armenian (Catholic) Community, the Syrian (Catholic) Community, the Chaldean (Uniate) Community, the Greek (Catholic) Melkite Community, the Maronite Community and the Syrian Orthodox Community. A major change by the British Mandate was the fact that Moslem courts ceased to serve as State courts. Nevertheless the jurisdiction conferred upon them remained much wider than that of the Jewish and Christian courts. The Palestine Order in Council assured the various communities full autonomy in their internal affairs subject to any future enactment. It further conferred upon the recognized communities the exclusive jurisdiction over the constitution and internal administration of religious endowments (wakfs). 5

6 Upon its establishment the State of Israel adopted Mandatory law, save for modifications resulting from the establishment of the State. Thus the entire system of personal law and religious jurisdiction was retained. A major change related to the Jewish community: rather than basing it on voluntary affiliation the jurisdiction of the Rabbinical Courts was based on religious criteria. Yet this is no different from the criteria used for the other recognized communities, notably the Moslem. The wide jurisdiction of Moslem religious courts had been maintained by the Israeli legislature as was the wide application of the Sharia law. In 1957 the Druze community was recognized and under a statute from 1962 jurisdiction similar to that of the rabbinical courts conferred upon its religious courts. The Evangelic Episcopal Church and the Bahai Community have as well been recognized. At present, all religious courts have exclusive jurisdiction in matters of marriage and divorce of members of their respective communities. In other matters of personal status some courts enjoy exclusive jurisdiction while others exercise concurrent jurisdiction with the Civil Courts. Moreover, the Knesset has removed several matters from the application of personal law and has applied civil law to them. Thus, where a person is exempt by applicable personal law from maintaining his or his spouse's minor children, he is bound to pay maintenance according to statutory provisions; jurisdiction in matters of adoption were removed from the religious courts and entrusted with the civil Family Court. This is of major significance as some religions do not recognize adoption. Likewise matters of legal capacity, save in the area of personal status, as well as guardianship were removed from personal law. Succession has as well been removed from compulsory religious jurisdiction and religious law. While there were no major changes with regard to the jurisdiction of the Religious Communities, substantial changes took place in the organization and administration of the Moslem and of the Jewish communities. As for the Moslems their communal organization collapsed since the members of the Supreme Moslem Council and of the Special Committee, as well as all of the members of the Religious Courts, the Qadis, fled the country during the 1948 war. The Knesset abolished the Council and no new members were appointed to the Committee which, as a result, ceased to exist. Instead, committees of trustees were appointed in five towns where substantial wakf assets exist. Under statutory law the Custodian of Absentee Property was vested with the full ownership of the wakf assets and must either transfer them to the committees who should use their profits for the benefit of the Moslem population or use himself the profits for that purpose. 6

7 The judges of both the Rabbinical and Moslem Courts are appointed by the President of the State upon the recommendation of election committees similar to the committee for the election of Civil Court judges. The committees are headed by the Minister of Justice and most of their members are appointed by bodies other than the relevant religious community. No statutory provisions exist as to the appointment of judges to the Christian Religious Courts and to their procedure and administration. They remained at the discretion of each community. The law provides for the structure of the Jewish religious institutions. The legal structure and authority of the Chief Rabbinate is set in the Chief Rabbinate Law of Similarly, statutory law provides for the establishment of Jewish Religious Councils and defines their powers. The form of electing the Chief Rabbis of the State, the Council of the Chief Rabbinate, the Religious Councils and City Rabbis is provided for by statutory law. Moreover, there is a large proportion of public representation in the election bodies of not necessarily religious people. The Supreme Court ruled that the qualifications for membership in Religious Councils are not based on Halakha as the Religious Councils, being in charge of such functions as the performance of marriages, cater for the whole Jewish community not merely for religious Jews. Recently the Knesset passed a law requiring that 4 of the 11 members of the Rabbinical Court Judges Election Committee must be women. Religious institutions and services are financed by the State, though the form of support of the different communities differs. The communal structure of family law in Israel left members of non-recognized religious communities and persons, which adhered to no religion, at a limbo. Not less problematic was the situation of spouses who belonged to different religious communities. Only in 1969 did the Knesset intervene to enable such people to dissolve their marriage. And only in 2010 did the Knesset provide for the registration of civil unions. However, even this narrow venue is open to persons that are not affiliated to recognized religious communities, thus frustrating the possibility of mixed unions. 7

