Freedom of Religion

 The Supreme Court sitting as Court of Administrative Appeals

AAA 662/11

 

Before:                                                The Honorable Justice E. Hayut

                                                The Honorable Justice N. Hendel

                                                The Honorable Justice U. Vogelman

 

The Appellants:                       1.  Yehudit Sela

                                                2.  Sima Ben Haim

                                                3.  Peri Shahaf

                                                4.  Yinon Sela

                                                5.  Yoav Ben Haim

                                                6.  Katy Shilo Oliver

                                                7.  Michael Ayash

                                                8.  David Cohen

                                                9.  Amnon Ben Ami

                                                10. Zachary Grayson

                                                               v.

The Respondents:                   1.  Head of the Kfar Vradim Local Council, Sivan Yehieli

                                                2.  Kfar Vradim Local Council

                                                3.  Oriette Amzalag

                                                4.  Shimon Amzalag

                                                5.  Victor Haziza

                                                6.  Tibi Hertz

                                                7.  Jacques Ben Zaken

                                                8.   Nissim Avital

 

Appeal of the judgment of the Haifa Administrative Affairs Court (The Honorable Judge R. Sokol) in AP 21404-06-09 of Dec. 23, 2010.

Date of hearing: 29 Adar 5774 (March 31, 2014)

 

Attorneys for the Appellants: Avi Weinroth, Adv.; Amir Lockshinsky-Gal, Adv.

Attorney for the Respondents: Haim Pitchon, Adv.

Attorney for the State Attorney’s Office: Tadmor Etzion, Adv.

 

Facts:   An appeal of the decision of the Haifa Administrative Affairs Court, dismissing the petition of the Appellants and holding that the court should not intervene in the decision of the Kfar Vradim local council according to which a women’s mikve (ritual bath) would not be constructed in the town in the near future.

Held:   As a rule, a local council enjoys broad discretion in regard to decisions concerning the allocation of public resources. The initial assumption is that a local council – which is an elected authority whose members represent the public they were chosen to serve – occupies the best position for deciding upon the priorities that will advance the general good, and for striking the proper balance between meeting public needs and maintaining the budgetary framework. Therefore, the Court will not hastily intervene in such decisions, and will refrain from placing itself in the authority’s shoes. In the framework of judicial review, the question of whether public resources were allocated wisely, or whether they could have been allocated differently, will not be considered unless the decision regarding the allocation of resources was tainted by a substantive, fundamental flaw that justifies the Court’s intervention.

            It is clear that the council, like any local authority, is subject to the principles of public law. This restraint in regard to judicial review does not relieve the Court of fulfilling its duty: to ensure that the authority exercises its discretion in accordance with the law. And note: the local authority serves – in all of its actions – as a trustee of public funds, and its job is to advance public purposes for the general good. Even in allocating public resources, the authority is obligated to act in a manner that faithfully serves the entire public and ensures proper governance. Accordingly, the allocation of public resources in public authorities must be carried out in accordance with the principles of reasonableness and proportionality, and in accordance with fair, equal, relevant and transparent criteria. Reasonableness requires that in setting priorities among various subjects for which the authority is responsible, priority be given to the more important subjects.

            Although the council’s decision relied upon the recommendations of the committee for examining criteria for the construction of public buildings in the village, it is clear that those recommendations cannot absolve it of the duty to exercise its authority to consider every case on its merits. Indeed, an administrative agency will not lightly deviate from the recommendation of a knowledgeable, expert body, established at its request, which was adopted after an in-depth professional evaluation. However, that does not mean that the council is bound by the recommendations of the criteria committee, which is merely an advisory body. Under the circumstances, the decision to rescind its decision to build a mikve in the village, adopt the recommendations of the criteria committee in full, and refrain from taking action in the near future to establish a mikve in the town does not pass the reasonableness test, and does not reasonably balance the needs of the religiously observant female residents of the community, who are required to fulfil their religious obligation of ritual immersion, against the budgetary considerations and the available land resources.

            The religious obligation of ritual immersion is an integral part of the life of a religiously observant, married woman, and is an inseparable part of her religious ritual and the expression of her identity and customs. It is substantively related to the right to the free exercise of religion and religious practice. No mikve has ever been built in Kfar Vradim. Given the geographic location of Kfar Vradim and its topographic conditions, there is no reasonable way to go to any of the mikves in the nearby towns on foot.  Under the circumstances, the absence of a mikve in the town deprives the female residents of the town of the possibility of performing an obligatory ritual practice that is deemed to be of great importance by the traditionally religious Jewish community.

            The primary consideration that led to the decision was the limited resources available to the council. In its deliberations, the council could, indisputably, give weight to the limits upon the available resources, and allocate them in accordance with public needs. However, under the circumstances of the instant case, the resources – both land and money – that were expected to be required for the purpose of building and maintaining a mikve in the town were not significant. Under those circumstances, the weight of the budgetary consideration relative to the opposing interest was limited.

            That being so, in circumstances in which appropriate weight was not given to the substantial harm to the religiously observant, female residents of the town by the absence of a mikve that is accessible on the Sabbath and on religious holidays, and where it was found that the allocation of resources was given disproportionate weight even though land was readily available for erecting the mikve without harming other public interests, and without any need for allocating substantial resources by the council due to external funding – The Court held that the council’s decision not to erect a mikve was unreasonable and must, therefore, be annulled.

 

Judgment

 

Justice U. Vogelman:

 

            An appeal of a judgment of the District Court sitting as a Court Administrative Affairs in Haifa (the Honorable Judge R. Sokol), denying the petition of the Appellants, and holding that the court would not intervene in the decision of the local council of Kfar Vradim (hereinafter: the Council or the Local Council) not to erect a mikve for the women of the town in the near future.

 

Background

1.         The town of Kfar Vradim was established in the western Galilee following a government decision made in 1978. The town currently has some 6,000 residents. Some of the residents (many dozens of families according to the Appellants) define themselves as religious or traditional. In the past, the authority to plan, develop and market building lots in the town was held by the Kfar Vradim Development Corporation Ltd. In 2008, that authority was transferred to the Council. In 2005, the Local Council and the Ma’ale Yosef Regional Religious Council agreed that the former would be responsible for providing religious services in the village, including “family purity and the instruction of brides”. No mikve was ever erected in Kfar Vradim, and the closest mikves [ritual baths] for women are a short drive away, in the neighboring communities. Over the last few years, some of the local residents began working toward the establishment of a mikve in the town.

2.         On March 12, 2007, the National Religious Services Authority in the Prime Minister’s Office (hereinafter: the Authority) undertook to provide an “extraordinary budget” in the amount of NIS 745,000 for the building of a mikve in the town (hereinafter: the EB). The Local Council was asked to approve the Authority’s offer in order to receive the EB, and on May 22, 2007, it decided to approve it on condition that the Authority agree to exempt the Council from any obligation to finance the construction or maintenance of the mikve. The Council then completed the necessary application for receiving the EB – deleting the sections regarding the Council’s obligation to participate in financing – and returned it to the Authority, while emphasizing the condition that the Council not be required to fund the construction or maintenance of the mikve in any way. At the Council meeting, the chairman at the time informed the Council that, in a meeting with the Minister for Religious Affairs, the Minister informed him that the application to receive the EB would not be approved due to the reservations and deletions made in the application, but added and promised that the maintenance of the mikve would be financed by the Religious Services Authority, and that no funding would be required of the Council. In the course of that Council meeting, Mr. Amnon Ben Ami (Appellant 9, hereinafter: the Donor) – a community resident who had contributed monies in the past for the construction of the community’s synagogue – asked that the mikve be attached to that synagogue, and agreed to guarantee that the maintenance of the mikve will not require funding by the Council. At the end of the meeting, the Council decided “to approve the EB as is, without any changes, and in the “Stage B zone” (by the term “Stage B”, the Council was referring to a particular area in the village).

3.         Pursuant to that decision, on Oct. 23, 2008, the Council published a public tender for the construction of the mikve (hereinafter: the Tender). A petition submitted in regard to alleged flaws in the tender process was dismissed on Nov. 6, 2008, following a declaration by the Council that it would not open the bid envelopes until after the elections for the Local Council and until a decision was reached by the new Council in regard to opening the envelopes (AAA 10/08 (Haifa Administrative) Akirav v. Kfar Vradim Local Council (Nov. 6, 20018)). On Nov. 11, 2008, elections were held for the Local Council, in which a new Council head was elected (Respondent 1). On Nov. 16, 2008, the outgoing Council head requested that the Israel Lands Administration suspend the Council’s request to allocate land for the construction of the mikve, and instead, allocate the land for the construction of the Tefen comprehensive high school. This suspension request resulted from a compromise agreement, granted court approval in 2008, under which the Council agreed to allocate land for the construction of the Tefen school in its jurisdiction (AP (Haifa Administrative) 630/08 Association for the Ma’alot and Region Experimental School (R.A.) v. Industrial Local Council Migdal Tefen (Sept. 4, 2008)).

4.         On Dec. 22, 2008, the new head of the Council informed the bidders of the cancellation of the Tender, and the sealed envelopes were returned to the bidders unopened. In the course of February 2009, a decision was taken to change the location for the construction of the Tefen school, and to allocate other land in the town for that purpose. A Council meeting was held on May 13, 2009. In the course of the discussion of the allocation of land for religious purposes, the head of the Council requested the repeal of the decision of the previous Council in the matter, and added that the Tender for the building of the mikve had been cancelled due to a problem concerning the allocation of the land, and because there was no available budget and the Donor had not provided his share. It was further noted that, in the meantime, the Ministry of Religious Services’ commitment to underwrite construction of the mikve had lapsed. At the end of the meeting, the Council decided to repeal the decision of the previous Council from Nov. 18, 2007 in regard to the synagogue and mikve in Stage B (hereinafter: the Repeal Decision). As a result of this decision, several dozen residents organized in order to bring about its repeal. When their efforts failed, they submitted a petition against the Council’s decision to the Haifa District Court in its capacity as a Court of Administrative Affairs.

 

Proceedings in the Lower Court

5.         In their petition to the lower court, the Appellants argued that the Council’s decision to suspend and cancel the Tender for building the mikve should be annulled, and that the Respondents should be ordered to publish a new tender. A hearing was held on Sept 8, 2009. In the course of the hearing, it was argued, inter alia, that a decision could not be made to construct a mikve, or any other public building, without clear criteria for the allocation of public resources. In the end, a procedural agreement was reached between the parties under which the proceedings in the case would be adjourned for six months, during which the Council would establish criteria for the allocation of land for public buildings and for budgetary support for public purposes. It was agreed that those criteria would “relate to all the needs of the village, including religious needs, among them the construction of a mikve”; and that “in the framework of the criteria that will be established by the Council, the Council will consider the public desire and all the public needs, and will take the public’s constitutional rights into account. In addition, the Council would consider the burden on the public purse […] [and in that regard] the possibility of obtaining public or other funding for the construction of public buildings, including public funding already approved […], and the possibility of combining different needs together in order to reduce and save expenses”. It was made clear that the agreement would not derogate from any of the parties’ claims in regard to the petition itself.

6.         On Dec. 14, 2009, pursuant to the procedural agreement, the Council decided to establish a committee to evaluate the criteria for constructing public buildings in the town (hereinafter: the Criteria Committee or the Committee). The Committee comprised nine members, including representatives of the Appellants. Following five meetings and a public discussion to which the entire community was invited, the Committee presented its conclusions. The Committee decided that the priorities for the construction of public buildings in the town should be based upon a group of criteria, and quantified the relative weight that should be given to each criterion, as follows:

 

            Criterion                                                                                              Relative Weight

1. Expected number of users                                                                                    30%
2. Necessary for well-being in the town                                                       25%
3. Appropriate to the character of the town                                     25%
4. Cost relative to number of expected users                                                10%
5. Possibility of fulfilling the need in neighboring communities                  10%

 

            In light of these criteria, the members of the Committee ranked the list of 17 public buildings required by the town. After the mikve placed last under each of the criteria, separately and cumulatively, the mikve was ranked last in priority for the construction of public buildings required for the town.

7.         On April 21, 2010, the Council ratified the Committee’s recommendations, and explained that the priorities would serve as a “compass” for the Council’s decisions in this area, but added that the recommendations do not relieve the Council of its authority to consider each case on its merits. Following the ratification of the recommendations, and in light of the low ranking given to the construction of the mikve, the Appellants submitted an amended petition in which they reiterated the claims made in the original petition, and added claims against the criteria established and the method for ranking public buildings.

The Judgment of the Lower Court

8.         On Dec 23, 2010, the lower court (the Hon. Judge R. Sokol) dismissed the petition and assessed NIS 20,000 against the Appellants for costs. At the beginning of its judgment, the court explained that the fundamental rights of the Appellants to freedom of religion and worship were not in question, but the discussion must be focused upon the question of the criteria for the allocation of public resources in the local authority and the lawfulness of the procedures adopted by the Respondents. The court found that the building of the mikve required the allocation of public resources – land and budget – for construction and maintenance. The court explained that even if the Appellants expect to raise contributions for the project, those contribution are not expected to eliminate the need for public resources, but only to limit the costs. Against this background, the court rejected the Appellants’ claims in regard to the Repeal Decision, as well as the Council’s decision – made following the recommendations of the Criteria Committee – to rank the mikve as the lowest priority in the list of public building construction in the town (April 21, 2010).

9.         As for the Repeal Decision, the court found that since the allocation of land for building of the mikve was contingent upon conditions that were not fulfilled – the money was not provided by the Donor, and the Religious Affairs Authority required an unconditional undertaking that the Council underwrite the construction and maintenance costs – the Council’s decisions were lawfully repealed. Moreover, the Council was at liberty to repeal those decisions inasmuch as they were not made in accordance with the criteria established later in accordance with the Council’s new policy, and because the circumstances under which the decisions were made had changed after it was decided to allocate the land for the building of a school.

10.       All of the Appellant’s arguments against ranking the mikve as the lowest priority for the construction of public buildings were dismissed, as well. As for the claim that there was insufficient factual basis, the court found that the Committee’s reliance upon the data of the Council, upon oral and written public requests, and upon the Committee members’ personal knowledge of the town was reasonable, and that the Appellants had been given an opportunity to present data to the Committee as they wished. It further held that the statements of the Committee members in regard to the town’s future did not testify to the existence of improper considerations in regard to preventing an increase in the number of observant residents in the town, and that that the worldviews of the Committee members in regard to the needs of the community were relevant and required for addressing the matter. As for the Appellants’ claim that the criteria established under the procedural agreement were not included in the final list of criteria, the court held that the procedural agreement could not limit the Council’s exercise of its discretion, and that the said agreement was not intended to establish the criteria, but rather to set out the considerations that the Council should take into account in deciding upon those criteria, which it did. It was further found in this regard that the Council’s decision not to include the availability of resources as a criterion was intended to prevent the use of contributions in order to erect buildings for which there was no real need, and was, therefore, a relevant, legitimate consideration. The court added that the ritual needs of the residents are seen to by the Ma’ale Yosef Regional Religious Council, and that there are mikves in neighboring communities. It held that the absence of a mikve in the town presented a hardship for residents seeking to fulfil the religious obligation of ritual immersion, but it did not prevent the fulfilment of that obligation. Lastly, the court held that, in view of the appropriate judicial restraint to be shown in regard to intervention in administrative discretion, the court should not intervene in the criteria in a manner that would grant priority to the construction of the mikve.

            That is the background that led to the appeal before this Court.

 

Arguments of the Appellants

11.       The Appellants ask that the Court set aside the judgment of the lower court, annul the Council’s decision of May 13, 2009 (in regard to the EB and the allocation of land for the construction of the mikve), and of April 4, 2010 (in regard to ranking the mikve as the lowest priority for public buildings required in the village), and invalidate the recommendations of the Criteria Committee. The Appellants further ask that we order that the Council erect a public mikve in reliance upon the funding from the Ministry of Religious Services, and apply for an extension for obtaining the EB, as may be necessary.

12.       According to the Appellants, the construction of a mikve in the town will protect the right of the residents to freedom of religion and worship, on the one hand, while not affecting the communal resources, on the other. The Appellants argue that the mikve can be combined with another public building, such that it will not detract from the land available for public use, while its construction and maintenance will be funded through state funding and not from the Council’s budget. Under those circumstances, they argue, the Council’s decision to refrain from building a mikve in the town was disproportionate and unreasonable, and derived from improper, extraneous considerations that arose from a desire to preserve the secular character of the community and keep religiously observant people out of the village. They further raised a series of flaws in the Council’s decision-making process in the matter. The Appellants also argued that there were factual errors in the lower court’s judgment, among them, the finding that the mikve was to be built in reliance upon funding by a private donor (whereas, they argues, the funding was to be provided by the State); the finding that the Appellants claimed only a burden upon their constitutional right to freedom of religion and worship (whereas, according to the Appellants, they claimed a real infringement and absolute denial of the ability to perform the religious obligation on the Sabbath and holidays); the finding that allocating land for the mikve was contingent upon conditions that were not met (whereas the Council decided, on Nov. 18, 2007, to waive the conditions it had previously set for the building of the mikve).

 

Arguments of the Respondents

13.       The Respondents support the judgment of the lower court. First, they argue that there were no flaws in the work of the Criteria Committee. On point, the Respondents argue that the Criteria Committee rightly decided that the availability of resources should not serve as a criterion for the construction of public buildings, as otherwise, the Council would have to erect every building for which there was outside funding; that the possibility for combining a number of functions in one building should not be considered in the framework of establishing criteria, as it is a preliminary stage; and that the constitutional rights of the residents should not serve, in and of themselves, as a criterion, and it is sufficient that they are taken into account in the framework of the established criteria. It was further argued that, at present, there were other public buildings that remained to be built, for which the residents had long-ago paid the development costs The Respondents are of the opinion that once the parties decided upon the establishing of the Criteria Committee, there was no longer any justification for reexamining the Council’s decisions prior to the establishing of the Committee, and moreover, in light of the decision of the former Council head to build the Tefen school on the lot, the Council had no choice but to cancel the Tender; in any case, the Council is permitted to decide upon a change of policy; and that, in any case, the requisite preconditions for carrying out the repealed decision – full outside funding and available land – were not met.

 

Proceedings before this Court

14.       On Sept. 6, 2012, a hearing was held on the appeal (E. Hayut, U. Vogelman, Z. Zylbertal, JJ), in the course of which the Court recommended that the parties attempt to settle the dispute amicably and out of court, inter alia, in light of the suggestion that arose in the course of the hearing that it might be possible to build the mikve privately in the town’s commercial center. On Nov. 11, 2012, the parties informed the Court that no agreement had been reached, and that the possibility of building a private mikve as suggested was in doubt inasmuch as it was contingent, inter alia, upon obtaining a zoning variance. Following a further hearing before this panel (E. Hayut, U. Vogelman, N. Hendel, JJ) on Nov. 4, 2013, the Court requested that the State (the Ministry of Religious Services, and, if necessary, the Israel Lands Authority) declare its position on the matter.

15.       The State submitted its reply on Dec. 24, 2013. The reply stated that the Council could submit a request for funding for the construction of a mikve, which would be considered based upon the criteria of the Ministry of Religious Services, and that it was possible to erect a “standard” public mikve in reliance upon state funding. However, it was noted that there are cases in which the local council participates in certain related costs (such as, environmental development and various complimentary costs), and that, as a matter of course, the Ministry of Religious Services requires that the local authority undertake – as a condition for receiving funding – to pay the difference, if any, between the cost of construction and the funding. It was further made clear that there was no need to allocate specific land for the purpose of submitting the application, and that the salary of the mikve attendant would be provided by the Ministry of Religious Affairs, prorated in accordance with the number of users. It was further explained that the state does not participate in the construction or maintenance of private mikves. As far as the allocation of land was concerned, the Israel Lands Authority informed the Court that, after investigating the matter with the engineer of the Lower Galilee Local Building and Planning Committee, it found that there are three lots in the town– lots 718, 720 and 856 – that could be appropriate, in terms of planning, for the construction of a mikve. In light of the above, we were informed that “The State is of the opinion that there is a possible course for the erection of a mikve in Kfar Vradim, the construction of which will be funded (entirely or primarily) by funding from the Ministry of Religious Services. This, if an application is duly submitted on the prescribed dates, and subject to its examination in accordance with the criteria, and its approval”.

16.       Following the State’s reply, the Appellants submitted an urgent request for an interim order. The Appellants asked that we order the Respondents to submit an application to the Ministry of Religious Services for funding for the erection of a public mikve in accordance with the State’s recommendation, in order to meet the timetable for receiving the funding in 2014. The Respondents opposed the request, arguing that they should not be ordered to submit such a request before the matter is approved by the Council in an appropriate administrative procedure. On Dec. 29, 2013, we dismissed the request for an interim order, and ordered that a date be set for a further hearing of the appeal, in which the State’s representative would also participate.

17.       In updated notices submitted on Feb. 28, 2014 and March 3, 2014, the parties informed the Court that the attempt to initiate the erection of a private mikve had failed due to the Local Council’s decision to deny the request for a zoning variance, and that it the possibility of obtaining such a variance was now unclear inasmuch as it would only be possible to resubmit the request after the completion of the parcelization process for the commercial center. We were further informed that the parties remained divided on the issue of allocating Council resources for the construction and maintenance of a public mikve.

18.       On March 31, 2014, this panel conducted a further hearing of the appeal, in which the attorney for the Respondents claimed that there were planning and practical problems in regard to constructing the mikve on lot 856, which had been mentioned in the State’s reply. At the conclusion of the hearing, we ordered that the Respondent’s attorney submit a notice to the Court, no later than April 6, 2014, detailing the planning and other problems cited in his arguments in regard to lot 856, which had been found suitable, in terms of planning, for the erection of a mikve, as well as in regard to the other lots in the area that might be suitable, and that the State’s attorney then submit an updated notice in regard to the possibility for allocating a lot for the erection of a mikve.

19.       On April 6, 2014, the Respondents submitted an update in which they informed the Court that it would not be possible to build a mikve on lot 856, inasmuch as it would require a new urban development plan and the adjustment of infrastructures; because the type of use of the buildings surrounding the lot was not appropriate for the building of a mikve; and because part of the lot had been sold to a private individual. Therefore, according to the Respondents, the possibility of building the mikve in the commercial center would be preferable, since work on the project had begun (without a permit). On May 1, 2014, the State submitted a further notice in which it stated that building a mikve of lot 856 was possible. The State explained that there are no current negotiations for the transfer of parts of the lot to private hands; there is no need for a new, detailed plan for erecting a mikve, as the current plan is sufficient; and that nothing about the type of use of the surrounding lots would prevent the building of a mikve on the lot. It further noted that a mikve could also be built of lots 718 and 720, both from a planning and practical point of view. The State further explained that building a mikve in the area of the commercial center would involve planning and practical problems: under the relevant plan, the area is zoned for “commercial purposes”, and therefore the erection of a mikve would require initiating planning proceedings in order to change zoning; the proximity to commercial areas is incompatible with the operation of a mikve; and the ownership of the lot and construction violations had yet to be resolved. As for funding the building of the mikve, the Council could submit an application for funding to the Ministry of Religious Services for 2015, which would be reviewed in accordance with the Ministry’s criteria that would be published in the final months of the current year.

 

Deliberation and Decision

            Is the Kfar Vradim Council’s decision to rescind its decision to erect a mikve in the town and refrain from acting towards its construction compatible with the rules of public law? That is the question that we must decide.

 

The Scope of Judicial Review over a Local Authority’s Decision in regard to Allocating Public Resources

20.       The Kfar Vradim Council is a local council authorized to decide how resources will be allocated, subject to the provisions of the law. Indeed, “What use a local authority will make of its property, and to what extent will it permit an individual to use it and when will it refuse, is the question that the authority itself, through its elected representatives, is authorized to decide” (HCJ 262/62 Peretz v. Kfar Shmaryahu Local Council, 16 IsrSC 2101, 2114 (1962) (hereinafter: the Peretz case)). As a rule, a local council enjoys broad discretion in regard to decisions concerning the allocation of public resources. The initial assumption is that a local council – which is an elected authority whose members represent the public they were chosen to serve – occupies the best position for deciding upon the priorities that will advance the general good, and for striking the proper balance between meeting public needs and maintaining the budgetary framework. Therefore, the Court will not hastily intervene in such decisions, and will refrain from placing itself in the authority’s shoes (whether we are concerned with a local authority or a governmental authority). In the framework of judicial review, the question of whether public resources were allocated wisely, or whether they could have been allocated differently, will not be considered unless the decision regarding the allocation of resources was tainted by a substantive, fundamental flaw that justifies the Court’s intervention. Such restraint is a corollary of the principle of the separation of powers. In this regard, the words of Justice S. Netanyahu are apt:

 

“The Court will not instruct the authority how to allocated and divide its resources. Requiring an expenditure for a specific purpose must come at the expense of another, perhaps more important, purpose, or perhaps, require enlarging the budget it is granted by the state treasury, which must then come at the expense of other, perhaps more important, purposes. This Court is not the authorized body, and cannot treat of the allocation of the public’s resources” (HCJ 3472/92 Brand v. Minister of Communications, 47 (3) IsrSC 143, 153 (1993) (hereinafter: the Brand case); and see HCJ 2376/01 Federation of Local Authorities in Israel v. Minister of Science, Culture and Sport, 56 (6) IsrSC 803, 811 (2002)).

 

            Despite the broad reach of discretion and the narrow scope of judicial review that it implies, it is clear that the Council, like any local authority, is subject to the principles of public law. This restraint in regard to judicial review does not relieve the Court of fulfilling its duty: to ensure that the authority exercises its discretion in accordance with the law. And note: the local authority serves – in all of its actions – as a trustee of public funds, and its job is to advance public purposes for the general good. As Justice H. Cohn put it:

 

“The private sphere is not like the public sphere. In the former, one grants at will and denies at will. The latter exists for no reason other than to serve the public, and has nothing of its own. All it has is held in trust, and it has no other, different or separate rights or obligations than those that derive from that trust or that are granted or imposed by the authority of statutory provisions” (HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem, 25 (1) IsrSC 325, 331 (1971); and see HCJ Israel Contractors and Builders Center v. State of Israel, 34 (3) IsrSC 729, 743 (1980); the Peretz case, at p. 2115).

Even in allocating public resources, the authority is obligated to act in a manner that faithfully serves the entire public and ensures proper governance. Accordingly, the allocation of public resources in public authorities must be carried out in accordance with the principles of reasonableness and proportionality, and in accordance with fair, equal, relevant and transparent criteria (see: HCJ 3638/99 Blumethal v. Rehovot Municipality, 54 (4) IsrSC 220, 228 (2000); HCJ   5325/01 L.K.N. Association for the Advancement of Women’s Basketball v. Ramat Hasharon Local Council, para. 10 (June 2, 2004); AAA 5949/04 Mercaz Taxi Ltd. v. Hasharon Taxi Service Ltd., para. 16 (Nov. 28, 2005); and see and compare: HCJ 59/88 Tzaban v. Minister of Finance 42 (4) IsrSC 705, 706 (1989); HCJ 637/89 A Constitution of the State of Israel v. Minister of Finance, 46 (1) IsrSC 191, 200 (1991); HCJ 5023/91 Poraz v. Minister of Construction and Housing, 46 (2) IsrSC 793, 801 (1992); and also see: Dafna Barak-Erez, Administrative Law, 231-235 (2010) (Hebrew); Yitzhak Zamir, The Administrative Authority, 246-248 (2d ed., 2010) (Hebrew); for the anchoring of these principles in the Directives of the Ministry  of the Interior, see: Circular of the Director General of the Ministry of the Interior 5/2001 “Procedure for the allocation of land and buildings without or for minimal consideration” 4-11 (Sept. 12, 2001)). Before reaching a decision on the allocation of public resources, the authority is required to “establish for itself priorities and precedences, and rules and guiding criteria for their application, which must meet the test of reasonableness, and which it must apply equally. Reasonableness requires that in setting priorities among various subjects for which the authority is responsible, priority be given to the more important subjects” (the Brand case, at p. 153).

We will now turn to an examination of whether the decision of the Local Council in the case before us was taken in a proper administrative process, and whether it falls within the scope of the discretion granted the Council.

 

Review of the Decision of the Local Council

21.       I will begin with the conclusion before presenting the analysis: In my opinion, the Council’s decision not to move forward with the building of a mikve for women in the town in the near future does not pass the reasonableness test. Under the special circumstances of the case, I find that the Council’s decision did not reasonably balance the need of religiously observant women to observe the religious obligation of immersion against the budgetary considerations and the available land resources. Under these circumstances, addressing the other claims of the Appellants in regard to flaws that they believe fell in the decision-making process is superfluous, as I shall explain.

22.       As we know, an administrative decision is reasonable if the decision is made as a result of a balance between relevant considerations and interests that have been given appropriate weight under the circumstances (see HCJ 389/80 Golden Pages Ltd. v. Broadcasting Authority, 35 (1) 421, 437 (1981)). Indeed, “A decision may be flawed even when the authority weighed only the relevant considerations, without a hint of an extraneous consideration in its deliberations, if the internal balance among the considerations and the internal weight assigned to each consideration were distorted” (HCJ 1027/04 Independent Cities Forum v. Israel Lands Authority Council, para. 42 (June 9, 2011); Barak-Erez, at p. 725). Examining the reasonableness of the Council’s decision therefore requires that we look at the nature of the considerations that it weighed when it reached that decision, upon the manner of striking the balance, and upon the weight assigned to each consideration. Although the Council’s decision relied upon the recommendations of the Criteria Committee established to set criteria for the construction of public buildings in the town, it is clear that those recommendations cannot absolve it of the duty to exercise its authority to consider every case on its merits.

23.       What weight was the Council required to assign to the recommendations of the Criteria Committee in examining the possibility of acting to erect a mikve in the village? Having established the Criteria Committee for that purpose, the Council was required to take note of the Committee’s recommendations in deciding upon the manner for allocating the town’s resources. Indeed, an administrative agency will not lightly deviate from the recommendation of a knowledgeable, expert body, established at its request, which was adopted after an in-depth professional evaluation. It is decided law that “in the absence of an administrative flaw in the opinion of the advisory body, special reasons and extenuating circumstances are required in order to justify deviation from its opinion, especially when the authority is the one that established the advisory body and authorized it to carry out its task” (HCJ 5657/09 The Movement for Quality Government in Israel v. Government of Israel, para. 48 (Nov. 24, 2009); and see HCJ 8912/05 Mifgashim Association for Educational and Social Involvement v. Minister of Education, Culture and Sport, para 16 (March 14, 2007)). However, that does not mean that the Council is bound by the recommendations of the Criteria Committee, which is merely an advisory body. On the contrary, the Council is required to exercise its discretion independently. As Justice Y. Zamir aptly stated: “[…] a recommendation is only a recommendation. In other words, a recommendation does not exempt the authority from the duty to exercise its own discretion. The authority must weigh the recommendation and decide if it would be appropriate, under the circumstances, to accept or reject the recommendation” (HCJ 9486/96 Ayalon v. Registration Committee under the Psychologists Law, 5737-1977, 52 (1) IsrSC 166, 183 (1988); and for a more detailed discussion, see Zamir, at pp. 1219-1222).

24.       Thus, the Local Council was required to examine each request to erect a public building individually, on the basis of the recommendations of the Criteria Committee, while taking into account all the considerations relevant to the decision. In the matter before us, the Council did not discuss the possibility of proceeding with the erection of the mikve in the town in its meeting on April 21, 2010, and from the documents submitted to us, it would appear that this possibility was also not addressed on its merits in the meetings held thereafter. In fact, it would appear that in the Council’s opinion – as can be inferred from the responses that it submitted throughout the proceedings in this case – there was no need for any concrete consideration of the possibility of erecting a mikve in the town once the project was ranked last in the list of public priorities. From the moment that the Council failed to consider the request to erect a mikve in the town on its merits, not deciding to consider the subject of erecting a mikve in the town in the near future was tantamount to a “decision” as defined by law (see sec. 2 of the Administrative Courts Law, 5760-2000, according to which the lack of a decision is deemed a “decision of an authority”; and see HCJ 3649/08 Shamnova v. Ministry of the Interior, para. 3 (May 20, 2008)). Against the said background, the question before us is whether, under the circumstances of the instant case, the Council’s decision to rescind its decision to build a mikve in the village, to accept the recommendations of the Criteria Committee in toto, and therefore refrain from acting in the near future toward the erection of a mikve in the village, does not deviate from the scope of its discretion.

 

The Reasonableness of the Council’s Decision – The Proper Balance of Relevant Considerations

A.        Considerations supporting the erecting of a mikve in the town – the needs of the religiously observant residents

 

25.       Section 7 of the Jewish Religious Services Law [Consolidated Version], 5731-1971 (hereinafter: the Jewish Religious Services Law) provides that the religious councils of the local authorities are competent to provide for the religious services of the residents. The subject of “family purity”, which concerns the operation of ritual baths, is among the religious services for which the religious councils are responsible (see: HCJ 516/75 Hupert v. Minister of Religion, 30 (2) IsrSC 490, 494 (1976); HCJ 6859/98 Ankonina v. Elections Official, 52 (5) IsrSC 433, 447-448 (1998); HCJ 4247/97 Meretz Faction in the Jerusalem Municipal Council v. Minister of Religious Affairs, 52 (5) IsrSC 241, 251 (1998); HCJ 2957/06 Hassan v. Ministry of Building and Housing – Religious Buildings Development Section (July 16, 2006); Shelly Mizrachi, Religious Councils 7-6 (Knesset Research and Information Center, 2012) (Hebrew); Hadar Lifshits and Gideon Sapir, “Jewish Religious Services Law––A Proposed Framework for Privatization Reform”, 23 Mehkarei Mishpat - Bar-Ilan Law Studies 117, 147-148, 153-154 (2006) (Hebrew)).

26.       Mikve services for women are necessary to maintaining the religious lifestyle of Israel’s religiously observant population. Ritual immersion in a mikve is a vital need for those who observe the laws of “family purity”, which require a women to immerse in a mikve after her monthly period. As is commonly known, the observance of the religious obligation of immersion is deemed very important in Jewish law, to the extent that religious decisors have ruled that erecting a mikve takes precedence even over erecting a synagogue (Yalkut Yosef, Reading the Torah and the Synagogue, secs. 152-153) (Hebrew). The obligation to immerse in a mikve forms an integral part of the life of an observant, married Jewish woman, and is an inseparable part of her religious ritual and the expression of her identity and customs. It is substantively related to the right to freedom of religion and worship, which our legal system has recognized as a fundamental right of every person in Israel, although the case law has not yet established that it imposes a positive obligation requiring that the State allocate public resources for the provision of religious services. In the framework of this appeal, I will not attempt to provide a precise definition of the interrelationship between the right to freedom of religion and worship and the State’s obligation to provide religious services, as in any event, as will be explained below, an administrative review of the authority’s decision in this case, in accordance with the accepted standard of review, leads to the granting of the appeal (on the recognition of the importance of the right to freedom of religion and worship in this Court’s decisions, see: CrimA 112/50 Yosifof v. Attorney General 5 (1) IsrSC 481, 486 (1951) [http://versa.cardozo.yu.edu/opinions/yosifof-v-attorney-general]; HCJ 866/78 Morad v. Government of Israel, 34 (2) IsrSC 657, 663 (1980); HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Police Commander, 34 (2) IsrSC 657, 663 (1980); HCJ Foundation of the Movement for Progressive Judaism in Israel v. Minister of Religion, 43 (2) IsrSC 661, 692 (1989); HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs, 42 (3) IsrSC 377, 381 (1988); HCJ 3261/93 Manning v. Minister of Justice, 47 (3) IsrSC 282, 286 (1993); HCJ 4298/93 Jabarin v. Minister of Education, 48 (5) IsrSC 199, 203 (1994); HCJ 257/89 Hoffman v. Director of the Western Wall, 48 (2) IsrSC 265, 340-341 (1994); HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority, 55 (4) IsrSC 267, 277 (2001) [http://versa.cardozo.yu.edu/opinions/gur-aryeh-v-second-television-and-r... HCJ 11585/05 Israel Movement for Progressive Judaism v. Ministry of Absorption, para. 16 (May 19, 2009); HCJ 10907/04 Solodoch v. Rehovot Municipality, paras. 71-72 (Aug. 1, 2010); and see: Aharon Barak, Human Dignity: The Constitutional Right and its Daughter-Rights, vol. 2, 769-774 (2014) (Hebrew) [published in English translation as: Human Dignity: The Constitutional Value and the Constitutional Right (Cambridge, 2015)]; Amnon Rubenstein and Barak Medina, The Constitutional Law of the State of Israel, 354-378 (6^th ed., 2005) (Hebrew); Daniel Statman and Gideon Sapir, “Freedom of Religion, Freedom from Religion and the Protection of Religious Feelings”, 21 Mehkarei Mishpat - Bar-Ilan Law Studies 5, 7-38 (2004) (Hebrew)).

27.       As noted, there is no religious council in Kfar Vradim (the Ma’ale Yosef Regional Religious Council is responsible for providing religious services in the town, under an agreement signed in 2005 with the Local Council). Therefore, the Appellants directed their request to the Local Council. No mikve has ever been built in Kfar Vradim, and the religiously observant residents of the town must travel to neighboring towns in the Ma’ale Yosef Regional Council District in which there are mikves, and that are a short drive from the town. According to the Respondents, inasmuch as there are mikves in the neighboring towns, the harm to the ability of the town’s religiously observant residents in observing the obligation of immersion is not significant, and is merely an inconvenience. It is further argued that even if there were a mikve in the town, due to the town’s topography and the winter weather, the residents would have to drive to the mikve and could not go on foot. And in any case, the ratio of the number of mikves in the area relative to the population is among the highest in the country when compared to various cities. As opposed to this, the Appellants argue that we are not concerned with a mere “inconvenience” but with an absolute denial of the possibility of performing the religious obligation of ritual immersion. They argue that the absence of a mikve in the town deprives women whose day of immersion falls on a Sabbath eve or on a holiday from performing the obligation at its prescribed time. It is argued that when the immersion day falls on a Sabbath eve or on a holiday, one cannot drive to the mikve, and since it is practically impossible to walk to the neighboring mikves, the possibility of observing the obligation of immersion on such days is entirely denied them. In this regard, the Appellants explain that Jewish religious law ascribes supreme importance to the observance of the obligation of immersion at its prescribed time, because “[…] it is a religious obligation to immerse at the prescribed time so as not to refrain from procreation even for one night” (Shulhan Arukh, Yoreh De’ah, Laws concerning Niddah, 197:2). It is further argued that the said harm is exacerbated because not immersing at the prescribed time deprives the observant families of the ability to observe the obligation of onah (marital relations), sometimes for several days (when holidays coincide with the Sabbath eve). Lastly, the Appellants argue that the absence of a mikve in the town even makes it difficult to observe the obligation of immersion on weekdays, as there is no available public transportation by which one can travel to the mikves in the neighboring communities.

28.       After considering the arguments, I find that given the geographic location of Kfar Vradim and its topographic conditions, there is no reasonable way to go to any of the mikves in the neighboring communities on foot.  Under the circumstances, the absence of a mikve in the town cannot be said merely to “inconvenience” the religiously observant residents. The absence of a mikve in the town – given its particular circumstances – completely deprives the female residents of the town whose prescribed day of immersion falls on a Sabbath eve or holiday of the ability to perform the religious obligation of immersion at its proper time, and as a result, also deprives them of the possibility of performing of the religious obligation of onah. Thus, the women of the town are deprived of the possibility of performing an obligatory ritual practice that is deemed to be of great importance by the traditionally religious Jewish community, and which is substantively connected to the expression of their personal and group identity. As Justice E. Arbel aptly stated:

 

“We recognize the importance of a mikve for the public, and certainly for the public that uses it. The mikve is of great importance for the traditionally observant family unit, and the authorities are required to provide this service for the interested public as part of the provision of religious services by the authorities. It is also important that the mikve be situated within reasonable walking distance from the homes of the public, for those who are Sabbath observant. However, these considerations, that should not be underestimated, must be weighed against other needs that are of public importance, and against the character of the community that resides in the place, as well as against other alternatives for the erection of public buildings, as noted” (AAA 2846/11 Rehovot Religious Council v. Claudio, para. 19 (Feb. 13, 2013) (hereinafter: the Claudio case).

 

            Thus, the need of the religiously observant female residents to observe the obligation of ritual immersion at its prescribed time – a practice whose realization derives from the autonomy granted every person, as such, to follow the dictates of her conscience and faith, and observe the rules and customs of her faith – must be granted significant weight in the framework of the decision-making process in regard to the erection of public buildings in the town (compare: the Gur Aryeh case, at p. 278). However, the need of the religiously observant residents for the erection of a mikve in the town must be balanced against the opposing considerations. What, then, are the opposing considerations that tilted the scales in favor of the Council’s decision not to move forward on the construction of a mikve in the town in the near future?

 

B.        The “Budgetary” Consideration

 

29.       As best we can understand from the Respondent’s response, the primary consideration that led to adopting the decision was the limited public resources available to the Council. According to the Respondents, the construction of a mikve in the town would require that the Council allocate public monies and land at the expense of other public construction of greater importance. Indeed, “it is decided law that a public authority may, and even must, consider budgetary restrictions in the framework of its discretion, as part of its public obligation” (see: HCJ 3071/05 Louzon v. Government of Israel, 63 (1) IsrSC 1, 39-40 (2008) [http://versa.cardozo.yu.edu/opinions/louzon-v-government-israel]; HCJ 3627/92 Fruit Growers Association v. Government of Israel, 47 (3) IsrSC 387, 391 (1993); HCJ 2223/04 Nissim v. State of Israel, para. 29 (Sept. 4, 2006); HCJ 9863/06 Association of Combat Leg Amputees v. The State of Israel, para. 13 (July 28, 2008); HCJ 1662/05 Levi v. State of Israel, para. 51 (March 3, 2009); Barak-Erez, at pp. 661-663, 745-746; Aharon Barak, Proportionality in Law: Infringing Constitutional Rights and its Limits, 460-461 (2010) (Hebrew) [published in English translation as Proportionality: Constitutional Rights and their Limitations (Cambridge, 2012)]).  In the matter before us, among its considerations, the Council could certainly give weight to the limits upon the available resources, and allocate them in accordance with public needs. However, as shall be explained below, under the circumstances of the instant case, the Council resources – both land and money – that were expected to be required for the purpose of building and maintaining a mikve in the town were not significant.

30.       In regard to the allocation of land for the construction of the building, the State informed us that there are, at present, at least three available lots in the town that would be appropriate for the construction of a mikve, in terms of both existing planning and practicality. In addition, there is a possibility – that the Respondents do not deny – of incorporating the mikve in other public buildings. In such a case, building the mikve will not come at the expense of public land earmarked for other purposes. As for financing, the matter can be divided into two parts: the monies required for constructing the building, and the monies needed for maintenance. As far as financing the construction is concerned, it is clear from the State’s response that if the Council’s application for funding the construction of a mikve is approved – and there is no reason to believe that it will not be reapproved, in light of the letters from the Ministry of Religious Services and the fact that an EB was already approved in the past for the construction of a mikve in the town – the construction of the mikve will be financed from state funds, and not from the Council’s budget. The Local Council will incur expenses only if the cost of construction exceeds the funding due to deviation from the budgetary framework, or if it will be required to bear certain related costs (such as environmental development and complementary costs). As for maintenance costs, according to the State’s response and the letters from the Ministry of Religious Services, the salary of the mikve attendant will be paid from the budget of the Ministry of Religious Services, prorated to the number of users, while maintenance (electricity, water, etc.) will be funded in part by users’ fees collected by the attendant. Thus, the Council can expect to pay only a small, insignificant part of the ongoing expenses of maintaining the building. Under these circumstances, in which the construction and maintenance are barely likely to come at the expense of the limited resources of the Council, the weight of the budgetary consideration is limited relative to the opposing interest.

 

2.         Preserving the Secular Character of the Town

 

31.       The parties are divided on the question of whether the Council’s decision gave weight to the consideration of protecting the town's secular character. According to the Appellants, the main consideration that grounded the Council’s decision not to erect a mikve in the town was the desire – that they consider an extraneous, improper consideration – to preserve the secular character of the town and to keep the religious community away. As opposed to this, the Respondents claim that the consideration of preserving the secular character of the town had no weight in the Council’s decision. The question if and under what circumstances a local authority may entertain the consideration of preserving a particular character of the town is complex (and compare: HCJ 528/88 Avitan v. Israel Lands Administration, 43 (4) IsrSC 297 (1989); HCJ 4906/98 “Am Hofshi” Association for Freedom of Religion, Conscience, Education and Culture v. Ministry of Construction and Housing, 54 (2) IsrSC 503, 508-509 (2000); and for an opposing view: HCJ 6698/95 Ka’adan v. Israel Lands Administration, 54 (1) IsrSC 258 (2000) [http://versa.cardozo.yu.edu/opinions/ka%E2%80%99adan-v-israel-land-admin... and see: HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister for Religious Affairs, 42 (3) IsrSC 377, 381 (1988); HCJ 10907/04 Solodoch v. Rehovot Municipality, paras 68-90 (Aug. 1, 2010); the Claudio case, at para. 12; Statman and Sapir; Gershon Gontovnik, Discrimination in Housing and Cultural Groups, 113-127, 201-209 (2014) (Hebrew)). We need not decide this issue in the matter before us, as even if we assume – to the Respondent’s benefit – that the consideration of preserving the town’s character carried no weight in the Council’s decision – as they claim – the decision must, nevertheless, be voided because it did not strike a proper balance between the considerations that were taken into account even according to the Respondents, as we shall explain below.

 

C.        Balancing the various Considerations and Examining the Reasonableness of the Decision

 

32.       Having reviewed the considerations on both sides of the scales, all that remains is to examine whether the decision struck a reasonable balance between those considerations. In doing so, we should bear in mind that such balancing does not, generally, lead to a single, reasonable result. Indeed, the Council enjoys some latitude in which different and even opposing decisions may coexist. However, in the circumstances of the instant case, I find that the Council’s decision not to act toward the erecting of a mikve in the town does not fall within that discretionary latitude. As is commonly known, the weight to be assigned to budgetary considerations is examined, inter alia, in relation to the importance of the opposing rights and interests (see: Barak-Erez, at pp. 746-747; and also see the citations at fn 86, loc. cit.). In the matter before us, the harm to the religiously observant women in the town, which I discussed above, is of significant force, whereas the “price” involved in erecting the mikve is minor. In this context, we should recall that the Council already decided several years ago to erect a mikve in the town, but chose to rescind that decision for “budgetary” reasons that would seem no longer to exist. In this situation, the Council’s decision not to erect a mikve in the near future does not grant adequate weight to the harm caused to the religiously observant women, to the availability of external funding that would render the burden upon the Council insignificant, and to the possibility of incorporating the construction of the mikve within the framework of a building with another purpose, in a manner that would limit the need for a separate allocation of public land, and preserve it for other, necessary public purposes.

33.       In the final analysis, in the circumstances of the present case, in which appropriate weight was not assigned to the substantial harm to the religiously observant, female residents of the town due to the absence of mikve that is accessible on the Sabbath and on religious holidays, and where it was found that the allocation of resources was granted disproportionate weight even though land was readily available for erecting the mikve without harming other public interests, and without any need for allocating substantial resources by the Council due to external financing, I find that the Council’s decision not to erect a mikve was unreasonable and must, therefore, be quashed. In light of the long “history” of the proceedings in this matter, we do not find it appropriate to remand the matter to Council, yet again, inasmuch as, under the circumstances, the decision required is the erection of the mikve with due haste (and compare, for example: HCJ 1920/00 Galon v. Release Board, 54 (2) IsrSC 313, 328 (2000); HCJ 89/01 Public Committee against Torture in Israel v. Release Board, 55 (2) 838, 878 (2001); AAA 9135/03 Council for Higher Education v. Haaretz, 60 (4) IsrSC 217, 253 (2006) [http://versa.cardozo.yu.edu/opinions/council-higher-education-v-haaretz]; AAA 9353/10 Yakovlev v. Ministry of the Interior, para. 19 (Dec. 1, 2013).

 

Conclusion

34.       Given the conclusion reached, I would recommend to my colleagues that we grant the appeal such that the judgment of the lower court be reversed and the appeal granted. The Kfar Vradim Council is ordered to act immediately to erect a mikve on one of the lots in the town listed in the State’s reply – or some other lot that it may find appropriate – such that construction will commence as soon as possible, and no later than a year and a half from the date of this judgment. The Council may submit an application for funding support for the erection of the mikve from the Ministry of Religious Services with due speed. Respondent 2 will pay the Appellants’ costs in both instances in the amount of NIS 25,000.

                                                                                                            Justice

 

Justice E. Hayut:

I concur.

                                                                                                            Justice

 

Justice N. Hendel:

I concur.

                                                                                                            Justice

 

Decided in accordance with the opinion of Justice U. Vogelman.

Given this 14^th day of Elul 5774 (Sept. 9, 2014).

 

 

 

           

 

 

 

HCJFH 4128/00

 

 

Petitioners:                  1.         Director General of the Prime Minister’s Office

                                    2.         Director General of the Ministry of Religion

                                    3.         Director General of the Ministry of the Interior

                                    4.         Director General of the Ministry of Police

                                    5.         Legal Advisor to the Prime Minister’s Office

                                    6.         Prime Minister’s Advisor on the Status of Women

                                    7.         Government of Israel

                                   

                                                                        v.

 

Respondents:              1.         Anat Hoffman

                                    2.         Chaya Beckerman

3.         International Committee for Women of the Wall, Inc. by Miriam Benson

 

           

Attorney for the Petitioners:               Osnat Mendel, Adv.

Attorney for the Respondents:           Francis Raday, Adv.

 

The Supreme Court

[April 6, 2003]

 

Before President A. Barak,  Deputy President S. Levin, Justice T. Orr, Justice E. Mazza, Justice M. Cheshin, Justice T. Strasberg-Cohen, Justice J. Turkel, Justice D. Beinisch, Justice I. Englard

Further Hearing on the judgment of the Supreme Court in HCJ 3358/95 of May 22, 2000 by E. Mazza, T. Strasberg-Cohen and D. Beinisch JJ.

 

A group of Jewish women (hereinafter: the Women of the Wall) sought to pray together in the Western Wall Plaza while wrapped in tallitot [prayer shawls] and reading the Torah. The possibility of praying at the Wall in accordance with their practice was prevented due to the violent objection of other worshippers at the site. The Women of the Wall petitioned the High Court of Justice, which ruled that the Government must establish appropriate arrangements and conditions to permit the petitioners to realize their right to worship in accordance with their custom in the Western Wall Plaza. In its petition for a Further hearing, the Government reiterated its argument – that was rejected in the judgment – according to which the Government fulfilled its obligation toward the Women of the Wall by adopting the recommendation that they be permitted to pray in the area of “Robinson’s Arch”.

The Supreme Court held:

1. (1)        The Women of the Wall have a right to pray at the Wall in their manner. However, like every right, that right is not unlimited. It must be evaluated and weighed against other rights that are also worthy of protection.

(2)        Accordingly, all steps must be taken to minimize the affront that other religiously observant people sense due to the manner of prayer of the Women of the Wall, and by doing so, also prevent serious events arising from the confrontation of the opposing parties.

(3)        In order to try to strike a balance between the opposing demands in this matter, the Government must prepare the adjacent “Robinson’s Arch” site and make it into a proper prayer space so that the Women of the Wall will be able to pray at the site in their manner, inasmuch as the site, in its current physical state, cannot serve as an appropriate place for prayer.

(4)        If the “Robinson’s Arch” site is not made suitable within twelve months, and having found no arrangement acceptable to both parties, it is the duty of the Government to make appropriate arrangements and conditions within which the Women of the Wall will be able to realize their right to pray in their manner in the Western Wall Plaza.

B. (per J. Turkel J.):

(1)        In deciding to designate the “Robinson’s Arch” site for the prayer of the Women of the Wall, the Government acted within the framework of its discretion, and the Court should not intervene in that discretion. This solution should not be adopted “conditionally”, but rather as a permanent solution.

(2)        Adopting the said solution preserves the right of the Women of the Wall to access to the Western Wall Plaza itself, as long as they pray in accordance with the local custom while in the Western Wall Plaza. Thus, both their freedom of access to the Western Wall Plaza and their right to worship in their own manner is preserved.

C. (per E. Mazza, T. Strasberg-Cohen, D. Beinisch JJ., dissenting):

(1)        The right of the Women of the Wall to pray according to their custom in the Western Wall Plaza was recognized without reservation in the prior judgments of the High Court of Justice in this matter, and there is no justification for restricting that right at present.

(2)        The position adopted by the Court in the proceedings at bar in regard to the need to prepare the “Robinson’s Arch” site as a prayer space that will serve the Women of the Wall essentially eviscerates their said right, and also upsets the appropriate balance between their right to worship in the Western Wall Plaza and the need to consider the feelings of other worshippers.

D. (per I. Englard J., dissenting):

(1)        The Palestine Order-in-Council (Holy Places), 1924, deprives the High Court of Justice of jurisdiction to consider matters concerning freedom of worship in the Holy Places.

(2)        The dispute between the petitioners and the Government in the case at bar concerns freedom of worship at the Holy Places and not freedom of access to them, inasmuch as no one is preventing the Women of the Wall from entering the Western Wall Plaza. Rather, the dispute is in regard to the possibility that they pray in their manner at that place. Therefore, the High Court of Justice does not have subject-matter jurisdiction over the dispute at bar.

(3)        All the laws of the Knesset are, by their very nature, secular norms, but there is no principled reason that a secular law not refer to a religious system.

(4)        The secular character of the Protection of the Holy Places Law says nothing in regard to the interpretation of the terms therein or in the regulations thereunder. Everything rests upon the legislative intent in using those terms. The presumption is that terms borrowed from a religious system should be interpreted in accordance with that system.

(5)        The result is that terms employed in the Protection of the Holy Places Law that are borrowed from the religious world should first and foremost be interpreted in accordance with their religious significance.

(6)        Accordingly, the expression “conducting a religious ceremony that is not in accordance with the local custom” in reg. 2(a) (1a) of the Regulations for the Protection of Holy Places to the Jews, 5741-1981, should be interpreted in accordance with its halakhic meaning, such that prayer in the Western Wall Plaza in the manner of the Women of the Wall falls within the scope of the prohibition established under the regulation.

(7)        Additionally, there is support for the opinion that, in view of the halakhic situation, the judgment under review in this Further Hearing that would allow the petitioners to act in their style and manner would constitute a substantial intrusion upon the prayers of others or an excessive violation of the feelings of others.

 

Judgment

 

Justice M. Cheshin:

1. Why was the First Temple destroyed? Because of three things that prevailed there: idolatry, immorality and bloodshed.

But why was the Second Temple destroyed, when they were occupied with Torah, mitzvoth and charity? Because baseless hatred prevailed. This teaches us that baseless hatred is of equal gravity with three sins: idolatry, immorality and bloodshed (TB Yoma 9b).

 

            So it was in besieged Jerusalem when Titus, the representative of distant Rome, battered its walls. The enemy beset from without, seeking to destroy and extinguish a nation and a kingdom, and the People of Israel within Jerusalem – the residents of Jerusalem and those who gathered in Jerusalem from all the corners of the land of Israel – raised their hands at one another. Beset from without and beset from within. That is the nature of strife. That is the nature of hatred. For strife and hatred destroy all that is good, they completely undermine human relations, they destroy man and beast, tree and field. Such is hatred, such is jealousy, such is zealotry, and zealotry stands above them all.

            The Western Wall is a remnant of our Second Temple, and now those who fight amongst themselves fight over it. Can we not learn from the history of our tortured nation?

Background

2.         Our concern this time is a Further Hearing on the judgment of the Supreme Court in HCJ 3358/95 Anat Hoffman et al. v. Director General of the Prime Minister’s Office et al., IsrSC 54 (2) 245. In that judgment, the High Court of Justice decided – per Justice Eliahu Mazza, Justices Tova Strasberg-Cohen and Dorit Beinisch concurring – to order the Government “to establish the appropriate arrangements and conditions under which the Petitioners will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza.” The Petitioners before the Court – the Government of the State of Israel and those acting on its behalf (hereinafter: the Government of Israel or the Government) – are of the opinion that they should not be ordered to act as ordered by the Court, inasmuch as immediately prior to the rendering of the said judgment the required arrangements and conditions had been established as required by the Court’s decision. In its judgment, the Court rejected this argument, and the Government now asks that we find – in a Further Hearing – that it indeed fulfilled what it was required to do.

3.         The Protection of the Holy Places Law, 5727-1967 (the Protection Law) – a law enacted some two weeks after the end of the Six Day War – instructs us in decisive, unambiguous language to protect the Holy Places against any desecration or violation, to protect the freedom of access of the various religious communities to the places they hold sacred, and prohibits the affront of feelings towards those places:

Protection of Holy Places

1.The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places.

The very same language, word for word, is conveyed to us in Basic Law: Jerusalem, Capital of Israel (the Jerusalem Law). The Protection Law – and later, the Jerusalem Law as well – was intended to change the status quo ante from stem to stern. For until the enactment of the Protection Law – thus during the Mandate period and thus after the establishment of the State, when the Western Wall and other places holy to the Jews were under the rule of the Hashemite Kingdom of Jordan – there were limitations, often severe and disgraceful limitations, upon the rights of Jews to their holy places. But from that point, the limitations were removed and the barriers were lifted.

            The Protection Law was not created for the Jews alone, or perhaps we should say that it was created primarily not for the Jews. It was created for the Moslems, it was created for the Christians, it was created for the members of every other faith that have places that are sacred for them in Israel. The rights of all of these were established in the law, and not just any law, but a Basic Law. The status of the Jews in regard to the places they hold sacred was established like the status of all members of other faiths for the places sacred to them, with complete equality and without discrimination – each believer and the places he holds sacred.

            We live among our people, and to date we have not heard a serious complaint of any violation incurred by the members of any other faith in regard to the places they hold sacred. The State protects their rights with utmost care, and there is no breaching and no wailing [Psalms 144:14]. Yet see how wondrous, or perhaps not so wondrous: we Jews are the ones dissatisfied by what has been done and by what has not been done in the places sacred to us – at times from here and at times from there. The matter before us in this Further Hearing is one of those disputes that have arisen among the Jews themselves.

4.         This is the fourth time that we are addressing the subject before us, and we would express the hope that it will be the last. The first time was in HCJ 257/89, 2410/90 Anat Hoffman et al. v. Director of the Western Wall; Susan Alter et al. v. Minister of Religious Affairs et al., IsrSC 48 (2) 265 (the First Judgment or the First Petition). The second time was in HCJ FH 882/94 Susan Alter et al. v. Minister of Religious Affairs et al. (unpublished), in which the petitioners in the First Petition requested a Further Hearing on the First Judgment (the Further Hearing). The third time was the judgment that we are now addressing in this Further Hearing, that is, HCJ 3385/95 Anat Hoffman et al. v. Director General of the Prime Minister’s Office et al., IsrSC 54 (2) 345 (the Second Judgment or the Second Petition). And now we meet for the fourth time.

            In order to understand the disagreements and the arguments of the parties, we have no alternative but to review – if only in brief – the proceedings to date. Indeed, the aforementioned proceedings were like necklace beads strung one beside another to form a single strand, and before we string another bead, we should study and understand the nature of that strand.

 

The Original Events and the First Petition

5.         The matter began on the Rosh Hodesh [beginning of the new month of the Jewish calendar] of the month of Tevet 5749 (Dec. 9, 1988), when a group of Jewish women, residents of Jerusalem, tried to pray together in the Western Wall Plaza. It is the custom of those women to wrap themselves in tallitot [prayer shawls] in prayer, and to read aloud from a Torah scroll, as is customary for the reading of the Torah. Thus the women sought to do facing the Western Wall every month and on special occasions. That Rosh Hodesh Tevet, the other male and female worshippers at the Wall were unwilling to permit the women to pray as they desired, and from the moment they began to pray, those other worshippers met them with violence. Prior to Rosh Hodesh Adar I, having learned from their experience, the women informed the police in advance of their intention to pray at the Wall in accordance with their custom, but to no avail. In the course of prayer, other women worshippers – soon joined by male worshipers – began to interrupt the group of women, to curse tem, shower them with insults, and even to grab the prayer books from their hands, throw objects at them and beat them.

6.         Following that event, the women met with the late Rabbi Getz, who was the rabbi in charge of the Western Wall, and prior to the Fast of Esther of that year an arrangement was concluded and the women agreed to pray at the Wall without tallitot and without Torah scrolls. For his part, Rabbi Getz assumed the responsibility of seeing to the safety of those women and to ensure their right to pray. The arrangement did not succeed, as Rabbi Getz was unable to keep his promise. The prayer on the Fast of Esther became particularly stormy, and ultimately the police had to break up a violent, rioting crowd by means of tear-gas canisters.

7.         On the day following the grim events of the Fast of Esther, on 14 Adar II 5749, March 21, 1989, those women submitted their first petition (HCJ 257/89). Thus began the first affair.

8.         The opponents of the prayer of those women continued to act aggressively, but the women did not relent. They continued to arrive at the Wall on Rosh Hodesh and pray there, but the absolute opposition displayed by the other worshippers at the site – and the rabbi in charge of the Western Wall Plaza among them  -- did not dissipate. The exchanges between the warring camps did not mince words – orally and in writing – and even violence showed its ugly face. The history of the struggle leading up to the judgment on the First Petition is described in detail by Deputy President Elon in the First Judgment, at pp. 277 – 292.

9.         Towards the end of 1989, the group of women gained encouragement and support from another group of Jewish women, residents of the United States (the Second Group). These women established the “International Committee for Women of the Wall” – from that point on, the First Group and the Second Group have been referred to as the Women of the Wall – and also tried to pray at the Wall from time to time. The worship services of the Second Group was – and is – conducted in accordance with Orthodox halakha. Inasmuch as that group comprises women from various streams of Judaism, and in order for them to unite as a single group, the group chose to follow the strictest approach to prayer from among the various schools. These women pray together as individuals, that is, they do not view themselves as constituting a “minyan” [prayer quorum], and therefore refrain from reciting those prayers that are permitted only in a minyan, such as the kaddish prayer. They wrap themselves in tallitot and read from a Torah scroll – as is the practice of the women of the First Group – but at the same time, they take care not to follow the Torah reading practices that are permitted only in a minyan, such as reciting the blessings and being called to the Torah.

10.       The women of the Second Group wished to pray at the Wall – together, as is their custom – on Rosh Hodesh Kislev 5750, but when they arrived at the Western Wall Plaza, wrapped in tallitot and carrying a Torah, they were prevented from entering the women’s prayer section. This incident led to an exchange of letters with the representatives of the Ministry of Religious Affairs, and when it became clear that this correspondence would not bear fruit, this Second Group also petitioned the High Court of Justice. This petition – submitted to the Court on June 3, 1990 – was the petition in 2410/90 Susan Alter et al. v. Minister of Religious Affairs et al. The proceedings in that petition were joined with the proceedings in the First Petition, and the two petitions together composed the first affair. For the sake of completeness we would also add that the groups composing the Women of the Wall are of various hues – like the other groups we have become accustomed to seeing in Judaism – but for our purposes they are all united in the demand that they be permitted to pray together at the Wall, wrapped in tallitot and reading the Torah aloud, just as men wrap themselves in tallitot and read the Torah aloud without fear.

11.       To complete the picture, we would also add the following. Under the provisions of sec. 4 of the Protection Law, the Minister of Religious Affairs may, after consulting with, or upon the proposal of, representatives of the religious communities concerned, and with the consent of the Minister of Justice, make regulations as to any matter relating to the implementation of that law. The Minister of Religious Affairs has exercised that authority on several occasions. In regard to the Western Wall (and other Jewish Holy Places), he promulgated regulations called the Regulations for the Protection of Holy Places to the Jews, 5741-1981 (the Protection Regulations). On Dec. 31, 1989, after the First Petition was submitted to the Court – that is the first petition of the Women of the Wall – and before the Second Petition was submitted, the Minister published an amendment to those regulations – after consulting with the Chief Rabbis of Israel – adding subsection (1a) to regulation 2, as follows:

                        Prohibited Conduct

                        2.         (a)        In the area of the Holy Places, … the following is prohibited:

                                    (1) …

(1a) Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place;

…

            We will return to examine this subsection further on, but for the meantime we would only add that it would appear that is was on the basis of this subsection (and reg. 4 of the Regulations) that the rabbi in charge of the Western Wall Plaza sought to prohibit the entrance of the Women of the Wall to the women’s prayer section of the Plaza.

 

The Judgment on the First Petition

12.       The petitions of the Women of the Wall – that in HCJ 257/89 and that in HCJ 2410/90 – came before a panel of the High Court of Justice composed of President Meir Shamgar, Deputy President Menachem Elon, and Justice Shlomo Levin. After the passage of no small amount of time during which the parties were unable to come to terms, the Court issued its decision. The judgment was delivered on Jan. 26, 1994, and the three justices wrote three separate opinions. All three agreed “that the Petitioners are entitled to pray in accordance with their custom in their communities and synagogues, and no one will stand in their way”, that “the freedom of worship of the Petitioners stands” (per Elon D.P., ibid., at p. 350), and that the prayers of the Women of the Wall “are not halakhically flawed from a formal perspective” (per Elon D.P., ibid., at p. 321). However, differences of opinion arose among the justices on the question of whether the Women of the Wall could, in practice, pray in accordance with their custom in the Western Wall Plaza, and thereby realize their fundamental right to freedom of worship.

13.       Justice Elon was of the opinion – in a decision that is worthy of being called monumental and encyclopedic – that the Women of the Wall do not have the right to pray in the Western Wall Plaza in accordance with their custom, and he constructs his decision as follows.  First, the Deputy President holds that the prayer area beside the Western Wall is a synagogue, and not merely a synagogue, but “the holiest synagogue in the halakhic and Jewish world” (ibid., p. 318). Elsewhere, the Deputy President holds that the prayer area beside the Western Wall “must be treated like a synagogue and even more so” (ibid., p. 319). Second, the manner of prayer of the Women of the Wall, although not contrary to halakha, is a manner of prayer that is “unacceptable”, that is to say, unacceptable in an Orthodox synagogue, in that it is contrary to the manner of prayer in an Orthodox synagogue. In conclusion: the manner of prayer of the Women of the Wall is, in the opinion of the Deputy President, a manner of prayer that stands in contradiction of the “local custom”.

            In this regard, the Deputy President reminds us of the provision of reg. 2(a) (1a) of the Protection Regulations – a provision that prohibits conducting a religious ceremony “that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place” – and he further holds that this provision “expresses the principle of maintaining the status quo – ‘local custom’ and the status quo are one and the same” (ibid., p. 344). The Deputy President further states “that prayer conducted in the manner of the Petitioners – prayer that … violates ‘local custom’ – leads to severe, tangible harm to public order, and thereby leads to desecration of the Western Wall” (ibid., p. 345). Indeed (ibid., p. 329):

The present reality is that the overwhelming majority of halakhic decisors, including the Chief Rabbis of Israel, see the granting of the Petitioners’ petitions – even that in HCJ 2410/90 – as constituting a desecration of the customs and sanctity of the synagogue. Such is the case in regard to the prayer customs of the synagogue, and all the more so in regard to the prayer space at the Western Wall, which is the holiest synagogue in the halakhic and Jewish world.

            (And further see p. 350). The necessary conclusion is that:

… Granting the petitions before the Court would constitute a substantive change in the local custom, and the conducting of prayer services in the manner requested in the petitions would constitute a grave offense to the feelings of the overwhelming majority of worshippers in regard to the place …

Clearly, it goes without saying that the Petitioners are entitled to pray in accordance with their custom in their communities and synagogues, and no one will stand in their way. The freedom of worship of the Petitioners stands. But due to the uniqueness of the Western Wall, and the great sensitivity of Judaism’s holiest site, prayer at that one unique place must be conducted in accordance with the common denominator that makes it possible for every Jew to pray there – the local custom that has been observed there for generations, and that should be strictly adhered to (ibid., p. 350, emphasis original – M.C.).

            This is even the case in regard to the serious fear of a possible breach of public order. The freedom of worship acquired by the Women of the Wall must retreat before the fierce opposition of the majority of worshippers at the site – opposition deriving from the severe affront that will be felt by those worshippers if the Women of the Wall are granted their request and permitted to pray in accordance with their custom in the Western Wall Plaza. In the words of Justice Elon (ibid., pp. 349-350):

It is clear beyond all doubt that granting the petitions before us would lead to particularly harsh, bitter and sharp dispute, as well as to violence that would end in bloodshed. It is an uncontested fact that the overwhelming majority of worshippers who visit the prayer area at the Western Wall every day and every night are of the honest, good-faith opinion and belief that the changes requested in the two petitions before the Court amount to desecration of the prayer area at the Western Wall. Not only will it result in extremely violent and severe dispute, but in terms of halakha, both men and women will be prevented from praying at the Wall. At present, access to the Wall and prayer at the Wall are open and permitted to every Jewish man and women, who pour out their hearts before God as each women and man desires, and as each wishes to speak with his Maker, whether by heart or from a book. It would be unthinkable that different dates and times for prayer would be instituted at the prayer area at the Western Wall for the prayer services of different groups, and that the fate of this holy site would be its division into times and periods among the members of the Jewish People, their holidays and different movements, as has been the fate of the Holy Places of other religious communities … (emphasis original – M.C.).

            Deputy President Elon was thus of the opinion that the petition of the Women of the Wall should be denied in its entirety, and that they should not be permitted to pray according to their custom in the Western Wall Plaza.

14.       On the other side – diametrically opposed to the Deputy President – stood Justice Levin. As opposed to Deputy President Elon, Justice Levin was of the opinion that the Women of the Wall had a right to pray in the Western Wall Plaza in accordance with their custom. Moreover, after four years had passed since the events that gave rise to the petitions, it was time, in his opinion, to decide the matter and grant the petitioners’ request.

15.       First of all, Justice Levin held that the Protection Law is a secular law, and therefore the petition should not be decided solely on the basis of halakhic considerations. This statement by Justice Levin conspicuously contradicts the opinion of Deputy President Elon, who interpreted and effected the Protection Law in accordance with Jewish halakha, and in reliance upon numerous Jewish-law sources. In the opinion of Justice Levin, the Western Wall site is sacred to the Jewish People both as a religious site and place of prayer, and as a place bearing national significance, a symbol of the Jewish kingdom, and he was of the opinion that it was in accordance with that approach that the manner of conduct in its vicinity and the rights of Jews to act there must be interpreted. Moreover, the Western Wall is not a synagogue, and therefore it is not subject to the halakhic rules that apply to a synagogue. The test that should be applied in regard to permissible activity in the Western Wall Plaza should be based upon “the common denominator of all the groups and people who visit the Western Wall site and the Plaza in good faith, whether for prayer or for other legitimate purposes” (p. 357).

            As for the concept of “local custom” in accordance with reg. 2(a) (1a) of the Protection Regulations, Justice Levin expressed his opinion that:

… in my opinion, the term “local custom” need not be interpreted specifically in accordance with the halakha or the existing situation. It is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others, subject to the limitations that I have noted above.

            However, Justice Levin was also of the opinion that restrictions may be imposed upon certain activities at the Western Wall site (ibid., p. 357):

Without exhausting the subject, it may be justifiable to restrict religious ritual or other conduct at the site when the common denominator of the public that legitimately cares about the Wall, and not merely one sector, sees the conduct as an “intolerable” violation that “desecrates” the site, or where the conduct is not carried out in good faith but simply to anger and provoke, or where circumstances justify establishing that certain concrete conduct will, by reason of its extent or timing, lead to a breach of public order in circumstances in which preventing the conduct (in those concrete circumstances) overrides the right to worship or the conduct of the relevant party, while ensuring appropriate alternatives for the conduct in order to limit the danger to public order that would result from it.

            The practical result of this is (loc. cit.):

… that no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace need not necessarily justify imposing such a prohibition. Rather, it is the duty of the relevant authority to ensure the appropriate conditions in order to balance all the relevant interests so that all those who seek to assemble at the Wall and its Plaza may fully realize their rights without unnecessarily violating the feelings of others.

            Inasmuch as four years had passed since the events that gave rise to the petitions, it no longer seemed appropriate to decide – after such a long period – “whether or not the conduct of any of the Petitioners was in good faith at the time” (loc. cit.), and therefore Justice Levin decided “under these circumstances” that:

I am satisfied that, at this point, it is sufficient to issue a decision that recognizes in principle the good-faith right of the Petitioners to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls, subject to the provisos that I have already noted above. That is what I would decide.

            Nonetheless, being aware of the difficulties that might confront the Government in putting the decision into practice, Justice Levin further decided that the execution of the decision should be postponed. In his words (p. 358):

In light of the sensitivity of the subject, and the need to prepare for the execution of this decision, and perhaps also to enact legislation to arrange the matter, I would recommend to my colleagues that this judgment be issued subject to the interim order remaining in force for one year from today.

16.       The third opinion – the second in the order published in IsrSC – was given by President Shamgar. At the outset, President Shamgar addresses the exalted status of the Western Wall – both in the religious tradition and in the national tradition of the Jewish People – stating (ibid., p. 353):

The Wall – which bounds the Temple Mount on its western side – was sanctified in the religious tradition of the Jewish People as the remnant of our Temple. For thousands of years, it has represented in our national tradition what we lost with the destruction of the Temple, as well as the continuity of our national existence. In the eyes of the religious halakha, it is a mikdash m’at; from a nationalist perspective, it symbolizes generations of suffering           and the aspiration for a return to Zion and the return of our diaspora, and therefore, it expresses the strength and vitality of the nation, its ancient roots and its eternality. Therefore, inter alia, the opening ceremony of Remembrance Day for the Fallen Soldiers of Israel is held there, and soldiers are sworn in while facing it (emphasis original – M.C.).

Further on, President Shamgar goes on to speak of tolerance and patience (ibid., p. 354):

… we have emphasized on various occasions that the sons and daughters of a free society in which human dignity is a fundamental value, are asked to respect the personal-emotional feelings of the individual and his dignity as a person, while understanding that the personal-emotional priorities and the manner of expressing them differs from person to person. Thus we were of the opinion … that a free society is sparing in imposing limits upon the choices of the individual and acts with patience and tolerance, and even tries to understand the other, even when he chooses paths that the majority does not deem acceptable or desirable.

Tolerance and patience “are not unidirectional norms, but rather they are encompassing and multidirectional” (ibid., p. 354), and therefore:

… tolerance must be mutual. Belligerent demonstrations that sometimes draw upon the practices of violent societies from the east and west are not appropriate to it.

            Following this preface, President Shamgar informs us: “All of this leads us to the bumpy road of trying to balance between approaches and beliefs that are incompatible” (ibid., p. 354), and in this context he adds that it would be preferable if the resolution of disputes be reached through dialogue. In his words (ibid., pp. 354-355):

… it is worth remembering that exclusive focus upon presenting questions and problems before the Court – the “wonder drug” of our generation – is not necessarily the appropriate solution or the desirable remedy for all that ails us. At times it comprises the desire for an imposed solution, grounded in a judicial order, when an attempt at reaching agreement and discussion between the various approaches seems more difficult. However, a solution achieved through agreement and understanding has the advantage of deriving from the parties, and the spirit that led to the agreement will imbue its results.

17.       On the merits, one needn’t dig too deeply to discover that President Shamgar was of the opinion that the petitioners had a right to pray according to their custom in the Western Wall Plaza. Like Deputy President Elon, President Shamgar was also of the opinion that we must seek and find “a common denominator for all Jews, whomever they may be” (ibid., p. 355). However, unlike Deputy President Elon, in the opinion of President Shamgar (ibid., p. 355):

… the common denominator means sufficing with the basic arrangements that would ensure freedom of access and freedom of worship to everyone, without imposing special conduct upon those who do not want it, and without violating the sensitivities of the believers. It does not mean imposing the strictest approach. Incidentally, if we were to adopt the strictest approach, then no Jew would be permitted to visit the Temple Mount (emphasis original – M.C.).

            President Shamgar agrees that “in light of the unusual sensitivity of the issue at bar, it cannot be resolved at a stroke, while ignoring its deep roots”, but he adds, “I am not convinced that the Respondents are not exaggerating the conflicts and differences.” He then continues to express his opinion in no uncertain terms in regard to the right of the Women of the Wall. In his words (ibid., p. 355):

In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws.

18.       President Shamgar is of the opinion that it would be appropriate to attempt to continue to employ means that might lead to an arrangement acceptable to all:

I have already noted that this Court may not be the most effective medium – and certainly not the only one – that, through meeting with the various parties, can try to find practical ways for realizing the legislative purpose of the two aforementioned laws, which continues and realizes the principle declared in the Declaration of Independence.

If the relevant parties are willing, it would be appropriate to make at least an attempt to reach a solution that would be suitable to all those who wish to visit the Western Wall.

            And for this reason, he is of the opinion that a decision should not be rendered immediately (ibid., pp. 355-356):

It is, therefore, my opinion that, at this stage, we should not decide the matter before us in the manner that a normal legal dispute is decided. I would recommend to the Government that it consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers.

Therefore, I would, at present, dismiss the petitions, subject to my above recommendation. The gates of this Court are always open, but as stated, the other available options should first be exhausted.

19.       If we closely examine the opinions of the three justices, we discover that they are divided into a majority and a minority for various reasons. In order to understand this correctly, we will now take a small step backwards. We will examine the petitions of the Women of the Wall and then return to the opinions of the justices.

            The primary prayer of the petitioners in HCJ 257/89 (the First Group) was directed against the Director of the Western Wall, the Ministry of Religious Affairs, and the Chief Rabbis, demanding that they show cause:

Why do they forbid and/or prevent the Petitioners in particular, and Jewish women in general from carrying Torah scrolls and reading from them, and/or wearing tallitot during their prayers.

            As for the Second Group – the Women of the Wall who petitioned in HCJ 2410/90 – their primary prayer was this:

A petition for an order against the Respondents … forbidding them to prevent Petitioners nos. 1-6 from praying at the Western Wall and in the Western Wall Plaza while wearing tallitot and reading the Torah, and requiring them to permit the Petitioners to bring a Torah scroll into the Western Wall Plaza, and ensure such prayer by the Petitioners without interference or harm.

            These petitions were denied by a majority composed of President Shamgar and Deputy President Elon, but while the Deputy President’s reasons came from the east, the President brought his reasons from the west.

20.       On the merits, as noted, Deputy President Elon was of the opinion that the Women of the Wall did not have a right to pray according to their custom at the Western Wall, and he therefore decided that the petitions should be denied. President Shamgar was also of the opinion that the petitions should be denied, but unlike the Deputy President, it was his opinion that the time was not yet ripe for a judicial decision, and he therefore decided to deny them. In the opinion of President Shamgar, the Petitioners’ petitions were premature, as the parties had not exhausted all of the avenues for resolving the disputes amicably – rather than by a decision of the Court – and it would not, therefore, be appropriate to decide the matter and rule upon the rights of the parties at law. The Deputy President from here and the President from there – each for his own reasons – arrived at a joint operative conclusion that the petitions should be denied and the orders nisi quashed. But the reasons for their decisions were diametrically opposed. In this regard, Justice Levin was in the minority, as his opinion was that an order absolute should be granted in a particular form.

            Thus far in the matter of the operative relief.

21.       The disagreements on the operative decision were unlike the disagreements on the merits in regard to the right of the Women of the Wall to pray at the Western Wall in accordance with their custom. In this regard, the division among the opinions of the justices was different than in regard to the operative decision.

            The opinion of the Deputy President, Justice Elon, was, as stated, that the Women of the Wall did not have a right to pray at the Western Wall in accordance with their custom. As opposed to this, Justice Levin was of the opinion that, subject to certain provisos, the Women of the Wall had a right to pray in good faith at the Western Wall in accordance with their custom, while wearing tallitot and carrying a Torah scroll. In this regard, President Shamgar concurred with Justice Levin that the Women of the Wall had a right to pray at the Western Wall in good faith and in accordance with their custom. Indeed, as we saw, President Shamgar was of the opinion that “[T]he legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws” (at p. 355).  At the same time, while President Shamgar and Justice Levin agreed on the merits, they disagreed as to the operative relief, and for reasons that we explained above, President Shamgar was of the opinion that the order nisi should be quashed and the petitions denied.

22.       The result of the First Petition was thus that according to the majority, the Women of the Wall had a right to pray in accordance with their custom at the Western Wall, while by a different majority, their petition was denied.

 

The Proceedings after the Judgment in the First Petition and the submission of the Second Petition

23.       President Shamgar was of the opinion that the possibilities for reaching an agreed solution had not been exhausted, and in this regard he accompanied Justice Levin part of the way (see para. 15, above, in regard to the operative relief that Justice Levin thought should be granted to the petitioners). President Shamgar did not set a time for examining the possibilities for reaching an agreed solution, but he expressly stated the parameters for striking a balance. We quoted his opinion above (para. 17), and we will reiterate it here:

In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws.

            In other words, the Women of the Wall have the fundamental right to pray to God in accordance with their custom – whether in their own place or before the Western Wall – “as long as it will not constitute a substantial interference with the prayers of others.”

24.       In the judgment that is the subject of the Further Hearing – the judgment in the Second Petition – the Court surveyed the events following the judgment on the First Petition at length (see pp. 352 – 361 of the judgment in the Second Petition), and we will therefore be brief.

25.       Two months passed after the rendering of the First Judgment, and on May 17, 1994, pursuant to the recommendation of President Shamgar, the Government of Israel decided to appoint a committee that was instructed as follows:

… to propose a possible solution that will ensure freedom of access to the Western Wall and freedom of worship in its Plaza, while minimizing the violation of the feelings of the worshippers at the site.

            The members of the Committee were the Director General of the Prime Minister’s Office (Chair), and the Directors General of the Ministry of Religious Affairs, the Ministry of the Interior, and the Ministry of Police, and the Legal Advisor of the Prime Minister’s Office. The Prime Minister’s Advisor on the Status of Women was appointed to the committee as an observer (the Directors General Committee). The Government allotted six months for the Committee to present its recommendations.

 26.      When they saw that the First Judgment did not grant them the relief they had hoped for, the Women of the Wall petitioned the Supreme Court to grant a Further Hearing on the First Judgment (HCJFH 882/94 Susan Alter et al. v. Minister of Religious Affairs et al., unpublished). The Deputy President, Justice Aharon Barak, decided to deny the request, grounding his decision upon the Government’s decision. In his decision, the Deputy President wrote:

This petition must be denied. My opinion is grounded upon the view expressed by President Shamgar in his opinion in the judgement that is the subject of this request. In his opinion, the President noted that, at this time, he would not decide upon the petition. Instead, he recommended that the Government consider the appointment of a committee that would examine the matter in depth in order to arrive at a solution that would ensure freedom of access to the Wall and minimize the violation of the feelings of the worshippers.

            The Deputy President quotes the Government’s decision, and goes on to say:

On the basis of this sequence of events, it would appear to me that we should wait for the Committee’s recommendation (which is supposed to be given within six months of the establishing of the Committee). If those recommendations are unacceptable to the Petitioners, they may reapply to the Court (sitting as High Court of Justice). In his opinion, the President noted in this regard that “[T]he gates of this Court are always open, but as stated, the other available options should first be exhausted”.

27.       Let us return to the Committee. The six months allocated to the Committee by the Government passed. Then a further six months passed (pursuant to an extension decided upon by the Government, and the Committee’s recommendations were still delayed in coming. Seeing this, the Women of the Wall petitioned the High Court of Justice, this time presenting a united front (HCJ 3358/95 Anat Hoffman et al. v. Director General of the Prime Minister’s Office et. al.).

            This Second Petition added nothing new to the First Petition. The request of the Women of the Wall was merely that the Government establish arrangements that would permit them to pray in the prayer area at the Western Wall “in women’s prayer groups, together with other Jewish women, while they are wearing tallitot and reading aloud from the Torah”, in accordance with the First Judgment (see the Second Judgment, IsrSC 54 (2) 345, 347). In other words, the Second Petition was, in essence, a petition to force the Government to do what the Court had ordered that it do in the First Petition.

28.       Not long after the submission of the Second Petition, on July 2, 1995, the Government decided to extend the time allocated to the Committee for presenting its recommendations by an additional six months.

            Ultimately, on April 2, 1996, the Committee presented its recommendations to the Government. And this is the core of the Committee’s recommendation:

In order to achieve the balance demanded of the Committee in the Government’s decision between freedom of access to the Wall and limiting the violation of the feelings of the worshippers, the Committee has not found the time to be ripe for permitting prayer in the Western Wall Plaza itself that differs from the traditional prayer accepted there.

            In arriving at its decision, the Committee gave significant weight to the views of the Commissioner of Police and the Police Commander of the Jerusalem District who expressed their opinion in regard to the consequences of the prayer of the Women of the Wall for public order. They were of the opinion that an arrangement for the allocation of prayer times would not prevent harm to public order. The Committee further examined four alternative prayer sites in the vicinity of the Wall: the site beneath “Robinson’s Arch”, the area in front of the Hulda Gates, the southeastern corner of the Temple Mount wall, and the “Little Western Wall”. Of the four alternatives, the Committee was of the opinion that the southeastern corner was the most appropriate.

29.       When the recommendations of the Directors General Committee were presented before it, the Government decided to appoint a ministerial committee to “examine the recommendations of the Directors General Committee and the means for effecting them, and decide the matter on behalf of the Government.” That decision was made on April 21, 1996, but because elections for the fourteenth Knesset were held shortly thereafter, the ministerial committee was automatically dispersed.

30.       Another year passed until, on June 2, 1997, and after being presented with the recommendations of the Governors General Committee, the Ministerial Committee for Jerusalem decided to adopt the recommendations. This was the decision of the Ministerial Committee:

A.To record the notice of the Prime Minister according to which the Government of Israel recognizes the right to freedom of worship and religion of every person, including the Petitioners.

B.To find that in reliance upon the evaluation of the Israel Police, the prayers of the Petitioners, in accordance with their custom, cannot be permitted in the Western Wall Plaza, and that in accordance with the evaluation of the other security services that was recently presented, a change of the status quo in regard to prayer arrangements in the alternative suggested sites may lead to a danger to public safety.

C.In accordance with the aforesaid, to maintain the existing situation unchanged for the present. To act to examine the possibility of arranging an appropriate alternative prayer site, and to request a postponement of the Court proceedings for an additional three months for the purpose of examining the situation of the proposed sites from the security standpoint.

D.The evaluation of the security agencies will be brought for further discussion by the Ministerial Committee for Jerusalem, and for a decision on the matter.

31.       The Government did not relent in its attempts to find an agreed solution for the prayers of the Women of the Wall. A committee was established at that time whose assignment was to develop recommendations in regard to the matter of conversion to Judaism (the Neeman Committee), and the Government proposed that that committee address the issue of the Women of the Wall. The Women of the Wall initially rejected this proposal, but after discussion in the Court – in the course of the proceedings in the Second Petition – the matter was transferred to the examination of the Neeman Committee.

32.       The members of the Neeman Committee were – in addition to the Chair, the then Minister of Finance Yaakov Neeman – Prof. Dov Frimer, Adv.; Rabbi Nahum Rabinowitz; the Head of the Ma’aleh Adumim Yeshiva; Rabbi Uri Regev,  representing the Reform Movement; and Rabbi Ehud Bandel (replacing Rabbi Reuven Hammer), representing the Conservative Movement. The representatives of the parties were invited to the Committee’s meetings, and the representatives of other relevant bodies also participated, among them: the Antiquities Authority, the Ministry of Religious Affairs, the Ministries of Justice and Internal Security, the Office of the Minister for Diaspora Affairs, the Israel Police, and others. The Committee held a number of meetings, and in the course of its deliberations it also visited five possible prayer sites: the area of the parking lot adjacent to the entrance to the Western Wall Plaza, beside the staircase; the “Southern Wall” area; the women’s prayer section in the Western Wall Plaza; an area at the back of the Western Wall Plaza known as the “Flag Plaza”; and the “Robinson’s Arch” area.

            On Sept. 23, 1998, the Committee presented the report that it had prepared, examining the advantages and disadvantages of each of the proposed alternatives. At the end of its report, the Committee reached the conclusion that conducting prayer at the “Robinson’s Arch” site is “the most practical solution for the needs and demands of the Women of the Wall. That is the case after weighing the advantages and disadvantages of each of the above alternatives. … [and] weighing and balancing the need to find an appropriate prayer site that would meet the needs and demands of the Women of the Wall, and the important principle requiring the avoiding of violation of the feelings of the worshippers at the Western Wall Plaza and not violating the local custom”. These conclusions were adopted over the opposition of Rabbi Uri Regev.

 

The Second Judgment

33.       The recommendation of the Neeman Committee was not acceptable to the Women of the Wall. They were of the opinion that the recommendation did not fall within President Shamgar’s balance parameters, and they therefore maintained their position, demanding their right to pray in accordance with their custom in the Western Wall Plaza. That is also what they argued before the Court in the Second Petition. The Government’s position was, needless to say, different and opposed. In the Government’s opinion, President Shamgar had said nothing more than that a balance must be struck between the right of access to the Wall, and harm to the feelings and well-being of the public. The Government further argued that that balance had been appropriately preserved by the Neeman Committee, and that the Committee’s recommendation reasonably balanced the interests pulling to either side. The Court was therefore required to decide the issue of whether the decisions of the Government and the committees that had acted on its behalf were consistent with the decision rendered in the First Judgment.

34.       The judgment in the Second Petition was drafted by Justice Mazza, with the concurrence of Justices Strasberg-Cohen and Beinisch. The judgment reviewed the chain of events leading up to it, and in examining the activity of the committees in relation to the balancing parameters set down by President Shamgar, instructed us as follows (ibid., 364-365):

… the recommendation of the Directors General Committee was not only contrary to the express instructions of the First Judgment, it also deviated from the purpose for which the Committee was appointed, as defined in the Government’s decision.

The committees that followed the Directors General Committee – the Ministerial Committee for Jerusalem, as well as the Neeman Committee – pursued the same path. The common denominator of the recommendations that were presented by all of the committees that addressed the matter was expressed by the conclusion that the balance between the Petitioners’ right to pray in the Western Wall Plaza, and the harm that the Petitioners’ prayer will cause to others and the opposition that will be aroused can only be found in removing the Petitioners from the Western Wall Plaza and forcing them to suffice with this or that alternative prayer venue. Needless to say that these recommendations too – like the recommendation of the Directors General Committee – deviated from the balancing formula in the First Judgment.

It would not be superfluous to note that even in explaining the reasons for their conclusions, the honorable committees drifted to views that were rejected by the majority of the justices in the First Judgment. Thus, for example, in arriving at its positon, the Directors General Committee ascribed weight to the verdict of the Chief Rabbis that “there should be no change in the existing status quo, and that prayer at the Western Wall should continue to be conducted as was customary and accepted to this day”. That position, sanctifying the “status quo”, was supported in the First Judgment only by the Deputy President, Justice Elon, but was entirely rejected by Shamgar P. and Levin J. This comment is equally applicable to the balancing formula followed by the Neeman Committee, which also granted weight to the consideration of “not violating the local custom”. Particularly perplexing was the comment of the Directors General Committee that “the paths of peace require mutual sacrifices of both sides”, inasmuch as by its recommendation that the Petitioners be removed entirely from the Western Wall Plaza, the Committee expressed the opinion that only the Petitioners are required – for the sake of peace – to sacrifice everything, whereas the groups opposing the presence of the Petitioners – the fear of whose violent reaction led the Committee to seek a different solution from that it was asked to recommend – are neither asked nor expected to make any sacrifice.

            As for the parameters of the balance decided upon (by majority) in the First Judgment, Justice Mazza adds as follows (ibid., 366):

… the First Judgment recognized the right in principle of the Petitioners to conduct prayers in accordance with their custom in the prayer plaza beside the Western Wall, and [] the committees that addressed the subject of the petition following the First Judgment did not do what they were intended to do in accordance with the instructions of that judgment …

            As for the fear of the violent reactions of the opponents of the prayer of the Women of the Wall, the Court further held that a balance that abolishes the right of the Women of the Wall by reason of public safety deviates from the balance parameters established in President Shamgar’s opinion (ibid., 365):

We are of the opinion that in arriving at its decision in the First Judgment, the Court already took into account the possibility that recognition of the Petitioners’ right to pray in accordance with their custom in the Western Wall Plaza might lead to violent reactions by groups for whom tolerance of others is foreign.

35.       This, therefore, was the decision in the Second Judgment now before us in a Further Hearing: Having found that the “balances” effected by the various committees are incompatible with the instructions of the First Judgment, the Court ruled (ibid., 367) to issue an order absolute:

[I]nstructing the Government to establish the appropriate arrangements and conditions under which the Petitioners will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza.

            This time as well, as in the first case, the Court refrained from deciding upon the details of the appropriate arrangement, but Justice Mazza found it appropriate to emphasize that “the required decision [in the matter of the arrangement] is only in regard to the concrete conditions in order to enable the Petitioners to pray in accordance with their custom in the Western Wall Plaza, such as the place and times in which they may do that, while mitigating the affront to the feelings of other worshippers and while maintaining the necessary security arrangements” (ibid., at 367).

            The Court further decided to delay the execution of the judgment, setting a period of six months – i.e., until the end of November 2000 – for the establishing of the necessary arrangements.

 

The Petition for a Further Hearing

36.       The Second Judgment was issued on May 22, 2000, and two-weeks later – on June 6, 2000 – the Government and those acting on its behalf (the Director General of the Prime Minister’s Office, and the Directors General of the Ministry of Religious Affairs, the Ministry of the Interior and the Ministry of Police, the Legal Advisor of the Prime Minister’s Office, and the Prime Minister’s Advisor on the Status of Women) petitioned for a Further Hearing in the matter of the judgment. President Barak granted the request on July 13, and thereafter, the panel appointed for the Further Hearing decided to further delay the execution of the order issued by the Court in the Second Judgment until the rendering of judgment in the Further Hearing.

37.       We will now take a brief recess in order to complete the picture. While the proceedings in the Further Hearing were pending, two organizations – the “Kolot Hakotel” Association and the “Am Echad” Association – requested to join the petition as additional petitioners – public petitioners – together with the Government. These organizations were not party to the High Court proceedings up to this point, but now requested to join the proceedings in the Further Hearing after they had begun. The “Kolot Hakotel” Association presented itself as an association whose members are “religious and traditional women who see preserving and employing traditional prayer at the Western Wall, as the last remnant of the place of the Temple, to be a supreme value in the continuity of Jewish life and Jewish tradition”. As for the “Am Echad” Association, it presented itself as a religious movement whose members are drawn from “a broad spectrum of ‘streams’ within Orthodox Judaism in Israel and the Diaspora.” This organization expressed “great concern in regard to change or deviation from the accepted prayer of generation upon generation at the Western Wall, in which all of world Jewry is a partner”, and therefore, it explained, it requests to further argue before the Court alongside the Government.

38.       After examining the requests of the two organizations and their written summary pleadings – which were submitted after the submission of extensive summary pleadings by the State Attorney’s Office – we reached the conclusion that those requests added nothing to the detailed, broad scope of the arguments presented by the State Attorney’s Office. For that reason, we decided, on Nov. 19, 2000, to deny the requests of the organizations to join the proceedings as additional petitioners in the Further Hearing.

            Indeed, it is decided law that when an entity with a general public interest requests to join as a party to proceedings before the High Court of Justice, we carefully consider “if that joinder would contribute to the proper, full examination of the dispute” (HCJ 852/86 Aloni v. Minister of Justice, IsrSC 41 (2) 1, 32, and also see p. 31). If such is the case in regard to proceedings before the High Court of Justice, then it applies all the more so in regard proceedings in a Further Hearing. Thus, having found that the organizations did not present arguments that are not argued by the Government, we decided to deny the requests.

            Following this brief recess, let us now return to the matter of the Further Hearing.

39.       The State Attorney’s Office, on behalf of the Government and its subsidiaries, reiterated the argument that it has presented since the outset of the proceedings in the matter of the Women of the Wall, that the Women of the Wall did not acquire a right to pray in accordance with their custom before the Wall and in the Wall Plaza, adding that it disagrees with the Court’s finding in the Second Judgment that the First Judgment established the law. The State Attorney’s Office finds support for this view in the statement of President Shamgar – in the First Judgment, ibid., 355-356 – that “at this stage, we should not decide the matter before us”, and in the statement of the Deputy President, Justice Barak, who, in denying the request of the Women of the Wall for a Further Hearing on the First Judgment, held that “[i]n his opinion [in the First Judgment], the President [Shamgar] noted that, at his time, he would not decide upon the petition” (para. 26, above).

40.       I find it hard to accept the argument of the State Attorney’s Office that the matter of the right of the Women of the Wall was not decided in the First Petition. We quoted the statements of the justices in the First Judgment at length, and in our opinion, the Court decided upon the right of the Women of the Wall to pray in accordance with their custom at the Western Wall (see the statements that we quoted above in paras. 15-18 and para 21). We would further recall that among his other statements in the First Judgment, the President explicitly held that “we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws” (ibid., 355). In speaking of “the said laws”, the President was referring to the provisions of sec. 1 of the Protection Law and its identical parallel in sec. 3 of Basic Law: Jerusalem, Capital of Israel, according to which: “The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places”.

            President Shamgar went on to speak of these two laws further on in his opinion, in stating that the parties should “try to find practical ways for realizing the legislative purpose of the two aforementioned laws, which continues and realizes the principle declared in the Declaration of Independence” (ibid., 355). President Shamgar addressed that “declaratory principle” at the beginning of his opinion (ibid., 353), holding that the fundamental provision that we addressed in the two relevant laws give “statutory expression to the statements of the Declaration of Independence, which declares that the State of Israel will ensure freedom of religion and conscience, and will protect the Holy Places of all religions” (ibid., 353). Can there be any doubt that President Shamgar recognized the right of the Women of the Wall to pray in accordance with their custom in the Western Wall Plaza? The question begs the answer.

            President Shamgar’s holding in regard to the right of the Women of the Wall to pray according to their custom at the Western Wall is clarified and explained further on, against the background of his recommendation that the Government “consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers” (ibid., 356). A person naively reading this statement would learn that the Women of the Wall held a right to pray in their manner at the Western Wall, and that the committee that President recommended appointing was intended only to find a solution that would “ensure”[1] freedom of access – in his words – while limiting the affront to the feelings of the worshippers. The term “ensure” freedom of access is not ambiguous. It has but one meaning, which is that the Women of the Wall have a right to pray at the Wall in accordance with their custom. That right, together with the need to limit affront to the feelings of the worshippers – both the right and the need – must coexist.

41.       When the Court examined the actions of the Government and its committees against the balance parameters that the Court had established in the First Judgment, it found that the actions were one thing and the balance parameters were another, that is, the actions did not fall within the parameters. The Government’s prayer, therefore, is that we turn back the clock and reverse not only the Second Judgment but the First Judgment as well. In any case, the opinion of the majority in the First Judgment is clear and requires no interpretation.

42.       In the course of the proceedings before us, we tried to bring the sides closer; we tried but did not succeed. The Government reiterated the proposal of the Neeman Committee that the Women of the Wall pray in accordance with their custom at the “Robinson’s Arch” site. In the words of the Government in its pleadings:

The Respondents will argue that prayer at “Robinson’s Arch” realizes both conditions established by President Shamgar, viz., the ensuring of the right of access to the Wall and limiting the affront to the feelings of the worshippers. The right of access to the Wall will be preserved (as will freedom of worship), inasmuch as Robinson’s Arch is, as stated, a part of the Wall, and prayer there will avoid friction and prevent affront to those who pray at the Wall in the long-customary manner.

…

The solution is respectable, fair and immediately executable. It would be proper for the honorable Court to issue a ruling in the matter of the prayer arrangements at the Holy Places that will allow the necessary flexibility in order to ensure freedom of access and worship, on the one hand, and the prevention of friction and violence, on the other.

            As we are all aware, “Robinson’s Arch” is a remnant of the western wall of the Temple Mount, just like the Western Wall. However, no one would deny that in the collective and individual consciousness of Jews, this part of the western wall is not perceived to be of a level of sanctity and uniqueness equal to that part of the western wall referred to as The Western Wall: with a capital “T”. We would further add that, over the last few years, the site adjacent to “Robinson’s Arch” – a site under the auspices of the Antiquities Authority – has occasionally served as a prayer space for the Conservative Movement. The question before us was, therefore, whether the “Robinson’s Arch” site would be suitable for the prayer of the Women of the Wall.

43.       The justices of the First Judgment examined the Neeman Committee’s proposal in regard to “Robinson’s Arch”, and their opinion was that the site was not suitable to serve as an appropriate alternative prayer space to the Western Wall in that it could not realize the balance parameters enunciated in the First Judgment. The Court also visited the other alternative prayer sites proposed to the Women of the Wall – among them “Robinson’s Arch” – but further held in the Judgment (at p. 366) that “making such a visit was unnecessary for the purpose of rendering a decision, inasmuch as the Petitioners’ right to pray in accordance with their custom at the Wall was already recognized, in practice, in the First Judgment”. As for us, we should remember that we are sitting in judgment in a Further Hearing.

44.       In our deep desire to try to find an appropriate, amicable solution to this prolonged dispute between the parties, we, too, decided to visit the “Robinson’s Arch” site. We indeed visited the site, and received explanations from the representatives of the Antiquities Authority and other relevant bodies. After seeing the site with our own eyes and examining what needed to be examined, we arrived at the conclusion – like the justices of the Second Judgment – that prayer at the “Robinson’s Arch”, site in its current state, would not properly realize the right of the Women of the Wall to pray opposite the Wall. Indeed, had the Government acted to adapt the site to a regular prayer space, it might have been perceived – although not easily – as a sort of continuation of the Western Wall Plaza. However, in its present physical state, “Robinson’s Arch” cannot serve as an appropriate prayer space. We are satisfied that this alternative cannot succeed, and we cannot blame the Women of the Wall for not agreeing to the proposal. We would further note that the “Robinson’s Arch” site currently serves as a unique archaeological park that is under the auspices of the Antiquities Authority, and the Antiquities Authority does not agree to introduce any changes that would make the place suitable to serving as a prayer site.

45.       We regret that the parties could not find a way to bridge the gap between them, even if it meant walking a narrow bridge. It was possible, and would have been proper, to find an appropriate arrangement, but we now find ourselves before a rift. It is best that prayer arrangements not be decided by the courts – neither the High Court of Justice nor any other court. However, now that the matter is brought before us, it is our right – nay, our duty – to decide in accordance with the law.

46.       The Western Wall is a place that is sacred to the Jews. The Wall is also sacred to the Women of the Wall, and to those who firmly oppose the manner of prayer of the Women of the Wall. And so, on one side we have the right of the Women of the Wall to pray in their manner at the Wall, and on the other side stands the firm opposition of other religiously observant people who see the prayer of the Women of the Wall as an affront to their feelings toward a place they hold as holy. And as is well known, holiness is indivisible. This is the main problem standing in the way of finding an appropriate legal solution to the differences of opinion that have arisen between the parties.

47.       I have considered and reconsidered the matter, and in the end I have reached this conclusion: the right of the Women of the Wall is a right that entitles them to pray at the Wall in their manner. That is what was held in the First Judgment. That is what was reiterated in the Second Judgment, and I can find no justification to uproot that decision. However, like every right, the right of the Women of the Wall to pray beside the Wall in their manner is not unlimited. It is a right that – like every other legal right – requires that we evaluate it and weigh it against other rights that are also worthy of protection. Indeed, we must do what we can to minimize the affront that other religiously observant people sense due to the manner of prayer of the Women of the Wall, and by doing so, also prevent serious events arising from the confrontation of the opposing parties. As President Shamgar stated in the Second [sic] Judgment (ibid., 355):

In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner …

            In order to try to comprise both these and those, I believe that, for the time being, it would be appropriate that the Women of the Wall pray in their manner at the Western Wall in the “Robinson’s Arch” site, with the proviso that the site be properly prepared in a manner appropriate for people to enter and spend time there. As we said – and saw with our own eyes – the present physical state of the site does not make it possible to conduct prayer there in an appropriate manner, and the worshipper can also not touch the Wall as do worshippers at the Western Wall. The required conclusion is that the “Robinson’s Arch” site cannot be deemed an appropriate alternative site for prayer in its present state. But if the site will be properly and appropriately adapted, it will be possible to view it as an alternative to the Western Wall for prayer. And so, if the Government will prepared the “Robinson’s Arch” site – appropriately and as required – within twelve months from today, then the Women of the Wall will be able to pray in their manner at that site. In saying that the Government must prepare the site “appropriately and as required”, I mean, inter alia, the making of appropriate safety arrangements and easy, secure access to the prayer site and the Wall itself.

48.       But if the place is not made suitable – within twelve months – as appropriate and required, and having found no arrangement acceptable to both parties, it is the duty of the Government to make arrangements in accordance with the instructions set out by President Shamgar in the First Judgment and the instructions of the Court in the Second Judgment. In other words: the Government will be required to make appropriate arrangements and provide appropriate conditions within which the Women of the Wall will be able to realize their right to pray in their manner in the Western Wall Plaza. The Western Wall Plaza is a large space, and with a little good will, the Government will be able to allocate “four cubits” for them to pray in their manner. The Women of the Wall do not ask for much. They are willing to make do with little: for example, prayer for one hour, once a month on Rosh Hodesh (except for Rosh Hodesh of the month of Tishrei), and altogether eleven hours a year (see: the First Judgment, p. 355 at letter C). The Government can arrange this small thing. I would further recall what the Court wrote in the Second Judgment – and recommend that we adopt this statement – that what the Government is asked to decide in regard to appropriate arrangements and conditions is exclusively in regard to the concrete conditions in which the Respondents will be able to pray according to their custom in the Western Wall Plaza – such as the place and times in which they can pray in their manner – while mitigating the affront, as far as possible, to the feelings of other worshippers, and while providing the necessary security arrangements.

            A government is created to govern, which is why it is called a government. And it is the legal duty of the Government to find an appropriate way to enable the Women of the Wall to conduct their prayer in good faith and in their manner in the Western Wall Plaza.

 

Epilogue

49.       The Second Temple was destroyed and went up in flames in the year 70 CE. Little remains but broken fragments. From that time, and for one-thousand-nine-hundred years, those fragments were the captives of foreigners. Jews were callers, permitted to visit their own holy places. On the 28^th of Iyar 5727, June 7, 1967, the Western Wall – a remnant of the outer wall if the Temple – was liberated from the foreign hands that held it. The Wall did not free itself from its captivity. It was the paratroops, paratroopers of the Israel Defense Forces, who freed it from its foreign yoke. Since that liberation, we are at home in this remnant of the Temple. Some of those paratroopers who freed the Wall were religiously observant and some were not. And even the observant ones among them were not all of one stripe. But all of them were agents of the Jewish People – all of the Jewish People. When that war was over – actually, immediately following the liberation of the Wall – the paratroopers fulfilled their duty, and gave the People of Israel that precious trust that they held and that they had redeemed in blood. The Wall was handed over to the Jewish People in its entirety, and not just to a part of it. And all of the Jewish People – and not just part of it – acquired rights in the Wall. “And just as the Temple Mount, and the Temple that stood upon it, was a symbol of the Jewish religious world and of the Jewish nation’s political sovereignty over Israel, so the Western Wall, the remnant of our destroyed temple, was the holiest place for the Jewish People, and symbolized its desire and aspiration for the return of national sovereignty.” Thus wrote Deputy President Elon in the First Judgment (ibid., 333). Indeed, so it is. The Western Wall is for all the Jewish People, and not just for a part of it.

 

Conclusion

50.       In conclusion, I recommend to my colleagues that we decide as stated in paragraphs 47-48 above.

            I will conclude with the prayerful wishes of the psalmist (Psalms 122:6-7):

Pray for the peace of Jerusalem, may they prosper who love you.

Peace be within your walls, and security within your towers.

 

 

President A. Barak:

            I concur in the opinion of my colleague Justice M. Cheshin.

 

Deputy President (Emeritus) S. Levin:

            I would deny the petition without reservation, as the time has come to render a final judgment in accordance with the law. I see no reason to order, except in the framework of a compromise, that the Robinson’s Arch site, currently a special and unique archaeological park, be converted into a prayer site over the objections of the Antiquities Authority.

 

Justice T. Orr:

            I concur in the opinion of my colleague Justice M. Cheshin.

 

Justice E. Mazza:

            Like my colleague the Deputy President, I too am of the opinion that the petition should be denied without any reservations. The right of the Women of the Wall to pray in accordance with their custom in the Western Wall Plaza was decided by a majority in the judgment on the First Petition (HCJ 257/89 Hoffman v. Director of the Western Wall, IsrSC 48 (1) 265), and unanimously affirmed in the judgment that is the subject of this Further Hearing (HCJ 3358/95 Hoffman v. Director General of the Prime Minister’s Office, IsrSC 54 (2) 345). Even my colleague Justice Cheshin, with whose opinion in regard to the right of the Women of the Wall, the majority of justices in this Further Hearing concur, does not doubt the justice of the said judgment. Nevertheless, he recommends that we intervene in the relief that was granted to the Women of the Wall in the judgment that is the subject of this Further Hearing, such that they will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza only if the Petitioners fail to prepare – and as long as they do not prepare – the “Robinson’s Arch” site for them as an alternative prayer site. In referring to that site, which currently serves as an archaeological park worthy of the name, my colleague indeed admits that “in the collective and individual consciousness of Jews, this part of the western wall is not perceived to be of a level of sanctity and uniqueness equal to that part of the western wall referred to as The Western Wall”. Nevertheless, my colleague recommends seeing this site (as long as it is prepared to serve as a prayer site) as an alternative with which the Women of the Wall must make do, and at least for the present, relinquish the realization of their recognized right to pray in accordance with their custom in the Western Wall Plaza. My colleague Justice Cheshin proposes adding this proviso to the judgment, in order, in his words, to “do what we can to minimize the affront that other religiously observant people sense due to the manner of prayer of the Women of the Wall, and by doing so, also prevent serious events arising from the confrontation of the opposing parties”.

            I cannot agree with this proposal that, with all due respect, essentially eviscerates the recognized right of the Women of the Wall. As we already noted in the judgment that is the subject of this Further Hearing, “the Court already took into account the possibility that recognition of the Petitioners’ right to pray in accordance with their custom in the Western Wall Plaza might lead to violent reactions by groups for whom tolerance of others is foreign”. Moreover, in arriving at our decision in the judgment that is the subject of the Further Hearing, we were careful to point out that the Government must establish the arrangements and conditions, such as the place and times in which the Women of the Wall can conduct their prayer in the Western Wall Plaza, “while mitigating the affront to the feelings of other worshippers and while maintaining the necessary security arrangements”. It is important to explain that the arrangements that the Government was obliged to establish were intended to allow the Women of the Wall to realize their right to pray in the Western Wall Plaza, as opposed to beside the Wall. As is generally known, the Western Wall Plaza covers a large area. Most of the worshippers are concentrated in the part of the area that is adjacent to the Wall and clearly separated from the more remote parts of the Plaza. In requiring that the Government establish arrangements that would allow the Women of the Wall to realize their right to pray – some eleven hours a year, in all – in a suitable place in the Western Wall Plaza, we gave appropriate expression to consideration of the feelings of the other worshippers. This equation reflects a proper balance between the need to allow the Women of the Wall to pray in accordance with their custom and the need to mitigate, as far as possible, the resulting affront that may be caused to the feelings of other religiously observant people. Intervening in the substance of the relief granted to the Women of the Wall in the judgment that is the subject of the Further Hearing would upset that balance.

            It is, therefore, my opinion that the petition should be denied, and that a timeframe should be set for the Government to make the necessary arrangements as ordered in the judgment that is the subject of the Further Hearing.

 

Justice T. Strasberg-Cohen:

            My opinion was and remains that the Women of the Wall should be permitted to realize their right to pray in accordance with their custom in the Western Wall Plaza, and that the Government must make that possible by establishing appropriate arrangements, as decided in our judgment in HCJ 3358/95.

            Therefore, I concur with the position of my colleagues Deputy President S. Levin and Justice E. Mazza, according to which the petition should be denied. Nevertheless, I would welcome any compromise that might be achieved by the parties concerned that would be acceptable to all.

 

Justice J. Turkel:

1.         Like my colleague Justice M. Cheshin, I too am of the opinion that the choice of the “Robinson’s Arch” site as a prayer space for the Respondents (who have come to be known as “The Women of the Wall” – J.T.) is the fitting, appropriate and balanced solution to the dispute that was brought before us. However, this solution should not be adopted “conditionally”, as recommended by my colleague, but rather as a permanent solution. My approach also differs from his. If it were up to me, I would quash the order issued by this Court (E. Mazza, T. Strasberg-Cohen, D. Beinisch JJ.) in HCJ 3358/95 Anat Hoffman et al. v. Director General of the Prime Minister’s Office et al., IsrSC 54 (2) 345 (hereinafter: the Second Judgment) ordering the Government “to establish the appropriate arrangements and conditions under which the Petitioners [the Respondents in the petition before the Court – J.T.] will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza”. One way or another, the “Robinson’s Arch” solution, recommended by the Neeman Committee, has been adopted. And it would appear that the petition before us is grounded in law – “in law” in its plain meaning – for reasons of law and not principally for reasons of the law of prayer.

 

Non-intervention in Administrative Discretion

2.         I will begin with first principles. The discretion granted to an administrative authority is the power to choose among possible solutions. The rule is that the Court will not substitute its discretion for the discretion of the administrative authority required to decide a matter. Thus it has been held:

One thing is beyond all doubt, and it is that the Court will not attempt to substitute its discretion for the discretion of the competent authority, and will not impose its opinion on those upon whose wisdom, reasoning, knowledge and practical experience the legislature intended to rely; in short – on their discretion that is based upon knowing the true situation in all its aspects and conditions …. (CA 311/57 A.G. v. M. Dizengoff and Co. Ltd., IsrSC 13 (2) 1026, 1039, per Z. Berenson J.).

            It was further stated in this regard, inter alia:

A discretion is given to an administrative organ …in order that, in fulfilling its many-sided functions which circumstances may vary and change periodically and which cannot be precisely determined in advance, it may have freedom of action. In other words, discretion means freedom of choice from among different possible solutions, or an option granted to the administrative authority, and because that authority is empowered to choose and select the solution appropriate to its mind, the court will not interfere for the reason alone that it would itself have picked upon a different solution. Such interference is tantamount to a negation of the discretion of the administrative organ and its transfer to the court (FH 16/61 Registrar of Companies v. Kardosh, IsrSC 16 1209, 1215, [English translation: IsrSJ 4 33, 35]; HCJ 92/56— Richard Weiss v. Chairman and Members of the Law Council (1956) IsrSC 10 1592; HCJ 636/86 Nahalat Jabotinsky Workers’ Moshav v. Minister of Agriculture [1987] IsrSC 41(2) 701, 708 per E. Winograd J.).

 

            This rule is based upon the separation of powers, “in accordance with which the authority to decide in matters of execution and administration remains – except in exceptional cases – in the hands of the Executive, whereas the Judiciary restricts itself to judicial review of the constitutionality of the authority’s decision” (R. Har-Zahav, Israeli Administrative Law (1966) p. 436 (Hebrew). However, a number of causes for intervention in administrative discretion have been developed in the case law, inter alia, the duty to act within the law, the duty to refrain from discrimination and act equally, the duty to exercise discretion reasonably, the duty to act fairly and not arbitrarily, the duty not to act on the basis of extraneous considerations or for extraneous purposes. Thus, it has been stated:

It appears to me that in this regard, the normative framework that applies to the exercise of administrative discretion applies to this matter as well. The accepted rules in regard to reasonableness, fairness, good faith, an absence of arbitrariness, discrimination and other such criteria that apply to administrative discretion apply to this matter as well (HCJ 297//82 Berger et al. v. Minister of the Interior, IsrSC 37 (3) 29, 34, per Barak J.).

            Did the Government act within the framework of its discretion in deciding to designate the “Robinson’s Arch” for the prayer of the Respondents? Do any of the causes that justify intervention in administrative discretion apply here? And therefore, should we order the Government to establish arrangements and conditions as stated in the order in the Second Judgment?

 

The Exercise of Discretion

3.         Before attempting to answer these questions, we will first consider some of the history of the affair. In HCJ 257/89, 2410/90 Anat Hoffman et al. v. Director of the Western Wall et al.; Susan Alter et al. v. Minister of Religious Affairs et al., IsrSC 48 (2) 265 (hereinafter: the First Judgment) – in which this Court (M. Shamgar P., M. Elon D.P. and S. Levin J.) first addressed the subject at bar – the Court “decided by majority to dismiss the petitions, subject to the recommendation in the opinion of presiding judge” to “consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers”.

            Pursuant to the First Judgment, and in accordance with the recommendation of President Shamgar, the Government decided, on May 17, 1994, to appoint a Directors General Committee that was requested “to propose a possible solution that will ensure freedom of access to the Western Wall and freedom of worship in its Plaza, while minimizing the violation of the feelings of the worshippers at the site” (hereinafter: the Directors General Committee). The Directors General Committee recommended that the petitioners be offered an appropriate alternative site in which they might realize their desire to pray in accordance with their custom, in two sites in the boundaries of the archaeological park – the “Hulda Steps”, and the southwestern corner of the Western Wall that is referred to as “Robinson’s Arch”. The recommendations of the Directors General Committee were presented to the Government on April 2, 1996. On April 21, 1996, the Government appointed a ministerial committee to “examine the recommendations of the Directors General Committee and the means for effecting them, and decide the matter on behalf of the Government” (hereinafter: the Ministerial Committee). On June 2, 1997, the Ministerial Committee decided to adopt the recommendations of the Directors General Committee. At that time, a committee was established to make recommendations in the matter of religious conversion. The Government asked the committee to make recommendations in regard to the prayer of the Women of the Wall, who are the Respondents in the petition at bar. On Sept. 23, 1998, the Neeman Committee presented a report in which it reached the conclusion that prayer at the “Robinson’s Arch” site, which “meets the Wall and is adjacent to it …” is “the most practical alternative for the needs and demands of the Women of the Wall”. The committee emphasized that it reached this conclusion after “weighing and balancing the need to find a suitable prayer space that will answer the needs and demands of the Women of the Wall and the important principle of refraining from causing affront to the worshipping public in the Western Wall Plaza and not violating local custom”. The conclusion was adopted by the Government, as we learn from the Petitioners’ notice which states that “the recommendations of the Neeman Committee represent a reasonable balance between the petitioners’ wish to pray according to their custom at the Western Wall and the other relevant considerations” (para. 13 of the respondents’ supplemental pleading in that case, who are the Petitioners at bar, for the hearing in which the Second Judgment was given).