8 Israel as a Jewish State Israel does not lend itself easily to the traditional classification of state and religion relationship. While it was established as a "Jewish State" it would be most accurate to define the State of Israel as a multi - religion state where various religions are recognized yet none enjoys the status of official state religion. The Declaration of the Establishment of the State of Israel specifically states that Israel will be "a Jewish state". This is in line with the Balfour Declaration of 1917 and the Resolution of the League of Nations of 1922 calling for the establishment of "a national home for the Jewish people" in Palestine and the U.N. General Assembly Resolution of 1947 about the establishment of independent Arab and Jewish states in Palestine (the "Partition Resolution"). The Declaration had no constitutional status yet as expressing "the aspirations of the people and their basic credo" it served as an important instrument in interpreting written law and in introducing extra-legal principles. In 1994 the principles of the Declaration were raised to a constitutional level when the Basic Laws dealing with human rights were amended to state that "[h]uman rights in Israel... will be safeguarded in the spirit of the principles contained in the Declaration of Independence". The Jewish nature of the State of Israel has moreover been fortified by the Basic Laws declaring that "the values of the State of Israel as a Jewish and Democratic State" are the basis of human rights in Israel. Basic Law: The Knesset further enjoins a list or candidate whose aims or actions negate the existence of the Israel as a Jewish and democratic state from participating in the Knesset elections. The "Jewish and Democratic" formula is wide enough to embrace both freedom of religion and freedom from religion. However, Basic Law: Human Dignity provides that it shall not affect the validity of any law in force prior to the commencement of the Basic Law. Thus any law negating the provisions of the Basic Law remains in force though the court will interpret it in accordance with its values. Furthermore, the 1980 Foundation of Law Act declares "the principles of freedom, equity and peace of Israel's heritage" to serve as a complimentary source of the Israeli legal system. The meaning of the Jewishness of the State is highly controversial, running from strict religious interpretation to a mere demographic one. There is no doubt that when speaking about a Jewish State, the Knesset did not have in mind a Halakhic state. After all the Zionist 8

9 movement, which led to the establishment of the State, emerged as a reaction to life in the traditional religious communities in the Diaspora. When speaking of Jewish values the Knesset had in mind national as well as universal values of Judaism, yet these cannot be detached from their religious origin. Judaism is a national religion. National and religious components of Judaism are inseparable. It is therefore that a Jewish State divorced of religion seems an impossibility. It is no coincidence that the Zionist Movement chose the traditional prayer shawl as its flag just as it seems only natural that the founders of the State chose the seven branched candelabrum of the Second Temple as the State's emblem. The Jewish character of the State is further emphasized in its national days of rest and festivals and in State education. In spite of all this, there is nothing in Israeli law to confer upon the Jewish religion the status of State religion. There are also no provisions for the preferable treatment of Jewish religion. It is of significance in this regard that the separation between state and religion, between state business and religious matters, is alien not only to Judaism but also to Islam the second largest religion in Israel. The Jewishness of the State of Israel does not contradict its democratic nature. Alongside with it being a Jewish state, Israel was declared a democratic State dedicated to equality and basic freedoms. The synthesis of the national and democratic nature of the State may pose difficulties yet as constantly stated by the Supreme Court, these values are not contradictory and every effort must be made to enable their co-existence (Maoz, 2011). The Israeli legislature, the Knesset, is a fine example of the balance between the religious and the democratic ways of life. Both the National Religious and the Ultra-Orthodox movements - save for the most extreme Haredi sects - take an active part in Israel's political life, through their own political parties, and often participate in its coalition governments. Other parties include a myriad of political and religious stances, including both religious and secular Arab parties. The participation of these elements in the legislative body helps in solidifying the legislative supremacy of Knesset. Religion and Legislation The Knesset has a dual function, both as the legislative body of the state and as its constituent assembly (United Mizrahi Bank Case). In both its capacities it endeavors to balance between the Jewish identity and the Democratic nature of the state. The goal of such legislation is to 9