            The Neeman Committee’s conclusion was examined in the Second Judgment, and it is also at the heart of these proceedings. As stated, the Neeman Committee reached its conclusion after it examined and considered other possible prayer sites, after “weighing and balancing” the various considerations, and after finding that “the most practical alternative” was at the “Robinson’s Arch” site. Thus, the committee chose one solution from among the possible solutions presented to it, which included the women’s prayer section in the Western Wall Plaza. Even if I were of the opinion that a different solution could have been chosen, there are no grounds for saying that the Neeman Committee – and then the Government – could not make the choice that it made, or that any of the causes that would justify intervention in that conclusion were present. Therefore, inasmuch as the Government concluded that it would be appropriate to choose the alternative recommended by the Neeman Committee, this Court must not substitute its discretion for that of the Government, whether by rejecting its decision or by revisiting the matter in a Further Hearing, as was done in regard to the Second Judgment.

 

The Conclusion of the Neeman Committee –Additional Reasons for Adoption

4.         According to my colleague Justice M. Cheshin: “As we are all aware, ‘Robinson’s Arch’ is a remnant of the western wall of the Temple Mount, just like the Western Wall. However, no one would deny that in the collective and individual consciousness of Jews, this part of the western wall is not perceived to be of a level of sanctity and uniqueness equal to that part of the western wall referred to as The Western Wall with a capital ‘T’.” I cannot agree with that statement, and not merely because my impression is different, but primarily because no halakhic or historic sources were presented from which one might conclude that the holiness of any particular part of the Western Wall – the wall that, in my view, is the entire western wall of the Temple Mount – is more holy than any other part.

            I also find it hard to agree with his conclusion that: “had the Government acted to adapt the site to a regular prayer space, it might have been perceived – although not easily – as a sort of continuation of the Western Wall Plaza”. I am of the opinion that the sanctity of a place does not derive from constructing and adapting it, but rather it is inherent to its very nature. I would note in this regard that the Masorti [Conservative] Movement uses the “Robinson’s Arch” site as a prayer venue, and regards it as the “Masorti Wall” (see the Masorti Movement’s advertisement in the Kol Ha’ir newspaper of June 16, 2000, submitted as Appendix B of the Petitioners’ written summation).

5.         It is worth noting that under the Neeman Committee’s recommendation, the Respondents – who claim to follow “Orthodox custom” – retain the right of access to the women’s prayer section of the Western Wall Plaza, including the right to pray there in accordance with the local custom. The only restriction upon the Respondents’ worship there would be in regard to their practice of praying “in a group, wrapped in tallitot, carrying a Torah scroll and reading from it”. However, they would be able to follow that practice in the “Robinson’s Arch” site, which is the continuation of the Western Wall.  The respondents would, therefore, be permitted to carry out all of their prayer customs – some in the Western Wall Plaza before the Western Wall, and some at the “Robinson’s Arch” site. For this reason as well, the solution chosen by the Neeman Committee and adopted by the Government was appropriate, proper and balanced.

This conclusion does not contradict the view expressed by President Shamgar in the First Judgment, in which he stated: “I would recommend to the Government that it consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers” (ibid., at p. 3556). I doubt that President Shamgar’s intention in that statement was to hold that the Respondents, the Women of the Wall, have the right to pray at the Western Wall – in its specifically limited sense that does not include the “Robinson’s Arch” site – and specifically according to their custom. It would seem to me that the intention can be inferred from the fact that, contrary to the position of Justice S. Levin in the First Judgment – who wished to issue a judgment that recognized the right of the Women of the Wall “to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls” – President Shamgar adopted the language “freedom of access to the Wall” and no more. The Neeman Committee’s conclusion thus ensures both the freedom of access and the freedom of worship of the Respondents, as recommended by President Shamgar, but limits part of their prayer practices to “part” of the Western Wall, which is the “Robinson’s Arch” site. There is no reason to intervene in that.

 

Judgment of Peace

6.         In concluding, I would say a few words about the paths of peace. In tractate Derekh Eretz Zuta, Perek HaShalom we read: “As we learned there, Rabbi Shimon ben Gamliel says: The world exists on three things – on justice, on truth and on peace. Rabbi Mina says: And these three are one. Where justice is done, truth is done and peace is made. And these three were stated in one verse, as it says (Zachariah 8:16) ‘Give judgment in your gates for truth, justice, and peace’. Wherever there is justice, there is peace…”. The judgment rendered by the Government in adopting the alternative that it chose is judgment and is peace.

 

Conclusion

7.         If my opinion were adopted, we would grant the petition, quash the order issued by the Court in the Second Judgment, and declare that in adopting the conclusion of the Neeman Committee in regard to choosing the “Robinson’s Arch” site as a prayer venue for the Respondents, the Government fulfilled its obligation. However, since my colleague Justice Cheshin – in his own way, which is the way of compromise – reached the conclusion that “it would be appropriate that the Women of the Wall pray in their manner at the Western Wall in the “Robinson’s Arch” site”, I concur with what is stated in the concluding part of para. 47 of his opinion.

 

 

Justice D. Beinisch:

            I concur in the opinion of my colleagues Deputy President S. Levin, Justice E. Mazza and Justice T. Strasberg-Cohen, who are of the opinion that the petition should be denied. I have not changed my opinion that it is the right of the Women of the Wall to pray in accordance with their custom at the Western Wall, and that the Government must establish the arrangements and conditions that would limit, as far as possible, the affront to the feelings of the other worshippers, in terms of a suitable place, times, and security arrangements.

 

Justice I. Englard:

            I utterly disagree with my colleagues in the majority. My disagreement is not focused upon individual points, but is rather a disagreement with their entire approach, beginning with the alleged holding in the judgment in the first proceeding, HCJ 257/89, 2410/90 Hoffman et al. v. Director of the Western Wall et al., IsrSC 48 (2) 265 (hereinafter: the First Case), and ending with the merits of the approach adopted by this Court in the second proceeding, HCJ 3358/95 Hoffman v. Director General of the Prime Minister’s Office, IsrSC 54 (2) 245 (hereinafter: the Second Case).

            I will begin with my different understanding of the holding in the First Case. My colleague Justice E. Mazza tried to infer a majority holding – which would constitute a binding instruction – from the three different opinions given in the First Case, recognizing the fundamental right of the petitioners to pray in their manner in the Western Wall Plaza. The trouble is that such an attempt, focused upon the opinion of President Shamgar, is highly problematic in that, from a legal standpoint, the only result of the judgment was the denial of the petitioners’ petition, subject to a recommendation that the Government consider the appointment of a committee. Thus, all the rest of President Shamgar’s opinion, whatever it may mean, was nothing but obiter dicta that have no obligatory legal force whatsoever.  Indeed, at the end of his opinion, President Shamgar expressly holds that “at this stage, we should not decide the matter before us in the manner that a normal legal dispute is decided”, and he adds that “[t]he gates of this Court are always open, but as stated, the other available options should first be exhausted”. Against the background of these statements, I cannot agree with this Court’s assumption in the Second Case that the committees that addressed the issue “drifted to views that were rejected by the majority of the justices in the First Judgment”. Moreover, President Shamgar held that practical solutions should be sought “according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others” (ibid., at p. 335 between marginal letters e-f; emphasis added – I.E.). Therefore, even according to the “majority”, no fault can be found with the committees that examined and found that prayer in the manner and style of the petitioners significantly violates the prayers of others, and therefore proposed what they proposed. It should be noted that preserving the local custom does not constitute a fundamental impediment barring the petitioners from approaching and praying beside the Wall. The prohibition concerns only the outward manner of worship, to which I will return in the course of this opinion. For the moment, I will suffice with the comment that there is unanimous agreement on the condition that the realization of the right to worship must be made in good faith (per Shamgar in the First Case, at p. 355 [marginal letters e-f]; per Levin, ibid., at p. 357 [c]; per Mazza in the Second case, at p. 363 [d]). Yet, there are those who see the petitioners’ manner of prayer as constituting a “provocation” or a “war” to achieve ideological goals, and the Western Wall is not the appropriate place to wage it [Elon, pp. 329 & 350].  This question, too, was examined by the Court in the First Case. From all the above we can, in my opinion, conclude that there is no legal basis for this Court’s assumption that the committees that addressed the matter of the petition, following the First Case, did not do what they were asked to do in accordance with the instructions in that judgment. There was no such instruction, and therefore, for this reason alone, the petition in the Further Hearing should be granted.

2.         It is, however, clear that the said formal reason is not sufficient to conclude the debate surrounding this petition. In the final analysis, what stands behind the formal reliance upon the judgment in the First Case is a substantive perspective that guided my colleagues in the Second Case – a point of view that, in principle, adopted the opinion of my colleague Justice S. Levin in the First Case, while utterly rejecting the point of view of Deputy President M. Elon. It would, therefore, be appropriate to address that substantive perspective as expressed in the Second Case. I will state at the outset that this approach is very problematic in my view due to its shaky legal grounds. There are many questions for which I did not find adequate answers in the opinions of my colleagues Justices S. Levin in the First Case, E. Mazza in the Second Case, and M. Cheshin in this petition. I will briefly touch upon the main issues among them.

3.         The first fundamental issue concerns the general jurisdiction of this Court to consider the issue of freedom of worship in the Holy Places. This issue was mentioned and quickly decided in the First Case by Deputy President Elon (ibid., at pp. 297-298). It should be noted that the claim of lack of jurisdiction was raised not by the State but rather by one of the other Respondents. This is what the Court states there, per Deputy President Elon:

The Palestine Order in Council (Holy Places), 1924, does not deprive the Court of jurisdiction to adjudicate in regard to the preservation of public order and the prevention of criminal offences, as established in the Law and the Regulations for Protection of Holy Places to the Jews. In HCJ 222/68 National Circles Association v. Minister of Police (IsrSC 24(2) 141), the majority held that while the Order-in-Council does deprive the Court of jurisdiction in matters of freedom of worship in the Holy Places, it does not deprive it of jurisdiction    in regard to freedom of access to the Holy Places, the duty to ensure the prevention of desecration of the Holy Places, or the duty to protect the sensitivities of the members of the various religions towards their Holy Places, which are the matters addressed by the Regulations in the matter at bar. This petition treats of the freedom of access of the Petitioners to the Western Wall, the danger of desecration of the site, and a possible affront to the sensitivities of the worshippers, and this Court holds jurisdiction over the matter of the petition.

            It should be noted that Justice S. Levin expressed his agreement with this opinion in regard to the Court’s jurisdiction to address the matter of the petition (ibid., at p. 356 [b]).

4.         However, that conclusion as to the jurisdiction of the Court, taken against the background of the provisions of the Order-in-Council and the majority opinion in HCJ 222/68, Mot 15/69 National Circles Association v. Minister of Police, IsrSC 24(2) 141 (hereinafter: the National Circles case), does not stand up under examination. The matter before us directly concerns freedom of worship and not freedom of access or criminal offenses in regard to the Holy Places. As noted, the petitioners are not being prevented from approaching and praying beside the Wall. The sole restriction is upon the outward manner of their worship. In my opinion, such a dispute falls within the scope of the provisions of the Order-in-Council, even under the provisos set out by President Agranat in the National Circles case. It should be noted that the majority opinion in the National Circles case is viewed with approval by this Court, as can be seen even in HCJ 4185/90 Temple Mount Faithful v. Attorney General et al., IsrSC 47 (5) 221, 282:

Indeed, it has also been held by this Court that the authority to address the realization of the right to worship is granted to the Executive and not the Judiciary, as that is what is established by art. 2 of the Palestine Order-in-Council (Holy Places), 1924, as construed in the National Circles case, above.

            While it is true that the parties to the said proceeding did not raise this claim, nevertheless, since we are concerned with subject-matter jurisdiction, the Court does not derive its authority from them, but must raise the issue of an absence of subject-matter jurisdiction nostra sponte, inasmuch as it relates to the very source of its judicial standing and thus to the validity of its judgment. As is well known, the consent of the parties cannot remedy a lack of subject-matter jurisdiction. Perhaps we should revisit the majority opinion in the National Circles case, but as long as that holding has not been reversed, the authority to address matters of worship in the Holy Places, including the Western Wall Plaza, is granted exclusively to the Executive. By way of demonstration, would anyone imagine that this Court might intervene in the arrangements for worship of the various Christian communities in the Holy Sepulchre in Jerusalem, while changing the existing status quo?! Would it not be self-evident that such an inter-community dispute would be non-justiciable under the Order-in-Council?!

5.         For the sake of continuing the examination, I will assume that it is possible to overcome the problem of lack of jurisdiction, as this Court believed in the two cases mentioned. In other words, I will proceed upon the assumption that the case before us can be situated in the provisions of the Protection of the Holy Places Law and Basic Law: Jerusalem, Capital of Israel. In the First Case, my colleague Justice S. Levin expressed his view in regard to the significance of the Protection of the Holy Places Law and the regulations thereunder. It would appear that that view was adopted in its entirety in the Second Case. I will first quote the statement of my colleague Justice S. Levin in regard to the Protection of the Holy Places Law (ibid., at pp. 356-357):

                        A.          In my opinion, the subject of the petition should not be decided on the basis of halakhic considerations. After all, it is clear that the Protection of the Holy Places Law (hereinafter: the Law) is a secular law. It takes account of considerations of the relevant religious communities, including the considerations of the Chief Rabbis (see sec. 4), but not only those considerations, and the terms it employs should be interpreted in accordance with the common denominator acceptable to the Israeli population in its entirety. Therefore, the terms “desecrate”, “other violation”, and “anything likely to violate … their feelings (of the members of the religious communities – S.L.) towards those places” in sec. 1 of the Law should be given an interpretation that, on the one hand, expresses the right to freedom of worship and religion, as accepted in a democratic society and as “tolerated in it”, and on the other hand, the protection of the interests of public safety and “intolerable” violation of the feelings of others as acceptable in that society.

                        B.          Unquestionably, the Western Wall (and its Plaza) has been a holy site for the Jewish People for generations, as a religious site and a prayer site, but at the same time, it also bears national symbolic significance as a unique historical remnant of the walls of the Temple, a symbol of the Jewish kingdom that the masses of Israel yearned for throughout the generations. In these circumstances, the fact that the Wall serves as a site for prayer is not necessarily decisive in establishing the scope of activity permitted at the site. In this sense, I am unwilling to accept a priori and as a foregone conclusion that for the purposes of the Law, the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other.

                        C.          The above leads to two primary results. One in regard to the right to freedom of worship at the Western Wall site, and the other in regard to the right to conduct other activities of an appropriate nature at the site. As for these two types of matters, we should establish permission in principle for conduct, as long as that conduct does not constitute “desecration”, an “other violation”, or a “violation of feelings” of the nature that I have already mentioned above. In this regard, in my opinion, the adoption of the broadest common denominator as a standard – in the manner presented by my honorable colleague -- is of no help. Consider, for example, even if there are those who believe that a particular manner of prayer is absolutely forbidden by a severe halakhic prohibition, or that activities of a national character at the Wall are objectionable in their eyes, that alone should not justify prohibiting such activity. In my view, the common denominator that must be taken into account in the matter before us – and I agree that it is possible to employ this test – is the common denominator of all the groups and people who visit the Western Wall site and the plaza in good faith, whether for prayer or for other legitimate purposes. If we do not say this, then we hand an exclusive monopoly to a particular point of view, in preference to any other, in regard to freedom of expression, and as a result, the right to freedom of worship and freedom of expression will be found lacking.

            As noted, this view was adopted by the Court in the Second Case. See and note well, ibid., at p. 352 [e].

6.         Before addressing the said basic point of view of this Court in the matter of the meaning and construction of the Protection of the Holy Places Law in regard to the Holy Places, it would be proper to note, as well, reg. 2(a) (1a) of the Regulations for the Protection of Holy Places to the Jews, 5741-1981, that was added as a result of the dispute that is the subject of this petition. It states as follows:

                        Prohibited Conduct

In the area of the Holy Places … the following is prohibited: Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place.

            In the First Case, this Court agreed that this regulation does not deviate from the scope of the law (see ibid., at p. 357 [e], per S. Levin J.). However, in regard to the interpretation of this regulation, Justice Levin was of the opinion that:

[B]ut in my opinion, the term “local custom” need not be interpreted specifically in accordance with the halakha or the existing situation. It is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others, subject to the limitations that I have noted above.

7.         In my opinion, the interpretive approach adopted by this Court is incorrect. The idea that due to the secular character of the Protection of the Holy Places Law and the regulations thereunder, the terms appearing therein must also be interpreted in accordance with secular standards does not stand up under examination. This we must admit: all the laws of the Knesset are, by their very nature, secular norms, inasmuch as the Knesset is not a religious institution. Therefore, nothing can be learned from the nature of the Knesset’s laws in regard to the manner for interpreting terms that appear therein. There is no principled reason that a secular law not refer to a religious system. And this, in fact, is actually done, for one example among many, in the framework of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953. No one would dispute that the term “Jewish religious law” in sec. 2 refers to the Jewish halakhic system. The fact that the Rabbinical Courts Jurisdiction Law is a secular law says nothing about the legislative intent to refer to the religious legal system.

8.         From the above it would appear that the secular character of the Protection of the Holy Places Law says nothing in regard to the interpretation of the terms therein or in the regulations thereunder. Everything rests upon the legislative intent in using those terms. On the contrary, the presumption is that terms borrowed from a religious system should be interpreted in accordance with that system. Moreover, the idea of holiness – in the present context in regard to particular places – is a categorically religious term that has no material meaning in the secular world, and see the classical text R. Otto, Das Heilige (Breslau, 1917); id., The Idea of the Holy, trans. J.W. Harvey (Oxford, 1923, 2^nd ed. 1950). Thus, I cannot accept the general approach of this Court, which, in the context of the Protection of the Holy Places Law, attributed secular significance to the Western Wall. Of course, I do not dispute the national significance that holy places may have, but that was not the intention of the law, which expressly addressed the holy dimension of those places.

9.         The result is that terms borrowed from the religious world, such as “desecrate”, should first and foremost be interpreted in accordance with their religious significance. This is conspicuous in reg. 2 (a) (1) of the Protection Regulations that prohibits “Desecration of the Sabbath and Jewish holidays”. Is there any doubt that the intention is to refer to the Jewish halakha that defines what constitutes “desecration of the Sabbath and Jewish holidays”?!

10.       I utterly disagree with the idea expressed by my colleague Justice S. Levin in the First Case that he is “unwilling to accept a priori and as a foregone conclusion that for the purposes of the Law, the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other” (ibid., at p. 356 [e]). In speaking of the Western Wall and its Plaza as a holy place, the Protection of the Holy Places Law and the regulations thereunder must have intended the Western Wall as a synagogue, for that is the status that – in accordance with the halakhic conception – imbues that place with its holiness. This is made clear in the opinion of Deputy President M. Elon, who addressed this matter at length in the First Case, and arrived at the conclusion that the law applicable to the Western Wall Plaza is the law of the synagogue. See ibid., at pp. 318-319, where, inter alia, Sephardic Chief Rabbi Ovadia Yosef is cited:

This place must certainly be no less than a synagogue, which is a beit mikdash m’at [a little Temple]. So it is in regard to the laws of a synagogue … certainly all that is true there, is true for the Western Wall … it should be treated with no less strictness than a synagogue and a mikdash m’at (“The Western Wall and its Surroundings in Halakha,” in The Western Wall (Jerusalem, 1976) p. 139 (Hebrew)).

11.       Against this background, we may conclude that the Court’s understanding of the expression “conducting a religious ceremony that is not in accordance with the local custom” is also mistaken. “Local custom” is patently halakhic term, as is clear from the opinion of Deputy President M. Elon in the First Case. The purpose of “local custom” is to express the existence of the distinctive, traditional manners of prayer of a given place of worship. Therefore, there is no basis for the view of this Court that “in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others”. In my opinion, this construction is absolutely contrary to the intention of the author of the regulations and to the language of the regulation, and no legal basis can therefore be found for it.

12.       The result is that, assuming the said regulation was issued in accordance with the law – an assumption on which both I and this Court agree – then the decision to grant an order absolute in the petition at bar cannot stand. But that is not all. In accordance with the halakhic decisions cited in the opinion of Deputy President Elon, which were issued by Chief Rabbis Rabbi Avraham Shapira and Rabbi Mordechai Eliyahu, granting the petition would constitute a desecration of the customs and sanctity of a synagogue (First Case, at pp 328-329, and pp. 319-320). In this regard, Deputy President Elon wrote (ibid., at p. 350):

The present reality is that the overwhelming majority of halakhic decisors, including the Chief Rabbis of Israel, see the granting of the Petitioners’ petitions as constituting a desecration of the customs and sanctity of the synagogue. Such is the case in regard to the prayer customs of the synagogue, and all the more so in regard to the prayer space at the Western Wall, which is the holiest synagogue in the halakhic and Jewish world.

            I cannot but wonder where this Court finds the authority to disagree with those halakhic decisions, according to which granting the petition would constitute a violation of the provisions of sec. 1 of the Protection of the Holy Places Law, which protects the Western Wall from desecration.

13.       Lastly, even if I were to ignore all of the legal problems that I have enumerated in my opinion, there would still be support for the opinion that, in view of the halakhic situation, granting the petition allowing the petitioners to act in their style and manner would constitute a substantial intrusion upon the prayers of others (Shamgar P., the First Case, at p. 355 [e]), or an excessive violation of the feelings of others (Levin J., ibid., at p. 357 [e]), and thus a violation even under the accepted tests of this Court.

14.       Parenthetically, I would make an observation in regard to the alternative site proposed to the petitioners at “Robinson’s Arch”. The Court’s visit to the site showed that, in principle, the site is appropriate for prayer beside the Wall. However, the representatives of the Antiquities Authority opposed making any change to the site, no matter how small. Their opposition was in regard to a stone that had fallen from the ancient wall and that, in the opinion of the representatives of the Antiquities Authority, must not be moved or hidden. I was not convinced that there is any real reason not to adapt the site such that access to the wall itself would be possible, with minimal injury to the fallen stone. I regret that my impression was that for some, the “sanctity” of archaeology exceeds the sanctity of the synagogue.

            In light of the above, if my opinion were accepted, the petition for a Further Hearing would be granted and this Court’s judgment in HCJ 3358/95 would be reversed.

            However, inasmuch as my opinion remains a minority view, I concur, at least, with the first part of the opinion of my colleague Justice M. Cheshin, by which, if the Government will prepare the “Robinson’s Arch” site – as appropriate and necessary – within twelve months from today, then the Women of the Wall will be permitted to pray there in their manner.

 

 

            Decided in accordance with the majority of Barak P. and Orr, Cheshin, Turkel and Englard JJ., and against the dissenting opinions of Levin D.P. and Mazza, Strasberg-Cohen, and Beinisch JJ., as stated at the conclusion of paragraph 47 of the opinion of Cheshin J. in regard to the preparing of the “Robinson’s Arch” site as a prayer space for the Women of the Wall. However, if the “Robinson’s Arch” site is not prepared to serve as a prayer space for the Women of the Wall within twelve months of the day of the rendering of this judgment, then we decide by a majority of Barak P., Levin D.P., and Orr, Mazza, Cheshin, Strasberg-Cohen and Beinisch JJ., and against the dissent of Turkel and Englard JJ., as stated in paragraph 48 of the opinion of Cheshin J., that is, that the Government is obliged to make appropriate arrangements and conditions within which the Women of the Wall will be able to realize their right to pray in accordance with their custom at the Western Wall.

            Under the circumstances, we make no order for costs.

 

            This 4^th day of Nissan 5763 (April 6, 2003).

 

 

HCJ 3358/95

 

 

 

Petitioners:                  1.         Anat Hoffman

                                    2.         Chaya Beckerman

3.         International Committee for Women of the Wall, Inc. by Miriam Benson

 

                                                                        v.

 

Respondents:              1.         Director General of the Prime Minister’s Office

                                    2.         Director General of the Ministry of Religion

                                    3.         Director General of the Ministry of the Interior

                                    4.         Director General of the Ministry of Police

                                    5.         Legal Advisor to the Prime Minister’s Office

                                    6.         Prime Minister’s Advisor on the Status of Women

                                    7.         Government of Israel

 

Attorneys for the Petitioners: Jonathan Misheiker, Adv., Francis Raday, Adv.

Attorney for the Respondents: Uzi Fogelman, Adv.

 

The Supreme Court as High Court of Justice

[17 Iyar 5760 (May 22, 2000)]

Before Justice E. Mazza, Justice T. Strasberg-Cohen, Justice D. Beinisch

Objection to an Order Nisi

 

 

This petition concerns the Petitioners’ request to establish arrangements that would enable them to pray in the prayer area adjacent to the Western Wall in “women’s prayer groups, together with other Jewish women, while they are wearing tallitot [prayer shawls] and reading aloud from the Torah”, as required by the judgment of the Supreme Court in HCJ 257/89 Hoffman v. Director of the Western Wall (hereinafter: the First Judgment). Pursuant to the First Judgment, the Government decided, in 1994, to appoint a Directors General Committee, headed by the Director General of the Prime Minister’s Office, to present a proposal for a possible solution that would ensure the Petitioners’ right of access and worship in the Western Wall Plaza, while limiting the affront to the feelings of other worshippers at the site. In the report presented by the Directors General Committee to the Prime Minister, the Committee found that the Petitioners could not be permitted to pray in the Western Wall Plaza itself. The Committee therefore recommended that the Women of the Wall be permitted to pray at an alternative site at the southeastern corner of the Temple Mount wall. Two additional public committees that addressed the matter adopted a similar position, and the matter was therefore returned for a decision by the Court.

The Supreme Court Held:

A.        (1)        The First Judgment recognized the Petitioners’ right to worship in the Western Wall Plaza.

            (2)        The mandate of the Directors General Committee was to find a solution that would allow the Petitioners to realize their right to pray in the Western Wall Plaza, while reducing the affront to the feelings of other worshippers. But in recommending the designation of an alternative prayer site to the Western Wall Plaza the Directors General Committee chose a solution that was different from the one it was requested to develop and propose.

            (3)        Therefore, the recommendation of the Directors General Committee was not only contrary to the express instructions of the First Judgment, it also deviated from the purpose for which the Committee was appointed, as defined in the Government’s decision.

B.        (1)        In arriving at its decision in the First Judgment, the Court already took into account the possibility that recognition of the Petitioners’ right to pray in accordance with their custom in the Western Wall Plaza might lead to violent reactions by groups for whom tolerance of others is foreign.

            (2)        We cannot reconcile with a situation in which fear of the violent reaction of any sector of the public will lead to the denial of the possibility of another sector to realize its given rights. It is not inconceivable that, in given circumstances, the Police may prevent a person or a group from realizing a right where there is a real basis for the fear that realizing the right will lead to a violent outbreak that may breach the public peace, and where the Police is unable to prevent such dire consequences by reasonable means. But no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace need not necessarily justify imposing such a prohibition.

C.        (1)        Inasmuch as none of the alternatives suggested and considered at various stages of the proceedings can be viewed as even partially realizing the right to worship in the Western Wall Plaza, it is appropriate that the High Court of Justice order the Respondents to act to establish the appropriate arrangements for the realization of that right.

            (2)        Therefore, the Government must make concrete arrangements that will ensure the realization of the Petitioners’ right to worship in the Western Wall Plaza within six months.

 

 

 

Judgment

 

Justice E. Mazza:

1.         This petition concerns the Petitioners’ request that arrangements be made to permit them to pray in the prayer area beside the Western Wall in “women’s prayer groups, together with other Jewish women, while they are wearing tallitot [prayer shawls] and reading aloud from the Torah”, in accordance with the judgment of this Court in HCJ 257/89, 2410/90 Hoffman v. Director of the Western Wall, IsrSC 48 (2) 265 (hereinafter: the First Judgment).

 

The Basic Facts

2.         Petitioners 1 – 2 are Jewish Israeli women who wish to pray and read the Torah aloud at the Western Wall, together with other women and while wearing tallitot. Petitioner 3 is a corporation registered in the United States whose members are Jewish women from various countries who also wish to pray at the Western Wall in the manner of Petitioners 1 -2. At the end of the nineteen eighties, groups of women, the Petitioners among them, attempted to pray at the Western Wall in their manner. Their attempts met with the strong objections of the other worshippers at the site. The disturbance of these prayers, conducted in a manner that differed from that accepted at the site, was accompanied by rioting, verbal violence, and even attempts at the physical harm of the women worshippers. The police intervened as necessary in order to protect the women, but the women were generally unable to complete their prayers successfully. It was against this background that the first petitions were submitted, which resulted in the issuance of the First Judgment. Those petitions required that the Court address the question if and to what extent the Petitioners are entitled to pray at the Western Wall in their manner, even though it differs from the accepted prayer customs of the overwhelming majority of worshippers at the Western Wall, and in light of the fear that conducting prayers in the special manner of the Petitioners will violate the feelings of a large worshipping public, which might lead to a breach of the public peace. Petitioners 1 & 3 were also among the Petitioners in those earlier petitions.

 

The First Judgment

3.         I the course of hearing the earlier petitions, regulation 2 (a) of the Regulations for the Protection of Holy Places to the Jews, 5741-1981, was amended by the addition of subsection (1a), which added to the restrictions applying to the Holy Places (among them “the Western Wall and its Plaza”) a prohibition upon “Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place.” In deciding the earlier petitions, the Court was therefore required to address questions raised by the promulgation of the said regulation 2(a) (1a): Was the regulation promulgated in accordance with the authority granted to the Minister of Religion by virtue of The Protection of Holy Places Law, 5727-1967? If so, how is the term “local custom”, introduced by the amendment, to be construed?

4.         In the First Judgment (given on Jan. 26, 1994), the Court held (unanimously, in regard to these matters) that the Petitioners indeed have the right, in principle, to pray in their manner and according to their custom, and that reg. 2(a) (1a) does not deviate from the scope of The Protection of the Holy Places Law. However, the Court was divided in regard to other matters: in regard to the right of the Petitioners to realize their fundamental right to freedom of worship in practice at the Western Wall; in regard to the construction of the term “local custom” as it appears in the aforementioned reg. 2(a) (1a); and in regard to the manner of deciding the petitions.

5.         Deputy President Elon was of the opinion that the petitions should be denied in their entirety. Even according to his view the Petitioners enjoy the right to worship in accordance with their custom. He also found that the Petitioners’ prayer customs (in regard to wearing tallitot, carrying Torah scrolls, and reading from them aloud) did not constitute a breach of halakhic prohibitions. However, their right to practice their special form of worship in the Western Wall Plaza must retreat in light of the uniqueness of the Wall and the obligatory local custom. In his opinion, regulation 2(a) (1a) expresses the principle of maintaining the “status quo” in the Holy Places. The term “local custom”— whose meaning, in practice, is identical to the “status quo” – was construed by him in its halakhic sense, that is, as one of the legal sources that create law. Halakha approaches the subject of change in synagogue customs with special care. There was never a custom of women’s prayer at the Western Wall, which is, in this regard, a synagogue. Worship at that site in the manner of the Petitioners deviates from the broad common denominator that allows for the prayer of every Jew, whomever he may be, and would be contrary to the local custom. As he states at the conclusion of his opinion (at p. 350):

Granting the petitions before the Court would constitute a substantive change in the local custom, and the conducting of prayer services in the manner requested in the petitions would constitute a grave offense to the feelings of the overwhelming majority of worshippers in regard to the place … The purpose of the regulation is to find the common denominator in order to facilitate the prayers of every Jew, whomever he may be, in the place that is holiest to the Jewish People, while preventing severe, violent dispute in this one unique place that unites the Jewish People…

Clearly, it goes without saying that the Petitioners are entitled to pray in accordance with their custom in their communities and synagogues, and no one will stand in their way. The freedom of worship of the Petitioners stands. But due to the uniqueness of the Western Wall, and the great sensitivity of Judaism’s holiest site, prayer at that one unique place must be conducted in accordance with the common denominator that makes it possible for every Jew to pray there – the local custom that has been observed there for generations, and that should be strictly adhered to.

 

6.         Justice S. Levin was of the opinion that the petitions should not be decided in accordance with halakhic considerations. The Protection of the Holy Places Law is a secular law that takes account of considerations regarding all the relevant religious communities, “and the terms it employs should be interpreted in accordance with the common denominator acceptable to the Israeli population in its entirety.” As he states (at p. 356):

Unquestionably, the Western Wall (and its plaza) has been a holy site for the Jewish People for generations, as a religious site and a prayer site, but at the same time, it also bears national symbolic significance as a unique historical remnant of the walls of the Temple, a symbol of the Jewish kingdom that the masses of Israel yearned for throughout the generations. In these circumstances, the fact that the Wall serves as a site for prayer is not necessarily decisive in establishing the scope of activity permitted at the site. In this sense, I am unwilling to accept a priori and as a foregone conclusion that for the purposes of the Law (The Protection of the Holy Places Law – E.M.), the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other.

            Levin J. did not find the broadest common denominator to be an acceptable test for defining conduct as prohibited at the Western Wall site due to that conduct being a “desecration” or a “violation of feelings”, because (as he states at pp. 356-357):

…even if there are those who believe that a particular manner of prayer is absolutely forbidden by a severe halakhic prohibition, or that activities of a national character at the Wall are objectionable in their eyes, that alone should not justify prohibiting such activity. In my view, the common denominator that must be taken into account in the matter before us – and I agree that it is possible to employ this test – is the common denominator of all the groups and people who visit the Western Wall site and the plaza in good faith, whether for prayer or for other legitimate purposes. If we do not say this, then we hand an exclusive monopoly to a particular point of view, in preference to any other, in regard to freedom of expression, and as a result, the right to freedom of worship and freedom of expression will be found lacking.

            That is also the case in regard to the construction of the term “local custom” which need not necessarily be in accordance with halakha or the existing situation. After all, “it is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others”. Indeed, Levin J. was also willing to assume that in exceptional cases there may be justification for imposing restrictions upon certain religious activities at the Wall, where the consensus of the general public is that such conduct constitutes a desecration of the site, where the conduct is not performed in good faith but simply to provoke and anger, or conduct that, due to its extent or timing, might lead to a breach of public order. But (as he states at p. 357):

… no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace need not necessarily justify imposing such a prohibition. Rather, it is the duty of the relevant authority to ensure the appropriate conditions in order to balance all the relevant interests so that all those who seek to assemble at the Wall and its plaza may fully realize their rights without unnecessarily violating the feelings of others.

            In concluding his opinion, Levin J. states that “it is sufficient to issue a decision that recognizes in principle the good-faith right of the Petitioners to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls, subject to the provisos that I have already noted above.”

7.         In his opinion, President Shamgar addressed the required balance between maintaining freedom of access to the Western Wall for all who view it as sacred, and violating the holiness of the site and the feelings of other worshippers. The need for striking such a balance, which can be learned from an understanding of the purposes of Basic Law: Jerusalem, Capital of Israel, and the Protection of the Holy Places Law, is anchored in our being a free society in which human dignity is a fundamental value. As he states (at p. 354):

Therefore, we have emphasized on various occasions that the sons and daughters of a free society in which human dignity is a fundamental value, are asked to respect the personal-emotional feelings of the individual and his dignity as a person, while understanding that the personal-emotional priorities and the manner of expressing them differs from person to person … that a free society is sparing in imposing limits upon the choices of the individual and acts with patience and tolerance, and even tries to understand the other, even when he chooses paths that the majority does not deem acceptable or desirable.

However, we must bear in mind that tolerance and patience are not unidirectional norms, but rather they are encompassing and multidirectional. An enlightened society also respects the beliefs and opinions of those who fiercely hold them and identify with them in a manner that is not necessarily the manner of the average person … Tolerance is not a slogan for acquiring rights, but a standard for granting rights to others. Ultimately, tolerance must be mutual. Belligerent demonstrations that sometimes draw upon the practices of violent societies from the east and west are not appropriate to it.

            Further on, Shamgar P. notes that he, too, accepts the call of Elon D.P. to strive to find
“the common denominator for all Jews, whomever they may be”. However, in his opinion, common denominator does not mean the adoption and imposition of the strictest view, but rather “sufficing with the basic arrangements that would ensure freedom of access and freedom of worship to everyone, without imposing special conduct upon those who do not want it, and without violating the sensitivities of the believers” (emphasis original – E.M.). In addressing the meaning of the term “local custom” and its consequences for the decision, Shamgar P. added:

In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner … (emphasis added – E.M.).

Notwithstanding the above, and for reasons of legal policy, Shamgar P. chose to refrain from deciding the petition on the merits. In view of the nature of the required decision (“the bumpy road of trying to balance between approaches and beliefs that are incompatible”), he was of the opinion that a resolution achieved through agreement and understanding would be preferable to an imposed judicial solution. Inasmuch as the Court is not the most effective – and certainly not the only – medium for attempting to bring together the various parties to find practical ways for realizing the legislative purpose of Basic Law: Jerusalem, Capital of Israel, and the Protection of the Holy Places Law, it would be appropriate, in his view, “to make at least an attempt to reach a solution that would be suitable to all those who wish to visit the Western Wall”. Shamgar P. summarized his opinion in regard to the petition (pp. 355-356) as follows:

It is, therefore, my opinion that, at this stage, we should not decide the matter before us in the manner that a normal legal dispute is decided. I would recommend to the Government that it consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers (emphasis added – E.M.).

Therefore, I would, at present, dismiss the petitions, subject to my above recommendation. The gates of this Court are always open, but as stated, the other available options should first be exhausted.

8.         The result of the First Judgment was, therefore, that by a majority – and subject to the recommendation set out in the opinion of Shamgar P. – the Court denied the petitions. But it should be noted that in accordance with the division of the opinions in the judgment, two of the Justices were of the opinion that the Petitioners had a right to worship at the Western Wall in accordance with their custom. In truth, the difference between their opinions was only that while Levin J. was willing to render a judgment declaring the said right of the Petitioners, Shamger P. was of the opinion that before rendering a judicial decision on the Petitions, the parties should exhaust the other avenues for reaching an agreed resolution that, on the one hand, would “ensure freedom of access to the Wall”, and on the other hand, “limit the harm to the feelings of the worshippers”.

 

Developments following the First Judgment

9.         Pursuant to the First Judgment, the Government decided, on May 17, 1994, on the appointment of a Directors General Committee, headed by the Director General of the Prime Minister’s Office, to present recommendations for a possible solution within six months (Decision no. 3123). The decision was worded as follows:

                        3123. Prayer Arrangements in the Western Wall Plaza

                                    Decided:

In accordance with the decision of the Supreme Court in HCJ 257/89, Hoffman et al. v. Director of the Western Wall et al., in regard to the scope of the right of access to the Western Wall:

1. Upon the appointment of a Directors General Committee headed by the Director General of the Prime Minister’s Office and composed of the Director General of the Ministry of Religious Affairs, the Director General of the Ministry of the Interior, the Director General of the Ministry of Police, and the Legal Advisor of the Prime Minister’s Office.

 

The Prime Minister’s Advisor on the Status of Women will participate in the Committee as an observer.

 

2. The Committee will be requested to propose a possible solution that will ensure freedom of access to the Western Wall and freedom of worship in its Plaza, while minimizing the violation of the feelings of the worshippers at the site.
3. The Committee will present its recommendations to the Government within six months of today.

10.       In the interim, the Petitioners submitted a request to the Court for a Further Hearing on the First Judgment (HCJFH 882/94 Alter et al. v. Minister of Religious Affairs et al.).  In denying that petition (on June 12, 1994), Deputy President Barak stated that “it would be appropriate to wait for the recommendations of the Committee (which are supposed to be presented within six months of the establishment of the Committee)”. However, he added:

If the Petitioners do not find those recommendations to be acceptable, they will be free to return to this Court (sitting as High Court of Justice). In this regard, the President sated his in his opinion that “the gates of this Court are always open, but as stated, the other available options should first be exhausted”.

11.       On Nov. 20, 1994, the Government decided (Decision no. 4221) to extend the deadline for presenting the recommendations of the Directors General Committee by an additional six months, that is, until May 17, 1995. The explanatory notes to the draft of that decision stated that the need for extending the deadline derived from “the complexity of the subject, its inherent problems, and in consideration of the attempts made to achieve a solution that will be acceptable to all the involved parties, to the extent possible”. However, the Committee did not present its recommendations even after the deadline established in this decision, and it is against that background that this petition was submitted.

 

Developments in the Framework of the Present Petition

12.       The petition at bar was submitted to the Court on May 30, 1995. The petition asks that the Court issue an order nisi ordering Respondents 1-5, the members of the Directors General Committee, to state their reasons “why they should not present without delay the recommendations they were instructed to submit to the Government by May 17, 1995, in accordance with Government Decision no. 3123 of May 17, 1994”. The petition further asks for an order nisi against the Government (Respondent 7), ordering that is state its reasons “why it should not refrain from deciding upon a further extension of the deadline for the presenting of the recommendations of Respondents 1-5”. In addition, the Petitioners prayed for an order declaring their right to pray at the Western Wall in accordance with their custom pending the presentation of the recommendations of the Directors General Committee and pending the Government’s decision upon those recommendations, as well as for an order instructing the Government to adopt the necessary measures for ensuring the protection of the Petitioners in the course of their prayers against harm by lawbreakers and violent disturbers of the peace. The petition also included a request for an interim order barring Respondent 7 from deciding upon a further extension of the deadline for the presentation of the recommendations of the Directors General Committee.

            Justice Dorner, before whom the petition was brought, decided (on the day of the submission of the petition) to deny the request for an interim order, while ordering that the request for the order nisi be set for a hearing by a panel. After about a month (on July 2, 1995), the Government once again decided (in Decision no. 5806) to extend the deadline for the presentation of the recommendations of the Directors General Committee by an additional six months. The explanatory notes to the draft of that decision stated that the solution that is being developed in the Committee’s meetings is for the “designation of a specific place” for the Petitioners’ prayers, and that the achievement of such a solution requires coordination among a number of governmental ministries and additional elements. The hearing of the petition was scheduled for a hearing before a panel on Oct. 5, 1995, but in view of the Government’s decision of July 2, 1995, and in order to allow the Directors General Committee to complete its task, the Court adjourned the hearing to a later date.

13.       Report of the Directors General Committee: The Directors General Committee presented its recommendations to the Prime Minister on April 2, 1996. Before addressing the recommendations, we will first describe the course of the Committee’s enquiry, to the extent that it can be discerned from the material before us.

14.       From the report it would appear that soon after its appointment, the Committee requested the opinions of the Chief Rabbis of Israel, who are responsible for the Director of the Western Wall. In their response, the Chief Rabbis ruled that inasmuch as the suggestion that prayers be conducted in the manner requested by the Petitioners “is a change of the tradition that has been handed down to us from generation to generation, and constitutes a breach of the character of prayer that has been accepted to this day, we order that there should be no change in the existing status quo, and that prayer at the Western Wall should continue to be conducted as was customary and accepted to this day”.

            Following an initial, comprehensive tour of the Western Wall area and its surroundings and hearing the position of the Israel Police, the Committee turned to an examination of the possibility of designating an alternative prayer space for the Petitioners in close proximity to the Wall. In the course of that examination, representatives of the Center for Jewish Pluralism submitted a request to the Committee asking that, in the course of its deliberations, the Committee also address the requests of Reform and Conservative congregations in Israel and from around the world to pray at the Western Wall. The Petitioners objected to mixing the examination of their matter with the requests of other groups whose accepted prayer customs have nothing in common with those of the Petitioners. The Petitioners also objected to the Committee’s inclination to examine alternative prayer sites. Their attorneys argued that the First Judgment recognized the Petitioners’ right to freedom of access to the Wall and to conducting prayer at that site, and that the balance between the realization of that recognized right and refraining from violating the feelings of other worshippers could and should be achieved not by removing them from the prayer area beside the Wall, but rather by designating a specific time for their prayer at the Wall (e.g., one hour on every Rosh Hodesh [the beginning of the new month on the Jewish calendar], with the exception of the Rosh Hodesh of the month of Tishrei, thus representing eleven hours a year in all).

            After an additional tour of the Western Wall area and inquiring as to the positions of the Antiquities Authority and the East Jerusalem Development Corporation, the Committee sent a document to all the relevant parties entitled “Agenda for Discussion”. In regard to the possibility of allowing the Petitioners to pray according to their custom in the Western Wall Plaza, the document stated that that Committee had found that “the designated Western Wall Plaza is very problematic,” and that against that background, and considering the opinion of the Police, the Committee examined several suggested alternatives: in the area of “the Southern Wall”, adjacent to the southeastern corner of the Temple Mount; in the area of the “Hulda Steps”; and north of “Robinson’s Arch” adjacent to the southwestern corner of the Temple Mount. The Committee appended its comments to each alternative, and stated in the conclusion of the Agenda that “the Committee must decide which of the proposed alternatives should be chosen as preferred”.

            On Feb. 19, 1996, the Petitioners attorneys submitted their written response to the “Agenda for Discussion”. In their response, they stated that the Committee’s assumption that the Petitioners can be prevented from realizing their right to pray beside the Wall is not consistent with the First Judgment, and that the apparent intention to displace the Petitioners from the Western Wall Plaza to other places is not only unreasonable and discriminatory, but also humiliating and hurtful. It was further argued that President Shamgar’s instruction in the First Judgment was to find a solution that would ensure freedom of access to the Wall and limit the harm to the feelings of other worshippers. But that instruction, intended to reflect a proper balance between recognizing the right of the Petitioners and consideration of the feelings of other groups, in no way or form permits granting absolute preference to the feelings of worshippers by denying the Petitioners’ right to access the Wall. Further on, the Plaintiffs’ attorneys objected to the Committee’s use of the opinion of the Police as support for depriving the Petitioners of their rights. They argued that the opinion of the Police could be granted weight only for the purpose of establishing limits upon the realization of the right, but the opinion of the Police could not serve as the basis for the absolute denial of a recognized fundamental right. Despite the Petitioners’ principled position rejecting a solution based upon proposing alternatives, their attorneys also addressed the proposed alternatives in their written response to the Agenda for Discussion. Most of the proposed alternatives were entirely rejected. They refrained from taking a stand in regard to the area north of Robinson’s Arch, by reason of the fact that the Agenda itself states that “it would not be possible to conduct prayers in any manner” there. In this they were referring to the position of the Antiquities Authority, which wrote in regard to this proposal that “it would not appear that it would be possible to conduct prayer in any form in this area”. However, the Petitioners’ attorneys added the following comment in regard to the proposal of the Robinson’s Arch site as an alternative prayer venue:

It should be noted that of all the places proposed outside of the Wall Plaza, this is the only area that is adjacent to the Western Wall Plaza that could permit prayer by medium-sized groups of 50 – 100 worshippers, but transforming the place into a real solution would require a will and investment that are not to be found in the Agenda.

            Towards the end of its deliberations, an opinion was presented to the Directors General Committee by the Ministry for Internal Security, which presented the opinions of the Police Commissioner and the Jerusalem District Police Commander. Based upon past experience, the Police expressed its opinion that conducting prayer in the Western Wall Plaza in the manner of the Petitioners “will be perceived as a provocation by the public that regularly prays at the site, will offend the feelings of the worshippers, and will lead to severe breaches of public order at the site”. In regard to the Petitioners’ suggestion that they be granted designated prayer times, the opinion stated that “the suggestion that an appropriate balance be achieved by allocating access times to the Wall has no impact on the position of the Police, inasmuch as the Wall Plaza serves as a prayer space for most of the hours of the day”. However, the opinion also noted that “the Police will do whatever is required and possible in order to ensure public order in any arrangement that the Committee shall establish”.

15.       Thus the Committee reached the end of its deliberations. Reading the final report that it submitted to the Government reveals that relying upon the opinions submitted by the Chief Rabbis of Israel and by the Police, the Committee arrived at the conclusion that it would not be possible to allow the Petitioners to pray in their manner in the Western Wall Plaza. As the Committee states in its conclusion:

The Western Wall, its Plaza and surroundings belong to every Jew as such, and the right to pray at the Western Wall is reserved to them all.

However, the holiness ascribed to the Western Wall by the Jewish People is harmed by dispute, fights and the resort to force in its area, as the Supreme Court noted in its decision in this matter.

The opinion of the Police points to the fact that nothing has changed to date in the factual situation at the Wall, and no arrangement that relates to the allocating prayer times will prevent the harm to public order with very near certainty. It should be emphasized that we are not speaking of the ability of the Police to gain control over the riots, but rather of avoiding them in a respectful manner, and the paths of peace require mutual sacrifices of both sides.

In order to achieve the balance demanded of the Committee in the Government’s decision between freedom of access to the Wall and limiting the violation of the feelings of the worshippers, the Committee has not found the time to be ripe for permitting prayer in the Western Wall Plaza itself that differs from the traditional prayer accepted there.

            In the context of its report, the Committee reviewed four alternative prayer sites in the area of the Wall (the plaza beneath Robinson’s Arch; the area in front of the Hulda Gates; the southeastern corner of the wall of the Temple Mount; and the area of the “Little Western Wall”). The Committee recommended the southeastern corner of the wall of the Temple Mount as the most suitable alternative, and recommended making the necessary preparations to make it suitable for prayer.

16.       When the petition was rescheduled for a hearing on April 15, 1996, the Court granted the request of the State Attorney’s Office and adjourned the hearing once again. The decision stated that inasmuch as the conclusions of the Directors General Committee had been submitted to the Government, the Government should be granted reasonable time to decide its position. On April 21, 1996, the Government decided (in Decision no. 777) to take note of the recommendations of the Directors General Committee and appoint a ministerial committee “which will examine the recommendations of the Directors General Committee and the means for effecting them, and decide the matter on behalf of the Government”. The Minister of Justice was appointed as chair of the ministerial committee whose members would be the Minister of Religious Affairs, the Minister of Education, Culture and Sport, the Minister of Internal Security, and Ministers Beilin and Amital.

17.       However, before the ministerial committee could accomplish anything at all, elections were held for the fourteenth Knesset, pursuant to which a new government was formed. When the Petitioners learned that the new government was in no hurry to renew the treatment of their matter, they submitted a request to amend their petition. In the framework of the amended petition, the Petitioners request to add an additional remedy that if the Government ultimately decide not to permit the Petitioners to pray at the Western Wall in accordance with their custom, the Court will be asked to establish the arrangements for the realization of the Petitioners’ right of access and worship at the Western Wall. In its session of Oct. 24, 1996, the Court decided to amend the petition as requested by the Petitioners. At the same time, the Court accepted the State’s request to postpone the hearing of the petition “for a period not to exceed four months”, so that “during the adjournment the Respondents will make every effort to reach a solution to the problem in a manner that will also be acceptable to the Petitioners”.

            But the developments did not meet expectations. In a notice submitted on behalf of the Attorney General in advance of the hearing set for March 4, 1997, we were informed that a meeting was held in the Attorney General’s Office on Nov. 28, 1996, in which the four alternatives mentioned in the report of the Directors General Committee were considered. We learned from the notice that the meeting was held against the background of the conclusion of the Directors General Committee that “for reasons of maintaining public order, the Petitioners cannot be permitted to pray in the Western Wall Plaza, in view of the uniqueness of the site as a Holy Place that requires not violating the feelings of the worshippers and preventing of severe disturbances of the peace”. Under those circumstances, “a decision was reached according to which it would be possible to offer the Petitioners an appropriate alternative site in which they will be able to realize their desire to pray in accordance with their custom, in two sites in the area of the archaeological park” – the “Hulda Steps” and the southwestern corner of the Western Wall that is referred to as “Robinson’s Arch” – but “without granting them any ‘possession’ whatsoever over any specific place in that area”. The Respondents’ response to that offer, which was also included in the Attorney General’s notice, stated that without prejudice to their demand to realize their right to access and to worship in the Western Wall Plaza, and despite the fact that the “Robinson’s Arch” site is not fit to serve as a respectable prayer venue in its current state, the Respondents are willing “to consider an official offer to convert the Robinson’s Arch site into a respectable prayer plaza similar to the Western Wall Plaza in its current state, including a separate women’s section, such that the Robinson’s Arch site will become directly contiguous to the prayer plaza on the western side of the Temple Mount” (emphasis original – E.M.). The notice also stated that when the Attorney General received the Respondents’ response, he also received a request from the World Union of Progressive Judaism in regard to “the demand of heterodox Jewish congregations from Israel and around the world to pray in the Western Wall Plaza in their manner”. Against that background, the Court was asked to grant the State additional time to consider its position. However, in its session on March 4, 1997, the Court decided to issue an order nisi on the basis of the amended petition.

18.       Decision of the Ministerial Committee for Jerusalem: By the time of the submission of the Respondents’ affidavit in response to the petition on June 10, 1997, the Petitioners’ matter was brought before the Ministerial Committee for Jerusalem. On June 2, 1997, the Committee issued a decision (Decision no. Jm/15). The protocol and decision stated as follows:

Jm/14.              Prayer Arrangements in the Western Wall Plaza in regard to the Petition in the HCJ of the “Women of the Wall”:

The Director General of the Ministry of Justice reviews the subject and the progress of its treatment to date, including in the Directors General Committee and the special Ministerial Committee established at the time in accordance with the Government’s decision.

Present: Prime Minister Benjamin Netanyahu, Ministers Eliyahu Suissa, Zevulun Hammer, Moshe Katzav, Dan Meridor, Tzachi Hanegbi, David Levi, Deputy Minister Aryeh Gamaliel, Mrs. Nili Arad and the honorable Ehud Olmert, Amir Drori, Israel Police Jerusalem District Commander Yair Yitzchaki, and the head of the Jerusalem District of the GSS.

Decided:

1. To record the notice of the Prime Minister according to which the Government of Israel recognizes the right to freedom of worship and religion of every person, including the Petitioners.
2. To find that in reliance upon the evaluation of the Israel Police, the prayers of the Petitioners, in accordance with their custom, cannot be permitted in the Western Wall Plaza, and that in accordance with the evaluation of the other security services that was recently presented, a change of the status quo in regard to prayer arrangements in the alternative suggested sites may lead to a danger to public safety.
3. In accordance with the aforesaid, to maintain the existing situation unchanged for the present. To act to examine the possibility of arranging an appropriate alternative prayer site, and to request a postponement of the Court proceedings for an additional three months for the purpose of examining the situation of the proposed sites from the security standpoint.
4. The evaluation of the security agencies will be brought for further discussion by the Ministerial Committee for Jerusalem, and for a decision on the matter.

Recommendation of the Neeman Committee

19.       The petition was set for hearing on Sept. 24, 1997. In their summary pleadings, the Respondents offered to permit the Petitioners to pray in one of two alternative sites. The first was the “Robinson’s Arch” area, with the proviso that “the status quo at the site will not be violated, in the sense that the site will not become an organized, declared place of prayer, but rather part of the current normal operation of the site, and all subject to security considerations at any time”. The second, “a site located adjacent to the entry gates to the Western Wall Plaza, on the southwestern side, from which it is possible to see the Wall, and in which it will be possible to provide police protection for the Petitioners”. The Respondents argued that:

These suggestions are necessitated by reality after striking the required balance among the various and conflicting interests of the relevant parties, and in order that the holiest place of the Jewish People not become a dispute zone to the point of desecration and violation of the feelings, dignity and physical integrity of the worshippers at that place.

Alternatively, the Respondents offered to have the Petitioners’ issue reconsidered by a committee chaired by Minister of Finance Yaakov Neeman who, at the time, was chairman of a committee preparing recommendations in the matter of conversion to Judaism. The Petitioners initially rejected this offer. However, as a result of our comments, and after offering to appoint their representatives to the committee, they agreed to give dialogue another chance.

            In a preliminary meeting held on Nov. 11, 1997 in the office of Minister of Finance Neeman, it was suggested that the committee that had been appointed to address the issue of conversion also address the matter of the Petitioners. The Petitioners once again rejected the proposal, arguing that “this committee is a committee for establishing policy, whereas in their matter what is required is a committee that will solely decide upon the means for executing an established policy”. However, following a further clarification of the matter in a hearing before the Court on Nov. 26, 1997, the parties authorized the Neeman Committee to address the dispute on the merits, with the understanding that due to the importance of the subject, its complexity and difficulty, it would be proper to exhaust this avenue for addressing it out of Court with the objective of amicably reaching an agreed arrangement.

20.       The Neeman Committee held for meetings and visited the Wall area. On Sept. 23, 1998, the Committee presented a report summarizing its conclusions. By a majority, the Committee rejected prayer according to the custom of the Petitioners at the Wall. This view was grounded upon the opinion of the Jerusalem District Police Commander and his assistants according to which “prayer in the women’s section of the Wall Plaza will lead to riots and serious breaches of public order, based upon past experience and in light of evaluations based upon the current situation”. The Committee noted the view of Deputy President M. Elon in the First Judgment according to which “prayer by the Women of the Wall in the Western Wall Plaza would be contrary to the local custom”, and that “this is not the place for making the change demanded by the Women of the Wall in traditional prayer practices”. The Committee added that “conducting prayer in the Wall Plaza in the presence of police or with its active intervention would itself constitute a serious violation of the feelings of all the worshippers and a desecration of the holiness of the site for all its visitors”. Further on, the Committee also noted the fear that acceding to the Petitioners’ request might “constitute a precedent for demands to conduct other prayer services that are different from those of the Women of the Wall”.

            Against the background of the said conclusion, the Committee set out to examine the appropriateness of the four alternative prayer sites: the area of the parking lot adjacent to the entrance to the Western Wall Plaza; the site located to the south of the Western Wall Plaza known as the “Southern Wall”; the “Flag Plaza” site – the plaza adjacent to the prayer plaza at the Western Wall in which the State flags are flown; and the “Robinson’s Arch” site. The Committee found various shortcomings in the first alternative. The second alternative was rejected due to its great distance from the Western Wall Plaza. While many advantages were found in the third alternative, it was discounted due to the position of the Police that “prayer by the Women of the Wall at the site will lead to riots and serious breaches of public order”. The Committee’s choice was the “Robinson’s Arch” site. In listing the advantages of this alternative, the Committee pointed out, primarily, that the site constitutes a direct continuation of the Western Wall Plaza, and in that it “touches the Western Wall and is linked to it … the worshippers at the site will enjoy direct access and contact with the Western Wall”. It was further noted that the site, which was adapted for accommodating large numbers of visitors, actually hosts many visitors every day. It was clear to the Committee that conducting prayer at this site would have to meet the demands of the Antiquities Authority and the East Jerusalem Development Corporation, which opposed any change of the site’s character, which is part of an archaeological park and a focus of attraction for many researchers and visitors. On the basis of all of the above, the majority of the Committee’s members arrived at the conclusion that:

The solution of conducting prayers at the “Robinson’s Arch” site is the most practical solution for the needs and demands of the Women of the Wall. That is the case after weighing the advantages and disadvantages of each of the above alternatives. This was accomplished by weighing and balancing the need to find an appropriate prayer site that would meet the needs and demands of the Women of the Wall, and the important principle requiring the avoiding of violation of the feelings of the worshippers at the Western Wall Plaza and not violating the local custom.

21.       It should be noted that the representatives of the Petitioners in the Committee’s meetings completely rejected all of the suggested alternatives, and insisted upon the realization of the Petitioners’ right to conduct prayers in accordance with their custom in the women’s section of the prayer plaza at the Western Wall. The Petitioners’ representatives repeated the suggestion, which that had previously raised before the Directors General Committee, to allocate a designated prayer time for them at the Wall: one hour every Rosh Hodesh, except for the Rosh Hodesh of the month of Tishrei, and all together eleven hours a year. But that suggestion was not accepted.

 

The Hearing on the Petition

22.       Under these circumstances – nearly four years after its submission – the petition returned for the Court’s decision. The original reason for its submission (the failure to submit the report of Directors General Committee on time) was no longer relevant, and the petition now focused upon the request for relief that was added to the petition when it was amended (on Oct. 24, 1996), i.e., that if the Government of Israel should decide against allowing the Petitioners to praying accordance with their custom at the Western Wall, then the Court will be asked to establish the arrangements for the realization of the Petitioners’ right of access and worship at the Western Wall.