10 allow Jewish teachings to have an impact on the Israeli legal system in a manner which characterizes the state without infringing the rights of minorities and the democratic values. Jewish Law serves as an important source of legislation and adjudication. There is a special unit in the Ministry of Justice that advises the Ministry as well as the Knesset on the views of Jewish Law on pending legislation. This seems only natural given that Jewish law is the national legal system of the Jewish people and has moreover influenced other legal systems (Maoz, 2004). As representative of the citizens the Knesset serves as the source of all authorities including state authority over religious institutes. This creates occasionally a clash since religious bodies regard their powers as emerging from God Almighty. On the practical level, however, this clash is resolved in favor of state authority. Yet, the sensitivity of the matter led the Supreme Court to declare that no secondary legislature or administrative body may take into account religious considerations if not explicitly authorized to do so by primary legislation (Meatrael Case). Moreover, since the enactment of the Basic Laws dealing with human rights the Knesset is as well enjoined from passing regular legislation contrary to their provisions. As we turn to review religious considerations of the Israeli legislator we should differentiate between the possible types of effect religion may have on legislation. Some legislation may be regarded as religious motivated while others may take into consideration a reality that stems from religious factors. Yet, even here the situation might be complex. Take for instance the Pig-Raising Prohibition law, which prohibits raising pigs save in certain restricted areas. Religion serves as the major engine behind this statute. Yet pork occupies a central role in Jewish culture and most secular Jews might as well abstain from consuming it. The fact that pigs are regarded as an unclean animal in Islam as well may ease the implementation of the law. The role of the Judiciary The Israeli Supreme Court serves two functions. It is an appellate court of last resort, and also a court of first instance for petitions against the state and its institutions in matters of administrative law. The role of the Supreme Court is of special importance in the absence of a comprehensive constitution and especially in the absence of a complete bill of rights. The Supreme Court developed civil rights out of thin air. Thus, in spite of the fact that freedom from religion was not declared in constitutional documents the Court created it through judge made law. Most of the Court's decisions in this area lacked solid constitutional foundation, 10

11 however today no one would question them. The Supreme Court plays a major role in supervising lower courts including religious courts. Though authorized to supervise merely their formal jurisdiction the Court enlarged the scope of its intervention declaring a judicial decision made on improper grounds to be ultra vires. It is impossible to exaggerate in appreciating the role of the Supreme Court in furthering human rights and advancing freedoms including freedom from religious coercion. At the same time several judges will consult Jewish Law when writing their opinions. Law of return Israeli citizenship serves as a vivid illustration of the relations between the Jewish and democratic components of the State of Israel. While as a democratic state Israel guaranties equality to all its citizens, the State defines itself as a Jewish state and the homeland for the Jewish people. This dichotomy extends to citizenship and immigration law. While one path to citizenship open to all is via naturalization, Jews may acquire citizenship through the gate of the law of return. The statute enables Jews to immigrate to Israel and automatically be granted citizenship. It reflects a conception of Israel as a safe haven for Jews from the persecutions they have suffered throughout history. Several scholars regard the justification of the statute in the privilege of each country to set its rules regarding immigration as long as that policy does not stem from discrimination against a particular national group (Lapidoth 1986, ; Lerner 1985, 92-93). It is also justified by universal principles of justice based on the right of national self-determination (Gans 1995). Such nations have a moral license to prefer, by means of state mechanisms, the members of their own national group on matters of immigration and citizenship. Yet the philosophy behind the statute goes beyond these justifications. As stated by the founder of the State, David Ben-Gurion: It is not the State that confers upon the Diaspora the right to settle in the State; rather this right is enshrined within him in that he is a Jew. (Maoz, 2011, 224) The Law of Return demonstrates also the interplay between religious and nationalistic components. While the definition of a Jew is semi-halakhic the right is coffered also upon the children and grandchildren of a Jew and upon their spouses. Direct offspring of Israeli citizens are also eligible for citizenship even if they do not reside in Israel. However, the children of these offspring will not be eligible unless they were born in Israel. In such situations applicants usually request citizenship based on the law of return or make a special request to the Israeli Minister of Interior. 11

12 However, once landed in the State all citizens and residents are equal before the law. Thus the Supreme Court overruled a plan to establish a Jewish settlement through the JNF and ordered that it must accept an Arab applicant. Criminal law The Penal Law grants specific protection to holy sites. The Protection of Holy Sites Law further safeguards the sites of all religious denominations. The Penal Law declares desecration of holy sites a criminal offense. Historic sites, many of them of religious significance, are further protected by the Antiquities Law. The penalty for maliciously damaging religious, historical, or cultural artifacts is heavier than damaging other properties. Another set of offences relating to religion is hate crimes. They are defined as offences committed out of racist motives or out of enmity toward a group based on their religion, religious group, community of origin, sexual inclination or because they are foreign workers. The punishment for offences with such motive is twice that of an ordinary offence. The Law includes also provisions against blasphemy, insult to religion, disturbing worship, unauthorized entry to a place of worship with the intention of hurting a person's feelings or of reviling his religion and making a publication or voicing in public any word or sound that are liable crudely to offend the religious faith or sentiments of others. Religious conversion is permitted and given legal effect when moving between recognized religious communities. The religion of a minor may not be changed against the wish of either parent save with court's approval. Also, while missionary work and proselytizing are permitted the granting and accepting of material benefit to entice religious conversion constitute a criminal offence. Of special interest is the application of Israeli criminal law on offences committed abroad not only by Israeli citizens or residents or against them but also offences committed against the life, body, health, freedom or property of a Jew "as a Jew" or against the property of a Jewish institution "because it is such". Violation of the Denial of the Holocaust (prohibition) law is as well indictable even if committed beyond the borders of Israel. This unique jurisdiction, described by one writer, as Diasporic Jurisdiction (Addis 2012), stems from the perception of Israel as the national homeland of the Jewish people offering Jews worldwide protection against persecution due to their Jewish identity. Considering the spread of Jewish population worldwide, diasporic jurisdiction appears to be equivalent to universal jurisdiction based on 12

13 the identity of the victims. Obviously, the defense of Jews as Jews is not limited to persons that correspond to the Halakhic definition of Jews. FAMILY Law Family law stands at the crux of state-religion relations in Israel. Much of family law in Israel is regulated by the personal (religious) law of the concerned persons. Nevertheless, over the years civil law has gradually replaced many of the topics of religious law and excluded them from jurisdiction. The subjection of secular people to religious law and jurisdiction might curtail their freedom from religion. This is true both on the ceremonial level imposing a religious wedding and in substantive matters. Several religions such as Judaism regard mixed marriages as void. They moreover impose restrictions on marriages even within members of the community. Thus Halakha prohibits marriage of an adulterous wife with her adulterer or of a divorcee with a Cohen, a person of priesthood origin. Religious law might also discriminate between sexes. Thus while according to Jewish Law both husband and wife might not remarry without the granting of a get (bill of divorce), this obstacle is especially severe regarding the wife. This is so since an offspring of an adulterous relation by a married woman is regarded a Mamzer as is the offspring of incestuous relations. Though popularly translated bastard, a Mamzer is a unique Halakhic term. Under Jewish Law a child born out of wedlock is not regarded illegitimate. However the marriage between a Mamzer and a "legitimate Jew" is prohibited. This prohibition is conferred also upon the offspring of the Mamzer. Since civil divorce has no halakhic validity this rule applies also where civil divorce has been executed. It is therefore that a married woman who did not obtain her get is regarded an "anchored woman" (Aguna). On the other hand halakha favors the mother in granting her guardianship over children up to the age of six. Moreover, a husband must pay maintenance to his wife regardless of their relative wealth. He must also solely supply the basic needs of his children. An interesting example of state-religion relations lies indeed in the area of divorce. While divorce matters among Jews are within the exclusive jurisdiction of the Rabbinical Courts they are incapable of carrying out the divorce. This is so since the divorce will take place only upon the granting of the Bill of Divorce by a willing husband to a willing wife. In order to induce the reluctant spouse to cooperate in the execution of the get the Knesset empowered 13