            In advance of the date of the hearing, which we set for Feb. 17, 1999, the parties completed their summary pleadings. Reading the written material and hearing the oral arguments of the attorneys revealed that the source of the dispute between the parties is to be found in their different understanding of the decision made in the First Judgment. The underlying assumption of the Respondents was that while the First Judgment recognized the right of the Petitioners to access and pray at the Western Wall in principle, it did not recognize their right to realize their right to access and worship in practice. The Judgment left this matter to the decision of a committee that would be appointed by the Government. The matter was actually examined by three committees, and they all reached the conclusion that conducting prayer in accordance with the custom of the Petitioners in the Western Wall Plaza would involve a real danger of friction and violence. For that reason, the committees focused upon finding an alternative prayer site in the vicinity of the Wall. The Respondents argued that the recommendations of the Neeman Committee to allow the Petitioners to conduct their prayers at the site beneath Robinson’s Arch reflects a balance between satisfying the Petitioners’ right and other relevant considerations, inasmuch as adopting this recommendation will allow the Petitioners to pray at a site that is a part of the Western Wall, without any affront to the feelings of the worshippers at the Western Wall Plaza itself, and without raising the real fear of friction and violence that would desecrate the holiness of the site. On the basis of the position, the Respondents ask that the petition be denied.

23.       The Petitioners argued that the parameters of the balancing formula were established in the First Judgment. According to that formula, the balance between the Petitioners’ right of access to the Western Wall and the expected harm to the feelings of other worshippers requires a solution that will realize the Petitioners’ right to pray in the Western Wall Plaza, but that will reduce the harm to the feelings of the worshippers. The recommendation of the Neeman Committee was premised upon a different basis: the assumption was that it must refrain from a solution that would involve any harm to the feelings of all the other worshippers. Therefore, it recommended a solution that denied the Petitioners the ability to realize their recognized right of access to the Western Wall. The Petitioners further argued that the recommendations of the Neeman Committee were never presented to the Government for approval, and therefore they do not implement the directions of the First Judgment.

            The Petitioners also rejected the proposal to conduct their prayers at the Robinson’s Arch site on the merits. The site, which is detached from the Western Wall Plaza, is in the midst of an archaeological park. Access to the site by the handicapped and persons with other disabilities is very difficult, and the place itself is too small to accommodate all those who worship according to the custom of the Petitioners. The site, which is a popular tourist attraction, is visited by hundreds of visitors every day, all of whom use one narrow passage way for two-way movement (entrance and exit). Conducting prayer on that passageway, exposed to constant friction with the visitors and tourists, is impossible. Moreover, access to the Temple Mount wall at the site, which is a direct continuation of the Western Wall, is blocked and not possible. Thus, the recommended solution does not even partially realize the Petitioners’ right to pray at the Western Wall.

24.       It appears to us that in this dispute between the parties in regard to the import of the decision given in the First Judgment, the Petitioners are correct. As we already noted (in para. 8, above), according to the division of opinions in the Judgment, two of the justices agreed and were of the opinion that the Petitioners have a right to pray in accordance with their custom at the Western Wall, while the difference between their approaches was expressed only in that while Levin J. was ready to issue a decision declaring that right of the Petitioners, Shamgar P. was of the opinion that before rendering a judicial decision, other paths to an agreed arrangement should be exhausted. The petition was, therefore, denied by a majority, but that denial of the petition was made subject to the recommendation of Shamgar P. that the Government appoint a committee that would be instructed “to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers”. It is not superfluous to emphasize that “freedom of access to the Wall”, as per Shamgar P., must be understood as the right to pray at the Wall in the special manner and style of the person requesting to do so. That is required by the President’s approach, which we earlier addressed, that striving for “a common denominator for all Jews, whomever they may be” does not mean adopting and imposing the strictest approach, but rather “sufficing with the basic arrangements that would ensure freedom of access and freedom of worship to everyone, without imposing special conduct upon those who do not want it” (p. 355 of the Judgment). That is required by the President’s interpretation of “local custom”, by which, “[t]he legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner” (loc. cit.). The clear position that arises from an examination of the statements of Shamgar P. and Levin J. – and we concur with that position on the merits – is that the Petitioners have a right to pray in accordance with their custom in the Plaza beside the Western Wall.

25.       Indeed, in enunciating his position in the First Judgment, Shamgar P. was not unaware that conducting prayer according to the custom of the Petitioners at the Western Wall would involve an affront to the feelings of other groups of worshippers. For that reason he felt it appropriate to appoint a committee that would be tasked with finding a solution that would reduce that affront. But note: reducing the affront, and not preventing it in its entirety. That is so, inasmuch as completely preventing the affront to the feelings of other worshippers cannot be achieved except by denying the right of the Petitioners, a result that is rejected in the President’s opinion as being identical to “adopting and imposing the strictest approach” and would constitute “barring the way” before the good-faith realization of the right of anyone wishing to pray in his own special way. It should be noted that the fear of a violent reaction by extremist elements among the worshippers in the Western Wall Plaza was not mentioned in the President’s recommendation as a consideration that might justify denying the Petitioners their right to pray according to their custom at the Western Wall. From the President’s statement in regard to the need to act with tolerance, one can readily deduce that his approach in this regard is no different than that of Levin J. that “no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them”, and that “it is the duty of the relevant authority to ensure the appropriate conditions in order to balance all the relevant interests so that all those who seek to assemble at the Wall and its Plaza may fully realize their rights without unnecessarily violating the feelings of others".

26.       It should be noted that the Government’s decisions in the matter (that preceded the report of the Directors General Committee) were based upon a correct understanding of the First Judgment. In its decision to appoint the Directors General Committee, the Government instructed the Committee “to propose a possible solution that will ensure freedom access to the Western Wall and freedom of worship in its Plaza, while minimizing the violation of the feelings of the worshippers at the site”. The Government’s decisions to extend the deadline set for submitting the conclusions of the Directors General Committee also spoke of a committee whose task was to present recommendations “in regard to finding a solution for prayer arrangements in the Western Wall Plaza”. In other words, the mandate of the Directors General Committee was to find a solution that would allow the Petitioners to realize their right to pray in the Western Wall Plaza, while reducing the affront to the feelings of other worshippers. But the Directors General Committee chose a solution that was different from the one it was requested to develop and propose. It granted decisive weight to the position of the Police, which warned of the possibility that the Petitioners’ prayer in the Western Wall Plaza would lead to violent opposition and cause extreme, severe breaches of public order. In light of that evaluation, the Committee concluded that the Petitioners could not be allowed to conduct prayers in the Western Wall Plaza in a manner different from the traditional prayer that is customary there, and therefore recommended satisfying the Petitioners with the allocation of an alternative prayer venue. But the recommendation of the Directors General Committee was not only contrary to the express instructions of the First Judgment, it also deviated from the purpose for which the Committee was appointed, as defined in the Government’s decision.

            The committees that followed the Directors General Committee – the Ministerial Committee for Jerusalem, as well as the Neeman Committee – pursued the same path. The common denominator of the recommendations that were presented by all of the committees that addressed the matter was expressed by the conclusion that the balance between the Petitioners’ right to pray in the Western Wall Plaza, and the harm that the Petitioners’ prayer will cause to others and the opposition that will be aroused can only be found in removing the Petitioners from the Western Wall Plaza and forcing them to suffice with this or that alternative prayer venue. Needless to say that these recommendations too – like the recommendation of the Directors General Committee – deviated from the balancing formula in the First Judgment.

            It would not be superfluous to note that even in explaining the reasons for their conclusions, the honorable committees drifted to views that were rejected by the majority of the justices in the First Judgment. Thus, for example, in arriving at its positon, the Directors General Committee ascribed weight to the verdict of the Chief Rabbis that “there should be no change in the existing status quo, and that prayer at the Western Wall should continue to be conducted as was customary and accepted to this day”. That position, sanctifying the “status quo”, was supported in the First Judgment only by the Deputy President, Justice Elon, but was entirely rejected by Shamgar P. and Levin J. This comment is equally applicable to the balancing formula followed by the Neeman Committee, which also granted weight to the consideration of “not violating the local custom”. Particularly perplexing was the comment of the Directors General Committee that “the paths of peace require mutual sacrifices of both sides”, inasmuch as by its recommendation that the Petitioners be removed entirely from the Western Wall Plaza, the Committee expressed the opinion that only the Petitioners are required – for the sake of peace – to sacrifice everything, whereas the groups opposing the presence of the Petitioners – the fear of whose violent reaction led the Committee to seek a different solution from that it was asked to recommend – are neither asked nor expected to make any sacrifice.

27.       Prior to the hearing of the petition, the Respondents presented us with the affidavit of Deputy Commissioner Yair Yitzchaki, the Israel Police Commander of the Jerusalem District. In his affidavit, Deputy Commissioner Yitzchaki reiterates the position that the Police presented to the Directors General Committee, the Ministerial Committee for Jerusalem and the Neeman Committee. According to that position, “prayer of the Women of the Wall, as requested by them, including the suggestion of conducting prayer for a limited period of time, once a month on Rosh Hodesh, is likely, to a near-certain probability, to lead to violent steps by worshippers at the site and to cause large riots, breaches of public order, and a real danger to the safety of the worshippers”. That evaluation, which rests primarily upon past experience, was reiterated by the Deputy Commissioner in his oral explanation in the hearing before the Court. However, he also noted that, as stated in the opinion submitted by the Police to the Directors General Committee, the Police would employ all measures at its disposal to enforce any arrangement ultimately decided upon.

            We are of the opinion that in arriving at its decision in the First Judgment, the Court already took into account the possibility that recognition of the Petitioners’ right to pray in accordance with their custom in the Western Wall Plaza might lead to violent reactions by groups for whom tolerance of others is foreign. We cannot reconcile with a situation in which fear of the violent reaction of any sector of the public will lead to the denial of the possibility of another sector to realize its given rights. It is not inconceivable that, in given circumstances, the Police may prevent a person or a group from realizing a right where there is a real basis for the fear that realizing the right will lead to a violent outbreak that may breach the public peace, and where the Police is unable to prevent such dire consequences by reasonable means. But – as Levin J. noted in the First Judgment – “no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace need not necessarily justify imposing such a prohibition”.

 

Visit to the Site

28.       In the course of deliberation prior to rendering judgment, we decided that before deciding the upon the petition, we would do well to visit the Western Wall Plaza and the various sites offered the Petitioners as alternatives at various stages, together with the parties and their attorneys. In terms of principle, making such a visit was unnecessary inasmuch as the Petitioners’ right to pray in accordance with their custom at the Wall was already recognized, in practice, in the First Judgment. Nevertheless, we saw reason to gain a first-hand impression of the alternative prayer venues offered to the Petitioners, first, in order to find out whether any of the alternatives offered to the Petitioners might be considered at least approximate realization of the right to worship in the Western Wall Plaza, and second, in view of the position of the Petitioners themselves, whose comments on the “Agenda for Discussion” of the Directors General Committee might lead to the possible conclusion that if the authorities had acted to turn the Robinson’s Arch site into a prayer space similar to that in the Western Wall Plaza, the Petitioners might have sufficed with that alternative prayer venue.

            On Feb. 1, 2000, we visited the Western Wall Plaza and all of the alternative prayer sites: the Robinson’s Arch plaza, the Southern Wall area, the Hulda Gates and the steps leading up to them, the southeastern corner of the Temple Mount, and the parking lot adjacent to the entrance to the Western Wall Plaza. We were accompanied by representatives of the Petitioners, the parties’ attorneys, a representative of the Attorney General, the Director General of the National Center for Development of the Holy Places, the Director of the Antiquities Authority, the Director General of the East Jerusalem Development Corporation, and representatives of the Israel Police. On the basis of what we saw, and after hearing the explanations and comments of the parties and the others accompanying us in regard to the various sites, we find that not one of the alternatives suggested and considered at various stages of the proceedings can be viewed as even partially realizing the right to worship in the Western Wall Plaza. The Robinson’s Arch site – the only site that is worthy of consideration – is part of the archaeological park. Had the authorities acted to adapt it to serving as a prayer space, it may have been possible to view it as a kind of continuation of the prayer area beside the Western Wall. However, adapting the site to serve as a prayer space would involve substantial harm to the existing character of the site. The Antiquities Authority firmly objects to that, and we would counsel the Government not to ignore that position.

29.       Having found that, in fact, the First Judgment recognized the right in principle of the Petitioners to conduct prayers in accordance with their custom in the prayer plaza beside the Western Wall, and that the committees that addressed the subject of the petition following the First Judgment did not do what they were intended to do in accordance with the instructions of that judgment, we are faced with the question of how to decide in the matter of the petition at bar. The attorneys for the Petitioners hoped to convince us that in order to put an end to the extreme foot dragging that characterized the treatment in the matter of the Petitioners, it would be appropriate for the Court to establish arrangements that would allow the Petitioners to realize their right to worship at the Western Wall site. With all due understanding of the Petitioners’ distress, we cannot accede to that request. The establishing of appropriate arrangements that will realize the Petitioners’ right to access to the Western Wall and worship there should properly and primarily be made by the Government. It would not be appropriate, at this stage, for us to establish such arrangements, both because establishing them prior to the issuance of a Government decision in the matter was not included in the petition, and because the Court does not have all of the necessary information for establishing them. Needless to say, the Petitioners’ retain the right to petition again in this matter, if and when there is cause.

30.       We therefore decide to issue an order absolute on the petition, instructing the Government to establish the appropriate arrangements and conditions under which the Petitioners will be able to realize their right to pray in accordance with their custom in the Western Wall Plaza. For the sake of further clarification, we will add that the required decision is only in regard to the concrete conditions in order to enable the Petitioners to pray in accordance with their custom in the Western Wall Plaza, such as the place and times in which they may do that, while mitigating the affront to the feelings of other worshippers and while maintaining the necessary security arrangements. In view of the fact that the treatment of the matter of the Petitioners extended, to date, over a prolonged period, the Government is requested to complete its handling of the establishing of the arrangements for their prayers in the Western Wall Plaza, without conditioning it upon establishing arrangements for other groups, within six months of the day of this decision. The State will pay the Petitioners’ costs for this petition in the amount of NIS 20,000.

                                                                                                           

Justice T. Strasberg-Cohen:

I concur.

 

Justice D. Beinisch:

I concur.

 

Decided in accordance with the opinion of Justice E. Mazza.

Given this 17^th day of Iyar 5760 (May 22, 2000).

 

 

                                                                                                                                    HCJ 257/89

                                                                                                                                    HCJ 2410/90

 

 

1.   Anat Hoffman

2.   Dr. Bonna Haberman

3.   Dr. Judith Green

4.   Rendel Fine Robinson

 

                v.

 

1.   Director of the Western Wall

2.   Ministry of Religious Affairs

3.   Chief Rabbinate of Israel

4.   Minister of Religious Affairs

5.   Minister of Justice

6.   Commander of the Old City Police Precinct, Israel Police, Jerusalem

7.   Commander of the Jerusalem District, Israel Police

8.   Israel Police

9.   Sephardic Association of Torah Guardians – Shas Movement

10. Rabbi Simcha Miron

11. Agudat HaChareidim – Degel HaTorah

12. Rabbi Avraham Ravitz   HCJ 257/89

 

 

1.   Susan Alter

2.   Professor Susan Aranoff

3.   Professor Phyllis Chesler

4.   Rivka Haut

5.   Professor Norma Baumel Joseph

6.   Professor Shulamit Magnus

7.   International Committee for Women of the Wall, Inc.

 

                v.

 

1.   Minister for Religious Affairs

2.   Director of the Western Wall

3.   Commissioner of the Israel Police

5.   Attorney General   HCJ 2410/90

 

H. Kadesh, U. Ganor for the Plaintiffs in HCJ 257/89; N. Arad, Director of the High Court of Justice Department of the State Attorney’s Office for Respondents 1-8 in HCJ 257/89 and the Respondents in HCJ 2410/90; Z. Terlo for Respondents 9-12 in HCJ 257/89; A. Spaer for the Petitioners in HCJ 2410/90.

 

The Supreme Court sitting as High Court of Justice

[January 26, 1994]

Before President M. Shamgar, Deputy President M. Elon, Justice S. Levin

 

Facts:

The two petitions concern the arrangements for prayer in the Western Wall Plaza in Jerusalem.

The Petitioners request to conduct prayer services in the Western Wall Plaza, while carrying Torah scrolls and wearing tallitot [prayer shawls]. The Petitioners in HCJ 257/89 seek to conduct “prayer groups” that read from the Torah. The Petitioners in HCJ 2410/90 represent some one-thousand women who are members of various streams of Judaism, Orthodox, Conservative, Reform and Reconstructionist. They do not ask to conduct their prayers in a “minyan” [prayer quorum], but they do wear talittot and read from a Torah scroll that they bring with them.

The arrival of the Petitioners at the Western Wall Plaza to conduct their prayer services, as stated, met with the fierce opposition of worshippers at the site. The dispute between the worshippers and the Petitioners was accompanied by rioting, the throwing of gravel and dirt at the praying Petitioners, and the use of force and verbal violence.

In the course of hearing the petition in HCJ 257/89, regulation 2 (a) of the Regulations for the Protection of Holy Places to the Jews, 5741-1981, was amended by the addition of regulation (1a), which prohibits the conducting of any religious service at the Western Wall that is not in conformance with the local custom or that violates the feelings of the worshippers in regard to the place.

The Petitioners argue that the new regulation is void ab initio, or in the alternative, that it should be voided by reason of extraneous considerations or as ultra vires the Minister’s authority. They further argue that their prayer services are not contrary to the “local custom”, and that they strictly observe the rules of halakha [Jewish religious law].

According to the Respondents, the Petitioners’ right of access to the Western Wall is not in dispute. What is refused to them is prayer in their own manner, that is, while arriving as a group, wearing tallitot, carrying Torah scrolls and reading from them. Such prayer has led to severe disturbances in the Western Wall Plaza, breach of public order, and the violation of proper decorum.

For those reasons, the regulation that is the subject of the petitions is valid, and the manner in which the Petitioners conduct their prayers at the Western Wall should be evaluated in accordance with it.

Held:

The High Court of Justice ruled as follows:

A.        (1) The Palestine Order-in-Council (Holy Places), 1924, does not deprive the Court of jurisdiction to adjudicate in regard to the preservation of public order and the prevention of criminal offences. The Order-in-Council only deprives the Court of jurisdiction in matters of freedom of worship in the holy places

(2) The petitions treat of freedom of access to the Western Wall, the danger of desecration of the site, and a possible affront to the sensitivities of the worshippers. The Court holds jurisdiction over these matters.

B. (per M. Elon D.P.): In terms of halakha, the questions raised by the petitions concern the rules of prayer: one – is a woman permitted to wear a tallit and tziztit; two – are women permitted to carry a Torah scroll and read from it. These two subjects must be preceded by the examination of an additional question, that of the manner of conducting public prayer by women.

C. (per M. Elon D.P.):

(1) According to halakha, fulfillment of the obligation of public prayer requires a “minyan”, i.e., ten men, and “acts of sanctification” – i.e., prayers in which God is sanctified.

            (2) Women are required to pray, but they are not obligated to public prayer. Women are exempt from the performance of time-bound positive commandments, that is, commandments that must be performed at specified times. A person who is exempt from the performance of a time-bound positive commandment cannot be counted for the required, obligatory quorum for constituting a minyan of ten.

            (3) Conducting prayers that are entirely constituted and led by women, in the manner customary in a minyan of men, is contrary to halakha.

            (4) Women are exempt from wearing tzitzit or a tallit, as these are time-bound positive commandments inasmuch as the obligation is limited to a defined time period.  However, women are permitted to perform these mitzvoth.

            (5) The requirement that a commandment be performed for the purpose of observing it, and not motivated by a lack of consideration for the halakhic rule due to “extraneous considerations” of principled objection to the exemption because it insults women, is a fundamental principle of the halakhic world with regard to the introduction of legislative enactments, establishing customs, and introducing changes thereto.

D. (per M. Elon D.P.):

(1) Custom is one of the established, creative sources of Jewish law.

            (2) Custom can be general, and it can also be local, that is, restricted to a place or to specific places, where various internal factors influence its generality or restriction. It may also be subject to change by its nature, the place and the time, and in accordance with the existence of legitimate factors of the place and the time that justify such change.

            (3) Not every absence of a custom grounds an “argument from silence”. In certain circumstances, it is evidence of a lacuna that must be remedied when the time and need arise, assuming that there is no halakhic prohibition that prevents it.

            (4) A custom that deviates from a prior custom that forbids the introduction of a new custom that is not justified by legitimate social and ideological changes in the halakhic world, may not be followed.

            (5) The halakhic world is especially careful in regard to introducing new customs in the synagogue. This fact finds expression in regard to the custom of “prayer groups”, which is a central issue in these petitions.

E. (per M. Elon D.P.):

(1) At the prayer area beside the Western Wall, which must be treated like a synagogue and even more, there was never any custom of women’s prayer.

            (2) Granting the Petitioners’ petition would involve a clear change in the local custom of the synagogue as observed for generations upon generations.

            (3) An important principle of halakha is that custom should not be changed “due to the quarrels” [that would ensue]. This principle was enunciated in regard to every custom in halakha, and it applies a fortiori to synagogue customs, and all the more so in regard to the synagogue in the Western Wall Plaza.

            (4) The subject of these petitions – concerning the laws and customs of prayer – is particularly sensitive in the halakhic world. The halakhic world is defined by its laws and values, and just as halakhic scholars and decisors disagree in regard to its rules, so they may disagree as to its values or in regard to the implementation of its values.

            (5) It is conceivable that the substantial change in the status and role of women in this century will have an effect over time, and will lead to an appropriate resolution even of this complex, sensitive subject of prayer groups. But the prayer space beside the Western Wall is not the place for a “war” of acts and opinions over this issue.

E. (per M. Elon D.P.):

(1) Just as the Temple Mount and the Temple that stood upon it were symbols of the Jewish religious world and of the Jewish nation’s political sovereignty, so the Western Wall, the remnant of our destroyed temple, was the holiest place for the Jewish People, and symbolized its desire and aspiration for the return of national sovereignty.

            (2) (per M. Shamgar P.): In the eyes of the religious halakha, the Western Wall is a mikdash m’at [a little sanctuary]. From a nationalist perspective, it symbolizes generations of suffering and the aspiration for a return to Zion and the return of our diaspora, and therefore, it expresses the strength and vitality of the nation, its ancient roots and its eternality.

            (3) (per S. Levin J.): The Western Wall and its plaza have been a holy site for the Jewish People for generations, as a religious site and a site of prayer, but at the same time, it also bears national symbolic significance as a unique historical remnant of the walls of the Temple. In these circumstances, the fact that the Wall serves as a site for prayer is not necessarily decisive in establishing the scope of activity permitted there. That the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other cannot be accepted a priori and as a foregone conclusion.

G. (per M. Elon D.P.):

(1) An examination of the history of the Holy Places shows the very sensitive nature of these places to which disputes, disagreements and strong emotions are inherent. The treatment of the Holy Places is characterized by extreme care and moderation, attempts to achieve compromise and mediation between the parties, and by refraining from unequivocal rules and definitive solutions.

            (2) Such an approach is inappropriate to the nature of the Judiciary, which is used to definitively deciding disputes on the basis of clear legal rules. Therefore, in practice, the treatment of the Holy Places was entrusted to the Executive branch.

            (3) The Executive branch relied upon the long established principle of maintaining the status quo. Preserving the existing situation is the only means for ensuring that peace and quiet, and public decorum -- so necessary for places imbued with holiness – be maintained.

F. (per M. Elon D.P.):

(1) The principle that a person’s freedom of worship is not absolute but must retreat where there is a probable threat of harm to public order, is merely a different expression – one more appropriate to the Holy Places – of the principle of maintaining the status quo.

            (2) In the Holy Places there is – in light of past experience – an evidentiary presumption that a deviation from the status quo may lead to a disturbance of public order. This evidentiary presumption, together with additional evidence – and perhaps even on its own – may, in appropriate cases, provide the necessary evidentiary grounds required under the near-certainty test to limit freedom of worship in the Holy Places, and to restrict it due to the need to preserve public order.

            (3) In the circumstances of this case, the possible clash is not only between the freedom of worship of the Petitioners and the interest in maintaining public order. There is an additional possible clash between the freedom of worship of the Petitioners and the freedom of worship of other worshippers.

            (4) In the Holy Places, there is no choice – in a case of a clash between the freedom of worship of different worshippers themselves – but to try to find the common denominator of all the worshippers, even if, as a result, the freedom of worship of one may come somewhat at the expense of the freedom of worship of another.

I. (per M. Shamgar P.):

(1) The petitions before the Court lead us to the bumpy road of trying to balance between approaches and beliefs that are incompatible. In this regard, it is worth remembering that exclusive focus upon presenting questions and problems before the Court is not necessarily the appropriate solution or the desirable remedy for all illnesses.

            (2) The search for a common denominator for all Jews, whomever they may be, is worthy of respect. The common denominator means sufficing with the basic arrangements that would ensure freedom of access and freedom of worship to everyone, without imposing special conduct upon those who do not want it, and without violating the sensitivities of the believers.

            (3) The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner.

J. (per Elon D.P.):

(1) Subsection (1a) of regulation 2(a) of the Regulations for the Protection of Holy Places to the Jews, promulgated by virtue of the Protection of the Holy Places Law, 5727-1967, expresses the principle of maintaining the status quo. The “local custom” and the status quo are one and the same.

(2) The Minister of Religion did not exceed the authority granted to him by the legislature under the Protection of the Holy Places Law. He acted within the operating framework delineated by the primary legislator in sec. 1 of the Law to protect the Holy Places – including, of course, the Western Wall – from desecration and anything likely to violate the feelings of the members of the different religions with regard to the places holy to them.

            (3) There was more than enough evidence before the Minister of Religion that prayer conducted in the manner practiced by the Petitioners leads to severe, tangible harm to public order, and thereby leads to desecration of the Western Wall.

            (4) The regulation is a reasonable expression of the principle of preserving the status quo, the principle of preserving public order in a Holy Place, and primarily – in expressing the broadest common denominator of all the worshippers at the site. The reasonableness of the subsection of the regulation derives from the policy grounding the regulation, and from the purpose that it seeks to realize.

K. (per S. Levin J. (dissenting)):

(1) In regard to the activity in the Western Wall Plaza, the adoption of the broadest common denominator as a standard is not helpful. The common denominator that must be taken into account is the common denominator of all the groups and people who visit the Western Wall and the plaza in good faith, whether for prayer or for other legitimate purposes.

            (2) No absolute prohibition should be placed upon conducting prayer services at the Western Wall simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace do not necessarily justify imposing such a prohibition.

            (3) It is the duty of the relevant authorities to ensure the appropriate conditions for balancing all the relevant interests, in order that all those who seek to assemble at the Wall and its plaza may fully realize their rights without excessively violating the feelings of others.

            (4) Regulation 2 (a) (1a) of the Regulations for the Protection of Holy Places to the Jews is not repugnant to the Protection of the Holy Places Law, but the term “local custom” need not be interpreted specifically in accordance with the halakha or the existing situation. It is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others.

            (5) Under these circumstances, it is possible to issue a decision that recognizes in principle the good-faith right of the Petitioners to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls, with the proviso that there conduct does not constitute an intolerable “desecration”, “other violation”, or a “violation of feelings” as appropriate in a democratic society.

L. (per M. Elon D.P.):

(1) The approach according to which conducting worship services at the Western Wall that are opposed by other groups should not be subject to a total ban is an absolutely new approach in the case law of the Supreme Court, and it stands in utter contradiction to a long line of decisions issued by the Court.

(2)  The case law has upheld a prohibition upon Jews praying on the Tempe Mount in order to preserve public order and prevent a proximate threat of disturbances and rioting, Freedom of worship thus retreated before the need to preserve public order to the point of denying any Jewish religious worship on the Temple Mount.

(3) The Temple Mount on the east of the Wall is no different from the prayer plaza on the west of the Wall, both of which are Holy Places. In view of the fact that according to the decisions of this Court, prohibiting every Jew from praying on the Temple Mount is consistent with the principle of freedom of religion, prohibiting the inclusion of a single element in the prayer service, to which the overwhelming majority of worshippers are vehemently opposed, also does not constitute an infringement of freedom of worship.

M. (per M. Shamgar P.): The issues raised by the petitions should not be decided in the manner that legal disputes are normally decided. We should recommend that the Government consider appointing a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit harm to the feelings of the worshippers. The petitions should be dismissed, subject to that recommendation.

 

 

 

 

 

 

 

 

 

Judgment

 

 

Deputy President M. Elon:

Preface

We have been called upon to address two petitions concerning the arrangements for prayer in the Western Wall Plaza in Jerusalem, Israel’s capital. The facts and content of each of these petitions are substantively different, but in view of their common subject, we have decided to address them jointly.

The petitions are extremely sensitive by their very nature and substance. In terms of their substance, we are concerned with the laws and customs of prayer – subjects that are central to Jewish law and Judaism. As for the location, we are concerned with what has been Judaism’s holiest site since the destruction of the Temple. The special legislation and the rich case law of this Court also inform us of the sensitivity and of the tension attendant to the issue of the Holy Places in this country. This is also evident from the facts set forth in the two petitions before us, and the arguments presented by the Petitioners’ learned counsels.

            We shall, therefore, address each matter in turn, in an orderly fashion.

            We shall proceed as follows: After examining the issue presented by the petitions (paras. 1-3), we will specifically address the facts of each of the petitions that are of importance for our consideration and decision (paras. 4-11), as well as the arguments of the Petitioners and of the Respondents (paras. 12-17). As noted, the questions that we must decide are intertwined with matters of prayer and its rules, which derive from the world of halakha [Jewish religious law], and with which we will begin our examination (para. 18). We will then address contemporary social changes in the status and roles of women (paras. 19-20). We will enquire into the laws of prayer in a minyan [prayer quorum], time-bound commandments, women’s “prayer groups”, the wearing of a tallit [prayer shawl] by a woman, and the reading of the Torah by women (paras. 21-17). We will then proceed to examine the subject of custom in halakha, which is of particular importance for the subject before us – custom in general, in the synagogue in particular, and especially at the Western Wall – change of custom, the avoiding of dispute, and sectarianism (paras. 28-32). In doing so, we will address the extreme nature of the disagreements in regard to the subject before us, the law and values of the halakhic system (paras. 33-36), the rendering of true judgment (para. 37-38), and a summary of the halakhic position in regard to our subject (para. 39). From the world of halakha, we shall proceed to the arena of the Israeli legal system: the Holy places, the Status Quo (paras. 40-43), and the disputes surrounding them (paras. 44, 48-49); the Western Wall during the Mandate period and after its liberation in the Six Day War (paras. 45-46), the prevention of Jewish prayer on the Temple Mount (para. 47), and a summary of the history of the Holy Places (para. 50). From that point, we shall address the principle of freedom of worship, and balancing and restricting it (paras. 51-53), the regulation regarding preserving “local custom” and not offending the sensitivities of the praying public in regard to the Western Wall (para. 54), and the reasonableness, appropriateness and necessity of the regulation (paras. 55-60). We will conclude with a summary (para. 61) and by rendering true judgment in the matter before us (para. 62), and a response to the comments of my learned colleagues (para. 63).

            In HCJ 4185/90 Temple Mount Faithful v. Attorney General, IsrSC 47 (5) 221, the Court considered a petition concerning work being carried out on the Temple Mount, on the eastern side of the Western Wall. In the petitions at bar, we address events on the western side of the Wall. Both cases thus concern events on either side of the Wall. Inasmuch as we addressed the history of the Temple Mount and the Western Wall in detail in HCJ 4185/90, we see no need to repeat what has already been stated there. At times, this judgment refers to that judgment, and at times it does not. The reader can read both to obtain a complete picture.

 

HCJ 257/89

1.         On 14 Adar II 5749 (March 21, 1989), the Petitioners in HCJ 257/89 submitted a petition for an order nisi, stating:

A. Against Respondents 1-3, i.e., the Director of the Western Wall, the Minister of Religious Affairs and the Chief Rabbis of Israel: “Why do they forbid and/or prevent the Petitioners in particular, and Jewish women in general from carrying Torah scrolls and reading from them, and/or wearing prayer shawls during their prayers” [sec. 2.a of the heading of the petition].

B. Against Respondents 6-8, i.e., the Commander of the Old City Police Precinct, the Commander of the Jerusalem District of the Israel Police, and the Israel Police: “Why will they not protect the Petitioners in particular, and women in general in their exercise of the right to freedom of belief, religion, worship and conscience at the Wall” [sec. 2.b of the heading of the petition].

            On 20 Iyar 5749 (May 25, 1989), the requested order nisi was granted with the consent of the State’s representative of the said Respondents.

            In the hearing held on 20 Av 5749 (August 21, 1989), we ordered that the Shas Movement, Rabbi Simcha Miron, the Degel Hatorah Association, and Rabbi Avraham Ravitz be joined to the petition as Respondents 9-12, at their request (MHCJApp 318/89, MHCJApp 319/89).

2.         On 3 Adar 5750 (Feb. 28, 1990) – following the promulgation of the Regulations for the Protection of Holy Places to the Jews (Amendment), 1989, which we shall address further on – the Petitioners submitted an amended petition comprising an additional request for an order nisi against the Minister of Religious Affairs and the Minister of Justice (Respondents 3-4):

Why should the Court not declare the Regulations for the Protection of Holy Places to the Jews (Amendment), 1989, to be void … or in the alternative, why should it not void them [para. b. of the heading of the amended petition].

            With the consent of the Respondents, an amended order nisi was issued on the basis of the amended petition.

 

HCJ 2410/90

3.         On 10 Sivan 5750 (June 3, 1990), the Petitioners in HCJ 2410/90 submitted:

A petition for the granting of a decree against the Respondents (the Minister of Religious Affairs, the Director of the Western Wall, the Commissioner of the Israel Police, and the Attorney General – M.E.) forbidding them from preventing Petitioners 1-6 from praying at the Western Wall and in the Western Wall Plaza while wearing tallitot and reading from the Torah, and requiring them to permit the Petitioners to bring a Torah scroll to the Western Wall Plaza, and to ensure that such prayer by the Petitioners be conducted without disturbance or harm [heading of the petition].

            An order nisi was granted on the day that the petition was submitted.

            A joint hearing of the objections to the orders nisi in both petitions – HCJ 257/89 and HCJ 2410/90 – was held on 13 Adar 5751 (Feb 2, 1991), as requested by the Petitioners in HCJ 2410/90.

 

The Facts

HCJ 257/89

4.         The Petitioners are Jewish women, and residents of Jerusalem. Petitioner 1 is a member of the Jerusalem city council. The Petitioners come “to pray at the Wall, together with other Jewish women, at various times, as part of a group called the ‘Rosh Hodesh [new month] Group’” (sec. 1.a of the amended petition). In the course of their prayer, they wear tallitot and read the Torah. Petitioners 1 and 2 “are Torah readers, and on occasion, serve as prayer leaders in their congregations” (sec. 3.a of the amended petition).

            The Petitioners claim that when they went to pray at the Western Wall Plaza, as described, their prayers were disturbed. This began on the Rosh Hodesh beginning of the month of Tevet 5749 (Dec. 9, 1988), when there was “violent conduct … (directed at them – M.E.) by hareidim [“ultra-Orthodox”]” (Appendix A to the amended petition). In regard to the events of Rosh Hodesh Adar I 5749, the third Petitioner, Dr. Judith Green, states:

On Monday morning, 1 Adar I (Feb. 6, 1989) … at 6:30 AM, a group of about 25 women began the Rosh Hodesh prayers at the Western Wall Plaza … we informed the police in advance a day earlier, on Sunday, 30 Shevat (Feb. 5, 1989), of our intention to conduct prayers, and we provided full details ….

We, indeed, saw a police van opposite the Wall, in which there were some 10 police and border patrol officers. We thought that they were there to see what would happen, and to intervene if necessary. We conducted the morning service and recited Hallel without any significant disturbance, but when we began reading the Torah, several hareidi women began to interrupt and curse us. In the end, they ran to the mehitza [separation barrier between the sections for male and female prayer] and called for the hareidi men to assist them. The men broke through the mehitza and began to beat us.  They grabbed prayer books and tried to take our Torah scroll. ‘Reinforcements’ arrived from various yeshivas in the Jewish Quarter (apparently), and at that moment, several men who were concerned for our safety went to the police van to ask for help. The police told them that they should not intervene, and that they should let the police ‘do its job’. When the hareidim began to throw chairs and tables at us, I asked the police to ask for help. They told me not to worry, that they were in control of the situation and had called for assistance. Several other people turned to the police, but none of them left the van. At that point, we began to worry about the safety of the Torah scroll and the safety of the men who were trying to protect us. We therefore left the place as a group, encircling the Torah scroll, while the hareidim continued to curse and hit us. No police or border patrol officer entered the area of this violent event, although it occurred right before their eyes.

When we left, we encountered a police officer who said that he was the area commander. He said that he was unaware of our intention to conduct Rosh Hodesh prayers on that morning. Several police officers who had been in the van were also there, and they continued to berate us for trying to tell them how to do their job [Appendix A to the amended petition].

 

            Following the events described, the Respondents and the Petitioners conducted negotiations that proved unsuccessful. The Petitioners informed Respondent 1 that they “will come to pray at the Wall on the Fast of Esther, without tallitot and without a Torah scroll”, and Respondent 1 assured them that he would see to “their safety and the conducting of their prayers” [sec. 9a of the petition].

            And this – according to the Petitioners – is what occurred on the Fast of Esther 5749:

11.       (a) On March 20, 1989 (the day of the Fast of Esther), the Petitioners gathered with their friends, in a group numbering several dozen women, to pray at the Wall without tallitot or Torah scrolls  ...

(b) When they entered the women’s section at the Wall, there was a large commotion by yeshiva students, and other men and women who were there, who insulted the Petitioners and tried to assault them. Border patrol officers who were at the scene ensured their entry into the women’s section unharmed.

(c) During their prayers, unruly men tried to break through into the women’s section, shouting and cursing, and throwing chairs and stones at the prayer group. Several extremist women who were present in the women’s section, also contributed their insults and fists.

(d) The border police first tried to protect the prayer group and catch the offenders, but quickly, and in accordance with orders from above, they left the Wall and the Plaza, and abandoned the prayer group to the devices of the violent rioters. The Western Wall ushers were at a loss to provide help.

(e) Counsel for the Petitioners, who was present at the event, demanded that the police protect the praying women, but was referred to Respondent 6 (the Commander of the Old City Police Precinct – M.E.).

(f) At the time of the event, Respondent 6 stood on the balcony of the police post near the Wall, and observed what was occurring while doing nothing, as if to say ‘let the young men play before us’ [II Samuel 2:14].

(g) Counsel for the Plaintiffs, who turned to Respondent 6 and requested his quick intervention in light of the rioting, and fearing the spilling of blood at the Wall, was ordered to leave the police post.

(h) The violent rioting at the Wall, which included the throwing of a bottle that shattered in the women’s section, the throwing of chairs and stones, and shouting and whistling, continued without police intervention.

(i) As a result of the throwing of a chair at the heads of the praying women, one of the women was injured. Mrs. Rachel Levin sustained a head injury, and was later treated at Hadassah Hospital …

(j) The person who threw the said chair fled from the women’s section and ran into the Cardo, while Counsel for the Plaintiffs and others gave chase. Border police standing at the entrance to the Cardo, who were asked to arrest the fleeing suspect, stood aside and allowed him to flee and disappear into the depths of the Cardo. They referred the complainants to their commander, Respondent 6.

12.       After about 45 minutes, the police finally intervened, dispersing tear gas canisters in the Western Wall Plaza and moving the men away. As a result of the tear gas canisters, the prayers of the Petitioners and their friends could not continue, and they were forced to leave the women’s section, hurt, injured, and crying, to conclude their prayers far from the Western Wall Plaza.

13.       The Director General of the Ministry of Religion was present throughout the Petitioners’ prayers at the Wall on March 20, 1989, and observed what took place [secs. 11.a – 13a of the amended petition].

 

            The day following the events of the Fast of Esther, the Petitioners submitted the petition at bar, as noted.

5.         The Respondents presented a different version of the events that transpired up to the date of the submission of the petition. This is how the matters are described by Respondent 1, Rabbi Getz, the rabbi in charge of the Western Wall and the other holy sites surrounding the Temple Mount, in his letter of 22 Adar 5750 (March 19, 1990) to the Director of the High Court of Justice Department of the State Attorney’s Office:

For over twenty years, since the day I was appointed to my position as Rabbi of the Wall, the Western Wall Plaza has been a quiet, calm island in the raging sea of our lives in Israel.

Every year, millions of Jews come from Israel and the Diaspora to visit the Wall to pour out their hearts beside the remnant of our Temple, and each can commune with his Maker in tranquility and safety.

All are equal before the Creator, poor and rich, scholar and unschooled, knowledgeable and ignorant, and recite their prayers according to the Sephardic, Ashkenazic, or Oriental rite, or a revised prayer book, in Hebrew, English, French, or any other language. And no one says a word when, with no comparison implied, Moslems, Catholics, Protestants, Presbyterians, and even Japanese Makuya also come, and we have been privileged to see the prophesy of redemption  ‘for My house shall be a house of prayer for all peoples’ [Isaiah 56:7].

The river of Israel’s sorrows laps calmly beside the ancient stones, and our brothers and sisters depart with a sense of relief and ease.

This until that bitter day of 2 Kislev 5749 (Dec. 1, 1988), when, late at night, sitting in my office at the Wall, I received an anonymous notice from a person warning me that feminist women would be coming to the Wall, and they would overturn the mehitza that separates the men and the women. I could hardly believe my ears, and I thought that he was putting me on.

Nevertheless, early the next morning I informed the police commander of this, and I demanded an increased police presence, while expressing my reservations as to the credibility of the notice.

But when, at about 7:00 AM, I saw an army of Israeli and foreign journalists and photographers, I called the Director General of the Ministry for Religious Affairs, Mr. Z. Orlev, who arrived immediately, and I put all of the ushers and all the other staff of the Wall at the ready beside the mehitza.

Indeed, half an hour later, some fifty or sixty women arrived at the site, some wrapped in a tallit or wearing a kippah, and one of them holding a Torah scroll in her arms, and that immediately ignited the emotions of the men and women at prayer.

I did not prevent them from entering the Western Wall Plaza, and I even calmed the enraged spirits, explaining to all interested that from a halakhic legal perspective, there is no prohibition, but it is contrary to custom, and not accepted among Jews, and that calmed the anger of the protesters. I naively thought that this was a one-time phenomenon that would pass. (Incidentally, I firmly deny that I knew, or that it was reported to me, that women, or a woman, would come to the Western Wall wrapped in a tallit, and I did also did not attest to that effect!).

I was also surprised that in declarations made to the various press outlets, the Petitioners emphasized that this would now be a permanent, systematic policy. I therefore asked the honorable Chief Rabbis of Israel for their halakhic opinions, and on 17 Shevat 5749, they ruled to forbid, and this after the phenomenon recurred on Rosh Hodesh of Tevet (Dec. 9, 1988), and this time was met by the angry vocal reactions of the worshippers.

The matter of the arrival of the women wrapped in tallitot and carrying a Torah scroll evolved into a serious breach of public order, and turned the Western Wall Plaza into a shameful battle ground, ending in disrespect and discord.

The Petitioners, for their part, only stoke the flames with daily announcements to the press, which have drawn angry responses for and against.

Nothing transpired on the Rosh Hodesh of Shevat, as it fell on the holy Sabbath.

On the Rosh Hodesh of Adar I (Feb. 6, 1989), the terrible spectacle recurred. The said group of women arrived, accompanied by a crowd of reporters and photographers, and this time there was an escalation because their announcements to the press “mustered” a crowd of opponents, and the women, on their part, added an element of singing, which is expressly contrary to halakha.

I am unaware of any physical injury whatsoever. But it is shocking that the aforementioned expressly claimed to have received my permission to conduct their prayers. Several meetings were held between the Chief Rabbinate of Israel and our office administrators in order to limit the damage and embarrassment. I personally turned to several public personalities and requested that they use their influence with the complainants, and especially Plaintiff 1, to refrain from causing a desecration and dragging the public to sacrilege.

On 11 Adar II, a joint meeting was held in the Director General’s office, at which the Petitioners were present. They demanded that we protect them when they come on the Fast of Esther, and we unequivocally declared that they are disturbing public order, and we, for our part, will strictly enforce it …

We therefore prepared for that day, 23 Adar II 5749 (the day of the Fast of Esther – M.E.) (March 20, 1989), and in coordination with the police and its commanders, I reinforced the ranks of female ushers, emphasizing that the police would intervene only if the ushers lost control of the area.

Once again there were announcements to the press, a timely assembly of photographers and reporters, and the women confronted a wall of people who attempted to block their access to the Wall, while the ushers protected them and allowed their access. But the shouts and the attempts at physical harm forced me to request the intervention of the police, who dispersed the disturbances with two tear gas canisters.

And my face is covered in embarrassment and shame by this – for what? What harm would come to them if they were to pray as they wish in their own homes or their own places of prayer that requires all this commotion? [Appendix R/B of the Respondents’ response of April 8, 1990].

 

6.         During the period between the submission of the petition, 14 Adar II 5749 (March 21, 1989), and the first hearing of the petition, 20 Iyar 5749 (May 25, 1989), the commotion in the Western Wall Plaza subsided. And this is how the events are described in the above letter of Rabbi Getz:

Prior to 28 Nisan 5749 (April 6, 1989), in coordination with the office administration, I assembled a staff of women who could control the women worshippers who were attempting to oppose their arrival. I also removed the chairs from the men’s section and from the women’s section. And, indeed, when they arrived at the Plaza, I was given a ‘legal affidavit’ by their attorney that they are coming without a Torah scroll and without tallitot, and that they would not approach the women’s section. And, indeed, other than a single shout, there were no reactions by anyone.

That was also the case on Rosh Hodesh Iyar (May 6, 1989). I explained to the women present that this was not the time for disturbances, and that they should bear in mind that only yesterday the blood of two Jews was spilled in the center of Jerusalem, and that they must behave with restraint.

Nevertheless, when they began singing in the course of their prayers, that had been silent until that point, there were shouts of disapproval by male and female worshippers, and they quickly left the area” [Appendix R/B of the Respondents’ response of April 8].

 

            And this is what we can learn about the events up to the first hearing in the matter of this petition from the letter of 2 Iyar 5749 (May 7, 1989) of Mr. Zevulun Orlev, then Director General of the Ministry of Religion, to the Director of the High Court of Justice Department:

I respectfully present you with a report of the course of events in regard to the prayers of a group of feminist women who have recently been praying at the Western Wall each Rosh Hodesh.

I have personally been following this matter over the months of Shevat, Adar I, Adar II, Nisan, and Iyar. I have also met personally met with Rabbi Getz, the rabbi responsible for the Western Wall, and with representatives of the group concerned.

The matter was first brought to my attention by the media, which reported that the group would pray at the Wall while wrapped in tallitot and reading form the Torah.

The first Rosh Hodesh prayers were preceded by announcements in the media. By analyzing their content, I have no doubt that the source of the reports was the women themselves.

The announcements led to opposing responses in the hareidi press, which heated up the atmosphere, and created expectations of a struggle.

Even when the women arrived at the Wall without tallitot and Torah scrolls, there were fierce reactions by the hareidim, inasmuch as they believed the reports in the media, and expected that the women would do what was reported.

This was exacerbated by the conspicuous presence of politicians walking at the head of the group, and the presence of many television crews, photographers and reporters accompanying the group of women, which entered the Plaza as a united group, in organized rows and columns as if in a clear protest march.

Our office invested substantial effort to make it clear to the women, on the one hand, that they would not be permitted to enter if they prayed with tallitot and read from the Torah, and to the hareidim, on the other hand, that if the women promise not to deviate from the local custom, they will not break their promise.

And, indeed, on Rosh Hodesh Nisan, the effort produced results, and other than the loud protests of a small number of men and women against the women, there was no significant disturbance. Those protests were the result of the organized, demonstrative entrance, and the accompaniment of the media, who were not invited by us or by the other side …

Prior to Rosh Hodesh Iyar, there were no reports of the matter in the media. The group of women arrived without the conspicuous presence of politicians, and presumably, without the accompaniment of television crews, photographers and reporters. I am glad to report that the group entered undisturbed (they did not enter in formation, but as a normal group), prayed for about half an hour, and quietly left the Plaza. In the course of prayer, after the group began to pray with organized singing aloud – contrary to the decision of the rabbi in charge of the Wall – two hareidi women shouted that the singing bothered them, and were silenced by the Wall ushers.

This progression of events proves and leads to the following conclusions:

1. When the event assumes the character of a demonstration by the women, it is also met by reactions from the other side, and vice versa.
2. When the event is conducted within the framework of the directives of the rabbi of the Wall, there are no harsh responses or disturbances, and vice versa.

From the my discussions with the commander of the Old City police, Chief Superintendent Yair Must, who accompanies me at every event, I know that he agrees with the event analysis and its conclusions [Appendix R/1 to the response submitted by the Respondents in MHCJApp 312/89 on Aug. 15, 1989].

 

7.         As noted, an order nisi was issued on the day of the hearing, with the State’s consent. The Court also recorded the State’s notice that “the competent authorities in the area of the Western Wall Plaza will see to … ensuring the well-being and safety of the Petitioners, and that their prayer services at the Western Wall Plaza will not be disturbed,” with the proviso that the Petitioners will continue to conduct their services at the Wall “in accordance with the prevailing prayer customs at that place, that is – that they will pray in the women’s section, without tallitot and Torah scrolls” [sec. 2 and 3 of the State’s notice of May 24, 1989].

            Unfortunately, this interim agreement did not bring about an end to the confrontations at the Western Wall.

8.         On 6 Av 5749 (Aug. 7, 1989), the Petitioners requested “to issue an interim order instructing the Respondents to take all the necessary steps to ensure the uninterrupted conduct of the prayer service of the Petitioners’ and their friends without physical or verbal violence” (MHCJApp 312/89). In this request, the Petitioners described the events that they claim occurred after the interim arrangement described above. The events of Rosh Hodesh Sivan 5749 (June 4, 1989) are described as follows in the letter of the Petitioners’ attorney of June 5, 1989, to the Attorney General and the Director of the High Court of Justice Department:

A.  On Rosh Hodesh Sivan, June 4, 1989, the Petitioners, together with their friends, tried to pray in the women’s section of the Wall. They arrived at the Wall without tallitot and without a Torah scroll, and prayed in the women’s section. The following events occurred at the place:

1. A group of women made noise and deafening shouts and insults that interfered with the prayers.
2. A group of men, on the other side of the mehitza, shouted and interfered with the prayers.
3. A few women tried to push the worshippers out of the area while they were trying to pray.
4. The prayer book of Mrs. Anat Hoffman was grabbed, folded and spat upon, and the prayer book of another women was grabbed and thrown to the ground.
5. Another women was hit by a stone that was thrown at her.

2. Cognizant of the State’s notice, submitted in writing to the Supreme Court sitting a High Court of Justice as an assurance of the State in file 257/89, the women approached the ushers and the police.
3. Both of the above stood by, indifferent, and refrained from “ensuring the well-being and safety of the Petitioners, and that their prayer services at the Western Wall Plaza will not be disturbed” (quote from the State’s said notice).
4. If that were not enough, the women were shocked when Mr. Shmuel Markovich, the police officer in charge, approached them and demanded, in Rabbi Getz’s name, that the women only pray silently, and if not, then the police would take action against them.
5. As was their custom, the women departed for the “Hurva” synagogue, where the following events occurred:

1. The site was “occupied” by a group of hareidi men.
2. When the women tried to pray at a lower place, the men poured water on them, and the hareidim tried to force their way in among the praying women. In doing so, they injured Miriam Keltz and Helen Louis, who fell, were hurt, and required medical attention.
3. The police made no serious effort to allow the women to pray.
4. The women who submitted complaints were sent from pillar to post between the Kishle [the Old City police precinct], the Russian Compound, the Ministry of Tourism, etc. And complaints were accepted from the two women who were injured only after they were subjected to a thorough runaround.

 

Another description of the events on Rosh Hodesh Sivan is given by the Petitioners in their letter of 26 Sivan 5749 (June 29, 1989) to the Minister of Religion:

 

1. …Despite the State’s promise, on Rosh Hodesh Sivan (June 4, 1989) we found that the violence against us continued, and that your office did not succeed in protecting our well-being in an effective manner, as promised in court.

 

On Rosh Hodesh Sivan, the ushers did not succeed in protecting us, and Rabbi Getz, who was present at the scene, did not call the Israel Police for help. The Wall ushers claimed that they were unwilling to touch a woman even if she was riotous, and hitting and cursing other worshippers. In order to resolve this problem, is was suggested that female ushers would be sent for, and we were grateful for this initiative on your part.

 

2. … Since December 1988, on Rosh Hodesh, holidays and Shabbat eves, we follow the same customary practice, arriving at the Western Wall Plaza unobtrusively, singly or in pairs. We gather into a group in the women’s section, without a Torah or tallitot, and pray together.

On Rosh Hodesh Sivan, we did not deviate from our customary practice, despite what is stated in the written report presented to you by Rabbi Getz (Appendix D of the Petitioners’ request in MHCJApp 312/89).

On Rosh Hodesh Tammuz 5749 (Aug. 2, 1989), the violence increased, as attested by Petitioner 1, Mrs. Anat Hoffman, and Petitioner 2, Dr. Bonna Haberman, in their affidavit of Aug. 6, 1989:

3. …

(c)        For our prayers on 1 Tammuz and 1 Av, the Ministry of Religion provided a force of female ushers who were intended to protect us from our violent attackers, and permit us to pray undisturbed. But instead of that, the ushers joined those who were trying to silence our prayers. When we tried to continue our prayers as usual, and even though we were without tallitot and without a Torah scroll, we and our friends were forcefully dragged out of the women’s section before we could finish our prayers, while women who call themselves “hareidi” exploited the opportunity to pelt us with pebbles and throw mud and dirt at us.

4.         Not only were we forcefully dragged and expelled from the women’s section in a humiliating and degrading manner for all to see, but the Director of the Western Wall, Rabbi Getz, stated to our attorney Advocate Herzl Kadesh – as he reported us – that in the future, we will be entirely barred from entering the women’s section. A similar report appeared in the media as a statement made on behalf of the Ministry of Religion.

5.         Although those of us who pray at the Wall every Friday (in a group of 10-25 worshippers) have encountered verbal violence, to date the prayers have not been frustrated as occurred on the occasions of the Rosh Hodesh prayers.

            …

6. (a)  The authorities pretend to explain their conduct by an artificial distinction that they make between “prayer” and “singing”, and by defining our prayer as singing. In that manner, they seek to evade their responsibility and obligation under the law and in accordance with their commitment to the High Court of Justice.

(b) We pray only from prayer books, and in accordance with the standard Ashkenazic rite. We pray in a group, with a prayer leader. The service includes, among other things, pesukei d’zimra [preliminary blessings and psalms], which include the “Song of the Sea”, as well as prayers like “tzur yisrael” and “aleinu”. On Rosh Hodesh, the service also includes hallel. These prayers are recited aloud [affidavit of the Petitioners submitted in support of their request in MHCJApp 32/89].

 

The Petitioners also appended pictures to the said affidavit, which depict the events of Rosh Hodesh Av. The pictures show a group of women sitting on the Western Wall Plaza while female ushers try to lift one of the women; the women of this group lying of the Western Wall Plaza and female ushers trying to lift one of them; a women being removed from the Plaza by a female usher; a “hareidi” woman using her bag to fight with one of the women sitting on the Western Wall Plaza.

9.         The Respondents explained what occurred on Rosh Hodesh Sivan, Tammuz and Av as the result of the Petitioners breaching the interim agreement reached in the hearing of 20 Iyar 5749 (May 25, 1989):

                        7.         (a) …

(b) When the petition for an interim order was heard by the honorable Court, the parties agreed that until the end of the legal proceedings, the Petitioners would conduct themselves in accordance with the local custom. And because the petition focused upon a specific issue, the notice to the Court emphasized the reference to that issue, i.e., prayer by women while reading the Torah and wearing tallitot.

(c) It would appear that the Petitioners inferred from this that they had been granted permission to breach the local custom in regard to everything not included in their petition, and from that point onward, when they came to pray on Rosh Hodesh, they began to sing.

In doing so, the Petitioners knowingly deviated from the local custom, while claiming to act in accordance with the customs of their congregations [the State’s response of Aug. 15, 1989 in MHCJApp 312/89].

 

            The Respondents also provided a different description of the events of Rosh Hodesh Sivan, Tammuz and Av. Rabbi Getz addresses what occurred on Rosh Hodesh Sivan 5759 (June 4, 1989), in his aforementioned letter to the Director of the High Court of Justice Department:

Rosh Hodesh Sivan 5749 (June 4, 1989) saw a recurrence of the matter of provocative singing and the opposition of the worshippers, and somehow I got the situation under control [Appendix R/B of the Respondents’ response of April 8, 1990).

            The events of Rosh Hodesh Tammuz 5749 (July 4, 1989) are described by Rabbi Getz in his letter to the Director General of the Ministry of Religion of 1 Tammuz 1989 (July 4, 1989), which was the day of the event:

This morning, the first day of Rosh Hodesh Tammuz, a group of the Reform women, headed by Mrs. A. Hoffman, arrived. It was a relatively smaller group than we expected, and comprised some 40-50 women.

Before that, I gave the male and female ushers that we mustered for the emergency situation specific instructions … I also fully coordinated with the police commander Mr. Y. Must, and I also pressed upon the male and female worshippers not to intervene in any way, and to leave the matter exclusively to me. When the said group of women arrived on the scene at about 7:00 AM, each was given a copy of my request, in Hebrew on one side, and in English on the reverse, in which the worshippers were asked not to deviate from “the tradition of generations of our people in any way’ [Appendix R/2(a) of MHCJApp 312/89 – M.E.].

They approached the wall undisturbed, and began to pray. But now and again they began to sing, and the ushers politely asked them to be quiet, and here and there, a few women voiced their objection. But when they began singing very loudly, and were unwilling to stop, I instructed the ushers to remove them – without especial force – from the Plaza. When the said worshippers saw that, they calmed down, finished their prayers quietly, and went up the steps to the Jewish Quarter to read the Torah, etc. I should point out that Mrs. A. Hoffman constantly ran from one woman to another, apparently trying to incite them, but without great success.

In summary – and the police force commander agrees – there was no need to resort to force, and it would appear that this will be the proper approach until the legal issue is decided. And so, thank God, we have managed to maintain order without causing any physical or emotional injury [Appendix R/2 to the Respondents’ response submitted in MHCJApp 312/89 on Aug. 15. 1989].

            It would also be appropriate to quote the instructions that Rabbi Getz gave to the ushers in preparation for Rosh Hodesh Tammuz:

 

                                    It is your task today:

1. To prevent any disturbance of any woman who comes to pray at the Wall, and to protect her.
2. To prevent any breach of public order by anyone.
3. In accordance with section 4(c) of the Western Wall Regulations (5741), also to physically remove from the Western Wall Plaza any person when you receive such instruction from the undersigned [Rabbi Getz – M.E.] [Appendix R/2 (b) of the Respondents’ response submitted in MHCJApp 312/89 on Aug. 15, 1989].

 

The serious events that transpired on Rosh Hodesh Av 5749 (Aug. 2, 1989) are described by Rabbi Getz in his letter to the Director of the Ministry of Religion of 1 Av 5749 (Aug. 2, 1989), which was the day of the events:

 

This morning, a group of the Reform women arrived that was larger than usual, comprising some 70-80 women. They were preceded by representatives of Israeli and foreign television, as well as photographers and reporters.