14 the Rabbinical Courts to issue an injunction against him or her preventing them from leaving the country, holding an Israeli passport or a driving license, having a bank account, holding a public position or office or running a business. The court may also confiscate their pension or annuity, confiscate their property and even order their imprisonment. The Knesset is not very active in setting aside hardships stemming from the application of religious law and jurisdiction. The judiciary, on the other hand, intervened to mitigate some of these hardships. The Supreme Court ruled that the validity of personal status such as marriage and divorce will be determined in accordance with the prevailing law of the couple at the time of marriage or divorce. This is the rule even when the spouses became later citizens or permanent residents of the State of Israel. It is, moreover, irrelevant whether the religious law of the spouses, which applies at the time of the court proceedings, recognizes their marriage or divorce. While originally relating to spouses who got married before becoming Israeli citizens, it has been extended also to Israeli citizens and residents who got married abroad. First it has been decided so merely for matters of registration in the Population Registry without passing on their validity (Funk-Shlesinger Case). Later it has been extended to spouses who married abroad by proxy (Farkash Case). Finally, it was applied to same-sex marriages performed abroad (Ben-Ari Case). This was just the first stage. It has been extended also to the validity of the marriage; in the first stage the Supreme Court recognized the ceremonial validity of such marriage (Annymous v, District Rabbinical Court in Tel Aviv Case). Following this decision the court expressed its opinion that the substantial validity of marriages celebrated abroad should be recognized (Anonymous v. Anonymous Case). Finally the Supreme Court interpreted the power conferred upon foreign consuls to unite their nationals as applying also to spouses of dual nationality one of them being an Israeli citizen and also where only one of the spouses is a foreign national (Goldstein Case). The Supreme Court also ruled that marriages performed in Israel should be recognized even if they violate a halakhic prohibition, which does not nullify them (Cohen Case). A constant area of conflict between the Rabbinical Courts and the Civil Courts relates to rulings, which are ancillary to divorce proceedings such as children's custody. Arguments are frequently made that the religious courts tend to grant custody to the parent that will ensure the religious upbringing of the child regardless of his or her best interest. Where such issue materializes the Supreme Court will intervene and set aside the court's decision. 14

15 The gap between religious restrictions on marriages and popular notion led to the wide recognition of the institute of de-facto marriages or reputed spouses. This institute developed as a result of young men who were killed in the 1948 War of Independence leaving behind spouses whom they did not marry yet. The Knesset recognized these relations for matters of State support. Later the legislature widened their status to substantial incidents. Thus, Israel was the first legal system to recognize inheritance rights of reputed spouses. The Supreme Court pushed further the institution of de-facto marriages. Ironically, the insistence on religious marriages led to their circumvention. Obviously, when state law clashes with religious commandments the former prevails. Thus an argument was made that the statute banning bigamy interferes with the dictates of Islam while restricting the age of marriage infringes both Jewish and Muslim tradition. This did not derogate from the validity of these restrictions. Labor Law The connection between labor law and religion takes place on two levels: statutory provisions that derive from Jewish principles and considerations of religious requirements. The first aspect is exemplified by the entitlement of an employee to severance pay upon dismissal (Elon 1994, ). This right has its roots in the obligation of the master to confer a grant upon his released slave. Severance payment became customary within the Jewish community in Palestine and was later enacted by the Knesset. The other aspect is expressed in the Jewish Sabbath as well as Jewish holidays as the official days of rest. Sabbath is also the compulsory day of rest for Jewish employees. Arguably, this provision might pass the blue pencil rule. The same goes for the provision that non-jewish employees may choose Sabbath or their religious day of rest. However, the fact that the duration of the rest is dictated by the halakhic definition of Sabbath, as well as the fact that the committee authorized to grant a permit to engage employees on Sabbath consists of the Minister of Religious Affairs on top of the Prime Minister and the Labor Minister, expose the religious motives behind this provision. Religious motives behind days of rest legislation are further stressed in municipal bylaws providing for the closure of shops and businesses on Sabbath and Jewish holidays. Local municipalities enacted such provisions based on their general authorization. When the Court decided that municipalities may not take into account religious considerations the Knesset 15