Upon their arrival, they were asked by the ushers to maintain order and respect the local custom. Our male ushers stood beside the mehitza, on the men’s side, in order to prevent any outburst by the worshippers.

The Reform women began their prayer quietly, and did not create any disturbance. But when they broke out in song, there was a general cry for silence, and I sent a few of the female worshippers in the women’s section to speak to them and politely ask them to preserve the holiness of the place.

For a moment, the singing ceased, but then they resumed it loudly. After they were warned to stop, the ushers began to remove them. Then, at a prearranged signal, they all sat down at once on the floor, and amplified their singing in a very provocative manner.

I was then forced to order their physical removal, one at a time, while the ushers blocked the entrance to prevent their return to the site. The picture made me very very uncomfortable, but they left me no choice. I would like to praise the readiness of the police, under the command of Inspector Markovich, although I saw no need to activate them (Must was on vacation).

In summary, I see an escalation in the phenomenon, and I would recommend that we now consider not permitting their entry to the area, so as not to see a recurrence of today’s difficult scene [Appendix R/3 of the Respondents’ response submitted in MHCJApp 312/89 on Aug. 15, 1989].

 

            And this is what was stated in Rabbi Getz’s letter to the Director of the High Court of Justice Department:

 

… On Rosh Hodesh Av (Aug. 2, 1989), we reached the nadir of disrespect for the holiness of the Western Wall. As befits destruction,[1] I foresaw what might happen, mustered a reinforced staff of ushers, coordinated with the police, and also sent a written note, in Hebrew and in English, in which I greeted the arriving women with a cordial blessing and a request that they not breach the public order. I actually begged them that they act with reserve, and not bring about any provocations.

Indeed, at first they began to pray quietly, but suddenly they began singing loudly, and despite my repeated requests, they completely ignored them and sang even louder.

Of course, on the other hand, the expected reaction followed, and in fear of severe developments and violence, I instructed the ushers to remove them. Then, by a prearranged signal, they all sat down at once on the floor, arm in arm, singing loudly.

Despite the stinging pain that I feel to this very day, I instructed that they be dragged out right in front of the many cameras that, as usual, had been invited in advance [Appendix R/B of the response of April 8, 1990].

 

            A similar picture of the events of Rosh Hodesh Av is presented in Mr. Zevulun Orlev to the Director of the High Court of Justice Department of 2 Av 5749 (Aug. 3, 1989). As stated in the letter:

 

… the women breach the rules for prayer and conduct of the place by intentional, organized  and  flagrant singing.

On Rosh Hodesh Av (Aug. 2, 1989), they went even further, coming in a large, organized group, accompanied by politicians and the media (newspaper, radio and television) that were invited by them.

We see that as a flagrant breach of the decision of the High Court of Justice, which ruled that the prayers be conducted in accordance with the usual customs of the place, and I therefore request that legal steps be taken for breach of the High Court’s decision and contempt of court.

In addition, I respectfully inform you that, in light of the recurring breaches of the local custom by the group, we are considering not permitting them to enter the Plaza as an organized group, but only as individuals [Appendix R/4 of the response submitted in MHCJApp 312/89 on Aug. 15, 1989].

 

10.       At the end of the hearing held on 20 Av 5749 (Aug. 21, 1989) in regard to the Petitioners’ request for an interim order, as described above, and in light of the described events, this Court ruled as follows:

 

In regard to the interim order, the existing situation should continue without any change either way. Any change in the manner of conducting prayer can result, if at all, only following a legal ruling by this Court, following a hearing of the petition on the merits. Therefore, the Petitioners shall be permitted to pray at the site in accordance with the local custom, as dictated by the Rabbi of the Wall. This means, inter alia, that their prayers will be conducted without talittot or Torah scrolls. As for singing aloud at the site, this, too, must be conducted – as long as the matter is not addressed on the merits by this Court – in accordance with the said local custom. The Petitioners’ prayers, in accordance with the local custom, must be permitted by the Respondents, who must ensure appropriate security arrangements for properly carrying it out [decision in MHCJApp 312/89].

            Following that decision, peace returned to the women’s section, and the Petitioners’ prayers – in accordance with the local custom – preceded peacefully. Rabbi Getz refers to this in the aforementioned letter of 22 Adar 5750 (March, 12, 1990) to the Director of the High Court of Justice Department:

 

The lowering of tensions began on 19 Av 5749 (Aug. 20, 1989) (should be: 20 Av 5749 (Aug. 21, 1989) – M.E.), with the issuance of the order by the honorable Supreme Court that they must observe the instructions of the Rabbi of the Wall, and not change the local custom.

With the exception of a certain attempt at disturbing the peace on Rosh Hodesh Elul 5749 (Sept. 1, 1989), there has been absolute calm, and large or small groups of women arrive every Rosh Hodesh, without prior notice to the press, pray quietly at the Wall like all daughters of Israel, and depart, and they are made welcome [Appendix R/B of the response of April 8, 1990].

 

            This is also what can be understood from the letter of 38 Kislev 5750 (Nov. 29, 1989) from Mr. Zvi Hoffman, Director of the Holy Places Department in the Ministry of Religion, to Mr. Zevulun Orlev:

 

This morning, Rosh Hodesh Kislev, a group of the Reform women, numbering about 100 women, arrived at 7:20 AM. The group was relatively larger than usual. Representatives of the media, as well as photographers and reporters, preceded them. Upon their arrival, they were asked by Rabbi Getz’s secretary, Mr. Z. Hecht (as Rabbi Getz was absent due to illness), to maintain order and respect the local customs.

They approached the Wall undisturbed, and began praying without any singing and without raising their voices. They finished their prayers after about 20 minutes, and went up the steps to the Jewish Quarter for the reading of the Torah, etc.

In conclusion, there was no need to make recourse to the police contingent or the ushers that we had requested. This only goes to show that their prayers can be conducted in accordance with the local custom without any problems [Appendix R/C of the response of April 8, 1990].

 

HCJ 2410/90

11.       The facts of this petition – although they raise the same issue – are entirely different from the facts of the petition in HCJ 257/89. Petitioners 1-6 are Jewish women who are residents of the United States. The Petitioners founded Petitioner 7 – the International Committee for Women of the Wall – and they claim to “represent a group of at least 1000 Jewish women who are members of the primary Jewish movements, including the Orthodox, Conservative, Reform, and Reconstructionist” (para. 1 of the petition).

            As for the manner of prayer of the Petitioners and the group that they represent:

13. As for the character of the prayer of this group, because the women are members of different movements, although primarily Orthodox, they decided to adopt the rule of following their common denominator, that is, prayer that is acceptable to all the movements.

14. In light of that decision, this group prays in accordance with Orthodox halakha, and it alone, inasmuch as this does not offend the religious views of any of its members, and therefore they conduct their prayer services in accordance with the accepted halakha of the Orthodox religious Jewish world.

15. In light of that, in their joint prayer as a group, the Petitioners are careful:

            (a) Not to refer to themselves or consider themselves a minyan for any and all purposes.

            (b) Not to recite those prayers that are permitted only in the context of a minyan, such that they do not recite the kaddish, they do not say the “barechu …”, there is no repetition of the shemoneh esreh, etc.

            (c) They do not hold a Torah reading service, and do not bless or “go up” to read from the Torah.

16. In practice, the Petitioners conduct individual prayer, with all its characteristics and restrictions, together, with the addition of two elements that are halakhically permitted:

            (a) They wear a tallit during their prayers;

            (b) They read from a Torah scroll that they bring with them [Petitioners’ summary of pleadings of Feb. 27, 1991].

 

            As for the background of the petition, it states as follows:

4. In their efforts to forge a strong, deep tie with Jerusalem, the Women of the Wall brought a Torah to Jerusalem towards the end of 1989, and left it in Jerusalem, inter alia, so that so that they would be able to read from it in the course of their prayers during their recurring visits.
5. The Women of the Wall requested to pray at the Wall, as aforesaid, on Rosh Hodesh Kislev (Nov. 29, 1989), while wearing tallitot and reading from the Torah that they brought, as stated above.
6. When the Women of the Wall were informed that Respondent no. 2 (Rabbi Getz, the Director of the Western Wall – M.E.)  might try to prevent their praying as aforesaid, as he did in regard to a group of Israeli women whose petition is pending before this honorable Court in file 257/89, Petitioners 1-6 postponed the intended date of prayer to Thursday, Nov. 30, 1989, and on Nov. 26, 1989, they wrote to Respondent no. 2 and to the representative of Respondent no. 3 (the Commissioner of the Israel Police – M.E.) in the Old City, while sending a copy of their request to Respondents no. 1 (the Minister of Religion – M.E.) and no. 4 (the Attorney General – M.E.) … so that the Respondents could take the necessary steps in order to prevent a disturbance of their intended prayers, as aforesaid. The letters were delivered to their recipients no later than Nov. 28, 1989.

…

                        12. At the intended time for their prayers, as aforesaid, the Women of the Wall arrived at the Western Wall Plaza, carrying tallitot and the Torah scroll, but the representative of Respondent no. 1 prevented their entry to the Western Wall Plaza, claiming that since they were women, they are not permitted to wear tallitot or read from the Torah, in accordance with a decision of Respondent 2 … Petitioners 1-6 were informed that their entry into the Western Wall Plaza and their prayers there would be prevented by force [paras. 4-6, and 12 of the petition in HCJ 2410/90].

            In addition, the Petitioners emphasize that:

                              Upon the preventing of their entry to the Western Wall Plaza, as aforesaid, the group of Petitioners and those that accompanied them dispersed that day, Nov. 30, 1989, peacefully and quietly, making no attempt to cross the security barrier outside the Western Wall Plaza on the Dung Gate side, and in no case, neither in the past nor following the submission of the petition, did the Petitioners request to conduct prayers at the Wall in accordance with their custom, due to the position of the Respondents, as aforesaid.

                              … and their prayers did not cause any breach of public order, inasmuch as they were never conducted at the Wall, beside it, or in the Plaza facing it [paras. 17, 20 of the Petitioners’ summary pleadings of Feb. 27, 1991].

 

Pleadings

Petitioners’ Pleadings

12.       The Protection of Holy Places Law, 5727-1967, states as follows:

                              Protection of Holy Places

1. The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places.

Offences

2. (a) Whosoever desecrates or otherwise violates a Holy Place shall be liable to imprisonment for a term of seven years.

(b) Whosoever does anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places shall be liable to imprisonment for a term of five years.

                              Saving of Laws                                                     

3. This Law shall add to, and not derogate from, any other law.

Implementation and regulations

4. The Minister of Religious Affairs is charged with the implementation of this Law, and he may, after consultation with, or upon the proposal of, representatives of the religions concerned and with the consent of the Minister of Justice, make regulations as to any matter relating to such implementation.

 

            When the original petition in HCJ 257/89 was submitted, the Regulations for Protection of Holy Places to the Jews, 5741-1981, promulgated under sec. 4 of the Protection of Holy Places Law, stated, inter alia:

 

                                    Definitions

1. In these Regulations:

Holy Places – The Western Wall and its Plaza, including any structure and any aboveground or underground passage the entrance of which is from the Plaza; …

The Director – The person appointed by the Minister of Religion, on the proposal of the Chief Rabbis of Israel, to be the Director in Chief, or the Director of a specific Holy Place.

                                    Conduct

2. (a)  In the area of the Holy Places, and subject to what is set out in sub-regulation (b), the following is prohibited:

1. Desecration of the Sabbath and Jewish holidays;
2. Improper dress;
3. Placing kiosks or stands;
4. Providing religious services of any kind without the permission of the Director;
5. Distributing publications without the permission of the Director;
6. Making speeches, announcements aloud, carrying placards or signs, without the permission of the Director and in accordance with his conditions;
7. Panhandling or accepting contributions, with the exception of placing charity boxes in places designated  by the Director for purposes that he has established;
8. Slaughtering;
9. Eating, drinking or holding a celebration outside of places designated for that purpose by the Director;
10. Smoking;
11. Sleeping outside of places designated for that purpose by the Director;
12. Entrance of animals.

                                                   (b) …

                                    Restrictions upon Photography in the Western Wall Plaza

3. …

Powers of the Director

4. (a)                          The Director may, with the consent of the Chief Rabbis of Israel or the Minister of Religion, give instructions to ensure the efficient enforcement of the prohibitions set forth in Regulation 2.

(b)     Any person present in the area of the Holy Places must obey the lawful instructions of the Director.

(c)                          The Director may remove from a Holy Place any person who interferes with the carrying out of his function or who transgresses any of the provisions of Regulations 2 or 3.

 

                                    Punishment

5. Anyone who transgresses any of the provisions of Regulations 2 or 3 is liable to imprisonment for a term of six months or a fine in the amount of 500 shekels.

 

            Inasmuch as that was the wording of the Regulations at the time of the submission of the original petition in HCJ 257/89, the Petitioners’ primary claim in that petition was that:

The Protection Regulations do not prohibit women’s prayer in the women’ section, and do not prohibit women from reading the Torah or wearing tallitot [para. 3.b of the original petition].

 

            They further argued that the Director of the Western Wall and the Chief Rabbis are not authorized “to impose prohibitions or promulgate decrees that are not expressly stated in the Protection Regulations, and if they did so, they exceeded their authority” [paras. 4.5b-5.b of the original petition]. The Petitioners therefore argued that they should not be prevented from praying at the Western Wall while reading the Torah or wearing tallitot, and that the Israel Police must ensure their right to do so.

13.       On 4 Tevet 5750 (Jan. 1, 1990) – prior to the State’s submission of its affidavit in response to the petition – the State informed the Court of the promulgation of the Regulations for the Protection of Holy Places to the Jews (Amendment), 1989, which amended Regulation 2, above, as follows:

                                    Amendment

1. In Regulation 2(a) of the Regulations for Protection of Holy Places to the Jews, 5741-1981, following section (1), shall come: (1a) Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place.

 

            As noted, in light of the amendment of the Regulations, the Petitioners in HCJ 257/89 submitted an amended petition.

14.       In their amended petition, the Petitioners argued extensively against the validity of the said amendment to reg. 2 of the Regulations for Protection of Holy Places to the Jews. The Petitioners argued that the new amendments are void ab initio, or in the alternative, should be voided, inasmuch as they suffer from various flaws: extreme unreasonableness, unlawful discrimination, extraneous considerations, improper purpose, deviation from authority, and infringement of the principles of justice (para. 14 of the amended petition; para. F of the summary pleadings of the Petitioners in HCJ 257/89).

            They further argued that their praying while wrapped in tallitot and reading the Torah does not fall within the ambit of the prohibition established under the new regulations. The reasoning grounding this claim is that prayer in the manner described is not contrary to the “local custom” [para. 6 B (a) of the amended petition; para. 7 of the Petitioners’ summary pleadings].

15.       The Petitioners in HCJ 2410/90 essentially repeated the arguments in HCJ 257/89, while noting the factual differences between the two petitions.

            In their petition, the Petitioners especially emphasized their strict observance of halakha. They further emphasized the fact that they – as opposed to the Petitioners in HCJ 257/89 – had not caused a disturbance of the peace [paras. 18-20 of the Petitioners’ summary pleadings in HCJ 2410/90].

 

The State’s Pleadings

16.       In its response, the State emphasized that the Petitioners’ right of access to the Western Wall and their right to pray there are not disputed. What it forbidden to the Petitioners is praying in their own manner, that is, arriving as a group, wrapped in tallitot, carrying a Torah and reading from it. The reason for this prohibition is that when the Petitioners conducted such prayer, it caused serious disorder in the Western Wall Plaza, disturbance of the peace, and a breach of appropriate decorum [para. 3 of the State’s summary pleadings of Feb. 24, 1991].

            By virtue of the authority vested in him under the Protection of Holy Places Law, the Minister of Religious Affairs promulgated the Regulations for Protection of Holy Places to the Jews, after conferring with the Chief Rabbis of Israel, and with the consent of the Minister of Justice, as required under sec. 4 of the Law. Those Regulations established arrangements intended to realize the purpose of the Law, namely: the avoiding desecration or other harm to the holy places, and avoiding any other offense to the sensitivities of the praying public in regard to the place. These arrangements ensure that public order and appropriate decorum will be preserved in the holy place.

            As part of the said arrangements, reg.2 establishes a list of prohibited actions in the area of the holy places. Among the prohibited acts is a prohibition upon “conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place” – reg. 2 (a) (1a) [paras. 6-7 of the State’s summary pleadings of Feb. 24, 1991].

            In order to carry out the obligation to preserve public order and decorum in the Holy Places, there is a principle of strict preservation of the status quo in the Holy Places. In the Declaration of Independence, the State of Israel affirmed that it would ensure freedom of religion, and that it would “safeguard the Holy Places of all religions”. That promise was kept, in practice, by strict preservation of public order and decorum in all the Holy Places, and by the preservation of the “status quo” in those places. That policy of the Government of Israel is also expressed in the Protection of Holy Places Law, and in sec. 3 of Basic Law: Jerusalem, Capital of Israel [paras. 1-15 of the State’s summary pleadings of Feb. 24, 1991)].

            It is therefore contended that the regulation that is the subject of the petitions is valid, and that the manner in which the Petitioners conducted their prayers at the Wall should be examined in its light. The State further argues that for the purpose of the application of the regulation’s provisions to the Petitioners, the question that must be asked is whether prayer in the manner performed by the Petitioners has ever been the local custom at the Western Wall. The answer to that question is no, and prayer in the manner performed by the Petitioners at the Western Wall constitutes an offense to the sensitivities of the praying public in regard to the place [paras. 19-22 of the State’s summary pleadings of Feb. 24, 1991].

            The State referred to the opinions provided by the Chief Rabbis in the matter before us, in which they expressed their extreme opposition to the conducting of prayer services in the manner of the Petitioners. According to the State, these opinions were given by virtue of the authority granted to Chief Rabbis as stated in sec. 4 of the Protection of Holy Places Law, which requires consultation with the representatives of the relevant religions. Thus, sec. 4 of the said Law states that the Minister of Religion may promulgate regulations suggested by the representatives of the relevant religions [para. 23 of the State’s summary pleadings of Feb. 24, 1991].

 

The Parties’ Pleadings in regard to the Court’s Jurisdiction

17.       Initially, the State did not raise any objection to the jurisdiction of this Court over the subject of the petition at bar. Respondents 9-12 in HCJ 257/89 – the Shas Movement, Rabbi Miron, the Degel HaTorah Association, and Rabbi Ravitz – claimed that “the subject matter of the petition … is not within the jurisdiction of the honorable Court due to the provisions of sec. 2 of the Palestine Order in Council (Holy Places), 1924” [para. 7(a) of the affidavit of Rabbi Miron of Aug. 17, 1989, and the affidavit of Rabbi Ravitz of Aug. 18, 1989].

            The State explained its reasons for not raising the issue of the jurisdiction of this Court in the summary pleadings submitted on 10 Adar 5751 (Feb. 24, 1991). The petitions address the arrangements established in the Regulations for Protection of Holy Places, by virtue of which the Petitioners were prevented from conducting their prayers at the Wall in their manner. The Petitioners in HCJ 257/89 responded at length and in detail to the claim of lack of jurisdiction of the Court [Chapter B of the Plaintiff’s summary pleadings of Feb. 24, 1991]. We do not see any need to address this at length for the purpose of the matter before us.

            The Palestine Order in Council (Holy Places), 1924, does not deprive the Court of jurisdiction to adjudicate in regard to the preservation of public order and the prevention of criminal offences, as established in the Law and the Regulations for Protection of Holy Places to the Jews. In HCJ 222/68, Mot 15/69 National Circles Association v. Minister of Police, IsrSC 24(2) 141 (hereinafter: the National Circles case), the majority held that while the Order in Council does deprive the Court of jurisdiction in matters of freedom of worship in the Holy Places, it does not deprive it of jurisdiction        in regard to freedom of access to the Holy Places, the duty to ensure the prevention of desecration of the Holy Places, or the duty to protect the sensitivities of the members of the various religions towards their Holy Places, which are the matters addressed by the Regulations in the matter at bar. This petition treats of the freedom of access of the Petitioners to the Western Wall, the danger of desecration of the site, and a possible affront to the sensitivities of the worshippers, and this Court holds jurisdiction over the matter of the petition.

 

The Subject before the Court in Halakha

18.       The questions that we must decide concerns prayer and its rules, which are matters deriving from the world of halakha. I would not presume to rule on any of the matters before us from the perspective of halakha. I am no halakhic decisor, nor a halakhic decisor’s son[2]. I probe the words of scholars and decisors, and contemplate the wisdom and thoughts of sages and philosophers, and express my thoughts on the matter. This enquiry is appropriate, inasmuch as the parties presented lengthy arguments on this matter from the halakhic perspective, in particular, by submitting the opinions of Prof. Pinhas Schiffman (in HCJ 257/89), Prof. Shmuel Shilo (in HCJ 2410/90), and Prof. Eliav Shochetman, who first submitted an opinion in HCJ 257/89, and later submitted an opinion in HCJ 2410/90. Out of respect for them,[3] I will also say a few words on the subject. This examination is necessary in order to understand the subject before the Court, which relates to intrinsically halakhic questions that are grounded in the world of halakha and its values. It is only proper, therefore, that we briefly address them as they are expressed in halakha, before delving into the legal aspects of the issues raised by the petitions.

           

Social Changes in the Status and Role of Women

19.       The subject at issue –prayer by women, their obligation and exemption, and additional, related subjects – have long been a subject of halakhic and scholarly literature. The discussion of these issues has intensified in this generation, against the background of social changes in the status of women that I will discuss below, and many books and articles have been written on the subject, some of which I will cite.

            The problem of the status of women in halakha in the face of changes in women’s social involvement, status and education, and the roles that women fulfil in daily life – including religiously observant women – is a central subject in the investigations of contemporary halakhic decisors and philosophers. We, too, have addressed this question at length in the decisions of this Court (see: ST 1/81 Nagar v. Nagar, IsrSC 38 (1) 365 (hereinafter: the Nagar case); HCJ 153/87 Shakdiel v. Minister of Religious Affairs, IsrSC 42 (2) 221 [http://versa.cardozo.yu.edu/opinions/shakdiel-v-minister-religious-affairs] (hereinafter: the Shakdiel case)), in regard to the study of Torah by women in the context of our decisions concerning the equal obligation of a father and a mother to educate and raise their child (the Nagar case; and see the Shakdiel case, at p. 265), and in regard to the right to vote for and be elected to public office (the Shakdiel case). Following a detailed examination of those two issues, we concluded (ibid., at p. 268):

 

With respect to the Torah study by a woman, there is an express rule in the Talmud, generally upheld in the halakhic codes, that a woman is not only exempt from studying the Torah but even forbidden to do so, this rule being derived from the Biblical verse "and you shall teach them to your sons", and not your daughters. But the profound socio-ideological changes experienced in latter generations, has radically altered also the outlook on the issue of women studying Torah, and it has been determined that not only is there no longer any prohibition, but women are even obligated to study Torah; and not only do they study it for themselves, but they even teach it to the sons of others. And if this is the outcome of the controversy concerning women studying the Torah, then the issue of the election of women to public office should have the like outcome, a fortiori, since most rabbinical scholars are of the opinion that the matter is not expressly prohibited in the Talmudic halakha, and some of the codifiers and Rishonim differed from Maimonides' opinion that only a man may be appointed to all public office. And if so radical a departure as abrogation of the grave prohibition against women studying the Torah could result from social and ideological changes, why not a much less radical departure that permits a woman to serve on a religious council? Should we not see Rabbi Malka's assessment of the contemporary situation that obligates women to study Torah, i.e., that “in current times, when women play a large part in all walks of life, penetrate the depths of the secular sciences and fill the benches of the universities, run offices and own businesses, and have a hand and a voice in the leadership of the state and in political affairs”,  as constituting decisive reason to permit modern women to take part in developing and maintaining religious services in their place of residence, by serving on the council charged with implementation of the task? At a time when women actively take part in diverse educational, cultural, social and political pursuits, is not a woman's preclusion from serving on a religious council, in particular, a harsh insult to her dignity and standing, precisely as a religious woman? She may discharge a public function in all areas of social, cultural and political life, but not in a public body that caters to her religious way of life? Is the native-born to be on the earth and the foreign-born in the highest heavens? (TB Bava Kama, 42a).

 

            And we went on to say (ibid., at p. 269):

It need scarcely be said that in the world of the halakha we do not discuss purely legal-halakhic questions, in the sense of juridical rights and duties. Rather the ideological and normative values of Jewish religious life are inherent in and inseparable from the subject of the discourse. For we are taught "do not read ways of behaviour [halikhot], but legal rules [halakhot] (cf. TB Megilla 28b) and by way of paraphrase we could equally well say, "do not read legal rules [halakhot] but ways of behavior [halikhot], since legal rules and ways of behavior come inextricably linked. We have seen clearly reflected - throughout the scholarly passages here cited - in addition to the legal exposition of our subject, also lengthy and detailed discussion of the conceptual implications of Jewish family life; the roles of the father and the mother, of the woman and the man, domestic harmony, the concept of modesty, and so on. All this because examination of these concepts is essential to the juridical-halakhic ruling on our subject. However, these important concepts must be addressed according to both their original significance and their contemporary setting, as we have learned from the passages quoted. Take, for example, this last concept [of modesty - Ed.] and its deep significance in Jewish life, for all persons, as stated by the prophet Micah:  “You have been told, man, what is good and what the Lord requires of you - only to do justice, and to love mercy, and to walk modestly with your God. (Micah 6:8; and see TB Makkot 24a).

 

            In this connection, we quoted (ibid.) Rabbi A. Lichtenstein, the head of the Har Etzion Yeshiva in Alon Shevut in Gush Etzion (in his article published in The Woman and Her Education (Emunah, 5740) 158):

 

 The question is, to what extent do we want to perpetuate the original position we find in the halakha or to modify it by legitimate halakhic means, having regard to historical developments. This is a question of outlook affecting not only our present problem but also many others, such as the sabbatical year, the transactions permit [allowing interest-bearing loans – trans.], and so on. When we circumvent the halakha, by halakhic means of course, should we say that the halakha wanted one thing then and now wants another? Or does the halakha still require the same today, except that we cannot meet its standard? To discuss this problem we must consider not only the specific question on the agenda but also the normative ramifications of the problem. When we seek to circumvent the halakha today, by legitimate means, we must ask whether or not it is for attaining a meaningful purpose, religiously and normatively speaking. There is a difference between using a circumvention in order to feed a number of poor women, as in the example of Rabbi Tarfon given in the Jerusalem Talmud (TB Yevamot, 4:12), or so that someone can gain a few extra pounds.

 

As for the problem of changing or reforming the status of women, if it is feasible to build a sounder and more perfect society, one that is mindful of the values of the Torah and the halakha, then it must be contended that what once was, was suited to those times, but today there is reason to relate to contemporary reality detached from the past. It is impossible to bring back the past – that is not realistic. It is not possible to revive the simplistic naiveté of women that was then. Hence it is needed to replace the Ze'ena Ure'ena,[4] with a tractate of the Mishna, such as Hullin, to teach women more and lend their lives a content closer to that of men, so that women can derive benefit from the existing reality. But to have neither the one nor the other, that certainly is inconceivable. If there is to be neither innocent belief as in past times, nor serious study of the Torah, women will fall between two stools, and that clearly will not be good.

 

            We, therefore, further stated (the Shakdiel case, pp. 269-270):

Such is the way of the halakha from ancient times. On this score we wrote elsewhere (M. Elon, Jewish Law – History, Sources, Principles, 3^rd ed., (Magnes, 1978), p. xv – M.E.): “... The history of the Jewish nation is reflected in the history of Jewish law, its institutions and subject matter. For the development of Jewish law was intertwined with the problems that arose in reality, the law and reality reciprocally influencing each other. The halakhic scholars and the community leaders faced a twofold task: on the one hand, a continuing concern to create and develop the Jewish law, and on the other hand, a great responsibility to preserve the spirit, purpose and continuity of the ideas that were central to each legal institution. The performance of this twofold task - to find and determine legal solutions that were founded in the past and also served the many needs of the current generation – is clearly evident to anyone who studies the history of Jewish law in its different periods...” (and see, ibid., at p 45 – M.E.).

 To the above end, the system of Jewish law has drawn upon its own legal sources – those very sources recognized by the halakha as means to create and develop the rules of the system (ibid., at pp. xv and 45 – M.E.).

 

            Indeed, that is the way and the world of halakha, and every problem or issue that confronts it as the result of a changing societal and social reality requires in-depth examination and consideration of the halakhic rules, principles and values in order to arrive at an appropriate, correct solution by means of the creative sources of halakha – both in terms of the resolution of the problem and in terms of the spiritual world and values of the halakhic system. The more fundamental and comprehensive the issue, the greater the need for in-depth, responsible examination. And so it is, to no small extent, in regard to the issues presented by the petitions at bar, which we will now address.

20.       In terms of halakha, the questions raised by the petitions concern the rules of prayer: one – is a woman permitted to wear a tallit and tziztit; two – are women permitted to carry a Torah scroll and read from it. These two subjects must be preceded by the examination of an additional question, that of the manner for conducting public prayer by women.  The latter question is particularly emphasized by the Petitioners in HCJ 2410/90, who take care that their prayer groups are “in accordance with the accepted halakha of the Orthodox religious Jewish world”, “not to refer to themselves or consider themselves a minyan for any and all purposes”, “not to recite those prayers that are permitted only in the context of a minyan”, etc. (see para. 11, above).

            As we noted at the outset, many instructive things have been said and decided in regard to these and other related issues in the Talmudic literature, commentaries, and responsa literature, and in the writings of scholars. These issues have been increasingly discussed of late, due to the changes in the social reality and the status and role of women in that reality, which we referred to at beginning our examination of the subject before us in the world of halakha. This is not the place for a lengthy examination of these matters, and we do not pretend – nor do we see a need – to conduct an exhaustive examination of them. We will only briefly address some of the fundamental matters regarding the issues before us.

            It is worth noting the interesting phenomenon that a significant part of the halakhic literature on these issues is to be found in books and articles published in English (see: Rabbi Avraham Weiss, Women at Prayer: A Halakhic Analysis of Women's Prayer Groups; Rabbi Moshe Meiselman, Jewish Women in Jewish Law; Rabbi Prof. Eliezer Berkovits, Jewish Women in Time and Torah; Rabbi J. David Bleich, “Survey of Recent Halakhic Periodical Literature,” 14 (2) Tradition 113 (1973); Rabbi Saul Berman, “The Status of Women in Halakhic Judaism,” 14 (2) Tradition 5 (1973)  ; Rabbi Aryeh Frimer, “Women and Minyan,” 23 (4) Tradition 54 (1988); etc., to which we will make reference below).

            This phenomenon, which is uncommon in regard to the overwhelming majority of other halakhic subjects, derives from the fact that interest – from its inception and to this day – in the application of these issues has largely been among the various Jewish congregations in the United States. This, too, will be of importance in deciding the petitions before us from a legal perspective.

 

Prayer in a “Minyan”

21.       Women are required to pray, but they are not obligated to public prayer (TB Berakhot 20a-b; Maimonides, Mishneh Torah, Laws concerning Prayer 1 (b); Shulhan Arukh, OH 106, 1-2, Magen Avraham, ss. b, ad loc.; Responsa Shaagat Aryeh 14. There is a difference of opinion as to whether women are obligated to pray three times a day – arvit, shaharit, and minha – or only for some of them. In the opinion of one of the accepted contemporary decisors, Israel Meir of Radun, in his book Mishna Berura, women are required to pray shaharit and minha (see: Mishna Berura on Shulhan Arukh OH 106 b). We will address the reason why women are exempt from public prayer below, in our discussion of time-bound positive commandments.

            According to halakha, fulfillment of the obligation of public prayer requires a “minyan”, i.e., ten men, and “acts of sanctification” – i.e., prayers in which God is sanctified, such as kaddish, barekhu, kedusha, and the repetition of the amida – are only performed in a minyan (TB Megilla 23b). Women are not counted for constituting a minyan of ten, as we shall explain below. A minyan of ten men is also required for additional things, such as the priestly blessing, a “zimun” of ten for the grace after meals, but there is disagreement among halakhic decisors as to the reason for this (see: Maimonides, Mishne Torah, Laws concerning Prayer 8, d-f; Shulhan Arukh, OH 55 a; and see in detail, Encyclopedia Talmudit, vol. 6, s.v. “Davar SheBikedusha”, pp. 714ff.).

            Women are not counted for the constitution of the required minyan, except for certain matters and for specific reasons, in the opinions of various halakhic decisors among the Rishonim and Aharonim.[5] By way of example, in regard to the reading of the Megilla and the recitation of the blessing “harav et rivenu” that follows the reading, see: Nachmanides, Milhamot HaShem, on Rif [Isaac ben Jacob Alfasi], Megilla 5:a; Meiri, Berakhot 47b; Ran [Rabbi Nissim ben Reuven Gerondi] on Rif, Megilla 19:b s.v. “Hakol Kesherin”, and Megilla 23a, s.v. “Hakol Olin Lamina Shi’va”; in regard to the public sanctification of God, see: Rabbi Reuven Margulies, Margoliot HaYam, Sanhedrin II, 6 and 27 and sources cited there; on the HaGomel blessing, see: Mishneh Berurah OH 29:3 and sources cited there; and see Encyclopedia Talmudit, v. 4, s.v. “Berakhot hahoda’ah”, pp. 318-319, etc.; and this is not the place to elaborate (see Rabbi A. Frimer’s detailed article “Women and Minyan,” 23 (4) Tradition 54 (1988), pp.54ff. and Rabbi Weiss’ book, Women at Prayer: A Halakhic Analysis of Women's Prayer Groups, pp. 13-56).

 

Time-Bound Positive Commandments

22.       In regard to the questions raised by the issue before the Court and the reasons behind them, we should address the halakhic principle that women are exempt from the performance of time-bound positive commandments, that is, commandments that must be performed at specified times (day not night, at specific times of day, on specific days or holidays, etc.: Mishna Kiddushin 1:7; TB Kiddushin 32a; Maimonides, Laws concerning Idolatry, 12:3, Laws concerning Tzitzit, 3:9; Shulhan Arukh OH 17:2. Before examining the reason for this halakhic rule, we should note that there are no few exceptions to this rule, and that women are obligated to perform a significant number of time-bound positive commandments, such as, reciting (and hearing) kiddush on the Sabbath, eating matzah on the first night of Passover, and others (TB Berakhot 20a-b; Kiddushin 34a; Sukkah 28a, etc.; and see Saul Berman, “The Status of Women in Halakhic Judaism,” 14 (2) Tradition 5, 1-13 (1973).

            Various reasons have been adduced for this exemption (see, e.g., Ellenson, Bein HaIsha LeYotzra, vol. I, 2^nd ed. (Jerusalem, 1982), pp. 30 ff. (Hebrew) [English translation: Ellinson, Women & the Creator/Serving the Creator, v. I, 2^nd ed. (Jerusalem, 1986)]; Rabbi Berman, above). The prevailing view is that the exemption is intended to make it easier for a woman to fulfill her role, rather than due to her lesser status relative to men. In the Jewish world, a woman’s central role is to maintain the home and family – “The king's daughter is all glorious within” (Psalms 45:14). Therefore, the Sages ruled that a woman is exempt from performing acts that must be performed at specific times in order not to make it more difficult to fulfil her primary role. This reason appears in halakhic literature as early as the Rishonim (see, for example, Abudarham HaShalem, Daily Prayers, chap.3, Benedictions for Mitzvot (Hebrew).

            We would note what was said by Rabbi Moshe Feinstein, one of the greatest contemporary decisors, in regard to our subject (Responsa Iggerot Moshe, OH Part IV, 49):

For women, in general, are not wealthy, and they are responsible for raising the children, which is the more important task before God and the Torah … women are, by nature, better suited to raising the children, and for this reason, they were relieved of having to study Torah and of the time-bound positive commandments. Therefore, even if the social reality were to change for all women, as it was for wealthy women of all times, and even if it would be possible to entrust the raising [of children] to some other men and women, as in our country – the rules of the Torah, and even of the rabbis, does not change.

 Rabbi Feinstein goes on to state:

We should be aware that this is not because women are of a lower state of holiness than men, as in regard to holiness, they are equal to men in regard to the applicability of the obligation to observe the commandments. For the commandments relate only to the holiness of Israel, and every verse of the Torah that speaks of the holiness of people was also directed to women, whether in regard to the giving of the Torah: “then you shall be my treasured possession … and a holy nation” was said to the House of Jacob, which refers to the women, and “speak to the children of Israel” refers to the men … and we find that every place that the Torah speaks of the matter of the holiness of Israel, it also speaks to the women. Therefore, women recite blessings in the form “who has sanctified us by His commandments”, just like men, even for commandments that the Torah does not require of them. And it is merely a matter of leniency, because God wished to make it easier for women as explained above, and not, God forbid, to denigrate. And as far as the relations between a man and his wife, there is no distinction between a man’s obligation to honor his wife, and a women’s obligation to her husband. And many women were prophets, and all the laws of prophecy apply to them as to men. And they were praised more than men in many regards, both in the Bible and by the Sages. And there is no denigration of their honor in any regard in that they were exempted from Torah study and from time-bound commandments, and there is no reason to complain about that. And it brings honor to the Torah to explain this again and again.

 

            We also find an enlightening explanation in the writings of Rabbi Isaac Arama, author of the Akedat Yitzhak and one of the great scholars and Torah commentators, who lived in the 15^th century, in the generation of the expulsion from Spain (Akedat Yitzhak, Genesis, chap. 9):

By her two names – “isha” [Woman] and “chava” [Eve] – we learn that a woman has two purposes: One is shown by the name “Isha [Woman], for from ish [Man] was she taken”, and like him she can understand and learn matters of the intellect and piety, like the matriarchs, and the righteous women and prophetesses, as we learn from the plain meaning of eshet hayil [a woman of valor] (Proverbs 31).            The second is the matter of childbirth … and the rearing of children, as is shown by the name “chava [Eve], because she was the mother of all the living”.

A woman who cannot give birth is prevented from fulfilling her minor purpose [the second above], and for good or for ill, she remains like a man who does not bear children, of whom it is said [of a barren man and a barren woman]: “I will give them, in My House and within My walls, a monument and a name better than sons or daughters” (Isaiah 56:5), for the main progeny of the righteous is good deeds [Rashi’s commentary to Genesis 6:9, s.v. “eleh toldot noah”]. That is why Jacob was angry with Rachel when she said: “Give me children, or I shall die” (Genesis 30:2), to reproach her and teach her this important matter, which is that she would not be dead as a result of this mutual purpose, by having been denied offspring, just as it would be for him if he would not bear children.

            The primary purpose of a woman, as for her husband, is to “understand and learn matters of the intellect and piety, like the Matriarchs, and the righteous women and prophetesses”. The minor, secondary purpose is that of childbirth and rearing children. This hierarchy is interesting and instructive, and deviates from what was accepted among philosophers of that period [15^th cent.] (also see Rabbi Weiss’ aforementioned book, at p. 115).

            A particularly instructive and unique example was provided by Rabbi Samson Raphael Hirsch, the founder of the Torah im Derech Eretz philosophical school, (in his commentary to the Torah, Leviticus 23:43):

Clearly, the reason for the exemption of women from time-bound commandments does not derive from their lesser importance, so to speak, or because the Torah did not find them appropriate, as it were, for observing those commandments.

It would appear to us that the reason for not obligating them to those commandments is that the Torah does not think that women are in need those commandments and their observance. The Torah assumes that our women have an extraordinary love and holy enthusiasm for their role in serving the Creator, which are greater than those of men. Men, who face trials in their professional lives that threaten their devotion to Torah, need regular encouragement and cautionary reminders in the form of the time-bound commandments. That is not so for women, whose lifestyle comprises fewer of such trials and dangers.

 

            23.       The “exemption” from the obligation to observe time-bound commandments – such as public prayer, blowing the shofar (on Rosh Hashana), shaking the lulav (on Succot) – does not, therefore, deprive a women of permission to observe the commandments, if she so desires, and in the opinion of many decisors, when a women performs a time-bound commandment, she is also permitted to recite the appropriate benediction that is said by men: “… who has sanctified us by His commandments and commanded us” (Tosafot on TB Kiddushin 31a, s.v. “delo makpidna”; Nachmanides, Novellae, TB Kiddushin 31a, s.v. “man d’amar li”; Ritba [Rabbi Yom Tov ben Avraham Asevilli], Novellae, TB Kiddushin 31a, s.v. “delo makpidna”; Ra’avya [Rabbi Eliezer ben Yoel HaLevi of Bonn], Part II, chap. 597). Indeed, as noted above, a women who attends public worship cannot be counted for the requisite quorum of ten. A reasonable, logical reason was, inter alia, given for this, which is that a person who is exempt from the performance of an obligation cannot be counted for the requisite, obligatory quorum for constituting a minyan of ten. For the very same reason, for example, a man who is exempt from the performance of commandments – e.g., when a man is required to mourn a relative who has died, that man is deemed an “onen” until the deceased is buried. In that period, he is exempt from the fulfilment of commandments, due to his sorrow and his involvement in making funeral arrangements. According to many halakhic decisors, because an onen is exempt from the obligation of prayer, he cannot be counted toward the quorum required for a minyan (Shayarei Knesset Gedolah, OH 55, Glosses of the Beit Yosef [Rabbi Joseph Karo] 4; Responsa Perah Mateh Aharon [Aharon ben Hayyim Avraham HaKohen Perahyah] Part I, 19; Rabbi Yaakov ben Yosef Reischer, Responsa Shevut Yaakov, Part II, 25). Therefore, women are counted as part of the quorum for a minyan for matters for which they are obligated for whatever reason (e.g., for the reading of the Megillah, the public sanctification of God’s name, etc. (see what we stated above, and see Weiss, ibid., at pp. 44-54)).

 

Women’s “Prayer Groups”

24.       Before the modern period, women did not generally go the synagogue for public prayer. In the modern period, women began attending synagogue services on the Sabbath and holidays. The prayers and the reading of the Torah were all conducted by men, who were in the men’s section of the synagogue, while the women sat in a separate women’s section, and fulfilled only a passive role, that is, they recited all of the prayers that were led and recited in the men’s section.

            The Petitioners in HCJ 257/89 ask to conduct prayers that are entirely constituted and led by women, as is customary in a minyan of men, i.e., including the recitation of kaddish, “barekhu”, and so forth. This is clearly in contradiction of the halakha. As opposed to them, the Petitioners in HCJ 2401/90 also wish to conduct prayer entirely constituted and led by women, but not as it is conducted in a minyan of men – i.e., with the recitation of kaddish, “barekhu”, and so forth – but rather without reciting those elements, so as not to contravene the halakha. These petitioners call their prayer ceremony “prayer groups” or “tefillah groups”, in order to distinguish between the status of the prayer group and that of a minyan of men. However, in regard to two matters with which their petition is concerned, the practice of their “prayer groups” is the same as the practice in a minyan of men – that is, they wear tallitot and tzitzit, and they read from the Torah, albeit without reciting the blessings and being “called up” to the Torah as is customary in a minyan of men.

25.           As noted, the women who are members of the “prayer groups” do not adopt the approach of the Petitioners in HCJ 257/89, inasmuch as it is incompatible with the halakhic rules. According to them, the approach of the “prayer groups”, as described above, is consistent with the halakhic rules. Some Orthodox rabbis support these “prayer groups”. But other Orthodox rabbis, who are also aware of the social role and education of contemporary, halakhically observant women, and who are supportive of such observance, nevertheless object to the approach of the “prayer groups”, and deem them harmful to the halakhic world. At present, the number of such “prayer groups” is not large. They were originally founded in the United States, and there are very few in Israel.

            These two approaches of Orthodox Jewry, although they hold much in common, also have sharp disagreements, as expressed in abundant writings, some of which we shall mention, while addressing a few of their details. Those disagreements are particularly pointed, and at present, the overwhelming majority of Orthodox Jewry absolutely rejects the “prayer groups”, and sees them as a serious deviation from halakha. We will address the nature and substance of these disagreements below. But before doing so, we will briefly make several observations on the subject of wearing a tallit and tzitzit, and reading the Torah by women.

 

Wearing a Tallit by Women

26.       Women are exempt from wearing tzitzit or a tallit, as this is one of the time-bound positive commandments inasmuch as the obligation is limited to a defined time period (day and not night). But as we noted, women are exempt from time-bound positive commandments, but they are not forbidden to perform them, and this applies to the mitzvah of tzitzit, as well. Maimonides even notes this principle in the context of the mitzvah of tzitzit, as follows (Maimonides, Laws concerning Tzitzit, 3:9):

The Torah exempts women … from tzitzit; women who wish to wrap themselves in tzitzit, do so without a blessing. Similarly, in regard to all other positive commandments from which women are exempt, if they wish to perform them without a blessing, we do not prevent them.

            This is also the view of Ravad [Rabbi Abraham ben David of Posquières] (Glosses of Ravad on Maimonides, Laws concerning Tzitzit 3:9), who adds that women are also permitted to recite the appropriate benediction upon the performance of commandments (see further, Commentary of Ravad on Sifra, Leviticus chap. 2).

            This brings us to differences of opinion in regard to the halakha as it concerns the question of whether women who voluntarily perform time-bound positive commandments may recite the benediction associated with the performance of those commandments. We earlier noted the view of some halakhic scholars, first and foremost Rabbeinu Tam [Rabbi Jacob ben Meir], one of the greatest Tosafists, that women are permitted to recite “who has sanctified us by His commandments … and commanded us”, and this is also the view of Ravad in regard to women who wear a tallit, who holds that they may recite the appropriate benediction. As opposed to that, the opinion of Maimonides was, as noted, that they may wear tzitzit but not recite the benediction, which is a different view that is held by many leading halakhic scholars, particularly Sephardic scholars (and see our discussion below).

            Thus, Rabbi Moshe Feinstein, writes in his aforementioned responsum (Responsa Iggerot Moshe, OH Part IV, 49) that just as women are permitted to perform time-bound positive commandments, and to recite the benediction, so it is in regard to the commandment of tzitzit: “it is possible for a woman who wishes to do so, to wear a garment that is distinct from men’s clothing, but that has four corners, and to tie tzitzit thereto and observe this commandment.” But Rabbi Feinstein adds a proviso that runs consistently through his work, stating:

However, clearly that is only if her soul yearns to perform commandments even though she is not commanded to perform them. However, since it is not with this intention, but rather due to her protest against God and His Torah, this is not the performance of a commandment at all, but the opposite, a forbidden act, for it is heresy as she performs it thinking it possible for the laws of the Torah to be changed, and it is a grave matter.

            This requirement of intentionality, that a commandment be performed for the purpose of observing it and not motivated by a lack of consideration of the halakhic rule due to “foreign considerations” of principled objection to the exemption because it insults women, is a fundamental principle of the halakhic world in regard to the introduction of legislative enactments, establishing customs, and introducing changes thereto. The parties submitted a letter from Rabbi Tendler, the grandson of Rabbi Moshe Feinstein, which explicates the approach of his grandfather in regard to the great fear that the motives of the prayer groups derive from such extraneous considerations, and that the permission to wear a tallit is applicable only when it is clear that “their intention is for the sake of heaven, without any questioning of the Torah of Israel or the customs of Israel” (responsum (letter) of Rabbi Tendler).

            This reason represents one of the values of the halakhic world, and is an important element of the decision-making policy of halakha in general, and in regard to sensitive and special subjects such as the one before us, in particular. We shall further consider this aspect below.

            At the time of the Rishonim and the Aharonim there were women who wore tallitot and recited the benediction with the approval of the rabbinic sages (Maharam [Rabbi Meir ben Baruch] of Rothenberg, Teshuvot, Pesaqim u-Minhagim, I.Z. Kahana, ed. (Jerusalem, 1957) 24 p. 141; Responsa Tzemah Tzedek (of the third Lubavitcher Rebbe), OH 3, which presents a detailed examination of the subject; Rabbi M. Toledano, Ner HaMa’arav, p. 155; and see S. Ashkenazi, HaIsha  B’Aspeklariyat HaYahadut (1953) vol. I, p. 137). However, it has not been customary for women of more recent generations to wear tallitot, as opposed to other time-bound commandments such as the blowing of the shofar, waving the lulav, and sitting in the sukkah, which they customarily perform. The reason for this derives from the custom first recorded by Maharil [Rabbi Yaakov ben Moshe Moelin] (New Responsa of Maharil (Jerusalem, 1977) OH 7, pp. 13-14 (Hebrew)) that women refrain from it. This custom was cited by the Rema [Rabbi Moses Isserles] (Glosses on the Shulhan Arukh OH 17:2 (Hebrew)) as follows:

And in any case, if they wish to wear it and say the benediction, they may do so as with the other time-bound positive commandments … but it has the appearance of haughtiness. Therefore, they should not wear tzitzit, as it is not an obligation pertaining to the person.[6]

            From the writings of some of the more recent halakhic decisors, it appear that the contemporary custom is that women do not wear tzitzit (Rabbi Yaakov Chaim Sofer, Kaf HaHayyim, OH 17:8; Rabbi Yechiel Michel Epstein, Arukh HaShulhan, OH 17:b-c, and see the explanation of the author of the Arukh HaShulhan, loc. cit., of the Rema’s explanation “it has the appearance of haughtiness”, and his conclusion: “and therefore we do not permit them to perform this commandment, and that is the custom from which we should not deviate”; and see Rabbi S. Yisraeli, “The Performance of Commandments by Women,” published in HaIsha veHinukha (Emunah, 1980) (Hebrew), p. 29; and see Meiselman, above, at pp. 44-45, 152-154. To complete the picture, we should add the statement in the Targum Yonatan ben Uziel, Deuteronomy 22:5: “A woman must not put on a man’s apparel” etc., but this explanation was not accepted by most decisors (see the responsum of Rabbi Moshe Feinstein, which we quoted above, and his careful wording: “a garment that is distinct from men’s clothing”).  We should also note that the explanation of “the appearance of haughtiness” has not always led to a generally accepted prohibition in other contexts in which it is found. Thus, for example, some important halakhic decisors and kabbalists, like Rabbi Isaac Luria, the Ari, ruled that tzitzit should not be worn on the outside of one’s clothing because it has the appearance of haughtiness, and other important halakhic decisors ruled that one should not wear tefillin arranged in the manner specified by Rabbeinu Tam[7] because it has the appearance of haughtiness, yet in both cases, and particularly in regard to the former – not to wear tzitzit on the outside of one’s clothing – a significant part of the contemporary religiously observant community does not follow the ruling (and see on the above in detail, Chief Rabbi Ovadiah Yosef, Responsa Yehaveh Da’at, II, 1 (Hebrew)).

 

Reading the Torah by Women

27.       In the opinion of the majority of halakhic decisors, women are exempt from the obligation of reading the Torah, because it is deemed to be a time-bound positive commandment (Tosafot, TB Rosh Hashanah 33a, s.v. “ha rabi yehuda ha rabi yosei”’; and see the detailed discussion of most of the issues under discussion in this case in Ran on Rif, TB Megilla 23a, s.v. “hakol olin leminyan shiv’a”; Rabbi Shalom Mordechai Schwadron, Responsa Maharsham, I, 158; Arukh HaShulhan, OH 282:11).

            In order to examine this aspect of the matter before us, it would be appropriate to briefly examine the explanation given by the author of the Arukh HaShulhan (above). In beginning his explanation, he states that there is a halakhic source from which we may infer that women are indeed required to hear the reading of the Torah:

And note that in tractate Soferim (18:4) we find that women are required to hear the reading of the Torah like men, etc., and it is required to translate each portion and prophetic reading following the Sabbath Torah reading for the people, the women and children; end quote.

            However, he rejects this proof, as follows:

And it would appear to me that this is not an absolute obligation, but is like that of children, inasmuch as she is exempt from Torah study. Moreover, nothing is more time-bound than this. And as for a woman being counted in the quorum of seven (i.e., for the reading of the Torah, the reference is to TB Megilla 23a), the Tosafot already wrote in Rosh Hashanah (33a at the end of s.v. “ha”) that this is just as they recite the benedictions for all time-bound commandments… And this is not to be compared to the commandment of Hakhel, where the Torah commands (Deut. 31:12) “Gather [Hakhel] the people – men, women, children …” which is a special commandment that once in seven years the king himself reads words of admonition from the book of Deuteronomy.

 

            The reference is to what is stated in Deuteronomy 31:10-13, and it is appropriate that we quote the entire text, inasmuch as what is stated there serves as one of the sources cited in regard to the subject that we are addressing. And this is what is stated in those verses:

And Moses instructed them as follows: Every seventh year, the year set for remission, at the Feast of Booths, when all Israeli comes to appear before the Lord your God in the place which He will choose, you shall read this Teaching aloud in the presence of all Israel. Gather the people – men, women, children, and the strangers in your communities – that they may hear and so learn to revere the Lord your God and to observe faithfully every word of this Teaching. Their children, too, who have not had the experience, shall hear and learn to revere the Lord your God as long as they live in the land which you are about to cross the Jordan to occupy.

 

            The author of the Arukh HaShulhan therefore concludes that this does not prove that women are obligated in regard to the reading of the Torah, and he thus ends his remarks in stating:

But to state that women are obligated in regard to the reading of the Torah every Sabbath is certainly strange, and everyday conduct is proof, and for the most part, they cannot hear it. Rather, tractate Soferim states, as a matter of moral principle, that when they would translate, it was appropriate to translate before them and before the children in order to instill in their hearts the fear and the love of God.

And see Mishna Berura OH 282:12.

            As opposed to this view, it would seem to appear from the opinion of the Rabbi Abraham Abele Gombiner (Magen Avraham commentary (OH 282:6) on Shulhan Arukh, OH 282:3) that one might deduce from the sources cited by the Arukh HaShulhan that women are obligated for the reading of the Torah. After citing TB Megillah 23a that “all are qualified to be among the seven” [“hakol olin leminyan shiv’a”] (see above) and the various explanations that have been given for that, he continues to say:

It would appear from this that a woman is obligated to hear the reading of the Torah. And although it (reading the Torah) was enacted for the sake of Torah study, and women are exempt from Torah study, in any case it she is commanded to hear, as in regard to the commandment of Hakhel regarding which women and children are obligated. See section 146. However, it would seem that even though they are not obligated, they are qualified to be among the seven, and so wrote the Tosafot at the end of (tractate) Rosh Hashanah. But in tractate Soferim, chapter 18, it is written that women are obligated to hear the reading of the Torah like men, and it required that we translate for them so that they understand. End of quote.

But the Magen Avraham concludes his remarks as follows:

                        And here it is customary for the women to leave.

            This is not the appropriate place to address this issue at length for the purpose of our examination. For that very reason, we have not found it necessary to address the statement in tractate Megillah (above), and in Maimonides, Laws of Prayer, 12:17, and in the Shulhan Arukh, OH 282, in regard to “respect for the congregation” [k’vod ha-tzibbur] (in regard to the meaning of that expression, see the detailed discussion in Weiss, pp. 67-83; and see Meiselman, pp. 140-146).

            The obligation to read the Torah is defined as a time-bound positive commandment because it is specific to fixed times. Women are, therefore, not counted for the purpose of forming a minyan of ten for the reading of the Torah, just as they do not constitute a minyan for prayer. But they are permitted to read the Torah, where we are concerned with a “prayer group” composed solely of women, and the nature of that reading. The question that arises is in regard to reciting the “barechu” benediction, which was established by the Sages, and which is deemed to be among the “acts of sanctification” (see above). Many discussions resulted in various suggestions in regard to one benediction recited before the reading of the Torah, which is also recited before the morning prayers, and it is, therefore, permissible to recite it. As noted, the Petitioners in HCJ 2410/90, who seek to hold a prayer group while observing the halakhic rules, stated in their petition: “They read from a Torah scroll that they bring with them,” – “They do not hold a Torah reading service, and do not bless or “go up” to read from the Torah” (para. 11, above). Therefore, I see no need to elaborate further. We would note what was stated in the said letter of Rabbi Tendler, which we addressed earlier, who, after emphasizing the theoretical position in regard to the possibility of conducting “prayer groups” of women whose intention is for the sake of heaven, stated:

And they may read from the Torah, but must be careful not to do so in a manner that might be misinterpreted as public reading. For example, they may not publically recite the benediction or rely upon the benediction they made earlier, and if they have not yet recited it, they should do so silently.

            And see the conclusion of the said letter: “And there is no absolute prohibition for a menstruating woman to look upon or touch a Torah scroll, and even though it is proper to be stringent, in any case it has become prevalent to be lenient in this regard” (and see: Maimonides, Laws concerning the Torah Scroll, 10:8; Shulhan Arukh, YD 282:9; and see the Rema’s gloss on Shulhan Arukh OH 88:1; Weiss’ discussion in his aforementioned book, at pp. 85-98).

            As for reading in this manner in a synagogue, we will address that below.

 

Custom in the World of Halakha

28.       Having arrived at this point, it would be appropriate to say something about the power of custom in the halakhic system, which plays a special role in the subject of the case before us.

            A.        The subject of custom as one of the established, creative sources of Jewish law is discussed at length in in my book (Jewish Law – History, Sources, Principles, above, pp. 713ff.). Custom can testify to the existence of longstanding law, which has found its way into halakha by means of midrash, enactment, etc., and can itself serve as a creative source of law under certain circumstances and subject to certain conditions: the difference between the power of custom in regard to prohibitions and other fields of halakha; proof of the existence of the custom, and the assessment of the custom by halakhic experts – is it the result of a mistake, is it a bad custom, is it an imposition upon the public, etc. (see: ibid.). This is not the place to discuss this very broad subject at length. We would only note this: just as custom can be general, it can also be local, that is, restricted to a place or to specific places, where various internal factors influence its generality or restriction. It may also be subject to change by its nature, the place and the time, in accordance with the existence of legitimate factors of the place and time that justify such change (see: ibid.; M. Elon, ed., Digest of the Responsa Literature of Spain and North Africa, v. I, (Institute of Jewish Law, 1986)  s.v. “Minhag”, pp. 230-233; and also see Prof. D. Sperber’s comprehensive Minhagei Yisrael: Origins and History,  v. I (Mossad Harav Kook, 1988) pp. 60-61 and fn. 18, v. II (1991).

            B.        Rabbi Zvi [Hershel] Schachter states in regard to our subject (“Tz’i lakh b’ikvei ha-tzon,” 17 Beit Yitzhak 118, 127 (1988):

We have never heard nor seen such a custom of arranging the reading of the Torah and the reading of the Megillah for women alone, and we are obligated to follow the tradition of our fathers and our fathers’ fathers in the manner of observing the commandments.

Therefore:

Since it was never customary for women to observe the commandment of prayer and reading the Torah, etc. in such a manner, we must not change our ancestral custom and create of our own imagination new types of conduct … and not only must we continue to follow the customs of our fathers, but it is also prohibited to change their customs. And although it is true that “we have not seen is not evidence”, in any case the Shakh [Siftei Kohen commentary of Rabbi Shabbatai ben Meir HaKohen] on [Shulhan Arukh] YD 1:1 explained “… that, in any case,  such conduct established the custom … and in any event such conduct is prohibited as being a change in custom” (ibid., pp. 128-129).

            This position is not unambiguous. Not every absence of a custom grounds an “argument from silence”. In certain circumstances, it is evidence of a lacuna that must be remedied when the time and need arises, assuming that there is no halakhic prohibition that prevents it.

            C.        An interesting example of this can be found in two responsa of Rabbi Yehiel Weinberg, one of the most important contemporary halakhic decisors and in his Responsa Seridei Esh III:93 and 96 [New Edition:  II:39 and 62]. In support of his view, Rabbi Schachter cites one of those two responsa – number 96 (above, at p. 128), but a comparison of the two responsa yields a different conclusion. We will briefly examine the matter.

            In responsum 96, Rabbi Yehiel Weinberg considers the question whether it is permissible to employ a general anesthetic in the course of performing a circumcision of a child or an adult – such as a convert or a person not circumcised as child – in order to relieve him of the pain associated with circumcision. He answers in the negative, particularly in the case of an adult. In the other responsum – number 93 – Rabbi Yehiel Weinberg was asked about the permissibility of celebrating a bat mitzvah for a girl who has attained the age of obligation to the commandments, when she is 12 years old, just as it has always been the custom to celebrate the bar mitzvah of a boy who has reached the age of obligation, upon reaching the age of 13. In this matter, his answer is positive, and approves the celebration of a bat mitzvah for a girl. What the two responsa share in common is the introduction of a new practice in regard to circumcision and in regard to celebrating a bat mitzvah. In a long and detailed responsum, Rabbi Yehiel Weinberg explains his negative answer in the case of the use of an anesthetic in the course of a circumcision in that this possibility has long been available, even in Talmudic times, but the halakhic sages expressed their opposition to its use, for halakhic reasons detailed in the responsum, and in such matters the principle “a custom of Israel is Law” applies, and we may not deviate therefrom. As opposed to this, he gives a positive answer in regard to the celebrating of a bat mitzvah. His reasons for this response are instructive. Indeed, there was no such custom of celebrating a bat mitzvah in past generations, and therefore:

There are those who argue against permitting the celebrating of a bat mitzvah, as it is contrary to the custom of prior generations that did not observe this custom (ibid., sec. 1).

But he rejects this argument. And why?

But in truth, this is no argument, because in prior generations there was no need to see to the education of girls, as every Jew was filled with Torah and the fear of heaven, and even the atmosphere of every Jewish city was brimming with Jewish spirit … but times have radically changed … (ibid.).

And also this:

And it is heartbreaking that in regard to general education, the study of secular literature, natural sciences and humanities, girls are educated in the same manner as boys, but religious studies, the study of Bible, the ethical literature of the Sages, and the study of the practical commandments that women are obliged to observe, are entirely neglected. To our good fortune, the Jewish leaders of the previous generation were aware of this problem, and they established institutions for Torah education and the strengthening of religion for Jewish girls. The establishment of a large, comprehensive network of Beth Jacob schools is the most wonderful expression of our generation. And common sense and the demands of pedagogic principles almost require that we also celebrate a girl’s attainment of obligation to commandments.

And this distinction that we make between boys and girls in regard to the celebration of attaining maturity deeply offends the humanity of a maturing girl who, in other areas, has achieved emancipation, as it were.

And as for the fear of “extraneous considerations” in introducing a new custom of celebrating a bat mitzvah, i.e., the fear of imitating the practices of gentiles, and so forth, he states:

And those among our brethren who have introduced this innovation of celebrating a bat mitzvah say that they do so in order to instill in the heart of a girl who has reached the age of obligation a sense of love for Judaism and its commandments, and to awaken her sense of pride in being a daughter of a great, holy nation. And we are not concerned that the gentiles celebrate confirmation for both boys and girls, for they do what they do and we do what we do. They pray and bow in their churches, and we bend our knees, bow and offer thanks to the King of kings, the Holy One, blessed be he (ibid. p. 296, col. 1 [New Edition: p. 458, sec. 26]).

 

            D.        In conclusion, a custom that deviates from a prior custom that forbids the custom to be introduced – as in the case of anesthesia for a circumcision – and which is not justified by legitimate social and ideological changes in the halakhic world may not be followed, inasmuch as that is the power of a custom for which there is no material, halakhic justification for change. As opposed to this, the introduction of a new custom – such as the celebration of a bat mitzvah – that is not contrary to law and which was not observed in the past due to different social and ideological circumstances that have entirely changed (and see what we wrote above – para, 19 – in the Nagar case and the Shakdiel case in regard to the difference in the social role and education of contemporary women), is appropriate on the merits in order to prevent in our generation what Rabbi Yehiel Weinberg described as “this distinction that we make between boys and girls in regard to the celebration of attaining maturity (which) deeply offends the humanity of a maturing girl”.

            Rabbi Weinberg’s student Prof. Eliezer Berkovits addressed this material distinction in regard to custom in light of the above two responsa of Rabbi Weinberg in his book Jewish Women in Time And Torah (1990) pp. 79-81.  He arrived at the conclusion (at p. 81) that women’s “prayer groups” may be permissible, subject to the restrictions observed by them, as we explained above.

            E.         The celebration of a bat mitzvah for a girl who has reached the age of twelve was also addressed by Rabbi Moshe Feinstein (Responsa Iggerot Moshe, OH  I, 104). In his responsum, he expresses doubt as to the propriety of introducing the custom of celebrating a bat mitzvah, and he does not deem such a celebration to be “a mitzvah or a se’udat mitzvah [a religiously required celebratory meal], but merely a celebration like a birthday party”. Rabbi Moshe Feinstein absolutely prohibits celebrating a bat mitzvah in a synagogue, permitting it only in the home. He adds, as we have seen elsewhere in his earlier responsum, the consideration that such a celebration may comprise an improper extraneous consideration of emulating the practices of groups that do not accept the primary obligation to the observance of halakha. In his aforementioned responsum, Rabbi Yehiel Weinberg agreed with this proviso stated by Rabbi Moshe Feinstein that a bat mitzvah not be held in the synagogue, “but only in a private home or a social hall adjacent to the synagogue” (above, at p. 297, col. 1), for the reason of the improper extraneous consideration of emulation.

            Incidentally, in his responsum, Rabbi Yehiel Weinberg addresses the question of why the fact that a custom derives from negatively characterized imitation deems it as deriving from an “extraneous consideration” that taints the custom, and why a bat mitzvah celebration should not properly be held in a synagogue. The reason is that this custom imitates a practice of the Reform Movement, which sought, and achieved among its members, the abrogation halakhic rules that were fundamental to Judaism, inter alia, “they eliminated all reference to the return to Zion and the restoration of the Temple worship to Jerusalem” (ibid., 93, p. 298; and see: our discussion of the position of the Reform Movement, then and now, that does not recognize the halakhic system as an obligatory, normative system even in regard to the most fundamental matters of the Jewish world, in HCJ 47/82 Foundation of the Israel Movement for Progressive Judaism v. Minister of Religion, IsrSC 43 (2) 661, 705-709; and see Responsa Seridei Esh, III:93; an instructive responsum by Professor Rabbi David Zvi Hoffmann, one of the most important halakhic decisors of the previous generation, in Responsa Melamed Le-ho’il, OH 16, concerning the prohibiting of the playing of an organ in the synagogue due to this consideration of imitation). This proviso, with which Rabbi Yehiel concurred, is also founded upon the special care required in changing synagogue practices, as we shall discuss below.

            F.         From the above responsum of Rabbi Moshe Feinstein, we see that he was not comfortable with the idea of introducing bat mitzvah celebrations, as explained above. In this regard, it is interesting to note the responsum of the Sephardic Chief Rabbi, Rabbi Ovadiah Yosef, who took an unequivocally favorable view of celebrating and encouraging this custom, and he even recommends it:

… It certainly would appear that it is a mitzvah to have festive meal and celebration for a bat mitzvah, in accordance with what the Maharshal (Rabbi Solomon Luria, one of the great halakhists of sixteenth-century Poland) wrote in his book Yam shel Shlomo (Bava Kama, 7:37), that there is no greater se’udat mitzvah than that of a bar mitzvah… And so it is, as well, in regard to a girl who becomes obligated to the commandments that a woman must observe, and it therefore a mitzvah for her that she performs, it is good to make it a day of celebration and also a mitzvah to do so… (Responsa Yabi’a Omer, part II, OH 29, para. 4).

            Chief Rabbi Ovadiah Yosef also addresses this matter in another place (Responsa Yeheveh Da’at, part II, 29), where he adds (at p. 111):

And in fact, preventing bat mitzvah celebrations lends support to the sinners to criticize the scholars for oppressing the daughters of Israel and discriminating between boys and girls.

            He also cites and relies upon Rabbi Yehiel Weinberg’s view (in Responsum 93) that it is not an emulation of the gentiles, and that not holding bat mitzvah celebrations constitutes a form of discrimination that severely injures a girls humanity.

            Further on, Rabbi Ovadiah Yosef relies upon other response of contemporary Sephardic halakhists, among them Rabbi Ovadiah Hedaya (Responsa Yaskil Avdi, part V, OH 28) who is also of the opinion, as is also the case for the illustrious Rabbi Yosef Ben Ish Hai (Responsa Yabi’a Omer, above; and Yeheveh Da’at, above).

            Rabbi Ovadiah Yosef refers to the opinion of Rabbi Moshe Feinstein, who cast doubt on the propriety of celebrating bat mitzvahs, as we noted above, and takes exception to his view:

…And I saw that the illustrious Rabbi Moshe Feinstein, in Responsa Iggerot Moshe, part I, OH 104, wrote … And with all due respect for his knowledge, what he says is not clear, inasmuch as she enters into the commandments and is like an adult who is obligated and observes all the commandments that a woman is required to observe, certainly it is a mitzvah … (Responsa Yabi’a Omer, above; and see response Yeheveh Da’at, above, pp 110-111 in which he disagrees with other things that Rabbi Moshe Feinstein wrote in this regard in justification of his position, and see there).

            Thus, Chief Rabbi Ovadiah Yosef concludes his responsum (Yeheveh Da’at, above):

The custom of making a festive party and a meal of thanksgiving and rejoicing for a bat mitzvah on the day she attains thirteen years and one day is a good and proper custom. And it is appropriate to say words of Torah, and sing songs in praise of God. However, the rules of modesty must be carefully observed in accordance with our holy Torah … and our blessed God will not withhold His blessings from those who attend in good faith.

            It should be noted that Rabbi Yosef does not refer to Rabbi Yehiel Weinberg’s statement that a bat mitzvah celebration not be held in a synagogue. In this regard, we should take note of what we said in regard to the opinion of the late Sephardic Chief Rabbi, Rabbi Ben-Zion Meir Hai Uziel, in regard to his opinion that women should be granted the right to vote, like men, for various public institutions. Thus we wrote in the Shakdiel case, at p. 257:

The approach of Rabbi Uziel is instructive in his bringing “indirect” evidence of the spirit of the halakha that points to the desirable policy. According to halakha, a person who brings a sacrifice lays his hand on the animal’s head. In this regard. [Midrash] Sifra, Leviticus, chap. 2 states: “And he shall lay his hand upon the head of the burnt offering (Leviticus 1:4) – the sons of Israel lay their hands and the daughters of Israel do not lay their hands”. In other words, the law in regard to the laying of hands upon an animal sacrifice does not apply to a woman.

            But the Midrash goes on to state:

Rabbi Yosei said, Abba Elazar told me, we had a calf for a peace-offering, and we took it out to the Women’s Court (of the Temple), and the women laid their hands upon it, not because laying of hands applies to women, but for their gratification.”

If that is how we are to act in regard to something that is forbidden – laying hands by women – then, continues Rabbi Uziel, a fortiori we should act in that manner in regard to the granting women the right to vote, as no law forbids it “and preventing them from participating (in elections) would be an insult and a misrepresentation”.

            This assembled material, and the judicial policy that it indicates, are also appropriate to the matter before us.

            G.        This is the way of custom as a creative source of halakha. Custom is rooted in the accepted principles of halakha, its rules and values. Today, when Jewish women study and teach, and know the law and the ways of halakha, it is proper that when a woman attains the age of obligation to the commandments, that occasion be celebrated as it is for boys. But sometimes there are considerations, which are also legitimate, that influence the acceptance of a custom by halakhic sages subject to various provisos, due to a fear of imitation and extraneous influences – each according to his approach to deciding halakha and the extent of the existence of a fear of imitation in this or some other place. In the world of halakhic values, this fear must also be given significance, after careful, appropriate examination. We shall address this below.

 

Changing Synagogue Custom

29.       The halakhic world is especially careful in regard to introducing new customs in the synagogue. This fact is expressed in regard to the custom of “prayer groups”, which is a central issue in this case. Such “prayer groups” are generally conducted outside of synagogues, in special places designated for them. Thus, Rabbi Avraham Weiss, in his abovementioned book, at p. 18, writes: “Even in communities where women’s groups have been approved by the rabbinic leadership, the synagogue has, with few exceptions, been declared off limits to them. In virtually all cases, they are held in homes or rented hotel facilities.” Indeed, Rabbi Weiss goes on to point out that the synagogue is the most appropriate and preferable place for conducting prayer, and his words are worthy of consideration. But as far as our investigation into the nature of custom and the manner of observing it goes, we find that, in practice, the overwhelming majority of “prayer groups” are not held in synagogues themselves, which attests to the especially problematic nature of changing custom as it relates to synagogue practice (and see the Encyclopedia Talmudit, vol. 3, s.v. Beit Haknesset, pp. 192ff. (Hebrew); in regard to the use of a synagogue, its sanctity and respect, see loc. cit.; and see Rabbi Zvi Schachter, above, p. 130; and see: Rabbi Abraham Isaac HaKohen Kook, Responsa Orah Mishpat 38).

 

The Synagogue in the Western Wall Plaza

30.       What we have said thus far is of special interest in regard to the subject of this case – conducting the Petitioners’ prayers in the Western Wall Plaza. The prayer space at the Western Wall is the holiest synagogue in the halakhic and Jewish world. It is the place of which the Midrash (Exodus Rabba 2:2, and elsewhere) states:

                        The Divine Presence never departs from the Western Wall.

            Indeed, the Western Wall is not a part of the Temple itself, but a wall surrounding the Temple Mount upon which the Temple stood. But in Jewish tradition, the Wall is generally viewed as a “remnant of our Temple”. The prayers recited in the synagogue replace the Temple service following its destruction, and synagogues are referred to as “mikdash m’at” [a little sanctuary]: “Yet have I been to them as a little sanctuary (Ezekiel 11:16). Rabbi Isaac said: This refers to the synagogues and houses of learning in Babylonia” (TB Megilla 29a; and see HCJ 4185/90 Temple Mount Faithful v. Attorney General, IsrSC 47 (5) 221, 230).

            Throughout the generations, Jews have considered prayer beside the site of the Temple to be especially propitious, and especially beside the Western Wall – the only remnant that remains of the Temple (see HCJ 4185/90, ibid., at pp. 245-246). Due to the fact that the plaza before the Western Wall has always served as a permanent place for Jewish prayer, the halakhic scholars held that this plaza is subject to the law of a synagogue. Thus, in the last century, Rabbi Hillel Moshe Gelbstein wrote in his book Mishkenot Le-Abir Yaakov:

It is a mitzvah to respect and extol that place as much as possible, at least as much as a synagogue, and more so … because it stands before the holy and awesome place … we must try with all our might to make … an attractive, elegant and beautiful floor ... and of course protect it from desecration as far as possible …and a fortiori in comparison to a synagogue … for the outer wall of a synagogue is holy like the synagogue itself.

            Moreover, the site of the Western Wall is subject to the commandment of “guarding the Temple” [against desecration], for although it is not possible to fulfill that in our day at the actual site of the Temple, it can be observed adjacent to the Temple Mount, that is, beside the Western Wall (Rabbi Gelbstein’s remarks are quoted in Zvi Kaplan, “The Western Wall in Halakha,” 5728 Shana Beshana 174-175 (Hebrew)).

            And this is what Chief Rabbi Ovadiah Yosef ruled on the subject:

This place must certainly be no less than a synagogue, which is a beit mikdash m’at [a little Temple]. So it is in regard to the laws of a synagogue … certainly all that is true there, is true for the Western Wall … it should be treated with no less strictness than a synagogue and a mikdash m’at (“The Western Wall and its Surroundings in Halakha,” in The Western Wall (Jerusalem, 1976) p. 139 (Hebrew)).

 

The Prohibition upon changing Custom “On account of the Disputes”

31.       At the prayer area beside the Western Wall, which must be treated like a synagogue and even more so, there was never any customary women’s prayer, neither in the form requested by the Petitioners in HCJ 257/89, nor in the form of “prayer groups”, as described in HCJ 2410/90. Granting the Petitioners’ petitions would involve a clear change in the local custom in the synagogue, as observed for generations upon generations. An important principle of halakha is that custom should not be changed “on account of the disputes [that would ensue]” (TB Pesahim 50a-b). This principle was enunciated in regard to every custom in halakha, and it applies a fortiori to synagogue customs, and all the more so in regard to the synagogue in the Western Wall Plaza. This is the unequivocal opinion of the Chief Rabbis of Israel, which we noted above.

            In his letter, Rabbi Avraham Shapira wrote:

Moreover, in addition to the halakhic prohibition, as noted above, there is also a principle of prohibiting the annulling of customs, which was never done, whether in regard to tzitzit or in regard to a women’s prayer in a minyan. Such a thing is unheard of and unacceptable in Judaism, and for this reason alone, it is unlawful, as a custom of Israel is Law.

All of this is true even if they do so in their own homes. But when they come to change the halakha and custom in public, in a holy place like the Western Wall, a matter that raises dispute, contention and altercations, there is also a prohibition of increasing disputes in Israel, and the desecration of a holy place (response of Rabbi Avraham Shapira (letter)).

            That is also the conclusion to be drawn from the letter of the Sephardic Chief Rabbi, Rabbi Mordechai Eliyahu, in his aforementioned opinion:

We are commanded and warned not to change any custom, and particularly customs of synagogue prayer … and it is therefore prohibited to make any change in the traditional manner of prayer of many generations at the Western Wall, which is a remnant of our Temple and our glory, besides having the additional holiness of being the place of the prayers of all Israel (response of Rabbi Mordechai Eliyahu (letter)).

            As we shall see, the opinions of the Chief Rabbis of Israel are of legal importance in the Israeli legal system in regard to the issue addressed by the petitions before the Court.

32.       Much has been written and said on the extreme severity of causing disputes, particularly in synagogues. We will suffice in quoting the words of the Hafetz Hayim [Israel Meir HaCohen Kagan] (Mishna Berura, OH 151:2):

And all the more so must one be careful in the synagogue and study hall to refrain from offenses of forbidden speech such as defamation, rumor mongering, disputes and altercations, because not only are these very serious offenses, but the offense is even greater in a holy place because it shows contempt for the Divine Presence, as a person who sins alone is not like a person who sins in the King’s palace, in the presence of the King.

And even worse, such a person also causes the public to commit those serious offenses, as “strife is like a ruptured water pipe” (TB Sanhedrin 7a), in the beginning the sin seeps into a few people, and ultimately the channels unite into strife between one and another until the entire synagogue is ablaze like a bonfire, and to our great discredit, this sometimes leads to disgrace, insult and public shaming, and to blows and informing, and increasing the desecration of God’s name.

            An important principle of halakha, particularly in the field of customs, was established on the basis of the biblical statement “lo titgodedu” [literally: “you shall not cut yourselves”] (Deut. 14.1), which the Sages interpreted as a severe prohibition of sectarianism[8] and dispute (see: M. Elon, Jewish Law – History, Sources, Principles, p. 759; [Rabbi Yehuda Greenwald], Responsa Zikhron Yehuda, 37; [Isaac ben Sheshet Perfet], Responsa Rivash, 512; [Simon ben Tzemah Duran], Tashbatz, II 204, III 176; [Ben-Zion Meir Hai Uziel], Mishpetei Uziel, III, HM 228). The Sages were particularly strict in regard to changes in synagogue customs, in light of the injunction “lo titgodedu” (see: Prof. Y.D. Gilat, “Lo Titgodedu,” 18-19 Bar Ilan University Yearbook 88ff. (1981)).

 

The Severity of the Disagreements on the Issue in the World of Halakha

33.       We became aware of the severity of the disagreement concerning the issue before us from the detailed description of the facts, as presented in the petitions and from all the event that occurred in the affair: the prayer space beside the Western Wall became a “battlefield” of extreme violence, hitting, tear gas, physically lying on the floor of the prayer area before the Wall, and incessant incitement, and all in front of the various media. But this is not the only way that the dispute was expressed. As we stated, this subject – concerning the laws and customs of prayer – is particularly sensitive in the halakhic world. The halakhic world is defined by its laws and values, and just as halakhic scholars and decisors disagree in regard to its rules, so they may disagree as to its values, or to be more precise, in regard to the implementation of its values. We briefly addressed this earlier in regard to the issue before us. It would be appropriate to take a further, special look into this matter, which, at its core, concerns a dispute between two opposing approaches to halakhic values, with each approach sharing a common devotion to halakha. This can be seen in reading the aforementioned article of Rabbi Zvi Schachter, who serves as a rosh yeshiva at Yeshiva University in New York (“Tz’i lakh b’ikvei ha-tzon,” 17 Beit Yitzhak 118, 134 (1988)), and the aforementioned book of Rabbi Avraham Weiss, which we cited earlier. We will consider several examples.

            A.        As noted, the Petitioners in HCJ 2410/90 conduct women’s “prayer groups” that are not considered “prayer in a minyan”. They do not include the reciting of the “barekhu”, “kedusha”, or a repetition of the amida, and they are not halakhically flawed from a formal perspective. Yet, in Rabbi Schachter’s opinion, women’s prayer groups should not be conducted because, in his words: “If they were to pray in a regular minyan in a synagogue, they would observe the obligation to prayer in its fullest form (that is, with the recitation of “barekhu”, kaddish, etc.), and by making a “minyan” of their own, they detract from their prayer” (ibid., p. 118).

            It is hard to understand this argument. As earlier noted, women are indeed halakhically obligated to private prayer, but they are not obligated to public worship, and therefore, they are not counted for the purpose of constituting a “minyan” in its halakhic sense. What, then, is detracted when a woman does not pray in the women’s section [of the synagogue] in the presence of a minyan of men, but rather prays with a group of women, and thus does not hear the “barekhu”,etc., which she is not obligated to hear? (Weiss, ibid., pp. 55-56). Moreover, “prayer groups” of women (that do not perform “acts of sanctification”) are common in Orthodox schools and colleges for women, and it was never the practice to bring a “minyan” of men to those prayer services in order to enable the saying of “barekhu”, etc. The same flaw in Rabbi Schachter’s argument is present in regard to the reading of the Torah by women without reciting the “barekhu” benediction, and in regard to other matters, as well.

            B.        Rabbi Schachter views women’s prayer groups as a “falsification of the Torah” (ibid., p. 119).Why? Because “their intention is to demonstrate that women are as important as men”. Rabbi Schachter relies upon a statement of the Maharshal, Rabbi Solomon Luria, one of the great halakhists of sixteenth-century Poland, which was made in an entirely different context (Yam shel Shlomo, Bava Kama, 4:9). The Maharshal absolutely and emphatically forbids teaching Torah to a non-Jew, due to the attendant spiritual and other dangers, and he disagrees with those “in Spain, Italy and the Moslem lands who study God’s Torah with the gentiles for their pleasure and salaries”, referring to the Jews of Spain and the East who studied and discoursed with non-Jews. But I searched the writings of the Maharshal and did not find the term “falsification of the Torah”! In any case, it is hard to understand what connection there might be between what the Maharshal wrote and the subject of women’s prayer groups, and what might be halakhically wrong with women viewing themselves to be as important as men, and conducting public worship in which “acts of sanctification” are not performed!

            C.        In the opinion of Rabbi Schachter, the public prayer of such Orthodox women smacks of “hukkot akum” [non-Jewish practices] (ibid., 131). Why? “Because it is clear that such practices did not emerge from a vacuum, but rather are a result of the general trend of women’s liberation, whose subject and purpose in this regard is licentiousness, and to make them equal to men in every way possible” (ibid.). And not merely non-Jewish practices in general, but “non-Jewish practices in the performance of mitzvoth” (ibid.), and he cites Nachmanides on the verse (Deut. 12:30): “Beware of being lured into their ways”. With all due respect to the honorable author, it is hard to fathom the intention of this statement. Why would one suspect that the participants in public prayer restricted to women and led by women might be guilty of such grave intentions and tendencies, when the very manner in which they are conducted proves strict observance of the halakhic rules prohibiting such acts of sanctification as the repetition of the amida, and so forth? Does that alone not prove that the purpose of the organizers of such public prayer by women – carefully observing the halakhic framework and its rules – serves a spiritual purpose that derives from knowledge and awareness of the commandments and halakha, the views and approaches of rabbinic scholars and thinkers, and from many years of study in Torah-im-Derekh-Eretz educational institutions, and that as a result of that education they seek to express themselves, within the confines of halakha, by means of the “prayer groups” that are the subject of these proceedings? Indeed, this is how Rabbi Yehiel Weinberg, author of the Seridei Esh, views the intentions and proper desires of those parents and girls who wish to celebrate a bat mitzvah, and the same is explicitly stated by Chief Rabbi Ovadiah Yosef, as we quoted above.

            D.        In his pointed opposition to women’s “prayer groups”, even when they are not viewed as a constituting a minyan, Rabbi Zvi Schachter relies upon the decisions of two of the generation’s foremost halakhic decisors, the late Rabbi Moshe Feinstein and the late Rabbi Joseph B. Soloveitchik:

It is well known that two of the greatest scholars of this generation, to whom we all defer, our teacher Rabbi Joseph B. Soloveitchik, and our teacher Rabbi Moshe Feinstein, are very much opposed to all the above conduct, as well as to special hakafot for women, and special “minyans” for prayer, and for reading the Torah and the Megillah. And see the Tosafot on Bava Batra (51b) s.v. “beram”, per Rabbeinu Tam, that if all the leading authorities of the generation disagree with him, then his opinion is without value” (ibid., p. 126).

            Rabbi Weiss correctly comments that this statement is not precise. As for the opinion of the late Rabbi Soloveitchik, we do not have a written record, and what is attributed to him is based upon the statements of students who sought his advice. From them we learn that he was not opposed to the very existence of prayer groups, but rather to particular aspects of their practice, such as reciting the Torah blessings before and after the reading of the Torah (Rabbi Weiss, ibid., pp. 107-108). And as for the opinion of the late Rabbi Moshe Feinstein, it can be found in a detailed responsum (Iggerot Moshe, OH, part 4, 49), which we discussed above. That responsum does not present a rejection of women’s prayer groups in principle, provided that they are conducted for the sake of heaven, except as regards certain changes relating to particular practices of such groups regarding the reading of the Torah (see: Rabbi Weiss, ibid., pp. 108-110); and see in the footnotes, ad. loc., what Rabbi Mordechai Tendler wrote on behalf of his grandfather, Rabbi Moshe Feinstein, which we addressed above; and see, ibid., pp. 111-112, fn. 39).

34.       We should note that Rabbi Zvi Schachter’s pointed objection to women’s prayer groups is particular to this specific subject, and it does not derive from a general approach that rejects the reality of halakhic development and change over the course of generations and eras, in accordance with the recognized, special methods for change provided by the halakha itself. Rabbi Schachter emphasizes this in several places in his article, and it is appropriate that we take note of them (ibid., pp. 122-124):

It is clear that the halakha is not frozen. The large number of situational changes requires that halakha change. The questions of the year 5748 are completely different from those of 5738, and in any case, in many instances, different answers are needed.

Moreover, just as there is progress in the scientific world, so there is progress in the halakhic world. See Genesis Rabba on VaYera (49:2) that there is no day when  God does not innovate a new halakha in the Heavenly court. And see Yalkut Shimoni on the book of Judges (Remez 49) explaining the verse “When new gods were chosen, then war was at the gates …” [Judges 5:8], concerning the wars of Torah, that the Holy One loves innovation in Torah. And in the words of Rabbi Chaim of Volozhin (in his book Nefesh HaChaim, 4:46), the awesome, wondrous effects of man’s true Toraitic innovations upon Heaven are immeasurable.

            Further on, he cites the responsum of the Netziv [Rabbi Naftali Zvi Yehuda Berlin] of Volozhin (Meishiv Davar, I, 46), and goes on to say (ibid., p. 123):

And see in that responsum, that this is the case, and this is the reason in regard to an innovation in the performance of a mitzvah, which even if not done for the sake of Heaven, still constitutes the performance of a mitzvah. But in the case of the innovation of a new practice, if it is not done for the sake of Heaven, that innovation cannot be called a mitzvah at all. And that is the meaning of the Mishna in Avot (2:2) that “all who labor with the community labor with them for the sake of Heaven”, because labors undertaken not for the sake of Heaven are not mitzvoth at all. For labor that does not involve any specific mitzvah (like laying tefillin or blowing the shofar, and so forth) that defines the labor as the performance of a mitzvah, must be labor that is for the sake of Heaven in order for that labor to be deemed a mitzvah.

            Notwithstanding this generally positive approach, the aforesaid does not apply, according to Rabbi Schachter, to the matter before us.

And the reason that they prefer to make a “minyan” (i.e. “prayer groups” – M.E.) for themselves is not by reason of the halakhic principle that “it is more meritorious through himself than through an agent” [TB Kiddushin 41a], but rather because “a man prefers a kab of his own to nine of his neighbor’s” [TB Bava Metzia 38a], and in their “minyan” the women feel that it is “their thing”. Surely we should not willfully destroy the additional halakhic essentials that we mentioned above (letter A) for such a feeling. On the contrary, we must sensitize these educated, intelligent women to sensitize and repair their spiritual resources to the point that they are consonant with the priorities of halakha (ibid., 121).

            Therefore (ibid., p. 122):

We must also explain to those women, who with God’s help this generation has become more righteous,[9] and who are more educated both in Torah and wisdom than previous generations … that all our women are deemed important, and it was never our practice to deny the rights of women. And so there is no need or purpose for us in the objectives of the women’s liberation movement, inasmuch as the halakha instituted several obligations upon a husband in regard to his wife, like the seven obligations of a woman toward her husband, among them to love his wife as himself, and to respect her more than himself … and we find several places in the Bible and the Talmud where women are lauded more than men, and it is the halakha that a woman is deemed an adult at the age of 12, while a man at 13, because God granted women greater understanding than men, and so it is in other, similar matters. And in any case, truth be told, our women should not feel that they have only now been liberated from their servitude, and adopt the psychological attitude of a slave who has become a king, but rather they should themselves see and understand that it has always been thus among us, for the promise that God made to women is greater than that of men, and that there has not really been any fundamental or systematic change in our view of the importance of women, but merely changes in details, inasmuch as the entire world has changed in recent years, but not changes is the principles.

35.       I have said what I have, and commented as I have, because that is the way of Torah and the “war” of Torah. And I have treated Rabbi Schachter’s remarks at length in order to point out the especially problematic nature of the matter before us.

            As stated in the remarks we have just quoted, Rabbi Schachter’s opinion is that the halakhic world, by its nature, does not stagnate, and that it is open to innovation and to enactments in accordance with the needs of time and place. But it also comprises matters and principles regarding which halakhic creativity must be exercised with great caution. In his opinion, the subject of this case is among them. He is aware of the changes that have occurred over the last generations in regard to the social status of women, in their knowledge of halakha, and in their education, but none of these – in his view – justify the change represented by women’s prayer groups, which are influenced by “extraneous” and extra-halakhic considerations, and all that is associated therewith, in regard to the central place of prayer and the synagogue in Jewish tradition (and also see: ibid., at the end of p. 125, and pp. 127ff in regard to “the purpose of the mitzvah in the acts of mitzvoth”, and pp. 130-131 in regard to the particularly stringent approach to “synagogue customs).

36.       We have thus come to the end of our discussion of the issue, and this is not the place to elaborate further. A detailed, comprehensive discussion of this fundamental issue can be found in many additional sources in halakhic literature, as well as in articles and research in addition to those we have cited, and I refer the interested reader to them.

            As we hinted at earlier, a significant part of the disagreements and approaches in this great, complex and sensitive matter concerns not merely the determination of the law in the halakhic system, but also the evaluation of the values of the halakhic world – which also constitute part of the law in the broad sense – and the application of those values to the present case; the lege lata and lege ferenda, and the appropriate judicial-halakhic policy – in light of the past and in view of desires for the future. These are accepted, legitimate considerations in the halakhic world in general, and they are of particular importance in regard to a sensitive subject such as the one before us. Indeed, each side has expressed its views both on the world of halakha and on the realities of the contemporary world in regard to the status of women – including women who are halakhically observant and equally heedful of the minor mitzvoth and the major ones – in terms of their social roles and status, their knowledge of the Torah and its commandments, the ways of the world and their education. But the parties disagree in their evaluations, and therefore in their conclusions.

            Needless to say, an in-depth study of the halakhic sources, with both knowledge and understanding, as practiced from generation to generation, is a necessary prior condition to any proper halakhic examination of any halakhic matter, and of the matter before us. To this we must add an evaluation of the values of the halakhic world and the manner of their application in every generation, in accordance with its problems and needs.

            This is a double condition. Each of the two approaches in this matter, which we have considered above, claims to meet the requirements of this double condition.

            In this regard, it would be appropriate to add a few remarks concerning the element of imitation, which serves as a factor of recognized influence upon judicial policy in deciding the law and recognizing customs in the halakhic world. As we saw, this factor is mentioned often by decisors and scholars in regard to our subject. The intention here is to imitation of a negative character of things practiced outside the world of halakha and Judaism, whether directly – i.e., imitation of “non-Jewish practices” – or indirectly – i.e., imitation of the Reform Movement, which is influenced to an extreme degree by things that are contrary to the basic principles of Judaism and halakha, such as elementary kosher laws, marriage and divorce, conversion, and at one time, even the annulment of the religio-national bond to the land of Israel, and so forth, which present an absolute contradiction of the entirety of the world of halakha.  Thus we saw that Rabbi Yehiel Weinberg did not view Christian “confirmation”, which applies to boys and girls, as a factor that influences the propriety of the custom of celebrating a bat mitzvah in the Jewish world, stating, “they do what they do and we do what we do”. So it is in regard to the very celebration of a bat mitzvah. But as for the question of celebrating a bat mitzvah in the synagogue or not, he takes account of the fact that Reform Jewry celebrates bat mitzvahs in the synagogue , and in order to prevent influence by the Reform Movement – which does not recognize the obligatory nature of halakha – upon the halakhic world, he is of the opinion that it would be improper to hold a bat mitzvah celebration in the synagogue itself – as was the Reform practice at that time, under the influence of elements foreign to Judaism – but rather in a hall adjacent to the synagogue.

            Granting weight to the factor of negative imitation as an extraneous consideration in the halakhic world is a factor that we also find, in principle, in the general legal system in the field of public administrative law, where it is referred to as an “extraneous consideration”, and it is from there that I have “borrowed” the term. In other words, a court may void an administrative decision by reason of it having been made for motives and considerations that were foreign to the subject of the decision. So it is in the halakhic world, in which a new law or custom will also be examined in light of the nature of the considerations that led to the creation of the law or custom, and whether those considerations were irrelevant or, at times, contradictory to the spirit of the halakha and its values, and thus extraneous considerations that may lead to the abolition of the new law or custom.

            Extraneous considerations are weighed in halakha much as they are in the general law. In certain cases, the conclusion will be that there was no extraneous consideration of “unwanted” influence from another cultural or conceptual world. In other cases, there may be an influence that is not deemed to exercise a negative impact of an extent justifying the abrogation of the new law or custom. In other cases, the conclusion may be that the extraneous consideration is so negative that annulling the new law or custom is appropriate and correct.

            The choice among the various possibilities is a value judgment that concerns judicial policy in the halakhic world, much as it is in the case of a judicial ruling in the general legal system in regard to the presence or absence of an extraneous consideration in an administrative decision.

37.       Rabbi Schachter concludes his detailed article as follows:

And the true God gave us a Torah of truth, a Torah in which the truth is written, our eyes look only to the truth, and blessed be He who keeps his true promise, for the Torah of truth will not be forsworn by the true people.

            As for the truth in the world of halakha, there is a great saying of the Gaon of Vilna explaining the statement of the Sages that a judge must “judge true judgment that is according to the truth” (TB Shabbat 10a, and elsewhere). Many halakhic scholars ask: What is “true judgment that is according to the truth”? Is there “truth” that is not “according to the truth”? And what is the nature of this truth that is according to the truth?

            The Gaon provided this answer:

Judges must be experts in worldly matters so that they do not rule erroneously, for if they are not expert in such matters, then even if they are expert in the Torah law, the result will not be according to the truth. In other words, even though he will give true judgment, it will not be according to the truth … and therefore the judge must be an expert in both … that is, wise in matters of Torah and astute with regard to worldly affairs (Commentary of the Gaon of Vilna (Mikra’ot Gedolot, Pardes) to Proverbs 6:4).

            Torah law that is integrated with the nature of the world is “according to the truth”; Torah law alone, without astuteness with regard to worldly affairs is “true”, but not “according to the truth”. According to Rabbi Zvi Schachter, the matter before us must be decided in accordance with Torah law, true law, but the “nature of the world” – which in the matter before us is the social and educational reality of contemporary women – is absent, due to the nature of the subject, its centrality, and the “extraneous considerations” that may be involved, for the purpose of integration in a decision that would be “according to the truth”. So the question remains—is that approach according to the truth?

38.       Rabbi Avraham Weiss, in his aforementioned comprehensive book, considers the matter before us, and inter alia, is critical of Rabbi Zvi Schachter’s approach for some of the same reasons we raised above. He concludes his examination of women’s prayer groups, inter alia, with the following words (pp. 123-124):

Within halakhic guidelines, women may participate in women’s prayer groups, as long as these groups fall into the halakhic category of tefillah and not minyan … Participants in such groups are not rebelling against Torah Judaism. Quite the contrary. They are seeking to instill greater religious meaning in their lives. Their purpose is not to diminish the Torah, but to enhance their Jewish commitment and halakhic observance … Their quest to reach nobly to attain this lofty objective should be applauded.

            These earnest thoughts are worthy of consideration against the background of the special sensitivity of the halakhic world in regard to changes in synagogue customs, as we discussed above (and see Rabbi Weiss, ibid., p. 118ff.) Having noted the explanation of the Gaon of Vilna in regard to the concept of the “thorough truth” that a judge must strive to realize, we will mention an additional explanation of this concept, which is appropriate to what we have just quoted and stated (see the Mishnah Rishonah commentary to Mishna Pe’ah, 8:9, s.v. “vechen dayan shedan emet la’amito”):

Because it is possible for a judge to recuse himself from judging in the belief that even if he would believe that he is judging truly, there is still the fear that if the case were brought before a greater judge, it would be found that he was in error, the result would be that no person would be willing to judge, for fear of error. Therefore it says: “according to the truth”, because he has only his own truth, as opposed to his knowing that it is false. But if it appears to him that he is judging truly, then he should fear no more, because even if he errs, he is not culpable, because he was scrupulous in accordance with what he believed.

And so we find in the Gemara at the end of the first chapter (6b) of Sanhedrin: “And lest the judge should say, ‘Why have all this trouble and responsibility?’ It is therefore said: ‘He is with you in giving judgment’. The judge is to be concerned only with what he actually sees with his own eyes.” And Rashi explains: “According to what he sees with his own eyes – he will render true justice.”

            And this too is part of judging “true judgment that is according to the truth”.

 

Summary of the Halakha in regard to the Issue at Bar

39.       As we have seen, the subject of these petitions is very sensitive in the Jewish world in general, and in the halakhic world in particular. The petition of the Petitioners in HCJ 257/89 is contrary to the world of halakha and generations of halakhic decisions. But even in the halakhic world, there is sharp disagreement. One view, reflected by the petition in HCJ 2410/90, is expressed in the comprehensive discussion of women’s prayer groups in Rabbi Weiss’ book. Even there we find uncertainty as to the manner for realizing this approach, whether in the framework of the synagogue or whether elsewhere, outside of the synagogue, due to the generally greater sensitivity in regard to change in synagogue customs as opposed to other changes in customs. The second approach is that expressed by Rabbi Zvi Schachter in his detailed article. Although it recognizes the possibility of change in customs and laws by the accepted means of the halakhic world, it strongly opposes the approach of petitioners in HCJ 2410/9, even in regard to conducting “prayer groups” outside of the synagogue. The strongest opposition to this approach is expressed in the opinions of the two Chief Rabbis of Israel. We referred to part of Rabbi Avraham Shapira’s opinion above (para. 31). Rabbi Shapira concludes his opinion saying:

In brief: in terms of law, all of the above things, including wearing tzitzit by women, and conducting a minyan by women for acts of sanctification, are contrary to the halakha and contrary to custom, and are unacceptable in Israel, and what we have here is simply a satanic act intended to increase dispute and raise accusations against Israel. And the matters are so simple, that they require no elaboration.

            We also referred to part of the opinion of the Sephardic Chief Rabbi, Rabbi Mordechai Eliyahu (para. 31, above), who concludes in stating:

No nation has ever desecrated its own holy place, even concerning such customary actions as removing shoes, and so forth. Will Jews come to annul the customs of those of us who seek to preserve the customs of our holy ancestors? We will not permit it. This would be an insult to generations of righteous women, an insult to all the women who come daily to pray, and an insult to the Torah of Israel.

            These pointed, strong disagreements should be understood against the background of the special issue before us. We are concerned with a subject that holds a central place in the world of halakha and the Jewish religion. As earlier noted, Jewish tradition sees the synagogue as a “little sanctuary”, a reminder and continuation of the Temple that stood on the Temple Mount. The synagogue is and was a center and gathering point for the religious experience and the world of halakha. That is the reason for the substantial difference between the issue before us and the halakhic world’s acceptance of change in regard to the status of women in areas like education, the study of Torah, the right to vote for and be elected to public office, and other subjects. It is conceivable that the substantial change in the status and role of women in this century, in which religiously observant participate, will have an effect over time, and will lead to an appropriate resolution even of this complex, sensitive subject of prayer groups, as noted above. But the prayer space beside the Western Wall is not the place for a “war” of acts and opinions over this issue. The present reality is that the overwhelming majority of halakhic decisors, including the Chief Rabbis of Israel, see the granting of the Petitioners’ petitions – even that in HCJ 2410/90 – would constitute a desecration of the customs and sanctity of the synagogue. Such is the case in regard to the prayer customs of the synagogue, and all the more so in regard to the prayer space at the Western Wall, which is the holiest synagogue in the halakhic and Jewish world.

 

The Holy Places and the Principle of Preserving the Status Quo

40.       Having reached this point, we will now return to an examination of the issue in light of Israeli law and case-law.

            Nothing matches the Holy Places as a source for disputes, altercations and bloody flare-ups. The intensity of emotion in regard to these places, deriving from deep in the human heart, is so great that it can ignite conflagrations. It therefore requires that the Executive and the Judiciary approach disputes relating to the Holy Places with extreme caution. This is well known, and we need not elaborate.

            A comprehensive survey of the disputes over the Holy Places in the Land of Israel can be found in S. Berkowitz, The Legal Status of the Holy Places in Jerusalem (Diss., Hebrew University, 1978 (Hebrew)), and the interested reader can review the details there.

41.       The history of the Holy Places in the Land of Israel goes back some three-thousand years, with the building of the First Temple on Mount Moriah by King Solomon. And even a thousand years earlier, since the Binding of Isaac by Abraham in the “Land of Moriah”, Mount Moriah was holy in the eyes of the People of Israel (see in detail, our comments in HCJ 4185/90, pp. 228-240).

            The disputes over the Holy Places originated after the destruction of the Temple, beginning in the seventh century, between Christians and Moslems, and from the thirteenth century to the First World War the disputes were characterized by struggles among the various Christian churches. In 1757, these disputes resulted in what is referred to as the Ottoman Status Quo. The history of this arrangement can be found in the opinion of the late Agranat, P. in the National Circles case (above, p. 196).

 

The British Mandate

42.       With the conclusion of the First World War and the granting of the Mandate for Palestine to Great Britain, the subject of the Holy Places was addressed in articles 13 and 14 of the Mandate.

            The late President Agranat wrote the following in regard to these articles of the Mandate, in the National Circles case, p. 192:

Article 13 defines the responsibility of the Mandatory Power for the Holy Places and the other religious places (buildings or sites) in Palestine. That responsibility included the duty, in regard to such places, to preserve the “existing rights”, securing freedom of access and the free exercise of worship. It was further established that the fulfillment of those duties will be subject to its responsibility to ensure “the requirements of public order and decorum”.

My first comment relates to the meaning of the term “existing rights”. I should note that it is not my intention to address the construction of that term or definitively establish its meaning. My primary purpose is to point out that during the Mandatory period, the responsibility to preserve “existing rights” was generally understood to refer to the duty to preserve the status quo ante bellum, that is, those rights in regard to the Holy Places that actually prevailed prior to the outbreak of the First World War (see: J. Stoyanovski, The Mandate for Palestine (London: Longmans, Green, 1928) p. 293) [emphasis added – M.E.].

            Article 14 of the Mandate provided for the appointment of a special commission in connection with the Holy Places, the composition of which was supposed to be established by the Mandatory, subject to the approval of the Council of the League of Nations. Such a council was never established, and the British government therefore promulgated the Palestine Order-in-Council (Holy Places) (see: the National Circles case, p. 198).

 

The Palestine Order-in-Council (Holy Places)

43.       The Order-in-Council comprised two operative sections. The first, art. 2, was intended to exclude the hearing or determining of any matter in connection with the Holy Places from the jurisdiction of the courts:

Notwithstanding anything to the contrary in the Palestine Order-in-Council, 1922, or any Ordinance or Law in Palestine, no cause or matter in connection with the Holy Places or religious buildings or sites or the rights or claims relating to the different religious communities in Palestine shall be heard or determined by any Court in Palestine.

            The second provision – art. 3 – was a complimentary provision that granted the High Commissioner the authority to decide the preliminary question “whether any cause or matter comes within the terms of the preceding Article”. The High Commissioner’s decision upon the question “shall be final and binding on all parties”. According to art. 3, the authority of the High Commissioner was intended to be temporary, “pending the constitution of a Commission charged with jurisdiction over the matters set out in the said Article”. As noted, the said commission was never established.

            The late President Agranat addressed the reasons for the promulgation of the Order-in-Council in the National Circles case:

As we saw, the said article (article 14 of the Mandate – M.E.) requires the conclusion that the authority to decide upon rights and claims relating to the Holy Places was not granted to the Mandatory, but was intended for a commission that was to be appointed with the approval of the Council of the League of Nations. Thus, the Mandatory did not think itself – and could not think itself – as having jurisdiction to determine such rights and claims, even by means of the courts that it established in Palestine. It therefore established, by means of the Order-in-Council, 1924, that such matters are non-justiciable. Therefore, it also granted the High Commissioner the limited and “minimal” authority mentioned in art. 3 of the Order-in-Council – an authority that has nothing to do with the substantive determination of disputes in relation to the Holy Places (ibid., at p. 202).

President Agranat went on to say (at p. 203):

If one were to ask how, under such circumstances, the Mandatory thought to fulfill … the responsibility placed upon it in regard to the Holy Places under art. 13 of the Mandate – the necessary answer is twofold. First, inasmuch as the article established that the responsibility to preserve the “existing rights” and secure free access and the free exercise of worship was subject to the obligation to ensure the requirements of public order and decorum in those places, therefore the Mandatory conducted itself (or purported to conduct itself) in accordance with the principle that the latter duty precedes the others, and that it is required to fulfill it without addressing the merits of the rights and claims, which were a dispute between the competing religious sects. But concurrently, it was required to act, to the extent possible, to preserve – and this is the second principle, which will be further discussed – the situation that it apprehended to be the “status quo” [emphasis added – M.E.].

44.       In 1929, L.G.A. Cust, the former District Officer of Jerusalem, prepared a secret report for the Mandatory government: The Status Quo in the Holy Places (hereinafter: the Cust Report). The report was intended to aid the officers of the Government of Palestine in in deciding upon the  interpretation and application of the Status Quo in the Holy Places (see the Report’s Introductory Note, written by H.C. Luke, the Chief Secretary to the Government of Palestine). The Report did, indeed, serve as a basis for the application of the Ottoman Status Quo during the Mandate period (see: Berkowitz, above, at p. 34).

            The report addresses in great detail the various rights granted to the Christian communities in the Holy Places – the Church of the Holy Sepulchre in Jerusalem, the Sanctuary of the Ascension on the Mount of Olives, the Tomb of the Virgin at Gethsemane, and the Church of the Nativity in Bethlehem. As an example of the great detail in regard to the Holy Places – detail that was a practical necessity due to the many disputes – we will present the Report’s summary of the situation in the Church of the Holy Sepulchre. Rights are claimed in this church by the Orthodox, the Latins, the Armenians, the Copts, the Ethiopians, and the Jacobites:

In the various component parts of the Church the position at the present moment can be summarized as follows:—

(1) The Entrance Doorway and the Facade, the Stone of Unc­tion, the Parvis of the Rotunda, the great Dome and the Edicule are common property. The three rites consent to the partition of the costs of any work of repair between them in equal proportion. The Entrance Courtyard is in common use, but the Orthodox alone have the right to clean it.

(2) The Dome of the Katholikon is claimed by the Orthodox as being under their exclusive jurisdiction.  The other Communities do not recognize this, maintaining that it is part of the general fabric of the Church, and demand a share in any costs of repair. The Orthodox, however, refuse to share payment with any other Community. The same conditions apply mutatis mutandis to the Helena Chapel, claimed by the Armenians, and the Chapel of the Invention of the Cross claimed by the Latins.

(3) The ownership of the Seven Arches of the Virgin is in dispute between the Latins and the Orthodox, of the Chapel of St. Nicodemus between the Armenians and the Syrian Jacobites, and of the Deir al Sultan between the Copts and Abyssinians. In these cases neither party will agree to the other doing any work of repair or to divide the costs.

(4) The Chapel of the Apparition, the Calvary Chapels, and the Commemorative shrines are in the sole possession of one or other of the rites, but the others enjoy certain rights of office therein. Any projected innovation or work of repair is to be notified to the other rites.

(5) The Katholikon, the Galleries and the Chapels in the Court­yard (other than the Orthodox Chapels on the West) are in the exclusive jurisdiction of one or other of the rites, but subject to the main principles of the Status Quo as being within the ensemble of the Holy Sepulchre.

(Cust Report, pp. 14-15. The Cust Report also included reference to the Jewish Holy Places – the Western Wall and Rachel’s Tomb (Cust Report, pp. 43-48)).

 

The Western Wall

45.       In HCJ 4185/90, we discussed the regard of the Jewish people to the Western Wall at length, and we will present a summary of that discussion:

…The Temple Mount is the holiest place, the first in its level of holiness, for the Jewish people for some three-thousand years, ever since Solomon built the First temple on Mount Moriah (II Chronicles 3:1), and Mount Moriah itself was holy for the People of Israel even a thousand years earlier, since the Binding of Isaac by Abraham – Patriarch of the Jewish People – in the “Land of Moriah” (Genesis 22:2). The Temple Mount is Mount Moriah, “and Isaac our forefather was sacrificed in the Temple” (Maimonides, Laws concerning the Chosen House, 2:1-2; 8:1). This primary holiness of the Temple Mount remains to this very day, even following the destruction of the First and Second Temples: “There is no sanctuary for all generations except in Jerusalem and on Mount Moriah … as it says (Psalms 132:14): This is My resting place forever” (Maimonides, ibid., 1:3). And the western wall of the Temple Mount (the Western Wall), which stands to this very day, is the holiest site in Jewish tradition (at p. 244).

            When the Land was conquered by foreigners, each conqueror had a special interest, of varying extent, in the Temple Mount (see in detail, HCJ 4184/90, at pp. 240-243). Even in those situations, Jews maintained their connection with the Temple Mount and conducted prayers there throughout all the years of exile (see ibid., at pp. 245-256). And just as the Temple Mount, and the Temple that stood upon it, was a symbol of the Jewish religious world and of the Jewish nation’s political sovereignty over Israel, so the Western Wall, the remnant of our destroyed temple, was the holiest place for the Jewish People, and symbolized its desire and aspiration for the return of national sovereignty (see HCJ 4185/90, at pp. 228-229, 232, 233-234, 237-239, 270-271).

            In modern times, the disputes around the Western Wall have increased, along with attempts to deny Jewish historical rights to the site:

At that time (the middle of the nineteenth century) there were many attempts by the Jews to improve their standing at the site most holy to them. In the 1850’s, Hakham Abdallah of Bombay [Rabbi Ovadia (Abdallah) Somekh] tried to buy the Wall, but failed. [Moses] Montefiore unsuccessfully tried to obtain a permit to better the lot of the worshippers by placing benches (or large stones) for sitting, and erecting a rain canopy above the area, but the Jews were permitted only to pave the area. There are testimonies that a table for reading the Torah, as well as a canopy, were occasionally installed, but these arrangements were temporary and were regularly rescinded at the demand of the Waqf, which feared that the Jews would obtain rights over the area. In 1887, Baron Rothschild came up with a plan to purchase the Mughrabi Quarter, remove its dismal stones and – with the consent of the Jerusalem rabbis – turn it into a Jewish trust … but the plan was abandoned for reasons that have remained largely unknown to this day … On the eve of the First World War, the Anglo-Palestine Bank attempted to purchase the Western Wall area for the Jews, but the negotiations were interrupted by the outbreak of war. In the meantime, Jews began to write on the Wall, hammer in nails, place notes in it, and erect prayer furnishings and benches, a mehitza to separate between men and women, a glass-enclosed case for candles, a table for reading the Torah, etc. This led the head of the Waqf to lodge a complaint, in 1912, with the Turkish authorities, and they ordered the removal of all the above furnishings – that had, in the meantime, become almost a tradition – in order to prevent Jewish “possession” of the Western Wall.

…

After the Balfour Declaration and the Mandate, Jews were granted recognized national status in Palestine, and they began to emphasize the importance of the Western Wall as a national symbol, in addition to its traditional religious significance. As opposed to this, the Mufti employed … the claim that the Jews were trying to take over the Wall in order to incite his flock against “the Zionists”. Thus, without any religious or historical basis, he declared the Wall to be a holy Moslem site. The Western Wall, to which Moslems had never before ascribed any importance – and which, at times, they even did not refrain from soiling in order to anger the Jews – was now called “Al Buraq”, in honor of Muhammad’s horse, which the Prophet allegedly tethered to the Wall during his legendary visit to Jerusalem. Interreligious friction concerning the Western Wall continued throughout the 1920’s. In order to aggravate the Jews, the Mufti, who looked down at the Wall from his office in the adjacent “Mahqama”, ordered the making of an opening at the southern end of the Wall, at the Mughrabi Gate, such as to turn the prayer plaza from a dead-end into a thoroughfare for pedestrians and animals, in order to emphasize Moslem ownership of the Wall, several layers of stone were added (on the north), and a wall was built on the northern side, such that those who passed through its gate disturbed the worshippers. On the other side of that wall, adjacent to the Temple Mount, long and loud Moslem ceremonies were intentionally conducted. All of this in addition to the complaints which served to intensify the interreligious tensions. The Moslems complained, in particular, about the erection of prayer furnishings in the plaza by the Jews, and their complaints led to the forcible removal – by the British police – of the separation between men and women on Yom Kippur (in 1928). In August 1929, an incited Moslem mob stormed through the opening that the Mufti had opened on the southern end of the plaza, attacked the worshippers and destroyed religious objects. Several days later, the mayhem spread, and the murderous “1929 Arab riots” began …

In response to these events, the British established a commission of enquiry. The report of the commission included an express comment in regard to the Mufti’s use of the Al-Buraq legend to incite against the Jews. In addition, the report recommended the establishment of an international commission to resolve the “Wailing Wall controversy”. Such a commission was appointed by the League of Nations. Its members were Swiss, Swedish and Dutch, and it conducted the “Wall trial” in Jerusalem in the summer of 1930. Its report (of December 1930) established that the Moslems had absolute ownership of the Wall, but the Jews had an uncontestable right to access it for prayer. However, it also established that the Jews did not have a right to place benches in the plaza, nor to blow the shofar. The Arabs rejected the report’s conclusions, while the Jews accepted them. However, the prohibition upon blowing the shofar was not acceptable to the Jewish public, which viewed it as a harsh insult. Every year, young nationalist Jews continued to blow the shofar at the Wall at the end of Yom Kippur, which always led to the intervention of the British police and to arrests (HaEncyclopedia HaIvrit, vol. XX (1971), s.v. “HaKotel HaMa’aravi”, pp. 1122-1124).

            As for the conclusions of the commission:

They were given the force of law in The Palestine (Western or Wailing Wall) Order-in-Council, 1931. It is generally agreed that this Order-in-Council breathed its last breath with the establishment of the State of Israel (the National Circles case, p. 208). (On the Western Wall, also see: M. Ben Dov, M. Naor, & Z. Aner, The Western Wall, 13^th ed. (1989) (Hebrew).

 

The Liberation of the Western Wall in the Six Day War

46.       With the Jordanian occupation, in 1948, access to the Western Wall was denied to the Jewish residents of the State of Israel. During this period – as far as the Israeli legislature was concerned – there was no need for any specific law treating of the Holy Places, inasmuch as they were in foreign hands. This situation changed with the liberation of the Western Wall in the Six Day War. We addressed this in HCJ 4185/90, above, pp. 246-247:

In the Six Day War, when the Kingdom of Jordan initiated a military attack against the State of Israel and the Jewish part of Jerusalem, the Temple Mount and the Western Wall were liberated from the Jordanian occupation. In addition to the religio-cultural connection between the Temple Mount and the Jewish People, which was never severed, Israeli political sovereignty over the Temple Mount was restored, as it was for a long period in the history of the Jewish nation, from the building of the First Temple by King Solomon, some three-thousand years ago. The historical circle was closed. At the time of the liberation of the Temple Mount by the Israel Defense Forces, while the battles were still raging, the commanders of the IDF ordered that the Holy Places of other religions not be harmed, and to scrupulously maintain respect for them (see: George Rivlin, Har HaBayit BeYadeinu (Ma’archot) 322-323; Amanat Yerushalayim, ibid., part IV, and the bibliography there). That is how Israel’s fighters felt and ordered, as the prophet Micah prophesied: “For all the peoples walk each in the name of its god, but we walk in the name of the Lord our God for ever and ever” (Micah, 4:5)…

…

A few days after the liberation of the Temple Mount, the Israeli government decided, for political and security considerations, to order the paratroop company on the Temple Mount to leave the area. A Border Police observation post was erected, and the area was kept under constant surveillance (Schiller, p. 40). The government also decided to allow Moslems to continue to maintain their presence and worship on the Temple Mount. For these very reasons and additional reasons … and in order to prevent friction with the Moslems, the government decided not to permit public worship by Jews on the Temple Mount.

            This reality led the Knesset to adopt the Protection of the Holy Places Law, on 19 Sivan 5727 (June 27, 1967), which we quoted above (para. 12). The provisions of that law were reiterated in sec. 3 of Basic Law: Jerusalem, Capital of Israel, which states as follows:

                        Protection of Holy Places:

3. The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings towards those places.

 

The National Circles Affair

47.       After the liberation of the Temple Mount, Jews sought to pray there, but the police prevented them. When this occurred in 1968, the National Circles Association petitioned the High Court of Justice to order the Israel Police to “provide appropriate security … in order to prevent the disturbance of Jewish prayer on the Temple Mount”, and “to refrain from disturbing Jewish prayer on the Temple Mount”. The petition was assigned to an expanded bench of six judges. The petition was dismissed by a unanimous Court, but the justices’ opinions differed as to the reasons for the dismissal. All of the justices, as well as the State’s attorneys, agreed that the right of Jews to pray on the Temple Mount, per se, was uncontested. In the words of the late President Agranat:

It would be superfluous to point out … that the right of Jews to pray on the Temple Mount is their natural right, rooted deep in the long history of the Jewish People (National Circles, p. 221).