16 intervened and expressly empowered them to take into account "considerations of religious tradition". Nevertheless the Supreme Court overrules a municipal order to close theatres on Sabbath (Israel Theatres Case). At present cinemas and other entertainments as well as restaurants operate on Sabbath in most municipalities and in some of them shopping centers operate as well. Yet, in most towns supermarkets and shops are closed on Saturday. It should be noted however that some do so voluntarily in order not to lose their Kashrut certificate. Public transportation does not operate in most of the State, infringing the freedom of movement, especially of lower classes who do not own private cars. These are good examples of religious restrictions competing and dominating over liberal free market values. Such provisions may curtail not only freedom from religion but also clash with the interests of the minority non-jewish populations in such towns. On the other hand it benefits them by giving them the choice to choose the Jewish Sabbath or their day of rest, a choice denied to Jews. Moreover, the remuneration paid to employees on Sabbath is substantially higher as is the income of businesses. Kashrut Halakha prohibits the consumption of forbidden animals and contains special regulations for preparing and consuming kosher food. In a liberal community religious dietary laws should be a private concern. However, in Israel state regulation is dominant. Only Kosher food is served in public institutions, as well as in the army. State legislation, moreover, prohibits businesses from declaring their food to be Kosher unless it obtained a certificate from the Chief Rabbinate. Occasionally the Rabbinate takes advantage of its monopoly to dictate religious behavior beyond the requirements of kashrut proper, such as requiring that no "immodest performances" take place where kosher food is being served. Thus the Jerusalem Rabbinate threatened to withdraw the kashrut certificate from a wedding hall that engaged a belly dancer. The Supreme Court overruled the decision providing that only strict rules pertaining to the food may be enforced. Nevertheless, this decision did not necessarily put a halt to the procedure as restaurants, halls and hotels would prefer to succumb to the illegal demands rather than endanger the kashrut certificate. Thus, the Chief Rabbinate threatened to withdraw its certificate from hotels and entertainment places, which celebrate New Year's Eve, since their inspectors cannot be present at a place where the Christian feast of St. Sylvester is being celebrated. It is interesting to note that ultra-orthodox circles are not content with the statesupplied kosher certificate and would engage stricter rabbinical supervision on top. The 16

17 privately controlled kashrut supervisors are especially important in the ritual process of slaughtering animals ("shechita"), turning kosher meat much more expensive. The import of non-kosher meat to Israel raised heated debates. In the past the government was the sole importer of meat ensuring that only kosher meat is being shipped to Israel. When the state privatized the import of meat the Knesset passed a law banning the import of non-kosher meat. The Supreme Court intervened declaring the ban unconstitutional. However, religious political parties did not succumb to the ruling. The relevant Basic Law was amended to remove the unconstitutionality. Of special interest is the area of rising pigs and selling pork. In 1962 the Knesset passed a law prohibiting the raising and slaughtering of pigs save in some restricted areas. Several municipalities with large Orthodox population further prohibited the selling of pork. The Supreme Court upheld these restrictions only if non-kosher meat might be purchased in the vicinity. It should be noted that the prohibition relating to pork stems from national not less than religious grounds. Pork symbolized since the destruction of the second temple coercion to violate halakhic rules as well as infringement of national pride. Throughout history Jews sacrificed their lives to abstain from consuming pork. Education The Israeli education system is divided into three main categories: State schools; recognized schools and exemption institutions. State schools are divided into regular or, general - schools and religious state schools (Maoz 2006, ). Judaic texts, such as Bible, as well as Jewish history and holidays, are being taught in all state schools including non-religious. State Education Law declares the objects of state education as educating the students to respect their heritage, their cultural identity and their language. The law specifically provides that these objects include teaching the Torah of Israel, the history of the Jewish people, Israel s heritage and Jewish tradition", considering the religious text to constitute a part of Jewish culture and history beyond its religious significance. Religious education is defined as State education, yet its institutions are religious according to their way of life, their curricula, their teachers and inspectors. It is reserved and destined for those who desire a religiously orientated curriculum. In 2008 the State Education Law was amended and a new category of state schools was created the Combining State School. This is a state school which "combines in its 17