            Nevertheless, the petition was dismissed. The late Silberg D.P. was of the opinion that the petition should be dismissed because the Protection of the Holy Places Law could not be applied without the promulgation of regulations that would provide practical guidelines for exercising the right to pray on the Temple Mount, given that the site is the holy place of worship for two peoples, Jews and Moslems. Inasmuch as the petitioners had not asked that the Minister promulgate such regulations, the petition should be denied (ibid., pp. 153-156). However, he emphasized that, in his opinion, the Court held jurisdiction to consider the petition, even though it concerned a Holy Place, because The Palestine Order-in-Council (Holy Places), which restricted the Court’s jurisdiction, ceased to hold force and was nullified upon the termination of the Mandate (ibid., pp. 156-158).

            Witkon J. was also of the opinion that The Palestine Order-in-Council (Holy Places) was nullified upon the establishment of the State of Israel, or at least upon the enactment of the Protection of the Holy Places Law (ibid., pp. 161-162), but that the right of the petitioners to request the aid of the police for the purpose of conducting prayers on the Temple Mount was limited by the “common-sense test” (ibid., p. 168). As far as the petition was concerned, “the situation is sensitive and dangerous due to the interreligious situation, and the site is ripe for trouble” (ibid.). Therefore, there were no grounds for the intervention of the Court in the discretion exercised by the police in deciding not to extend assistance to the petitioners (ibid., pp. 166-168).

            Berenson J. was of the opinion that The Palestine Order-in-Council (Holy Places) continued to be in force, and therefore, inasmuch as the petition concerned a Holy Place, the Court lacked jurisdiction to hear or determine the issue. The Government was authorized to address the issue, in accordance with sec. 29 of Basic Law: The Government, which establishes: “The Government is competent to do in the name of the State, subject to any law, any act the doing of which is not enjoined by law upon another authority.” (ibid., pp. 170-178). That was, essentially, the view of the late Kister J., as well (ibid., pp. 182-189).

            As opposed to them, the late Agranat P. was of the opinion that the Protection of the Holy Places Law impliedly repealed the Palestine Order-in-Council (Holy Places) pro tanto. The Protection of the Holy Places Law established substantive rights in regard to the prevention of the desecration of a Holy Place, freedom of access to the Holy Place, and in regard to injury to the feelings of the various religious groups towards their Holy Places (see sec. 1 of the Law). But the Law did not say so much as a word in regard to the right of worship at the Holy Places. In the view of Agranat P., the Protection of the Holy Places Law thus repealed the Order-in-Council in regard to anything repugnant to that Law, but the Order-in-Council remained in force in regard to the right of worship, which was not addressed by the Law. Therefore, the Court held jurisdiction to address the prevention of desecration of a Holy Place, but it did not hold jurisdiction to hear claims in regard to freedom of worship in the Holy Places. The treatment of that matter was granted to the Executive branch (National Circles, pp. 218-228).

            Inasmuch as two of the justices – the late Silberg D.P. and the late Witkon J. – were of the opinion that the Order-in-Council was null and void, and two of the justices – Berenson and Kister JJ. – were of the opinion that the Order-in-Council remained in force, the result was that the opinion of Agranat P. – that the Order-in-Council was repealed in part, but remained in force in regard to rights of worship in the Holy Places – prevailed. This is not the place to elaborate further.

 

The Orthodox Coptic Patriarch of Jerusalem v. Minister of. Police Case

48.       A good example of the extreme sensitivity of the Holy Places can be found in the Coptic Patriarch case. In HCJ 109/70 Orthodox Coptic Patriarch of Jerusalem v. Minister of. Police, IsrSC 25(1) 225 (hereinafter: the first Coptic Patriarch case), this Court addressed a dispute between the Coptic religious community and the Ethiopian religious community. The subject of the dispute was two chapels, “The Chapel of the Four Living Creatures” and the “Chapel of Saint Michael” (adjacent to the Church of the Holy Sepulchre, whose “division” among the various Christian communities we addressed above (para. 44) in the Cust Report), and the passage through which they are entered. In practice, control of the passage and the chapels is maintained by affixing locks on the doors to at the ends of the passage and holding the keys used for opening and closing them. Until the event that led to the petition, the passage and the chapels were controlled by the Copts, but the Ethiopians claimed an exclusive right to possession and worship. During the Easter celebrations of 1970, while the Copts were standing in prayer in the Church of the Holy Sepulchre, the Ethiopians changed the locks affixed to the doors at the two ends of the passage. Pursuant to that, the Coptic Patriarch submitted a petition to this Court, asking that the Court order the restoration of the preexisting status (the first Coptic Patriarch case, pp. 229-234).

            In the Court’s judgment (per Agranat P., Landau, Berenson, Witkon and Kister JJ. concurring), Agranat P. emphasized that the Court would not address the conflicting claims of the parties concerning the disputed rights of ownership and possession, inasmuch as the Court lacked jurisdiction, as was held the National Circles case (the first Coptic Patriarch case, pp. 234-235). However, Agranat P. was of the opinion that the petitioner’s prayer for relief was well founded in principle, based upon the prohibition of self-help. Therefore, on 19 Adar 5731 (March 16, 1971, he ordered that the order nisi issued against the Minister of Police be made absolute, but that “… the implementation of the order be postponed until April 6, 1971, in order to allow the Government, if it find appropriate, to exercise its authority – which it always has – to address the substantive dispute at issue in any manner that it may deem fit. Clearly, in a case as this, the Government may, at any time, issue an order to the parties for the purpose of temporarily regulating the possession, which will be in force until a final decision or arrangement as to the dispute” (ibid., p. 252).

49.       That did not bring the matter to a close. The further developments following the first Coptic Patriarch case are set out in HCJ 188/77 Orthodox Coptic Patriarch of Jerusalem v. Government of the State of Israel, IsrSC 33 (1) 225 (hereinafter: the second Coptic Patriarchate case). The Government issued an interim order not to change the possession of the two Chapels, that is, to leave the possession in the hands of the Ethiopian community, while allowing the Coptic community a right of access. The Government appointed a ministerial committee to decide the dispute between the two churches. The ministerial committee held many meetings, heard detailed arguments, and tried – to no avail – to bring the parties to a compromise. Four years passed, the Government changed, and a new Prime Minister was elected in 1977. Then Prime Minister, the late Mr. Menachem Begin, decided to hand the entire matter to the Ministerial Committee for Jerusalem. That committee established a sub-committee of its members to address the Coptic-Ethiopian dispute after the petition was submitted in the second Coptic Patriarchate case, in which the Court was asked to implement the order absolute issued in the first Coptic Patriarch case. The sub-committee held many meetings, and it too heard the arguments of the parties. The Court made an additional attempt to bring the parties to an agreement, but all to no avail. In the end, when the Court was forced to render judgment, the opinions of the justices were divided.

            In his dissenting opinion, Landau D.P. (Witkon J., concurring in principle) took the view that the petition should be granted, and the Government should be ordered to decide the Coptic Patriarchate’s claim within a reasonable period (ibid., at pp. 241, 248-249). The majority of the Court – Asher, Bechor, and S. Levin JJ. – was of the opinion that the petition should be denied because “the time dimension for deciding is a matter regarding which there is almost nothing in common between the approach of the Court and the Government’s approach to it” (ibid., p. 246).

            This is what occurred in one example of a dispute and disagreement in regard to one of the Holy Places. It is an important warning in regard to the issue before us. And with this we conclude our examination of the history of the Holy Places.

50.       An examination of the history of the Holy Places shows the very sensitive nature of these places to which disputes, disagreements and strong emotions are inherent. The treatment of the Holy Places is characterized by extreme care and moderation, attempts to achieve compromise and mediation between the parties, and by refraining from unequivocal rules and definitive solutions. Such an approach is inappropriate to the nature of the Judiciary, which is used to deciding disputes definitively on the basis of clear legal rules. Therefore, in practice, the treatment of the Holy Places was entrusted to the Executive branch. It relied upon the long-established principle of maintaining the status quo. Preserving the existing situation is the only means that ensures that peace and quiet, and public decorum – so necessary for places imbued with holiness – will be maintained.

 

Freedom of Worship and the Near-Certainty Test

51.       The principle of preserving the status quo can be presented in terms of legal rules that we employ in similar matters. Such is the rule by which a person’s freedom of worship is not absolute, but must retreat where there is a probable threat of harm to public order. This legal rule would seem to be nothing other than the status quo principle in different clothing, more appropriate to the Holy Places.

            Freedom of worship and religion is a fundamental right of our legal system. This was held in HCJ 262/62 Peretz v. Kfar Shemaryahu Local Council, IsrSC 16 2101; IsrSJ 4 191, and it is undisputed:

Religion and ritual are not merely matters of legal ruling to be gathered from the books but essentially matters of emotion, faith and reverence, and even of taste and sensitivity, which are not to be measured by any objective scale equal for all (at p. 2105 per Cohn J. [IsrSJ  4 194]).

…the Council in its decision (not to rent a public hall to members of the Progressive Judaism movement for the festival of Sukkot – M.E.) displayed a bias to one religious denomination and denied the right to exist of another, and in a somewhat arrogant tone decided that the form of service hitherto followed in the village is capable of providing for the religious requirements of the local inhabitants. I would have thought that it is a matter for each individual to search his own soul and decide which form of religious service and which form of prayer would give him inner satisfaction and elevation of spirit. If unity in public life and avoidance of division is what the Council strives for, compulsion will not serve to achieve such aims, and not at the expense of freedom of conscience and religion (ibid., p. 2113 per Witkon J. [IsrSJ 4 204]).

And in the words of Sussman P:

…but neither is it up to them (the Council – M.E.) to decide that the local inhabitants should pray in one form and not in another … But the Declaration of Independence guarantees freedom of religion and worship to every citizen of the State, and even if the Declaration itself does not grant the citizen a right enforceable by judicial process, the way of life of the citizens of the State is determined by it and its fundamental nature obliges every authority in the State to be guided by it (ibid., at p. 2116 [IsrSJ 4 207]).

            More recently, Shamgar P. wrote in his decision in HCJ 650/85 Movement for Progressive Judaism v. Minister for Religious Affairs IsrSC 42 (3) 377, 381:

Freedom of religion and worship is one of the fundamental freedoms recognized by our legal system, and constitutes a part of it.  The expressions of this freedom are, of course, primarily found in the freedoms of religious expression and action, but that is not sufficient. That freedom also requires, inter alia, that all believers be treated equally, and that governmental authorities refrain from any act or omission in regard to the believers of all movements, as well as their organizations and institutions, that smacks of discrimination.

Therefore, every general act performed in the course of carrying out the functions of a governmental authority requires an open, fair approach that is not conditional upon identification with the views of any movement, but that expresses the equality to which all movements are entitled.

52.       Freedom of worship is not an absolute freedom, and it retreats before other rights and interests:

Freedom of conscience, belief, religion and worship, to the extent that it proceeds from potential to practice, is not an absolute freedom … My right to pray does not permit me to trespass upon another’s borders or create a nuisance. Freedom of conscience, belief, religion and worship is a relative freedom. It must be balanced against other rights and interests deserving of protection, such as private and public property rights and freedom of movement. One of the interests that must be considered is that of public order and safety (HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Police Commander, IsrSC 38 (2) 449, 455, per Barak P.).

            As for the “balancing formula” between freedom of worship and public order and safety, this Court has held that it is to be found in the “near-certainty test”:

… Freedom of conscience, belief, religion and worship is limited and restricted in so far as required and necessary for the protection of public safety and public order. Of course, before any action is taken that may violate or limit this freedom by reason of harm to public safety, the police ought to adopt all reasonable means at its disposal in order to prevent the violation of public safety without violating the right to belief, religion and worship. Therefore, if the fear is of violence against the worshippers by a hostile crowd, the police must act against that violence and not against the worshippers. But if, due to its limitations, reasonable action by the police is insufficient to effectively prevent the violation of public safety, there is no alternative but to limit the freedom of conscience and religion as may be required for the protection of public safety.

… The power of the police is not unlimited. It is tasked with many responsibilities. Protecting freedom of conscience, belief, religion and worship is one of the duties of the police, but not its only one. It must also protect other freedoms, including the freedom of conscience and religion of others. In such circumstances, there may be a situation in which, despite the actions of the police, the fear of harm to public safety may remain. Does the existence of that fear, which is not certain, justify the denial or limitation of freedom of conscience, belief, religion and worship?

A fear alone … is not sufficient, but absolute certainty is also not required. Israeli law takes a middle ground of near-certainty … It would therefore appear to me that it would be appropriate that the “near-certainty test” serve for establishing the “balancing equation” between freedom of conscience, belief, religion and worship, on the one hand, and public safety on the other (ibid., pp. 455-456).

            The finding that there is near-certainty that the exercise of freedom of worship will harm public safety must have an evidentiary basis. Such evidence may be found in prior experience:

The requirement is of “substantial” evidence … the assessment must be based upon known facts, including past experience. Conjectures, speculations and apprehensions are not enough (HCJ 153/83 Levi v. Southern District Police Commander, IsrSC 38 (2) 393, 411 [English translation: http://elyon1.court.gov.il/files_eng/83/530/001/Z01/83001530.z01.pdf].

            In the Holy Places there is – in light of past experience that we have reviewed at length – an evidentiary presumption that a deviation from the status quo may lead to a disturbance of public order. This evidentiary presumption, together with additional evidence – and perhaps even on its own – may, in appropriate cases, provide the necessary evidentiary grounds required under the near-certainty test to limit the freedom of worship in the Holy Places, and to delimit it due to the need to preserve public order. In the Holy Places, the principle of maintaining the status quo is often nothing more than a concrete expression of the near-certainty test.

 

Freedom of Worship and the Need for finding the Common Denominator of the Worshippers

53.       In the matter of the petitions at bar, the possible clash is not only between the freedom of worship of the Petitioners and the interest in maintaining public order. There is an additional possible clash between the freedom of worship of the Petitioners and the freedom of worship of other worshippers. The legal principle that must apply to the latter – when it arises in the Holy Places – is one that seeks to find the broadest common denominator of all the worshippers. In the Holy Places, there is no choice – in a case of a clash between the freedom of worship of different worshippers themselves – but to try to find the common denominator of all the worshippers, even if, as a result, the freedom of worship of one may come somewhat at the expense of the freedom of worship of another. The special respect attendant to the Holy Places, and their character, require that worship at the Holy Places be conducted quietly and with decorum, without disputes, and in a manner that allows each person to serve his Maker without infringing the worship of his neighbor. There is no way to accomplish this other than by finding the common denominator of all the worshippers.

It was to this test of finding the broad common denominator that the late Kister J, referred in HCJ Ben Dov v. Minister of Religion IsrSC 22 (1) 440, which concerned a clash – in a particular Holy Place – between the members of one religious denomination and another:

… in the area under the jurisdiction of the State of Israel, there are places that are holy to the members of more than one religion, and the legislature wished to treat all religions equally, and protect the place that are holy to each and every religion. On the one hand, the legislature established the requirement of protection in order not to infringe the freedom of access of the members of the various denominations to their holy places, while on the other hand, it established a requirement of protection against desecration and any other harm, as well as to prevent offense to the feelings of the members of the religious communities in regard to those places. Each religion has its various rules and customs in regard to respect, conduct and even the conditions and restrictions upon entering their holy places, and it is not easy to fulfil them all while ensuring the freedom of access of the members of one religion, on the one hand, and respecting and not offending the feelings of some other religion, on the other hand (ibid., p. 448).

            Kister J. addressed this at greater length in the National Circles case, at pp. 180-181:

The freedom of access to pray does not grant a person the right to act in a manner that injures others or the existing arrangements in the place, and the police may prevent such injury. For example: A person who visits a Catholic church, whether or not he is Catholic, and acts in a manner that offends or angers, such as being dressed in a manner that is not appropriate for church, or covering his head when the accepted practice is to uncover one’s head, or who stands while others bow, and certainly talking during a service, or demonstrating derision, cannot complain if the police remove him from the place, and criminal charges may also be appropriate. This is not limited to a church, but applies to any other place that is holy to Christians, as well as to a procession or other ceremony. By the same token, a Christian may not enter a place reserved for priests, nor may a Moslem man enter a women’s mosque.

            And further on, at pp. 181-182:

It is only natural that when a particular site is deemed holy by the members of different faiths, problems and even disputes may arise in regard to the extent that the members of all those faiths may use the site for their ceremonies. Moreover, it may be that the conducting of a ceremony or the placing of religious symbols by the members of one religious denomination may offend the members of another denomination who may deem it as sacrilege (an extreme example in Jewish history was the erecting of a statue or altar of a pagan god in the Temple by Antiochus Epiphanes). In such a case, it may not be possible for the members of different religions to hold their ceremonies at that holy site, but only that the members of the religion whose ceremonies so offend pray as individuals, without any ceremony and without offending the others, and it is also possible that none of the religious groups will be able to conduct regular ceremonies if what one religion views as worship, another sees as sacrilege. Even if the differences are not so great, it would be hard to order the police to permit the members of each and every religion to conduct prayers or worship in the same place, as each saw fit, inasmuch as the matter might result in clashes and riots.

            In some Holy Places, a common denominator may be found among all the worshippers by maintaining the status quo. In such cases, maintaining the status quo is the appropriate path.

 

“Local Custom” and the Principle of maintaining the Status Quo

54.       Having arrived at this point, we will now employ these principles to examine the regulation promulgated by the Minister, the validity of which is disputed by the parties.

            As earlier stated, subsection (1a) of regulation 2(a) of the Regulations for the Protection of Holy Places to the Jews states as follows:

            Prohibited Conduct

            2.        (a)                     In the area of the Holy Places, and subject to what is set out in sub-regulation (b), the following is prohibited:

            (1) …

(1a) Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place [emphasis added – M.E.].

            This regulation expresses the principle of maintaining the status quo – “local custom” and the status quo are one and the same. In promulgating this regulation, the Minister of Religion did not exceed the authority granted to him by the legislature in the existing Protection of the Holy Places Law, as Shamgar P. explained in HCJ 337/81 Mitrani v. Minister of Transportation, IsrSC 37 (3) 337, 357-358:

The criterion for the validity of secondary legislation is always to be found in the words of the primary legislator. It sets out the boundaries for the actions of the secondary legislator by granting positive authority to carry out secondary acts in defined areas, and in the absence of such a conferral of authority by the primary legislator, the secondary legislator has nothing. The secondary legislator draws its power only from the conferral of authority in the parent law, which defines its permissible operating framework.

            In the matter before us, the secondary legislator acted within the operating framework delineated by the primary legislator. The Protection of the Holy Places Law establishes that the Holy Places – including, of course, the Western Wall – will be protected from desecration and any other violation and from anything likely to violate the feelings of the members of the different religions with regard to the places sacred to them (sec. 1 of the Law). The purpose of the regulation is to realize this law – to prevent the desecration of the Western Wall and violation of the feelings of the worshippers there in regard to the Wall.

55.       There was more than enough evidence before the Minister of Religion that prayer conducted in the manner of the Petitioners – prayer that, as we explained, violates “local custom” – leads to severe, tangible harm to public order, and thereby leads to desecration of the Western Wall. That evidence was presented in great detail at the beginning of our opinion, in the description of the factual background of the petitions (see paras. 4-11).

            The described events create a sufficient evidentiary basis to ground the need for promulgating subsection (1a) of the Regulations in order to prevent desecration of the Western Wall. “… the phrase ‘protected from desecration’ means ‘protection of respect …’” (HCJ 223/67 Ben Dov v. Minister of Religion, at p. 447, per Sussman D.P.). The events that occurred in the Western Wall Plaza when the Petitioners began to pray in accordance with their custom – that is, while wearing tallitot, reading from the Torah, and singing aloud in prayer – demonstrate the severe violation of the respect due to the Wall, and of the desecration. Women sitting and women lying on the Western Wall Plaza, women removed from the Plaza, worshippers throwing mud and dirt, chairs, tables and rocks at one another, and worst of all, the use of tear gas canisters – all intolerable sights at this Holy Place.  And all of this took place in the sight of the media who “happened” to be there. The events that occurred when the Petitioners in HCJ 257/89 attempted to realize their right to pray in the prayer area of the Western Wall Plaza inform us of what may be expected if the Petitioners in HCJ 2410/90 try to pray in that place. It should be noted to the credit of the Petitioners in HCJ 2410/90 that when they were told that their praying at the Wall while wearing tallitot and reading from the Torah would violate local custom and the feelings of the other worshippers, they refrained from conducting their prayers (see para. 11, above), as opposed to the Petitioners in HCJ 257/89 whose conduct precipitated severe, bitter disturbances, while they laid themselves out on the Western Wall Plaza, and so forth, with no thought for the desecration of the Holy Place.

56.       The Petitioners argue that “if the police fear the violence of a hostile crowd against the women worshippers, then it must act against that violence and not against the women worshippers” (sec. 13 (a) of the amended petition in HCJ 257/89). It has already been held in this regard that:

… if, due to its limitations, reasonable action by the police is insufficient to effectively prevent the violation of public safety, there is no alternative but to limit the freedom of conscience and religion as may be required for the protection of public safety (HCJ 292/83, above, p. 455, per Barak J.) [emphasis added – M.E.].

            In the Holy Places, the reasonableness of police action is not evaluated exclusively on the basis of “the means at its [the police] disposal” (ibid., p. 456), but also with regard for the special character of the Holy Place. The sight of dozens of baton-wielding police standing in the city center is not comparable to the sight of dozens of police in a Holy Place. The very presence of those police in a Holy Place can lead to a desecration of the site.  Therefore, when ensuring someone’s freedom of worship may require that the police take such action as dispersing tear gas canisters, we must conclude that such action should not be required of the police in a Holy Place.

57.       Despite the said evidentiary grounds before the Minister of Religion, the Minister did not promulgate the regulation addressed by these petitions immediately following the described events, but first attempted to bring the parties to a peaceful compromise. The Minister was right to adopt that approach, inasmuch as the paths of peace, which are always appropriate, are particularly appropriate in regard to the Holy Places.

            The Minister of Religion was forced to promulgate the regulation to prevent desecration of the Western Wall only when it became clear that the dispute could not be resolved peacefully. An additional virtue of the regulation is that the “local custom” to which it refers is intended not only to prevent desecration of the Wall, but also expresses the broadest common denominator of all the worshippers at the site. As we explained in addressing the halakhic position, prayer in the manner conducted by the Petitioners comprises ceremonial elements that are not acceptable to the overwhelming majority of Jewish communities. The broadest common denominator of all the female worshippers in the Western Wall Plaza is in accordance with the form of worship that has been acceptable in the Western Wall Plaza for generations by the male and female worshippers who visit the site every day, every year, in all seasons, and even by the Petitioners. The common denominator for women praying at the Western Wall is to be found in the manner of prayer that is customary in the overwhelming majority of Jewish communities, which does not include women wearing tallitot and reading the Torah.

58.       In light of all the above, we conclude that the regulation promulgated by the Minister of Religion is valid. Promulgating the regulation was within the Minister’s authority, it was not intended to discriminate among worshippers, but was entirely compelled by the need to preserve the sanctity of the Western Wall. The regulation is a reasonable expression of the principle of preserving the status quo, the principle of preserving public order in a Holy Place, and primarily – in expressing the broadest common denominator of all the worshippers at the site. In this regard, in another context, Shamgar P. wrote in HCJ 156/75 Daka v. Minister of Transportation, IsrSC 30 (2) 94, 103-105:

Not every decision that the Court sees as comprising some measure of unreasonableness is sufficient to invalidate a regulation. For the purpose of the matter before us, the unreasonableness must be extreme and not mere trivial unreasonableness.

                        …

… Here, too, we apply the important principle that the Court will not supplant its own discretion for the discretion of the authority that promulgated the regulation, and the fact that the Court might have established other, more flexible rules had the matter been given to its discretion and authority, does not itself justify invalidating a regulation …

                        ….

The Court will generally exercise great self-restraint in evaluating the validity of secondary legislation.

            And as Olshan P. explained in HCJ 57, 58/53 Tabak Haus v. Haifa Municipality, IsrSC 7 701, 707, the basic tendency of the Court is to validate secondary legislation, to the extent possible, and not to invalidate it.

            Further on in the Daka case (above), Shamgar P. added (at p. 106):

The reasonableness of a regulation cannot be deduced merely from its application in a single concrete case, without also addressing and weighing its general, legitimate purpose. Here, too, reasonableness is not an absolute concept but a relative one. Therefore, a situation may arise in which the weight to be granted to an injury to an individual that derives from the regulation may be reduced when considered in light of the policy that the regulation expresses, which is firmly grounded in the authorizing primary legislation.

            In the case before us, the reasonableness of the subsection of the regulation derives from the policy grounding the regulation, and from the purpose that it seeks to realize – a policy grounded in the Protection of the Holy Places Law – which is the protection of the Holy Place against desecration.

 

Consultation with the Chief Rabbis

59.       As stated, the Petitioners complained of the Minister of Religion’s consultation with the Chief Rabbis prior to promulgating the regulation. This claim is lacks any merit. Section 4 of the Protection of the Holy Places Law expressly states:

                                    The Minister of Religious Affairs is charged with the implementation of this Law, and he may, after consultation with, or upon the proposal of, representatives of the religions concerned and with the consent of the Minister of Justice, make regulations as to any matter relating to such implementation [emphasis added – M.E.].

            In the matter before us, the relevant representatives of the religions concerned are the Chief Rabbis:

Until now, no regulations have been promulgated in regard to the right of prayer on the Temple Mount for the relevant religious communities …

… and when the matter shall reach the Minister of Religion, he will be required to enquire as to the position of the heads of the Moslem religious community and the position of the Chief Rabbinate (the National Circles case, at p. 189) [emphasis added – M.E.].

            The Chief Rabbinate is the “highest halakhic authority in the State” (HCJ 47/82 Foundation of the Israel Movement for Progressive Judaism, above, p. 682). That is all the more so after the enactment of the Chief Rabbinate of Israel Law, 5740-1980, the adoption of which:

Reinforced the status of the Chief Rabbinate as an official religious authority of the entire Jewish public, in accordance with the functions granted to the Council in sec. 2 of the Law (HCJ 47/82, at p. 693).

            The Minister of Religion was therefore required to consult with the Chief Rabbis before promulgating the said regulation.

 

“Local Custom” for Worship at the Western Wall

60.       The Petitioners raised various claims in regard to the differences in the liturgy between the Ashkenazic and Sephardic communities, and so forth, but these claims lack any merit and have nothing in common  with the subject of the petitions regarding a prayer service conducted by women wearing tallitot, reading the Torah, and so forth. Another strange claim raised by the Petitioners is:

Both the International Commission (for the Wailing Wall, 1930 – M.E.), and even the Shaw Commission Report on the Palestine Disturbances of August 1929 … make it clear that at that time there was no mehitza at the Wall, or any other furnishings other than a portable Torah ark that could be brought to the Wall on specified days (para. 64 of the summary pleadings, above).

            In this regard, the Petitioners in HCJ 2410/90 appended photographs from various periods, prior to 1948, from which it appears, as they state it, that: “There was not even a custom of separating Jewish male and female worshippers at the Wall” (para. 65 and appendices P/19-P/23 of the summary pleadings, above).

            It were better that these claims had not been raised at all. As we stated above:

Interreligious friction concerning the Western Wall continued throughout the 1920’s … The Moslems complained, in particular, about the erection of prayer furnishings in the plaza by the Jews, and their complaints led to the forcible removal – by the British police – of the separation between men and women on Yom Kippur (in 1928). In August 1929, an incited Moslem mob stormed through the opening that the Mufti had opened on the southern end of the plaza, attacked the worshippers and destroyed religious objects. Several days later, the mayhem spread, and the murderous “1929 Arab riots” began (HaEncyclopedia HaIvrit, vol. XX, pp. 1123-1124) [emphasis added – M.E.].

            How can one infer the lack of a “local custom” in regard to the separation of women and men from a situation that was forced upon the Jews by the decree of a foreign ruler? I am at a loss.

            The question before the Court is, therefore, whether it accords with the “local custom” at the Wall for women to pray while wrapped in tallitot or reading the Torah, and whether women pray there in the framework of a “minyan” and while raising their voices in song. The answer to this question is clear. It can be found in the affidavit of Rabbi Getz, according to which:

Women’s prayer in the manner requested by the Petitioners has never taken place in the Western Wall Plaza, not during all the years that I have served as Rabbi of the Wall since 1986 (para. 3 of the affidavit of Rabbi Getz of Feb. 7, 1991).

            The Petitioners claimed that there was an event in which people prayed “in an identical or similar way” in a ceremony at the Wall (para. 18 (b) of the petition in HCJ 2410/90. Needless to say, that is insufficient to testify to the “local custom”, as Rabbi Getz testified:

If ever there was such an event in the Western Wall Plaza, as claimed in the petition, it was an exception that is neither evidence or instructive as to the rule (para. 3 of the affidavit of Rabbi Getz of Feb. 7, 1991).

 

Conclusion

61.       It is clear beyond all doubt that granting the petitions before us would lead to particularly harsh, bitter and sharp dispute, as well as to violence that would end in bloodshed. It is an uncontested fact that the overwhelming majority of worshippers who visit the prayer area at the Western Wall every day and every night are of the honest, good-faith opinion and belief that the changes requested in the two petitions before the Court amount to desecration of the prayer area at the Western Wall. Not only will it result it extremely violent and severe dispute, but in terms of halakha, both men and women will be prevented from praying at the Wall. At present, access to the Wall and prayer at the Wall are open and permitted to every Jewish man and women, who pour out their hearts before God as each women and man desires, and as each wishes to speak with his Maker, whether by heart or from a book. It is would be unthinkable that different dates and times for prayer would be instituted at the prayer area at the Western Wall for the prayer services of different groups, and that the fate of this holy site would be its division into times and periods among the members of the Jewish People, their holidays and different movements, as has been the fate of the Holy Places of other religious communities, as we have learned and seen in what we stated above (paras. 44, 48, 49). As stated above (para. 39), the substantive change in the status of women and their place in the current century, to which religiously observant women are full partners, may be eventually show its effects even in this complex, sensitive area of women’s prayer groups, as stated above. But the prayer area at the Western Wall is not the place for a “war” of deeds and opinions in this regard. At present, the reality is that the overwhelming majority of halakhic decisors and the Chief Rabbis of Israel are of the opinion that granting the petitions, even that in HCJ 2410/90, would constitute a desecration of the prayer area at the Western Wall, which is the one and only place in all the Jewish world, divided in opinions and customs, where free access is guaranteed to every Jew, man and women, regardless of who they are. The Western Wall is a spiritual and real, special and unique asset that unites all the Jewish People, and we are obligated to protect it against every challenge. That objective can be achieved by finding the common denominator of all the Jewish People, whoever they may be, who come to pour out their hearts before their Creator in the prayer area at the Western Wall. That objective will be achieved only if we strictly observe what is set out in regulation 2 (a) (1a) that was promulgated by the Minister of Religion, in consultation with the Chief Rabbis, and with the approval of the Minister of Justice, which prohibits “Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place”. In light of all the above, this regulation, promulgated by the Minister of Religion under the authority granted him by the legislature, is reasonable and even necessary, and is not tainted by any extraneous consideration that might invalidate it. Granting the petitions before the Court would constitute a substantive change in the local custom, and the conducting of prayer services in the manner requested in the petitions would constitute a grave offense to the feelings of the overwhelming majority of worshippers in regard to the place. An important principle of this Court is that we do not intervene in secondary legislation except when it suffers from extreme unreasonableness or is tainted by extraneous considerations. That is not the case here. The purpose of the regulation is to find the common denominator in order to facilitate the prayers of every Jew, whomever he may be, in the place that is holiest to the Jewish People, while preventing severe, violent dispute in this one unique place that unites the Jewish People. That is a good objective. It is reasonable and desirable in accordance with the facts and circumstances that we presented above.

            Clearly, it goes without saying that the Petitioners are entitled to pray in accordance with their custom in their communities and synagogues, and no one will stand in their way. The freedom of worship of the Petitioners stands. But due to the uniqueness of the Western Wall, and the great sensitivity of Jewry’s holiest site, prayer at that one unique place must be conducted in accordance with the common denominator that makes it possible for every Jew to pray there – the local custom that has been observed there for generations, and that should be strictly adhered to.

62.       Along the way, we addressed the concept of “true judgement that is according to the truth”, which the Sages deemed a proper and desirable objective for which a judge should strive in rendering judgment (paras. 37 and 38; and see my book,  Jewish Law – History, Sources, Principles above, pp. 226-232, 1075, and elsewhere). We addressed two interpretations of this concept, and it would seem fitting to conclude this discussion with an additional interpretation that was given to the task of a judge in making “true judgment that is according to the truth”. This interpretation is that of Rabbi Joshua Falk Katz, one of the greatest and earliest commentators of the Tur and the Shulhan Arukh, in seventeenth-century Poland, who wrote (Drisha, Tur, HM 1(b)):

Their intention in saying “true judgement that is according to the truth” means to say that one judges in accordance with the place and time of the matter so that it be according to the truth, with the exception of not always actually judging in accordance with actual Torah law. Because sometimes the judge must rule beyond the letter of the law in accordance with the time and the matter, and when he does not do so, even though he renders true judgment, it is not according to the truth. As the Sages said: Jerusalem was only destroyed because they based their decisions only upon Torah law and they did not go beyond the letter of the law. And concerning that it is said: You must not deviate from verdict that they announce to you either to the right or to the left, on which the Sages said: Even if they say to you that right is left, etc., and all the more so if they say the right is right, etc.

            When treating of a subject as sensitive and central to the world of halakha, in the place that is holiest in the Jewish world and Israel in the generations following the destruction of the Temple, it is only right and fitting that we act beyond the letter of the law, in accordance with the common denominator of all Jews, whomever they may be, so that all can go to the Western Wall at any time or hour to pour out their hearts before their Maker, for the peace and unity of Jerusalem their capitol. In that, we will have rendered true judgment that is according to the truth.

            I therefore recommend to my colleagues that the petitions be dismissed.

            In order to bring the parties to the observance of the law and what is beyond the letter of the law, I recommend that we do not impose costs.

63.       I have read the opinion of Justice S. Levin, and I see no need to add to my clearly detailed opinion. I will, however, address my colleague’s conclusion, that:

A total ban upon conducting worship services at the site of the Wall should not be imposed merely because there are groups that oppose them, and considerations of certain and proximate danger of disturbance of the peace need not necessarily justify imposing such a ban. Rather, it is the duty of the relevant authorities to see to the appropriate conditions in order to strike a balance among all the relevant interests, in order that all who seek to congregate at the Wall and its plaza can fully exercise their rights without overly offending the sensitivities of others.

            Accordingly, he is of the opinion that the petitions should be granted.

            This is an absolutely new approach in the case law of this Court, and it stands in utter contradiction to a long line of decisions since the National Circles case. This decision concerns the holiest place in the Jewish world on the eastern side of the Wall, that is, the Temple Mount, upon which the First and Second Temples stood, and which housed the Holy of Holies (see in detail: HCJ 4185/90, pp. 228-247), and the holiness of the Western Wall derives from its being “the last remnant of our Temple”. In all of those decisions, without exception, it was held, on the one hand, that the right of members of the Jewish People to pray on the Temple Mount is undisputable and eternal, it exists from time immemorial and will continue for all the future, and other such superlatives. However, on the other hand, in order to preserve public order and prevent a proximate threat of disturbances and rioting, Jews were prevented from praying on the Temple Mount. Freedom of worship thus retreated before the need to preserve public order to the point of denying any Jewish religious worship on the Temple Mount. The extent of this approach can be seen in a decision issued by this Court some eight months ago, on April 4, 1993, in which we addressed, inter alia, the petition of a Jew who wished to enter upon the Temple Mount “while wearing tefillin and a tallit or carrying holy ashes …” (HCJ 67/93 “Kach” Movement v. Minister of Religious Affairs, IsrSC 47 (2) 1, 3). The petition was denied. The reasons for the decision (per Goldberg J., Barak and Mazza JJ. concurring) stated, inter alia (at pp. 5-6):

It would not be superfluous to point out that the position of the State Attorney’s Office in the aforesaid HCJ 99/76 was … that: ‘The Petitioner’s right of access to the Temple Mount is a fundamental right, established by law, and is not and never was disputed. We may even assume that no one will bother to enquire if, in the course of visiting this exalted place, he chooses to speak quietly with his Maker. But if what he desires is a demonstrative display of prayer … the matter is different.

This would appear to be consistent with the claim of the Petitioners. If their right of access to the Temple Mount is a fundamental right that is not infringed even if, while realizing it, the visitor silently speaks with his Maker, then why should silent prayer be prevented simply because the Petitioner has a prayer book or other holy text in his possession, or is wearing tefillin or a tallit? However, in the opinion of the police, there is a real fear that such an act would be interpreted as a provocation, and would lead to a disturbance of public order that might even result in bloodshed …

The question is, do we have the ability to decide that the fear raised by the police is groundless, and that its considerations are unfounded to the point that we will intervene? I believe that the answer is self-evident in view of the exceptional sensitivity of the place, which is unparalleled in any other place in the country. Therefore, even if we understand the desire of a visitor who innocently wishes to pray privately while carrying religious paraphernalia, we cannot, at this time, deem the positon of the police to be flawed in terms of its reasonableness.

            And here one may ask: How is it possible that a single, solitary Jew cannot ascend to the Temple Mount (and we are concerned with those parts of the Temple Mount to which entrance is permissible in the opinion of many great halakhic scholars – see in detail HCJ 4185/90, at pp. 259-268) while wearing a tallit or holding a prayer book in his hand, when such an absolute prohibition of freedom of worship is justified by this Court by reason of the existence of a threat to public order and rioting, while as opposed to this, prohibiting prayer by women wearing tallitot and reading the Torah, which involves only a certain concession in the religious ceremony, and other than that they are free to pray as they wish at the Wall, and while there is no doubt that this has always been the local custom, and where there is a nearly certain danger of riots, disputes and tear gas canisters – as occurred in the past – nevertheless, such a change should be permitted in order to prevent an infringement of freedom of worship! How is the Temple Mount on the east of the Wall different from the prayer plaza on the west of the Wall, both of which are Holy Places? According to the decisions of this Court, any Jew, even one individual, is prohibited from praying on the Temple Mount, and that is consistent with the principle of freedom of worship, but prohibiting the inclusion of a single element in the prayer service, one that was never customary at the Wall and to which the overwhelming majority of worshippers there are extremely opposed, such a prohibition constitutes an infringement of freedom of worship? Therefore, it is fitting and proper that, in order to prevent discrimination, a commission be appointed, as my colleague the President proposes, and that when the Court is called upon to address this subject again, it will consider the subject of freedom of worship in its entirety, on both sides of the Western Wall. As I stated above, the petitions should be dismissed.

 

President M. Shamgar:

1.         These petitions focus, in theory and practice, upon the interpretation and meaning of sec. 3 of Basic Law: Jerusalem, Capital of Israel, and the Protection of the Holy Places Law and its regulations.

            These statutes express the State’s concern in preventing the desecration and any other violation of the Holy Places. At the same time, the said provisions establish that the Holy Places will be protected against anything that might violate the freedom of access of the members of the various religious communities to their Holy Places or their feelings in regard to those places.

            This provides statutory expression to the statements of the Declaration of Independence, which declares that the State of Israel will ensure freedom of religion and conscience, and will protect the Holy Places of all religions.

2.         The Wall – which bounds the Temple Mount on its western side – was sanctified in the religious tradition of the Jewish People as the remnant of our Temple. For thousands of years, it has represented in our national tradition what we lost with the destruction of the Temple, as well as the continuity of our national existence. In the eyes of the religious halakha, it is a mikdash m’at; from a nationalist perspective, it symbolizes generations of suffering   and the aspiration for a return to Zion and the return of our diaspora, and therefore, it expresses the strength and vitality of the nation, its ancient roots and its eternality. Therefore, inter alia, the opening ceremony of Remembrance Day for the Fallen Soldiers of Israel is held there, and soldiers are sworn in while facing it.

            The importance of preserving it – its exalted, esteemed status and the unifying, fortifying power it radiates to all parts of the nation in Israel and in the Diaspora – increased and was reinforced due to the temporary restrictions imposed, in practice, by the governments of Israel upon the freedom of access of Jews to the Temple Mount.

            In light of the status of the Western Wall in the public mind, one can understand the concern and diligence in regard to the following two objectives: maintaining freedom of access to the Wall, and upholding the obligation to preserve respect for the place and all its visitors. Expression was already given to these different objectives in the law enacted in 1967: In speaking of desecration – against which the Holy Place must be protected – the legislature was referring to harmful acts that by their nature or consequences violate the holiness of the site. At the same time, it established that freedom of access must be ensured to anyone who regards the place as sacred, and infringement of that free access must be prevented. The law further instructs that violation of the feelings of the members of the religious community that regard the place as sacred be prevented (and see sec. 2 (b) of the above law[10]). Understandably, these primary objectives are not necessarily compatible in all possible circumstances, and when a conflict arises, an appropriate path must be found to balance these objectives in order to ensure that the fundamental purpose is not infringed.

            It is therefore sad when a Holy Place become a scene of verbal or physical dispute, and when people conduct themselves there in a manner that does not show respect for the place and its visitors. We should be mindful that it is difficult to preserve the honor of a Holy Place if we do not also respect the honor of those who visit it.

            Therefore, we have emphasized on various occasions that the sons and daughters of a free society in which human dignity is a fundamental value, are asked to respect the personal-emotional feelings of the individual and his dignity as a person, while understanding that the personal-emotional priorities and the manner of expressing them differs from person to person. Thus we were of the opinion in CA 294/91 Jerusalem Community Jewish Burial Society v. Kestenbaum, IsrSC 46(2) 464, that a free society is sparing in imposing limits upon the choices of the individual and acts with patience and tolerance, and even tries to understand the other, even when he chooses paths that the majority does not deem acceptable or desirable.

            However, we must bear in mind that tolerance and patience are not unidirectional norms, but rather they are peripheral and multidirectional. An enlightened society also respects the beliefs and opinions of those who fiercely hold them and identify with them in a manner that is not necessarily the manner of the average person. Understanding others is more important than self-understanding. With all due regard for the aphorism “know thyself”, borrowed from another cultural tradition, it cannot replace adopting the principle of tolerance as expressed in the great rule: “what is hateful to you, do not do to your fellow”. Tolerance is not a slogan for acquiring rights, but a standard for granting rights to others. Ultimately, tolerance must be mutual. Belligerent demonstrations that sometimes draw upon the practices of violent societies from the east and west are not appropriate to it.

            All of this leads us to the bumpy road of trying to balance between approaches and beliefs that are incompatible. In this regard, it is worth remembering that exclusive focus upon presenting questions and problems before the Court – the “wonder drug” of our generation – is not necessarily the appropriate solution or the desirable remedy for all that ails us. At times it comprises the desire for an imposed solution, grounded in a judicial order, when an attempt at reaching agreement and discussion between the various approaches seems more difficult. However, a solution achieved through agreement and understanding has the advantage of deriving from the parties, and the spirit that led to the agreement will imbue its results.

3.         The halakhic and historical analysis in the opinion of my colleague Deputy President (Emeritus) Elon is impressive and tremendously informative.

            My honorable colleague’s call to find a common denominator for all Jews, whomever they may be, is also worthy of respect. But in my view, the common denominator means sufficing with the basic arrangements that would ensure freedom of access and freedom of worship to everyone, without imposing special conduct upon those who do not want it, and without violating the sensitivities of the believers. It does not mean imposing the strictest approach. Incidentally, if we were to adopt the strictest approach, then no Jew would be permitted to visit the Temple Mount.

            I also concur with my colleague’s conclusion that, in light of the unusual sensitivity of the issue at bar, it cannot be resolved at a stroke, while ignoring its deep roots. On the other hand, I am not convinced that the Respondents are not exaggerating the conflicts and differences. Thus, for example, anger was expressed in regard to the Petitioners’ singing, despite the fact that they were singing prayers. Besides, is there any prohibition upon singing at the Wall? After all, people often sing and dance there, and it is unthinkable to prevent the singing of visitors, Israelis or foreigners, soldiers or citizens that is conducted with decorum. Therefore, it is possible, and I emphasize the term “possible”, that the objectors’ opposition to the identity of the singers has led to an opposition to singing itself, which is inappropriate.

            In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws.

            I have already noted that this Court may not be the most effective medium – and certainly not the only one – that, through meeting with the various parties, can try to find practical ways for realizing the legislative purpose of the two aforementioned laws, which continues and realizes the principle declared in the Declaration of Independence.

            If the relevant parties are willing, it would be appropriate to make at least an attempt to reach a solution that would be suitable to all those who wish to visit the Western Wall.

            It is, therefore, my opinion that, at this stage, we should not decide the matter before us in the manner that a normal legal dispute is decided. I would recommend to the Government that it consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers.

            Therefore, I would, at present, dismiss the petitions, subject to my above recommendation. The gates of this Court are always open, but as stated, the other available options should first be exhausted.

 

Justice S. Levin:

            I concur in the opinion of my colleague the Deputy President with regard to the jurisdiction of this Court to address the subject of the petition, but I do not see eye-to-eye with him with regard to most of his reasoning or with the operative result for the petitions. I will briefly explain my view of the subject:

A.        In my opinion, the subject of the petition should not be decided on the basis of halakhic considerations. After all, it is clear that the Protection of the Holy Places Law (hereinafter: the Law) is a secular law. It takes account of considerations of the relevant religious communities, including the considerations of the Chief Rabbis (see sec. 4), but not only those considerations, and the terms it employs should be interpreted in accordance with the common denominator acceptable to the Israeli population in its entirety. Therefore, the terms “desecrate”, “other violation”, and “anything likely to violate … their feelings (of the members of the religious communities – S.L.) towards those places” in sec. 1 of the Law should be given an interpretation that, on the one hand, expresses the right to freedom of worship and religion, as accepted in a democratic society and as “tolerated in it”, and on the other hand, the protection of the interests of public safety and “intolerable” violation of the feelings of others as acceptable in that society.

B.        Unquestionably, the Western Wall (and its plaza) has been a holy site for the Jewish People for generations, as a religious site and a prayer site, but at the same time, it also bears national symbolic significance as a unique historical remnant of the walls of the Temple, a symbol of the Jewish kingdom that the masses of Israel yearned for throughout the generations. In these circumstances, the fact that the Wall serves as a site for prayer is not necessarily decisive in establishing the scope of activity permitted at the site. In this sense, I am unwilling to accept a priori and as a foregone conclusion that for the purposes of the Law, the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other.

C.        The above leads to two primary results. One in regard to the right to freedom of worship at the Western Wall site, and the other in regard to the right to conduct other activities of an appropriate nature at the site. As for these two types of matters, we should establish permission in principle for conduct, as long as that conduct does not constitute “desecration”, an “other violation”, or a “violation of feelings” of the nature that I have already mentioned above. In this regard, in my opinion, the adoption of the broadest common denominator as a standard – in the manner presented by my honorable colleague -- is of no help. Consider, for example, even if there are those who believe that a particular manner of prayer is absolutely forbidden by a severe halakhic prohibition, or that activities of a national character at the Wall are objectionable in their eyes, that alone should not justify prohibiting such activity. In my view, the common denominator that must be taken into account in the matter before us – and I agree that it is possible to employ this test – is the common denominator of all the groups and people who visit the Western Wall site and the plaza in good faith, whether for prayer or for other legitimate purposes. If we do not say this, then we hand an exclusive monopoly to a particular point of view, in preference to any other, in regard to freedom of expression, and as a result, the right to freedom of worship and freedom of expression will be found lacking.

D.        What I have said up to now does not mean that limitations cannot be placed upon certain types of conduct at the Western Wall site. Without exhausting the subject, it may be justifiable to restrict religious ritual or other conduct at the site when the common denominator of the public that legitimately cares about the Wall, and not merely one sector, sees the conduct as an “intolerable” violation that “desecrates” the site, or where the conduct is not carried out in good faith but simply to anger and provoke, or where circumstances justify establishing that certain concrete conduct will, by reason of its extent or timing, lead to a breach of public order in circumstances in which preventing the conduct (in those concrete circumstances) overrides the right to worship or the conduct of the relevant party, while ensuring appropriate alternatives for the conduct in order to limit the danger to public order that would result from it.

E.         The result of all the above is that no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace need not necessarily justify imposing such a prohibition. Rather, it is the duty of the relevant authority to ensure the appropriate conditions in order to balance all the relevant interests so that all those who seek to assemble at the Wall and its plaza may fully realize their rights without unnecessarily violating the feelings of others.

F.         I concur with my honorable colleague President Shamgar that regulation 2 (a) (1a) of the Regulations for the Protection of Holy Places to the Jews is not repugnant to the Law, but in my opinion, the term “local custom” need not be interpreted specifically in accordance with the halakha or the existing situation. It is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others, subject to the limitations that I have noted above.

            Four years have passed since the events that led to the filing of the petitions before us, and that period is long enough for the Petitioners and the Respondents to reexamine their concrete positions in accordance with the guidelines set out above. In light of the long period that has passed since the above events, it is no longer appropriate to decide at present whether or not the conduct of any of the Petitioners was in good faith at the time.

            Under these circumstances, I am satisfied that, at this point, it is sufficient to issue a decision that recognizes in principle the good-faith right of the Petitioners to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls, subject to the provisos that I have already noted above. That is what I would decide. In light of the sensitivity of the subject, and the need to prepare for the execution of this decision, and perhaps also to enact legislation to arrange the matter, I would recommend to my colleagues that this judgment be issued subject to the interim order remaining in force for one year from today.

            Like the Deputy President, I too would not make an order for costs.

 

            Decided by majority to dismiss the petitions, subject to the recommendation in the opinion of presiding judge.

 

Given this 14^th day of Shevat 5754 (Jan. 26, 1994).

Supreme Court of Israel

HCJ 129/13

 

Before:            The Honorable President A. Grunis

                        The Honorable Vice President M. Naor

                        The Honorable Justice E. Rubinstein

 

Petitioners:      1. Eli Axelrod

2. Moshe Axelrod

v.

Respondents: 1. Government of Israel 

2. Israeli Knesset

3. Ministry of the Interior

 

Petition to grant an order nisi

 

Date of Hearing: 21 Shvat 5774 (January 22, 2014)

 

On behalf of Petitioners:           Adv. Eli Axelrod

On behalf of Respondents 1,3: Adv. Ran Rosenberg

On behalf of Respondent 2:     Adv. Dr. Gur Bleigh

 

Judgment

 

President A. Grunis and Vice President M. Naor:

1.         This petition seeks to bring before this Court again a difficult and painful problem. This problem pertains to citizens of Israel, many thousands of them, who cannot marry in this Country because they are not members of one of the recognized religious groups, or one of them is not a member of one of those groups. In addition the petition relates to those who can marry in Israel, but do not wish to do so in a religious ceremony.

2.         The stated problem has been presented to this Court in several petitions argued in the last few years: HCJ 7127/11 Center for Jewish Pluralism v. Government of Israel (Dec. 5, 2011); HCJ 1143/11 Jerusalem Institute for Justice v. The Knesset (Oct. 18, 2012). The first petition was deleted and the second was denied, in both cases after the petitioners accepted the recommendations of the different panels hearing the cases to retract the petitions. There is nothing novel in the current petition in comparison to the previous ones. Clearly, the solution to the difficult problem has to be by way of Knesset legislation. However, the Court cannot order the legislature to legislate. There is a dramatic distinction between striking down a law due to a constitutional defect, and ordering the legislature to regulate a certain issue in legislation. The additional claims raised by the petitioners, including the one pertaining to the Marriage and Divorce (Registration) Ordinance and its treatment of civil marriage, do not substantiate a cause of action.

3.         Regrettably, we do not see a basis for the Court’s involvement.

 

President, Vice President

 

Justice E. Rubinstein:

A.        I join my colleagues’ judgment. I would like to note that, sadly, the problem invoked by the petitioners is very old, and has worsened with the wave of immigration from the Commonwealth of Independent States (former Soviet Union) from the late 1980’s, as it is undisputable that large numbers of those entitled to Shvut in a family’s two generations are not Jewish according to Halacha; even though they are of Israel seed, through father, grandfather, or grandmother.

            I would be the last to support intermarriage; however a solution to citizens seeking to marry must be given to them within their country. In my opinion in LFA 9607/03 Ploni v. Plonit (2006), paragraphs J-K, I said about them:

“Intermarriage, a painful issue since ancient days (see, during the first return to Zion – Ezra 9 1-2, 12 and chapter 10, and Nehemia 9 31), makes my heart cringe, due to its meaning in the historical respect and its impact on the state of the Jewish people and its size, to an existential degree … (But) I doubt that closing our eyes to the fact of these difficulties is the way to deal with intermarriage, given the factual and legal reality that has evolved over the years … It seems that the wave of intermarriage, which appears with great force within a big part of the Jewish diaspora and exists among our people as well since the waves of immigration of the previous decades – is not going to be stopped in this way, and attending to the larger matter is beyond the judicial scope … The place for decision is the legislature … the Legislature ought to consider an arrangement that would be suitable to those Israelis who cannot marry in Israel (emphasis in original – E.R.); I dare say, that if it were possible to persuade each and every Jewish man and woman, for many good reasons, to marry members of the Jewish people, there would be no-one happier than me, certainly so after a third of the People was decimated in the Holocaust. But since this is not the reality, the state should provide the suitable solutions, of course while accounting for its Jewish and democratic character – as well as for the slippery slope that can ensue.”

 

The son of a Jewish father and a non-Jewish mother – Petitioner 1 did nothing wrong. He is an Israeli citizen, as good as any of us, subject to duties and entitled to rights, including the right to marry. Since the 1970 amendment to the Law of Return, 1950, and the addition of Section 4A, the right to marry applies also to citizens entitled to Shvut and to their offspring. The Law on Matrimonial Partnership for People without Religion, 2010, does not apply to the Petitioner, since he seeks to marry a Jewish woman. He apparently chose not to convert into Judaism although he considers himself Jewish; to me this would have been a practical and commendable solution, but it is up to him and his personal decision. Therefore the state should devise a fair solution to those like him, one that would not make any of its citizens feel as if they are “second rate.” Indeed, the difficulty in this is clear and for that reason the Law on Matrimonial Partnership was dedicated to those without a religion, as its name suggests; however a solution to the complex question is required, while reserving marriage to the religious groups within themselves; the issue is clearly in the purview of the legislature.

 

Justice

 

The petition is denied. Given the circumstance no fees will be assessed.

 

Entered today, 25 Shvat 5774 (Jan. 26, 2014)

 

President                             Vice President                             Justice

Crim. A. 112/50

 

           

GAD BEN-IZHAK YOSIFOF

v.

THE ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal.

[March 29, 1951]

Before: Smoira P., Silberg J., and Landau J.

 

           

Criminal Law - Bigamy committed by Jews contrary to s. 181 of Criminal Code Ordinance, 1936 - Whether section ultra vires on grounds of discrimination - Jewish Law - Freedom of religion and conscience - Prohibition of polygamy not contrary to Jewish Law.

           

                The appellant, an Israel Jew belonging to the Caucasian community, married in the year 1936. He married a second time in the year 1950 while the first marriage still subsisted. He was convicted of bigamy under s. 181 of the Criminal Code Ordinance, 1936 1) and sentenced to imprisonment for one year. On appeal it was argued that s. 181 was ultra vires the powers of the High Commissioner by reason of Article 17(1)(a) 2)2) of the Palestine Order in Council 1922 (as amended) in that the section introduced discrimination between the inhabitants of Palestine, namely, between Moslems and Jews, and in that it restricted freedom of conscience and worship.

               

                Held:      Dismissing the appeal,

          (1) that as the section did not discriminate against men and women of the same community regarded as one unit there was no discrimination within the meaning of Article 17(1)(a) of the Order in Council.

          (2) The question of freedom of worship did not arise in this case.

          (3) As regards freedom of conscience, religious compulsion can only exist where religion either imposes or forbids the doing of a particular act, and the secular legislature compels a breach of the imposition or prohibition. The Jewish religion does not compel polygamy, and accordingly no ground exists for the suggestion that there was any infringement of the right to freedom of conscience.

 

          Per Silberg J. Bigamy was never an institution rooted or permanent or favoured in the life of the Jewish people.

 

Palestine cases referred to :

(1)   Cr. A. 85/38 - The Attorney-General v. Ya'acov Ben Yehiel Melnik (Kimhi) : (1939) 6 P.L.R. 34.

(2)   C.A. 119/39 - Pessia Nuchim Leibovna Shwalboim v. Hirsh (Zvi) Shwalboim : (1940) 7 P.L.R. 20.

(3)   M.A. 18/28 - The Attorney-General v. Abraham Alt shuler: (1920-1933) 1 P.L.R. 283.

(4)   M.A. 9/36 - Sharif Esh-Shanti v. The Attorney-General: (1937) 1 S.C.J. 31.

(5)   H.C. 109/42 - Vaad Adat Ashkenazim, Beit Din Hassidim v. District Commissioner, Jerusalem and others : (1942) 9 P.L.R. 715.

 

Israel cases referred to :

(6)   H.C. 10/48 - Zvi Zeev v. Gubernik, the District Commissioner, Urban District of Tel Aviv and others : (1948) 1 P.D. 85.

(7)   C.A. 376/46 - Aharon Rosenbaum v. Sheine Miriam Rosenbaum : (1949) 2 P.D. 235.

(8)   H.C. 8/48 - Shlomo Gliksberg v. Chief Execution Officer, Tel Aviv and others : (1949) 2 P.D. 168.

 

American cases referred to:

(9)        Quaker City Cab Co. v. Commonwealth of Pennsylvania : 48 S.C.R. 553.

(10)      Lindsley v. National Carbonic Gas Co. : (1911) 31 S.C.R. 338.

 

Wiener for the petitioner.

E. Shimron, State Attorney and E. Hadaya, District Attorney of Jerusalem, for the respondent.

 

            LANDAU J.  The appellant, Gad Ben-Izhak Yosifof, was convicted by the District Court of Jerusalem (Halevy P.) of the felony of bigamy, in contravention of section 181 of the Criminal Code Ordinance, 1936, as amended in 1947, and was sentenced to imprisonment for one year. His appeal in directed both against the conviction and the sentence. Upon the suggestion of Dr. Wiener, counsel for the appellant, and with the consent of the State Attorney, we decided to hear the appeal in two stages - the first stage relating to the conviction, and the second stage (should we reject submission of counsel in regard to the conviction), relating to the sentence.

           

2. The facts are set out in detail and with great clarity in the judgment of the learned President of the District Court, and since they are almost undisputed, there in no need for me to repeat them at any length. The appellant, an Israel Jew belonging to the Caucasian community, married ~ woman in the year 1936, and she has born him five children. His marriage with her in still subsisting. In the year 1950 the appellant married a second wife by religious rites with the consent of the office of the Rabbinate in Jerusalem. He obtained this consent by a false declaration which was supported by two witnesses, in which he concealed the fact of his existing marriage.

 

3. Dr. Wiener's submissions in regard to the conviction were directed solely to the legal basis of the judgment of the District Court. Dr. Wiener in fact denies the validity of section 181 of tile Criminal Code Ordinance, as amended. His arguments are these : that in enacting the section referred to the legislature in the days of the Mandate exceeded the powers conferred upon it by Article 17(1)(a) of the Palestine Order in Council, 1922, as amended in 1923, in that :

 

        (a)    Section 181 of the Criminal Code Ordinance discriminates           between the inhabitants of Palestine;

 

            (b)        the section restricts freedom of conscience and         worship.