18 curriculum intensified Judaic studies and emphasizes Jewish identity teaching". The supplementary curriculum for such schools includes comprehensive study of Judaic sources emphasizing Jewish identity and values of tolerance in Jewish inheritance and "the coexistence and common destiny and fate of all parts of the nation in Israel and in the Diaspora". A school may be declared a combining state school if parents of at least two thirds of the student body have so requested. A combining state school will receive additional funds in order to train its team and implement the special curriculum, and will be required to appoint a coordinator for Judaic studies in the school. The Ministry of Education expects a few hundred schools to join the combining school category. The Minister of Education, an orthodox rabbi, expressed support for this stream. Arab, Druze and Circassian schools operate as part of State schools. They are not regarded as religious schools, however the law provides for a curriculum that will fit their special conditions. In practice the curriculum is adapted to the religion of the student body, whether Muslim or Christian. The same goes for the Druze and Circassians. The main language of instruction in these schools is Arabic and Arab culture is being taught. The use of Arabic represents a characteristic of cultural autonomy, the language being related to cultural, historical, and religious attributes of the Arab minority in Israel. Alongside the State schools there are schools that are recognized by the state yet are nonofficial. This definition includes mainly religious schools both Jewish and Christian. The latter include schools that are operated by the Greek-Catholic Malachite Church, the Latin Patriarch and the Anglican Church. Muslim and Druze students also study in these schools and at times they form a substantial proportion of the student body. There is also a Druze network of recognized schools. A third category includes "exempt schools". These are neither state nor recognized schools; however parents of children attending them are exempt from the obligations of the State Education Law. These institutions belong to ultra-orthodox Judaism and are run in old fashion as prevailed in the Diaspora. State schools are fully funded by the state and by local authorities. Recognized schools need to comply with some regulation for budget participation, however two main streams of the recognized schools are fully financed by the state. Exempt schools get as well state funding. There is an ongoing heated debate in Israel regarding a compulsory core curriculum, including mathematics, sciences and literature for those schools. The Orthodox community fiercely opposes them. Following a Supreme Court decision (Paritzky Case), the Minister of Education established a Commission for Examining the System of Budgeting, which 18

19 recommended a core curriculum that must be taught at all primary educational institutions in order for them to be eligible for state funding: State schools must teach the whole lot of the curriculum while recognized schools must teach 75% of the curriculum and exempt schools only 55%. The autonomy of private schools, especially religious schools, as well as the extent of state supervision over them, varies. While the Minister of Education may regulate the basic curriculum of recognized schools as well as their administration and inspection the autonomy of exempt institutions is much wider. Christian Religious Communities schools operating under the rules of pre-statehood legislation enjoy the widest autonomy; the state refrains from all interference in the conduct and management of those schools unless absolutely necessary for the maintenance of order and good Government. In this spirit, the Supreme Court upheld the refusal of a Greek-Catholic school to enroll a female Muslim student who insisted on wearing a hijab and refrained from participating in cogender physical education activities wearing a gym suit (Jabareen Case). The Supreme Court indicated that had it been a State school the student would have been entitled to cover her head because it is right to grant every student the freedom to express in her dress the principles of her religion. Rules regarding the uniformity of dress should not prevail over the student s freedom of religion ; yet in a private school belonging to a religious community, which is by definition entitled to reject students who are not part of the community, the situation is different. In the same vein the labor court refused to issue an injunction against a church school to refrain from preventing a Muslin female teacher to wear a hijab in school (Nameri Case). In another case the Supreme Court ruled that the right of each community to educate its children in light of its unique cultural and religious believes is recognized by Israeli law alongside the official educational institutions. Nevertheless, this privilege is not absolute and must be balanced against basic values such as the principle of equality. A recognized school may introduce a separate track where the religious beliefs and world view of the community will be taught. It may also introduce rules of behavior in line with these beliefs. However, the school must enable each student who satisfies these requirements and is willing to abide by the rules to join the said track and his or her ethnic affiliation must be disregarded ("Noar Cahalakha" Case). 19

20 Religion in the Army Since its inception the Israeli Defense Forces do not have separate units for religious soldiers. Military service was moreover considered a melting pot for Israeli society, a cohesive element which should be as inclusive as possible. The need to integrate religious soldiers in general units necessitated the introduction of conditions that would enable them to preserve religious commandments. Thus only Kosher food is being served and provisions for the observance of Sabbath made. Yet, army rules go beyond enabling religious soldiers to preserve religious behavior and introduce a "Jewish atmosphere" in the camp interfering with the freedom of non-observant soldiers. Thus, on Sabbath the canteens are closed and no desecration of Sabbath is permitted save for compelling emergencies. The army operates a special unit headed by the Chief Chaplain at the rank of brigadier general who is a member of the General Staff. He heads the Army Chaplaincy, which is Orthodox in its composition and rulings. The unit does not satisfy itself with providing for needs of religious soldiers and regards itself as catering for all soldiers and for the army in general. One of the recent Chief Chaplains regarded the role of the Army Chaplaincy as "promoting Jewish consciousness among officers and soldiers". As an example, towards the High Holidays the Army Chaplaincy runs an "observation campaign" for all army units. In the past it was named "spiritual revival project". Following complains that this project advocates repentance among the soldiers the title has been changed and its content has been described as "a campaign to improve the self". One cannot overlook, however, the fact that this campaign is being led by chaplains taking place in days of repentance in the Jewish calendar. On the same token all soldiers who are stationed in an army base during the Festival of Passover must participate in the Seder led by a clergy. Such participation is being justified on both the national nature of the feast and the need for uniformity within the army. Similarly, military funerals for Jewish soldiers are of religious nature unless the bereaved family expressly objects. Moreover, at times activists of non - military religious movements, such as the Lubavitch Hassidim, were allowed to conduct religious ceremonies and deliver lectures in army camps. Due to all this and to the fact that the composition of the army is almost entirely Jewish (with a relative small number of soldiers from minority groups, many of whom serve in separate units), it may be said that Orthodox Judaism is the religion of the Israeli Defense Forces. It is therefore no wonder that the Chief Chaplaincy stated, in past publications, its goals, as enabling soldiers to preserve religious precepts and "to ensure maintenance of religious, 20

21 spiritual and moral values, based on the Jewish Torah, by all soldiers and units, as this is the basis for a unified Jewish character of the army, and according to it, it would be feasible to maintain a unified forum in which all Jewish soldiers of whatever religious convictions may live together". In recent years separate units were formed to enable ultra-orthodox soldiers to observe their way of life. In these units special Kosher food is being served and no female soldiers are present. Moreover, the soldiers are able to study Torah throughout their service. In spite of the fact that military service was modified to befit the needs of religious enlistees, Orthodox Jews who study at Yeshivas are practically exempt from military duty. As this paper goes to print the law has been amended to partially alter this situation. Orthodox women are as well exempt from army service. There are also Yeshivas that belong to the National Religious Movement, which combine army service with Judaic studies. Religious Coercion in the Public Sphere Accommodating a religious way of life with liberal views in the public sphere poses a special challenge. The clash is indeed between two philosophies: From a liberal point of view the public sphere should be neutral while from a Jewish Orthodox perspective it should reflect a religious atmosphere. Even this demand reflects a concession since according to Jewish faith one is responsible not only for his behavior but also for the behavior of his fellow Jews and must do his best to compel him to obey the rules of halakha even in his private domain. It should moreover be stressed that we are not relating to the European dispute whether religious people are entitles to behave in public according to the precepts of their religion, such as wearing the burka and whether places of worship might be built. The French laïcité is not an option. Neither is the Swiss ban on the erection of minarets. We are not dealing either with the American issue of displaying religious items in public. In Israel the debate is whether secular people might be enjoined from acting freely in public and whether the public sphere might be blended with religion. A religious way of life might moreover clash with basic human rights. A good example might be the Festival of Matzoth (Prohibition of leaven) Law. The Law prohibits the display in public of leavened products for sale or consumption in Jewish neighborhoods during the Passover festival. At the same time it does not apply in areas with a majority of non-jewish 21