           

4. In order to understand these submissions it in necessary for me to deal shortly with the history of these sections. Section 181 of the Criminal Code, in its original form, provides :

 

            "Any person who, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, is guilty of a felony and is liable to imprisonment for five years. Such felony is termed bigamy;"

 

            The section then proceeds to provide for three situations which, if established by the accused, will afford him a good defence. These are:

           

"(a) that the former marriage has been declared void by a court of competent jurisdiction or by a competent ecclesiastical authority; or

 

(b) the continuous absence of the former husband or wife, as the case may be, at the time of the subsequent marriage, for the space of seven years then last passed without knowledge or information that such former husband or wife was alive within that period; or

 

(c) that the law governing the personal status of the husband both at the date of the first and at the date of the subsequent marriage allowed him to have more than one wife."

 

            Special attention should be directed to the opening words of the section which require as one of the elements of the offence that the new marriage shall be void by reason of its having taken place during the lifetime of the husband or the wife of the previous marriage. This is an exceptional requirement, the basis of which was the desire of the legislature to adapt this provision of the Criminal Law to the conceptions of the Moslem religion which permits more than one wife. The second marriage of a Moslem is not void, and the prohibition imposed by section 181, therefore, does not affect him. It was also the purpose of the third defence mentioned in the section referred to, to protect a person whose personal law permits him to have more than one wife.

           

5. The Jewish law of marriage, however, was overlooked by the mandatory legislature from the outset, and the language of the section was not made appropriate for the special position created in Jewish law when a man marries two wives. According to that law, as is well-known, the second marriage remains valid throughout, and may be terminated only by divorce. It follows that the language of the section in its original form imposed no obstacle to polygamy among Jews, as appears from the judgment of the Supreme Court in Attorney-General v. Melnik (1), in which a Jew was acquitted of the offence of bigamy because of the defective drafting of the law.

 

6. Some years passed until the publication in 1947 of the amended section 181, which was drafted with the intention of bringing the provisions of the criminal law in regard to bigamy into conformity with Jewish law. And this is the solution which the legislature found to this problem:

 

(1)       The requirement at the beginning of the section that the new marriage should be void was deleted, and it was provided as to the future that the offence is committed whether the subsequent marriage is valid, or void or voidable. In this way the section was also made applicable to the second marriage of a Jew which is not void. It would appear that as far as Moslems are concerned, it was decided by the legislature that the original language employed at the beginning of the section was not necessary to exclude them from its operation, since they are in any case excluded by "the third defence" provided in the law governing personal status which permits polygamy.

 

(2)       The second and third defences provided for in the original section were restricted. Cases in which the law as to marriage applicable to the wife or husband at the date of the subsequent marriage was Jewish law, were excluded from the second defence, and cases in which the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was Jewish law, were excluded from the third defence.

 

            In place of these defences which were excluded a new fourth defence was laid down for Jews, namely, the case in which "the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage, was Jewish law and that a final decree of a rabbinical court of the Jewish community ratified by the two Chief Rabbis for Palestine and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage. ''

           

7. Dr. Wiener's whole argument, as 1 have said, was directed to the point that section 181 is inconsistent with Article 17(1)(a) of the Palestine Order in Council. The provisions of that Article, in so far as they affect the problem before us, are as follows : -

 

            "The High Commissioner shall have full power and authority..... to promulgate such Ordinances as may be necessary for the peace, order, and good government of Palestine, provided that no Ordinance shall be promulgated which shall restrict complete freedom of conscience and the free exercise of all forms of worship, save in so far as is required for the maintenance of public order and morals; or which shall tend to discriminate in any way between the inhabitants of Palestine on the ground of race, religion, or language."

           

            Article 83 of the Order in Council again emphasises that "All persons in Palestine shall enjoy full liberty of worship subject only to the maintenance of public order and morals..." This section is in the general chapter of the Order in Council, and it adds nothing to the provisions of the amended Article 17(1) (a) which deals particularly with matters of legislation. The source of Article 17(1)(a) is Article 15 of the Mandate for Palestine from which it has been copied almost word for word. These conceptions, which were embodied in Article 15 of the Mandate, were not new, but had already found their place in the world of political thought in the French Declaration of the Rights of Man and the Citizen, of the year 1789, and in the days of the first ten amendments of the American Bill of Rights of the year 1791. The principle of non-discrimination reflects the aspiration of the equality of all citizens before the law. Freedom of conscience and worship is one of the liberties of the subject which is guaranteed to him under every enlightened democratic regime. In the declaration of the establishment of the State of Israel it is said:

           

            "The State of Israel... will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race, or sex. It will guarantee freedom of religion, conscience, language, education, and culture..."

           

            Dr. Wiener mentioned these words in His argument, but he drew no legal conclusions from them. In this he was correct, for the court has already held in Zeev v. Gubernik (6), that that declaration "contains no element of constitutional law which determines the validity of various ordinances and laws, or their repeal". Dr. Wiener agreed, therefore, that if the Knesset of the State of Israel were to enact a section such as section 181, he would not have been able to challenge its validity. His submission, therefore, is limited in scope and touches only upon the situation which existed during the time of the Mandate. I am in agreement with him and with the learned President of the District Court that if it should indeed emerge that there existed an inconsistency between section 181 of the Criminal Code Ordinance and Article 17(1)(a) of the Order in Council and that section 181 was void ab initio, then it was not a part of "the existing law" in accordance with section 11 of the Law and Administration Ordinance, 1948, and would therefore be invalid in the State of Israel as well.

 

8. The learned President of the District Court in his judgment rejected the general submission of Dr. Wiener both in regard to discrimination and also in regard to freedom of conscience and worship. He summarised his opinion in paragraphs 21-28 of his judgment, which read as follows :-

 

            "21. The institution of monogamous marriage is regarded among all peoples, in all faiths and in all communities in which it exists as one of the most valuable conceptions of human culture. The establishment of the family and the peace of the community depend upon it. The institution of monogamous marriage deserves and requires the protection of the criminal law in all countries where it exists. In Palestine, where it exists in proximity to the institution of polygamous marriage, it requires stringent protection."

 

            "22. It cannot be conceived for one moment that the Palestine Order in Council wished to prevent the Mandatory legislature from affording monogamous marriage in Palestine effective protection by means of the criminal law. All that was demanded by the Order in Council in this connection was that the law of bigamy should not prejudice that section of the population whose law of personal status recognised polygamy."

 

            "23. Section 181 was designed to protect the institution of monogamous marriage which existed in a certain section of the population of the country and in no sense prejudices the institution of polygamous marriage which exists among another section of the community. In other words, the object of section 181 is to protect those men and women (and their children) whose marriages, in accordance with their law of personal status, are monogamous marriages. Section 181 takes care not to prejudice the law of personal status (religious or national) of any inhabitant. It does not prejudice liberty of religion (which is included in the guarantee "of freedom of conscience and worship") but, on the contrary, it respects that liberty in all its provisions. Were it necessary for me to base my judgment upon this ground, I also would not hesitate to decide that the criminal law defending monogamous marriage is required "for the preservation of public order and morals". As far as discrimination in favour of the Moslems is concerned, it is not section 181 which created the distinction between the law of monogamous and polygamous marriage in Palestine; this distinction exists and is rooted in fact and confirmed by the Order in Council upon which counsel for the accused relies. It is for these reasons that I decide to reject the general submissions of counsel for the accused to the extent that they do not touch upon the special provisions of section 181 in regard to Jews."

 

            In so far as the special provisions of section 181 relating to Jews are concerned, it was held by the President - after a comprehensive survey of the development of Jewish law in this field - that "Jewish law does not permit a person to take a second wife in Palestine, unless he first obtains permission so to do according to law". In support of this opinion the President cited in his judgment a number of authorities on Jewish law which he culled from Rabbinical literary sources. He therefore rejected the idea that there exist in Palestine Jews of the Eastern communities who are permitted by Jewish law to take more than one wife without special permission so to do, and held that section 181 is in full conformity with Jewish law.

           

9. Dr. Wiener strongly attacked the general theories of the learned President. In his opinion there is no room for these propositions in the judgment of a judge whose duty it is to interpret the law and not express opinions on social problems such as the preference of monogamy over polygamy.

 

            I see no substance in these criticisms of Dr. Wiener. The learned President did not just express opinions. He refrained, for example, from expressing generally any preference for the system of monogamy over that of polygamy, but particularised and said (in paragraph 21 of his judgment) that "the institution of monogamous marriage deserves and requires the protection of the criminal law in all countries where it exists." We find nothing wrong in this expression of opinion. It is not the function of a judge simply to interpret the law mechanically. A judge is sometimes required to interpret abstract conceptions such as, in the case before us, "discrimination" and "freedom of conscience". It is of no avail in such circumstances to attempt to confine oneself within the four corners of legal theory. The judge must make a thorough investigation, must weigh the benefit of the community and that of the individual, the degree of justice and equity, and other considerations such as these in order to reach a correct assessment of the intention of the legislature.

 

10. Dr. Wiener argued his submissions in regard to the merits of the case under two headings - the one dealing with discrimination, and the other with freedom of religion and worship. I shall deal with the submissions in that order. Dr. Wiener confined his argument with regard to discrimination to the following points:

 

            (a) The idea that there exists a distinction in principle between monogamy and polygamy has no basis in the law of Palestine. According to the intention of the legislator who drafted the Order in Council marriage is an institution common to all communities, and the Mandatory legislature could not therefore lay down in subsequent legislation on marriage different principles for different communities. The criminal law relating to bigamy falls within this rule.

           

            (b) An argument that the legislature adjusted the section in question to the religious needs of the different communities cannot be justified, since section 181 is not so drafted, and in any event there was no necessity for a High Commissioner to set himself up as a "policeman" for the religious communities.

 

            (c) The test of discrimination is an objective test and we must not, therefore, enquire into the intentions of the legislator. The prohibition against discriminatory laws is absolute without its being reserved to matters of the maintenance of public order and morals, for these are only mentioned in connection with freedom of conscience and worship.

 

11. Mr. Shimron, the State Attorney, argued against this submission upon the question of discrimination. In his submission the prohibition against discrimination does not mean that the legislature must introduce a mathematical equality between all citizens. Discrimination must not be confused with distinction. The prohibition extends only to discrimination to the disadvantage of a particular group of people. The Palestine legislature, however, did not discriminate in favour of one community or against another community. It found itself faced with a varied social and legal state of affairs in the different communities, with each community having its own way of life. It therefore tried to find a legislative solution which would be in conformity - as far as possible - with this existing situation. The solution which it found is a reasonable and not a capricious one. Mr. Shimron, in his submissions, relied upon judgments of the Supreme Court of the United States which, in interpreting the Fourteenth Amendment of the Constitution of the United States in connection with the equal protection of the laws, decided that this amendment does not prevent classification of different groups within the community by the legislature.

 

12. It must be pointed out at the outset that Article 17(1)(a) of the Order in Council does not provide in general terms that all discrimination is forbidden. The article lays down, however, in a consolidated form, three aspects according to which discrimination between inhabitants of the country is forbidden, and these are on the grounds of race, religion, and language. Does section 181 mention religion as a reason for differentiating between the communities? Counsel for the parties did not deal specifically with this question. It seems to me that the matter is open to doubt. In the time of the Mandate the court recognised Jewish law as "the national law" of the Jews of Palestine (see Shwalboim v. Shwalboim (2)). I do not think that, in speaking in section 181 of the person whose law relating to marriage is Jewish law, the mandatory legislature intended to restrict this conception to Jews who were members of the Jewish community as a religious community. It designedly created a special class of people who are distinguished by their law of personal status. This has little effect, however, as far as Article 17(1)(a) of the Order in Council is concerned, for if the dividing line under section 181 is not religion we shall be compelled against our will to reach the conclusion that the differentiation is based on race, or on a conception of religion and race combined.

 

13. It seems to me that the articles of the Order in Council itself destroy the contentions of Dr. Wiener that marriage under the Mandatory law was considered the same institution for all the communities. The legislature allocated jurisdiction in matters of marriage between the different religious communities, and in so doing it was undoubtedly aware of the wide distinction between the various laws of marriage of the main communities in the country. See in this regard the judgment of this court in Rosenbaum v. Rosenbaum (7). It was only in 1989 that the first step was taken to introduce a unified law of marriage for persons who were not members of the recognised religious communities (see Article 65A of the Order in Council). This provision, however, merely provided the additional legislative framework, but this frame was never filled with content. It is clear to me that the law of marriage which existed in the time of the Mandate and which exists in this country today is not a single one, but is varied according to the different systems of personal law.

 

14. What is the correct meaning of the expression "discrimination", which appears in Article 17(1)(a)?  It is true that according to its etymological source this English word means no more than "distinction" and not necessarily a distinction for good or bad. In the social sciences, however, the word has acquired a more restricted connotation.

 

            I quote from the Encyclopaedia of the Social Sciences, New York, 1948, vol. 14 at p. 131 where it is said: -

           

"The term social discrimination may be tentatively defined as unequal treatment of equals, either by the bestowal of favors or the imposition of burdens."

 

and further on the same page :-

 

"Discrimination should not be identified or confused with differentiation or distinction."

 

and on page 182 :-

"Discrimination carries with it the idea of unfairness."

 

            I have already explained that the expressions which I am considering here are not merely legal terms. They are the common heritage of people with a democratic tradition and we do not hesitate therefore to seek assistance from American non-legal sources. The distinguishing feature implicit in the expression "discrimination" is an attitude which is unequal and unfair - for different classes of people. This is also the opinion of the English judges in the time of the Mandate. In the well-known case of Attorney-General v. Altshuler (3), for example, the court asked in its judgment at p. 286 :

           

"Can it be said because the bye-law in question makes a distinction in favour of the minority ...that there is, therefore, not a discrimination against the majority."

 

and it replies :

 

''.. .it is just as much discrimination when the majority suffers as it is when a minority is discriminated against.''

 

            I quote these passages only for the sake of the linguistic interest which they possess, without expressing any opinion as to the correctness of the view of the majority of the judges on the merits. The same expression, as used in the book of Exodus, (8, 18; 11, 7) 1) is used to connote a distinction for good or for evil.

           

15. I have considered the American judgments cited to me by Mr. Shimron, and particularly the judgment of Mr. Justice Brandeis in Quaker City Cab Co. v. Pennsylvania (9), which interprets the "Equal Defence Clause" in the American Constitution (the Fourteenth Amendment). However I cannot derive any assistance from this judgment for the problem before us, for the amendment referred to does not mention the expression "discrimination" and the American court, in interpreting the amendment, proceeded on the assumption that discrimination (that is to say, actual discrimination either in favour or against a particular class of persons) is permitted subject to the condition that it expresses itself in the form of classification on a reasonable basis (ibid., p. 556), while in our case discrimination is forbidden in all circumstances and is not limited by considerations of public order, and other considerations of a like nature.

 

16. Nevertheless, I am of the opinion that in substance Mr. Shimron's submission is correct. I have said that discrimination means a distinction for good or for bad. Article 17(1)(a) does not forbid a different legislative arrangement in respect of different classes of persons, provided that the arrangement involves no discrimination for good or bad. For example, the Language of Courts Rules provide in rule 4 that every summons, every official copy of a judgment and every official document shall be issued in the language of the person to whom it is addressed. This provision involved a distinction between different classes of people by reason of language. Would it ever occur to us to say that this is discrimination because from an objective point of view one law has not been laid down for all? On the contrary, it would appear that here we have a desire to confer equal status upon all the official languages. And so it is in the case of marriage. The Mandatory legislator decided that the time had come to prohibit bigamy by a prohibition in the Criminal Code. Two roads were open to it. It could have imposed a general prohibition upon the members of all communities or find a compromise between the desire to prohibit bigamy, and the social realities of the country. Dr. Wiener admits that a general prohibition would not have been beyond the competence of the Mandatory legislator, but he denies its power to lay down different laws for different communities. I cannot accept this opinion. A legislature does not operate in a vacuum, but is faced with an actually existing social state of affairs with its various manifestations, and must formulate legal forms to meet that situation, and also direct its development in the future. As far as the institution of marriage is concerned, the legislator found himself confronted, as raw material, with a reality consisting of varied outlooks which were fundamentally different. It found that the population of the country was not homogeneous, but that it consisted of different peoples and communities, each with its own laws and customs. Can we say that the Mandatory legislature committed a breach of the principle of non-discrimination because it did not impose its will on the existing situation but to some extent yielded to reality? There is an even more important factor. I am not dealing here only with a difference between actually existing situations, but a difference which was already established in the written law which applied before the Mandatory legislator began to act. Legislatory recognition of the differences between the outlooks of the peoples and communities in the country was already introduced into the Order in Council itself, which did not introduce one law for all people in the country but in matters of personal status handed over such matters - at least in part " to the jurisdiction of the courts of the communities. The draftsman of the Order in Council also added little that was new, and only recognized a legal situation which already existed previously in the time of the Turks. The Mandatory legislature, therefore, was consistent, and in drafting section 181 not in a single form but in a varied form, continued to build upon legal foundations which had already been laid down for some time.

 

            Counsel for the appellant is correct, however, in submitting that in the ultimate result the test must remain objective. It is possible that the intention of the legislature was desirable, but that it failed in its efforts, and that its solution in fact prejudices a particular class of persons, and discriminates against them in favour of others. We are not, therefore, relieved from the task of examining the details of the legislative arrangement which was made in the matter before us. I shall not be influenced by the dotting of i's and the crossing of t's, and should it appear that in essentials no discrimination has been introduced by the legislature, the court will ratify its actions and not invalidate them.

           

17. The object of respecting the provisions of the law of personal status of each person in Palestine is abundantly clear from section 181. We know from the explanatory notes to the proposed amendment that it was drafted after consultation with the Chief Rabbinate and was intended to satisfy its requirements. Rabbi Ya'acov Baruch, the Principal Secretary of the Office of the Rabbinate in Jerusalem, who gave evidence in this case, also confirmed that the Chief Rabbinate had approved this amendment (see also the article of P. Dikstein, "Ha-Praklit" January, 1946, p. 18). There is therefore no doubt as to the good intentions of the legislature towards the Jews. From an objective point of view as well, however, although there is here a difference in the legislative arrangement, there is no discrimination against anyone. Wherein lies the discrimination upon grounds of race or religion in handing the final decision in regard to permission to marry more than one wife - and thereby the exclusion of a person from the general provisions of section 181 - to the competent Rabbis of the Jewish community? I shall deal later with the question to what extent the contents of this section are consistent which Jewish law and I shall assume for the moment that there is no absolute consistency between them - but that does not mean that the provisions of the section are ultra vires, for in my opinion the legislature was entitled to introduce an innovation in the secular law (and a prohibition of bigamy is a matter belonging to the secular law) by transferring an additional duty to the religious courts of the Jewish community whose power to issue binding decisions is itself derived from the secular law. In so doing the Mandatory legislature did not constitute itself as a "policeman" in matters of religion. It remained within the ambit of its powers, and merely used the existing machinery of the religious courts in order to achieve its purpose after giving full consideration to the feelings of the Jewish community.

 

18. And that is not all. Without expressing an opinion as to the social and moral values of monogamy and polygamy it may in any event be laid down with certainty that that outlook which sees an advantage in a number of wives is basically a "masculine" outlook, for a prohibition against a number of wives restricts, as it were, the liberty of the male. The prohibition of bigamy, however, has the important social purpose of protecting the first wife. To release the man from the prohibition against bigamy contained in the criminal law would be to lower the status of the wife. It is for us to decide whether there exists here discrimination against the members of a particular race or religion, and we may not take a one-sided view of the problem. We must ask ourselves whether the men and women of the same community regarded as one unit are discriminated against. The answer to this question cannot be otherwise than in the negative.

 

19. For these reasons I reject these submissions of Dr. Wiener, and in my view section 181 of the Criminal Code Ordinance, 1936, is not repugnant to the provision against discrimination in Article 17(1)(a) of the Order in Council.

 

20.  I shall now pass to consider the second submission relating to freedom of conscience and worship. In my opinion the question of freedom of worship does not arise here at all. The intention of the legislature was directed to forms of worship among the different religions - in regard to matters between man and his God, and not in regard to matters between man and man.

 

            I shall therefore confine the enquiry to freedom of conscience. This is an ethical conception dealing with knowledge of good and evil. A man may derive his opinions on good and evil from a source which is not religious. A religious man, however, is guided in matters of conscience by the commandments of his religion, and we therefore accept the assumption that the complete application of the principle of freedom of conscience also demands freedom of religion.

 

            Dr. Wiener's main submission was that the Mandatory legislature, in laying down rules relating to marriage, trespassed upon the area of religion since, according to the Order in Council. marriage is a religious institution. Freedom of conscience means freedom to live according to the dictates of religion. Jewish law permits polygamy at least among those communities which have not accepted the Ban of Rabbenu Gershom.1) In certain cases polygamy is even almost a religious duty. The test is objective, and it makes no difference if the appellant belongs to one of those communities. And if section 181 is repugnant to the religious customs of any community, then it must be invalidated completely. The section is prejudicial in particular to those Jews who are not members of the Jewish community, for it compels them to approach the courts and the Chief Rabbis whose authority they do not recognise - in order to secure permission to marry. In explaining these submissions, Dr. Wiener readily conceded, as I have said, that had the legislature introduced the prohibition on bigamy generally by imposing a criminal prohibition, it would not thereby have exceeded its powers, for a prohibition such as this would evidence a desire to regulate the question of bigamy purely from the secular angle.

 

            Mr. Shimron's submission on this aspect of the matter was as follows. The question of marriage is secular and not religious, and legislation regulating this matter has no effect upon religious sentiment. Freedom of conscience and freedom of action are not the same thing, for freedom of conscience is confined to the realm of thought alone. Mr. Shimron supported the conclusions of the learned President in the court below that there is no inconsistency between section 181 and Jewish law, and submitted that the fact that a minority do not recognise the rabbinical courts can have no decisive effect on the matter.

           

2l.  I do not think that freedom of conscience is limited to freedom of thought alone. A man who enjoys freedom of conscience must not be deprived of the right to obey the dictates of his conscience by action. The proviso to Article 17(1)(a) in regard to public order and morals is sufficient to prevent harmful acts which some may seek to justify on the ground of freedom of conscience. Even Esh-Shanti v. Attorney-General (4), upon which Mr. Shimron relied, does not go so far as to hold that freedom of conscience is limited to matters in the realm of thought alone.

 

22.  I reject the remaining arguments of Dr. Wiener in regard to freedom of conscience. I think that Dr. Wiener destroyed his own argument by conceding that there may also be a secular approach to the subject of marriage. If, in principle, the secular law relating to marriage may be imposed upon all the inhabitants of the country, why should legislation which seeks to respect the demands of various religions, according to the grasp of the secular authorities after they have consulted the Jewish religious authorities before enacting the law, be forbidden? This is not trespassing upon the field of religion. On the contrary, as T have said, there was a clear desire to follow the golden mean between the religious sphere - as defined by the religious institutions themselves - and the secular sphere.

 

23. I would add here that it is by no means clear that according to Jewish law, the law of marriage belongs to the field of religion It is true that the Order in Council speaks of religious courts, and the draftsman undoubtedly assumed as a matter which was self-evident that religious courts deal with matters before them in accordance with laws of a religious character. But the draftsman had no power to change the essential nature of Jewish law. It is true that that law is based entirely upon a religious foundation since its source is the Law of Moses. There is, for example, no essential distinction between the law of persons and the law of property from the point of view that one is religious and the other secular, for they are all bound up together in one legal system. It would not be right, therefore, to attribute an essentially religious character just to the law of persons, thus distinguishing it from other branches of Jewish law. In other words, from the point of view of Jewish law (and it is with this law that we are dealing at present and not with the point of view of the secular legislature which drafted the Order in Council), the Law of Moses regulates all branches of civil and criminal law, and there is no difference between the intervention of the secular legislature in the field of the law of persons and its intervention in any other field of the law as a whole. No one will contend, for example, that in laying down the secular law of property the legislature was guilty of trespassing upon the field of religion, and the same applies to the intervention of the legislature in the law of marriage.

 

24. This is not all. Religious compulsion can only exist where religion either imposes or forbids the doing of a particular act, and the secular legislature compels a breach of the imposition or prohibition. There can be no question of such compulsion in regard to acts which religion merely permits, without any absolute imposition or prohibition. Dr. Wiener must show, therefore, that there exists an inconsistency between an order of the secular legislature and some absolute directive in Jewish law which compelled polygamy. Dr. Wiener did point, indeed, to a number of instances in which such an inconsistency, as it were, would exist were polygamy obligatory under Jewish law. The President of the District Court, however, has shown convincingly that the legislative regulation of marriage introduced by section 181 is in complete accord with the principles of Jewish law as they have developed throughout the ages, and that custom in Palestine, binding all the communities, generally forbids polygamy. A man is not permitted - and certainly is not obliged - to marry more than one wife, on the strength of his own decision alone. He is required for this purpose to procure a special permit which will only be issued on certain conditions now laid down, inter alia, in the Rules of Procedure of the Chief Rabbinate of Palestine of the year 1943. This ground in itself is sufficient to answer any argument about the infringement on the freedom of religion, though this does not diminish the force of the other considerations which we have already mentioned to contradict this argument.

 

25. In conclusion, the submission relating to that minority which did not recognise the Jewish community also cannot stand the test of analysis. Knesset Yisrael was regarded by the Mandatory authorities as the organisation of the Jewish community, and all efforts to secure legal recognition for other bodies failed (see for example the case of Vaad Adat Ashkenazitm v. District Commissioner (5)). The Mandatory legislature was consistent, therefore, in leaving the final decision relating to the issue of a permit in the hands of the Chief Rabbis of Knesset Israel. I have already rejected the submission relating to an infringement of liberty of conscience in its material aspect. Can the undisputed fact that it is necessary to approach the religious courts of Knesset Israel and the Chief Rabbis in order to secure the necessary permit be regarded as infringing freedom of religion?  This contention cannot be accepted any more than the argument of a person that he cannot recognise the authority of the courts of the State at all because of considerations of conscience. The provision relating to freedom of conscience is subject to the condition relating to the maintenance of public order which demands of every citizen that he accept the authority of the courts established by law. A Jew was not obliged to be a member of Knesset Israel, but it cannot be deduced from this that the legislature was unable to confer jurisdiction upon the courts of the Rabbinate over persons who were not members of Knesset Yisrael. Section 181(d) of the Criminal Code Ordinance, 1936, indicates the existence of such a jurisdiction, for this section gives official recognition to a permit of the rabbinical courts in respect of any person whose personal law is Jewish law, that is to say, also in respect of Palestinian Jews who are not members of Knesset Yisrael. It is difficult to see how the legislature could have provided otherwise since the recognition of the State was accorded only to these courts as the religious courts of the Jewish community.

 

26. For the reasons stated above I am of the opinion that the appeal against the conviction should be dismissed.

 

            SILBERG. J.  I am also of the opinion that the appeal should be dismissed.

           

2. In the submission of counsel for the appellant, section 181 of the Criminal Code Ordinance is invalid for two reasons :

 

            (a) It restricts freedom of conscience.

            (b) It discriminates between one person and another on grounds of religion.

           

            The remaining arguments and contentions of counsel for the appellant are merely branches of his two main submissions as set forth below.

           

3. As far as counsel's first submission is concerned, I should say at once that I entirely disagree with the opinion of the State Attorney that the guarantee of freedom of conscience extends only to the protection of freedom of thought. Thoughts are not punishable nor are they subject to other sanctions, and there is therefore no need to protect them. It follows that the freedom of conscience which enjoys the protection of the legislature must necessarily include a man's acts and deeds, the fruit of the exercise of his conscience, provided always that they do not exceed the bolunds of his purely personal affairs. When they do exceed these limits, they again become subject, like all other activity - to the surveillance of the law.

 

4. The question, therefore, is whether section 181 really restricts a person's freedom of conscience. I could, in fact, limit the question and define it in this way: whether the section referred to restricts the individual freedom of conscience of the appellant in this case, in the particular circumstances of this case. I do not wish, however, to divide the problem in this way, since I have in the result reached a negative conclusion in regard to this question even in its full connotation.

 

5. How is there likely to be a restriction on freedom of conscience in the circumstances of the present case?

 

            There is no doubt that freedom of conscience also includes freedom of religion. In order to show, however, that some prohibitory provision of the law restricts freedom of religion, it is not sufficient to establish that religion does not forbid the act in question. It is necessary to go further and prove that the doing of that act is demanded by religion - that religion commands and obliges the performance of that act. Not everything that is permitted by religion need necessarily be permitted by law. These two areas, therefore, are not identical. The one deals with matters between man and God, and matters between man and man, while the other also deals with matters between man and the State.

 

            In making these observations we need scarcely consider the validity in Palestine of the Ban of Rabbenu Gershom, and whether a Sephardi or Caucasian Jew here in Israel is permitted by law to marry more than one wife. Even if we assume - and I do not imagine that that is so - that the Ban of Rabbenu Gershom has no application to a Jew who comes here from tile regions of the Caucasus, the constitutional validity of section 151 will remain completely unaffected. It is not necessary, therefore, for me to enter into an examination of the interesting theoretical problems in which counsel for the appellant involved himself, namely, whether the Ban of Rabbenu Gershom (or its voluntary continuation after the year 5000 A.M.), is to be determined by the place in which a person is situated - in accordance with the opinion of some commentators - and whether it applies, therefore, to all the inhabitants of that place - even to new immigrants from countries in which the Ban is not acted upon, or whether it is only a personal obligation - in accordance with the opinion of other commentators - and has no application to a person who comes to a place where the Ban is accepted from a place where it is not accepted. (See Shulhan Aruh - Even Ha-ezer - I,9, and commentators ad loci Knesset Hagedola - Even Ha-ezer, Annotations Bet-Yosef, 1,22 (in the name of Rabbi Itzhak Hen); compare, however, Responsa of Nissim, 48; Kol Eliyahu, 2, Responsa on Even Ha-ezer, 12, and Knesset Hagedola, 20, q.v.)

 

6. The correct definition of the question, therefore, to put it shortly and yet accurately, is as follows : whether a man from Israel is obliged, by law, to take more than one wife or not. Counsel for the appellant advanced a novel submission in regard to this question, namely, that since the commandment to be fruitful and multiply is the first commandment in the Bible - first in order and in importance - any provision in the law which restricts the number of wives a man may marry is likely to lead to that commandment's being disobeyed. In support of his argument, counsel relied upon "She-elat Ya'avetz" of Rabbenu Ya'acov Gershom as being calculated to prevent a man fulfilling the commandment to be fruitful and multiply, and as preventing the increase of the seed of Israel. It is possible to go further in the spirit of counsel's submission, and to argue that the prohibition against bigamy is also likely to prevent the fulfilment of the commandment requiring a man to marry the childless wife of his deceased brother - in so far as that commandment is still observed in this country. I mean to refer to those Eastern communities who follow the opinion of Rabbi Izhak Alfasi and Maimonides that it preferable for a man to marry his deceased brother's widow than to give her her release, as is done by the Ashkenazi community in accordance with the opinion of Rabbi Moshe Isserlis. (See the dispute between Abba Shaul and the Rabbis, Yevamoth, 39b; Bechoroth, 13a; Rabbi Itzhak Alfasi, Yevamoth, Chapter "Ha-Holets" (Chapter 4); Maimonides "Yibum Vehalitsa" - 1,2; Annotations Rabbi Moshe Iserlis, Shulhan Aruh, even Ha-ezer - 165,1). I refer to those who are of the opinion that the commandment referred to should be observed even by those who are already married (Pit'hei-Tshuva, Shulhan Aruh - even Ha-ezer, 165, subs. (c), which is opposed to the responsum of Rabbi Itzhak Bar-Sheshet, Title 302 quoted in Bet Yosef and in the interpretation Even Ha-ezer at the beginning of chapter 165).

 

            This submission, however, has no substance whatsoever. Without entering into the question of the meaning of Article 17 of the Order in Council - whether it prohibits legislation which is intended from the outset to prejudice the dictates of religion, or whether it also invalidates any law which is likely, in particular circumstances, to prevent the observance of one of the religious duties - without embarking at all upon an investigation of this problem, there is a very simple answer to the submission of counsel for the appellant in this case. That answer is that this section 181 has already concerned itself from the outset with preventing any possible conflict between the law and religion, and has provided a special method for the resolution of any conflict between them. I refer to the "permission" set out in subsection (d) of the section. It is provided in that sub-section that a person who has more than one wife will be free from guilt ("it is a good defence to a charge under this section") if he proves that the law as to his marriage (both his first and subsequent marriage) is Jewish law, and that "a final decree of o rabbinical court of the Jewish community, ratified by the two Chief Rabbis for Palestine, and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage". And since the rabbinical court and also the two Chief Rabbis will certainly, no less than any other person, give proper consideration to the observance of religious duties and, if it appears to them correct to do so both from the legal point of view and the facts of the case, will grant the permission requested, there is a sufficient guarantee of "freedom of religion". Where have we grounds for complaint against the Palestine legislature? Was the Mandatory legislature obliged to constitute itself the guardian of matters of religion, and to impose or permit the fulfilment of a commandment which even the religious court is not prepared to permit? I would be very surprised indeed if that were so!

           

7. But counsel for the appellant continued to urge that it was just this very subsection - subsection (d) of section 181 - which constitutes a serious inroad into the freedom of conscience and religion. He submitted that the jurisdiction of both "the rabbinical court of the Jewish community" (which is the court of "Knesset Yisrael"), and that of the two Chief Rabbis, extends to members of "Knesset Yisrael" alone1) (see Gliksberg v. Chief Execution Officer (8), and judgments there cited), and a man who is not a member of Knesset Yisrael can derive no benefit from a "permission to marry" given by a court such as this. It follows that a man who is about to take a second wife will be compelled, against his will, to join the Knesset Yisrael in order to secure the legal validity of the permission referred to. Can there be any greater religious compulsion than this?

 

            There are two replies to this submission which, in my opinion, is without substance.

 

(a) First, I have grave doubts whether the jurisdiction of the rabbinical court is limited here too, in regard to the defence provided for in section 181(d),to members of Knesset Yisrael only. Without expressing any final opinion I am inclined to think - as was said by the learned President of the District Court in paragraph 48 of his judgment - that by virtue of the provisions of rule 6(1) of the Jewish Community Rules, 2)read together with the provisions of Article 9(2) of the Palestine Order in Council (Amendment), 1939,3) section 181 confers a special jurisdiction upon the court of Knesset Yisrael and upon the Chief Rabbis to grant permission to marry also to a person who is not a member of Knesset Yisrael ;

           

b) Secondly, even if we assume that this is not so, and that a man who is very anxious to marry a second wife is compelled, whether he likes it or not, to become a member of Knesset Yisrael - is this something so very shocking? Is this to be treated as "interference with the freedom of religion"? Is the religion of a member of Knesset Yisrael any different from the religion of a person who is not a member of the Knesset ? Religious "compulsion" such as this  means nothing, and it is difficult to submit with any seriousness that the whole legal force of section 181 is to be destroyed because of this feature.

           

8. Before leaving this subject I wish to touch shortly upon another point which also provides a simple and complete solution, in quite another way, to the problem of the freedom of conscience and religion. It is well known that Article 17 of the Order in Council lays down one proviso in respect of the prohibition on the restriction of freedom of conscience, and that is in so far as is required "for the maintenance of public order and morals" (do not read: "and morals" but "or morals"). Dr. Wiener, for his part, has introduced a proviso to the proviso and contends that the word "public" in this context means the whole public and not only a part of the public. I do not know from where this doctrine is derived, nor whether there was any place for it in the conditions of life which prevailed in Mandatory Palestine. It seems to me that in a heterogeneous society, with its many variations and different cultural groups, we can very well imagine that a particular law was necessary for "the maintenance of order" in only one of the different sectors of the population of the country. It can hardly be imagined that the position was otherwise. And the word "order" does not mean only the prevention of disorder. It includes also the maintenance and regulation of particular forms of living and cultural values in which that particular section of the community is interested, and which it holds dear. And if this is so, the amendment to section 181 - which was introduced under pressure from the Jewish community as a whole - is absolutely valid and completely unexceptionable even if the fullest effect be given to the proviso in Article 17.

 

            It would in fact have been possible to solve the whole problem by the process of reasoning set forth above alone. Since in my opinion, however, there was no restriction whatsoever on the freedom of conscience and religion in the circumstances of this case I found it necessary in the preceding portions of my judgment to deal with other aspects of the problem.

 

9. 1 pass now to the second and more serious submission of counsel for the appellant, namely, that of discrimination. This is an argument of substance which demands careful consideration. The conception discussed in the preceding paragraph can in any event have no place in regard to this portion of the enquiry, for the provisions of Article 17 prohibit discrimination in all circumstances - even if it be necessary for the maintenance of public order, since the proviso has been omitted from the concluding portion of the Article.

 

            Article 17, as enacted in Article 3 of the Palestine (Amendment) Order in Council, 1923, provides as follows :

           

".....no Ordinance shall be promulgated.....which shall tend to discriminate in any way between the inhabitants of Palestine on the ground of race, religion or language."

           

            It is Dr. Wiener's submission, stated shortly, that since, in terms of the real and practical application of section 181, bigamy - that is to say, having more than one wife - is permitted for Moslems, but is forbidden to Jews and Christians, the law discriminates between one man and another on grounds of religion.

           

            For the sake of accuracy it must be added that Dr. Wiener does not complain - nor can he complain - that bigamy is permitted for Moslems, and that, as it were, there is discrimination in their favour. It was not this legislative act which permitted them to indulge in bigamy, for they were permitted to take more than one wife before this Act was promulgated. His main argument is that section 181 prohibits bigamy for Jews to a greater extent than for members of any other community, for, differing in this respect from other communities, they are forbidden to contract bigamous marriages even where their religious law permits them to do so (see the language of subsection (c)). It follows that the law has discriminated here, and has discriminated against the members of the Jewish community.

           

10. It is still not clear whether counsel for the appellant complains of discrimination on the grounds of race or on the grounds of religion. It would appear, however, that Dr. Wiener complains of religious discrimination, for he has emphasised before us again and again that section 181 makes the discrimination dependent upon the nature of the law which applies to the marriage of the offender; whether that law is Jewish law, or "some law which is not Jewish law".

 

11. It seems to me that it is just there - in those words and in that definition - that the weakness in counsel's argument appears. The language of the section is as follows : -

 

". . . . . provided that it is a good defence to a charge under this section to prove : -

........................................................................

 

(c) that the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was a law other than Jewish law and allowed him to have more than one wife, or

 

(d) that the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was Jewish law and that a final decree of a rabbinical court of the Jewish community, ratified by the two Chief Rabbis for Palestine and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage.''

 

This language leads to two conclusions:

 

(a) That section 181 makes the conviction and sentence dependent - not on the racial or religious affiliation of the wrongdoer, but upon a third test which is different from both of these, namely, what is the law which is applicable to the marriage of the offender;

 

(b) that the whole difference between the two classes of cases expresses itself, as a matter of fact, in one point alone, and that is that while it is sufficient for a man whose law is not Jewish law to prove, even at the trial itself, that his personal law - that is to say, that law applicable to his marriage - permits him to marry more than one wife, a man who is subject to Jewish law is obliged to prove that before his second marriage was celebrated he had produced a certain certificate laying down that he was permitted, individually, to marry a second wife. In other words, in regard to a man such as this - who falls into the second class - a criminal court will not be satisfied with the evidence of an expert with an abstract legal opinion, but will demand the production of an actual personal certificate issued to him, before he is married to the second wife.

           

12. As I have already indicated, the submission of discrimination as advanced by counsel for the appellant is completely destroyed by these considerations. In order to explain the principle we must deal shortly with the question of the special legal situation of "matters of personal status" and the place which they occupy within the framework of the general civil law of the State.

 

13. As everyone knows, the Palestine legislature divested itself of the power to lay down its own new principles in matters of personal status, and for reasons which are understandable and well-known it generally transferred the regulation of such matters - both from the point of view of procedure and from the point of view of substantive law, to the different religious codes of the various communities. Matters affecting the marriage and divorce of a Palestine citizen, who is a member of one of the recognised communities, are dealt with, even in the civil courts (when the question, for example, arises before them incidentally) in accordance with the religious law of the community in question. That also applies in regard to the duty of maintenance by a Palestinian husband in a claim brought against him in a civil court, and also to other similar types of claim.

 

            The matters which I have so far mentioned are simple, plain and well-known, and there is no reason to discuss them at any length. There arises, however, an interesting question which is not so simple, and that is the explanation of the rule which I have stated. Did the Palestine legislature, from the legislative point of view, leave a vacuum, and in respect of these matters employ foreign legal norms which have no place in its own system of law? Or did the Palestine legislature take over these legal norms, and make them an integral part of its own general system of civil law? This question is not, as we shall see, a merely theoretical one.

           

14. Even if there could have been some hesitation on this question up to the year 1945, the problem was completely settled with the promulgation of the Interpretation Ordinance 1945, and the matter is no longer open to any doubt. Section 2 of that Ordinance provides distinctly that the expression "law" also includes "the religious law (both in writing and verbal). . . . . which is in force, or which will be in force in future in Palestine." These words are crystal clear, and any interpretation of them would he superfluous. The legislature has in this section expressed its opinion in unmistakable language that the religious law, to the extent that it is in force in Palestine, itself constitutes an integral part of the law of the State. That is to say, that if a district court deals, for example, with the obligation of a Jewish husband who is a citizen of Palestine to pay maintenance, and it applies - as it is obliged to do - Jewish law, that part of Jewish law which deals with the question is regarded as if it had been enacted as one of the laws of the State. This, moreover, is the only reasonable and the only possible approach to the matter. Religious law is not "a foreign branch" which is grafted onto the trunk of the tree from without, but, to the extent that it was recognised, is itself inextricably interwoven with the boughs of the tree and forms a portion of its boughs and its branches.

 

15. Let us return to our problem, and examine the influence of this approach on the question before us. The effect is patent and clear : the basic idea which lies at the foundation of section 181 - at the foundation of all the provisions of that section - is to prevent an intrinsic and unreasonable conflict between different portions of the law of the State. For since, in the field of the civil law, there is no single arrangement common to all of the laws of marriage and divorce for all the inhabitants of the country, each community having its own laws, and ifs own forms, so it would be inappropriate to lay down one equal law for all sections of the inhabitants in the field of criminal law. It would be insufferable if there were a contradiction between the civil "permission" to commit bigamy, and the criminal prohibition of bigamy, and if these two conceptions did not coincide. The legislature therefore laid down as a general rule that if the civil law - that is to say, the "religious law" in accordance with which civil questions relating to the marriage of the offender are to be determined - permit him to marry more than one wife, it - the legislature - does not wish to prohibit him from so doing from the point of view of the criminal law. Here, however, the legislature was confronted with a difficulty in respect of members of the Jewish community, or to use the language of the legislature, persons the law of marriage applicable to whom was Jewish law. The difficulty was that Jewish religious law in fact recognises the validity of bigamous marriages - that is to say, having more than one wife - but it does not "permit" such marriages in a general and absolutely unrestricted form. On the contrary its general attitude to them is negative, and it only permits them subject to many reservations and conditions. Hence the legislature found itself confronted with a very complicated situation - a situation complicated from the legal point of view. It could not understand the situation in question nor did it believe that it could itself solve the problem. Who would investigate and who would decide if the particular person who married more than one wife was in fact permitted by Jewish law to marry a second wife? Could such an important and complicated question be decided on the basis of experts who would be heard by the court after the event? What, therefore, did the legislature do? It established special machinery, namely, the rabbinical courts of the Jewish community, together with the two Chief Rabbis of Palestine, and it transferred to them - and to them alone - the power of deciding the question whether a second marriage on the part of the husband could be permitted - resulting naturally in his exemption from punishment - or not.

 

            In short, the legislature did not act here with discrimination and did not discriminate in any way on the basis of religion or race. Also in regard to Jews, the legislator did not depart from the basic principle that no distinction should be introduced between the civil and criminal aspects of bigamy, but it refrained from deciding itself upon the civil aspects of the matter - being mindful of its failure in 1988 - and it transferred the matter to more competent hands, namely, to the religious courts and the Chief Rabbis, who were to decide the matter before the commission of the act. This is not a case, therefore, of racial or religious discrimination, or of discrimination at all. It is a necessary consequence of the legal differences between those portions of the law by which the legislature regulated matters of personal status of the citizen. In the field of the civil law of personal status, however, the legislature was compelled to lay down different legal norms for each community by means of the religious laws. No one has ever questioned the correctness of this course. All that the legislature proceeded to do, in the field of criminal law, was to draw the practical and logical conclusions from this distinction in the civil law.

           

16. And now one word on tile question so ably dealt with by the State Attorney relying on judgments given by the American courts, and in particular on the theory expressed in one case, Lindsley v. National Carbonic Gas Co. (10), by Mr. Justice Deventer of the United States Supreme Court. Not all discrimination is discrimination in the full sense, for in some cases it is nothing more than drawing a distinction. Drawing a distinction in which way? - when there exists a real difference between the two persons between whom discrimination is alleged on any reasonable basis, and the discrimination is not capricious (see p. 340, column g, ibid.). The conception lying behind the prohibition against discrimination is that a man shall not be prejudiced only because of his belonging to a particular race or religion, and there is no discrimination when it is not only on the basis of race or religion that the distinction exists, and where there is no prejudice. The discrimination in section 181 is only in the nature of a distinction. A Jew is not punished for polygamy because he is a Jew; but he is restrained by the threat of punishment from taking more than one wife seeing that the society to which he belongs - the Jewish community - has itself laid down that taking more than one wife is inconsistent with its moral and cultural conceptions - that it can no longer permit that practice. It therefore requested the legislature to prohibit the taking of more than one wife in its own interest, and the legislature acceded to this request. What we have here, therefore, is not a discrimination which is prohibited, but a distinction which is permitted, in no way offending the provisions of Article 17. This conception is in fact similar to that expressed above in paragraphs 14 and 15, expressing indeed two sides of the same coin.

 

17. In conclusion I wish to point out that ~ unreservedly associate myself with the conclusions of the learned President of the District Court in regard to the validity of the Ban of Rabbenu Gershom and the extent of its application in this country. It is a widely-accepted principle that that Ban - or the custom which has remained after the year 5000 A.M. (see Responsa of Hatam Sefer - Even Ha-ezer - s. (d)) - is valid in Israel, and binds everyone who enters this country. The authorities for this proposition were cited fully in the judgment of the learned President. I only wish to add that already in tile period of the Amoraim - some 700 years and more before the Ban of Rabbenu Gershom - there expressed itself - here and there - an inclination against polygamy, from the spiritual point of view. If the Amora Rabbi Ami, who lived in the 4th Century, said, "that I say : everyone who marries a second wife shall divorce his first wife (if she so desires) and pay her the sum of her ketuba" (Yebamot, 65a). Pay particular attention to tile strong introduction "that I say !" - this shows there were even in that far off time, people who were in favour of this idea. And even Raba, who differed from the opinion of Rabbi Ami in connection with this principle, said "A man may marry more than one wife if he is able to support them", also expressed his opinion indirectly elsewhere, and took it for granted that it is in no sense a natural thing that a man should marry more than one wife, and that it is necessary - at least from the moral point of view - to procure the consent of the first wife to such an act (see the reply of Raba to Abayeh - Kiddushin - 7a : "So he said to her at the time of the marriage -  that if I wish to marry another woman, I shall do so"). Any one who knows how to read between the lines will find many such expressions of opinion widely spread throughout our ancient literature, but this is not the place to dwell upon this subject at any length.

 

            In short, bigamy was never an institution which was rooted, or permanent or favoured, in the life of the Jewish people. It was merely 'tolerated', if one may use this expression - and what was laid down by Rabbenu Gershom, the Light of the Exile, at the beginning of the 11th Century, was no more than to put the final touches upon a gradual and deep development throughout the generations.

            It is my opinion, therefore, that the appeal should be dismissed, and the conviction confirmed.

           

            SMOIRA J.  I have read the judgments of my colleagues Silberg J., and Landau J., and I have nothing to add. They have both reached the conclusion that the appeal should be dismissed, and I am in agreement with their opinion.

            We therefore dismiss the appeal against the conviction.

            After hearing counsel for the appellant, the appellant himself, and the District Attorney, we find no ground for imposing a lighter penalty. We also dismiss the appeal against the sentence. We confirm the judgment and sentence of the district court .

           

            The appellant will be imprisoned for a period of one year from today.

           

Appeal dismissed.

Judgment given on March 29, 1951.

 

 

 

 

 

 

 

 

 

 

 

Petitions denied.

30 Av 5764.

17 August 2004.

H.C.J  85/47

 

 

MOUNEERA SHIBLI

v.

JAMIL SHIBLI and THE CHIEF EXECUTION OFFICER, DISTRICT COURT, HAIFA

 

 

 

In the Supreme Court sitting as the High Court of Justice.

[January l3, 1950]

Before: Smoira P., Assaf J., and Cheshin J.

 

 

 

Family Law - Personal Status - Jurisdiction of Religious Court of Greek Catholic Community - Custody of infant - Chief Execution Officer - Power to change decisions - Limitations on right to hear evidence.

 

                Under the Palestine Order in Council, 1922, a number of Christian "communities", including the Greek Catholic community but not including the Protestant community, were recognised and given the right to hold courts of their own with jurisdiction (which in some cases required the consent of the parties) in matters of personal status over members of their own community.

               

                The petitioner was a Protestant and had married the first respondent, a member of the recognised Greek Catholic community, in a Greek Catholic church. There was one child of the marriage. The parties quarreled soon after the marriage and their disagreements led to incessant litigation. Upon an application by the husband to the Greek Catholic Court for (inter alia) custody of the child of the marriage, the wife refused to recognise its jurisdiction over her, claiming not to have been at any time a member of her husband's community.

               

                The Greek Catholic Court granted custody of the child to the husband, but the wife refused to hand over the infant to him and returned to her mother's house in Nazareth. Since religious courts have no power to execute their own judgments, the only way the husband could recover the child was through the Chief Execution Officer of the civil court to whom an application was duly made by the husband.

               

                The Execution Officer at first refused to order the execution of the order of custody, but after hearing evidence, changed his mind and made an order that the wife should hand over the child to the husband. The wife then petitioned this could to set that order aside, the husband and the Chief Execution Officer being respondents to the petition.

               

                Held:      that the Chief Execution Officer could change his decisions:

               

                    that the Greek Catholic Court might have had jurisdiction had this been a case where no consent to its jurisdiction was required, but as in this case such consent was required and had not been given, the religious court had acted without jurisdiction: that the Chief Execution Officer was wrong in ordering the execution of the order of custody.

 

Palestine judgments referred to:-

(1)   H.C. 52/31 - Abraham Elmaleh, as administrator of the estate of Jacob Danon v. Chief Execution Officer, Jerusalem and others, (1918-33), 3 C.O.J., p. 853.

(2)   H.C. 36/38 - Ali Sheikh Ahmad Attar and another v. Chief Execution Officer, Magistrate's Court Ramleh and another, (1938), 1 A.L.R., p. 343.

(3)   H.C. 98/41- As'ad Mantsour Abd el-Nour v. Chief Execution Officer, Jerusalem and anotherr (1941) S.C.J. 632.

(4)   H.C. 51/45 - Anton Shomali v. Chief Execution Officer, Jerusalem and another, (1945), 12 P.L.R., p. 443.

(5)   H.C. 22/39 - Zussman Shtark v. Chief Execution Officer, Tel Aviv and another, (1939), 6 P.L. R., p. 323.

(6)   H.C. 6/43 - Malakeh Nasri 'Amer v. Chief Execution Officer, Jerusalem and  another, (1943), 10 P.L. R., p. 78.

(7)   H.C. 7/44 - Labibeh Ibrahim Baqluq v. Salibeh Yacub Baqluq and another, (1944), 11 P.L.R., p. 128.

(8)   H.C. 83/46 - Mary Ni'meh Saffouri v. Shukri Salman and another, (1947), 1 A.L.R., p. 71.

(9)   H.C. 100/41 - Elia Shubeita v. Chief Execution Officer Jaffa, (1942), 9 P.L.R., p. 121.

(10) H.C. 105/45 - Moshe Golddenberg v. Chief Execution Officer, Tel Aviv and another, (1946), 13 P.L. R., p. 180.

(11) H.C. 35/46 - Lana Levi (Hezkia) v. Assistant Chief Execution Officer, Tel Aviv and another, (1946), 13 P.L.R., C. 328.

(12) C.A. 60/43 - Yedidia Mizrahi Barzilay v. Yedidia Tova (Nee Bauman), (1943), 10 P.L. R., p. 241.

(13) H.C. 63/44 - Abed Yousef Salman v. Assistant Chief Execution Officer, Jerusalem and another, (1944), 2 A.L. R., p. 792.

(14) H.C. 2/46 - Yousef Habib Khasho v. Chief Execution Officer, Jerusalem and  another, (1946), 13 P.L. R., p. 76.

 

Weil for petitioner,

Klug for first respondent,

Levi for second respondent.

 

            CHESHIN J. This is the return to an order nisi granted by this court, during the period of the Mandate, namely on August 21, 1947, which was directed to the second respondent requiring him to show cause why he should not refrain from executing a judgment of the Religious Court of the Greek Catholic Community for the return of an infant to the custody of the first respondent.

           

2. The record of the relations between the two principal parties is not in dispute, and the following are the main points :

 

A.    The petitioner, Mouneera Shibli, and the first respondent, Jamil Shibli, were married on September 20, 1942, in the Greek Catholic Church at Nazareth, according to the marriage laws and the ceremonies observed by that Church. Both of them were and still are Palestinian subjects; but the husband was and remains a member of the Greek Catholic Community, while the wife was a member of the Protestant faith before the marriage, and the pivot on which the whole of this case turns, as will duly appear, is whether upon her marriage any change took place in her personal status.

 

B.    The marriage was not a success and, ever since 1944, the husband and wife have been incessantly in the courts. The husband brings his claims before the Religious Court of his Community, while the wife brings her claims against him before the civil courts for maintenance for herself and for their child. One attempt to resume their domestic relationship, made in consequence of a maintenance order given by the District Court in Haifa, was also unsuccessful, and in due course the wife left her husband, taking their infant child with her, and returned to her mother's home in Nazareth. The husband then sued her in the Greek Catholic Religious Court for an order of restitution of conjugal rights (in Arabic, houkoum at-ta'a-l-zawjia). The wife did not answer the summons of the court, and on December 11, 1945, the court dealt with her husband's case in her absence and ordered her to obey her husband and return to his home in order that they might continue normal marital relations.

 

C.    The wife, who contested the jurisdiction of the Religious Court to try the matter, lodged an objection to the restitution order, and when her objection was rejected, she appealed to the Court of Appeal of the Greek Catholic Community; but her efforts proved to be in vain, and the order of "ta'a" was confirmed by the Community Court of Appeal on July 9, 1946.

 

D.    On July 18, of that year, the wife was called upon by the Execution Office in Haifa, to comply with the order, and when she refused to do so the husband once more applied to the Greek Catholic Court with a request to order the wife to deliver their infant child into his custody. On July 27, the order of custody was granted stating, inter alia, that the husband had reserved the right to demand separation a mensa et thoro from his wife and the cessation of her conjugal rights; and when it became clear to the husband that his wife was adamant in her recalcitrance and refusal to return to his home or to deliver the child into his custody, he lodged a further application (his third one) with the Religious Court, claiming an order of separation a Mensa et thoro. On November 29, the court acceded to the husband's application and held that the couple were to live separately.

 

E.    In the meantime, the husband continued the proceedings for the execution of the order of custody. The wife objected thereto before the second respondent, namely, the Chief Execution Officer in Haifa, on the ground that the order could not be executed, because the Religious Court had dealt with the matter without jurisdiction. The second respondent at first decided to uphold the petitioner's objection and directed that the order was not to be carried into effect; but after hearing the evidence of priests of the Greek Catholic Church from Nazareth and Haifa on the question of the wife's personal status, he changed his view, and on June 30, 1947, reversed his previous decision and directed the order of custody to be executed. The petitioner applied to set aside this last order and, as stated, the order nisi was granted.

 

3. The first question - of lesser importance - to arise in the course of the proceedings before us was : is the Chief Execution Officer entitled to alter decisions previously made by him ?

 

4. That question has already been considered on a number of occasions by this court (in the time of the Mandate) and answered in the affirmative (see, for example, Elmaleh v Chief Execution Officer, Jerusalem (1) and Attar v. Chief Execution Officer, Magistrate's Court, Ramleh (2)). The jurisdiction of the Chief Execution Officer to alter decisions previously made by him is based upon article 2 of the Execution Law1); and there is hardly a single matter that comes before the Execution Officer which is not subject to reconsideration by him. Moreover, this court (in the time of the Mandate) has stated several times that before a person petitions this court, he would be well advised to apply first of all to the Chief Execution Officer (or to any other public official of whose acts he complains) with a final request to alter the decision which, in the petitioner's opinion, is in detriment of his rights.

 

5. Dr. Weil submits on behalf of the petitioner, that even if the Chief Execution Officer is empowered both to reconsider a matter within his purview and also to alter his previous decisions in that same matter, hie is certainly not entitled to turn himself into a judge, hear the testimony of witnesses, receive evidence and proof and give judgment; and in the present case, the second respondent made the order he did after taking evidence from priests and making findings of fact. That, submits Dr. Weil, is beyond the jurisdiction of one who is appointed to execute, and to execute alone, the judgments of competent courts.

 

6. No one disputes that the Chief Execution Officer is not a judge trying a case, and he is not entitled to make findings on the actual dispute arising between the parties, or to alter findings made by competent courts. In Nour v. Chief Execution Officer, Jerusalem (3), this court (in the time of the Mandate) decided that, "if (an order is) given by a competent court that matter must be executed whatever (the Assistant Chief Execution Officer) may think about its merits or demerits." It is clear, therefore, that the function and powers of the Chief Execution Officer are severely limited: but is he without authority to consider any form of proof before making his decision? Even the case of Nour (3), above, does not go as far as that: in that case it is stated that the Chief Execution Officer has to execute judgments and orders made by a competent court, and how can the Chief Execution Officer determine whether a certain court (especially when it concerns a court of one of the religious communities in Israel) was competent to give the judgment under execution, it he does not take evidence and hear proof?

 

7. This is perhaps a not inappropriate occasion to point out to Chief Execution Officers the necessity for keeping strictly within the framework of the powers conferred upon them, and for taking care not to exceed the limits of those powers; for indeed, it was in this that the second respondent was at fault in the present case, as I will explain.

 

8. I have already mentioned that since the marriage took place in the Catholic Church and having regard to the Canons of that Church there is no objection to the second respondent hearing evidence on the question of the personal status of the petitioner from priests of the Greek Catholic Community. He did not, however, content himself with that, but went on to hear explanations and commentaries on dicta appearing in the judgment of the Religious Court. Thus, for example, at one point in the judgment, it is stated that: "Whereas she (the petitioner) ...being a non-Catholic, etc. ...accordingly, etc." Those words do not seem to be capable of more than one interpretation. But what did the second respondent do ? He heard a long explanation from a priest - the priest that delivered the judgment - as to the supposedly real intention behind those words, and concluded from that explanation that the fact that the petitioner is not a Catholic does not mean that she has ceased to be a member of the Greek Catholic Church. But that was not stated, neither expressly nor impliedly, in the actual judgment. Furthermore, that explanation, changing the passage which was quite unambiguous, provided one of the foundations on which the second respondent's final conclusion was based. Now, two ways are open to an execution officer: either the language of the judgment is clear, in which case it must be executed without that officer hearing extrinsic evidence; or it is not clear, in which event the provisions of article 6 of the Execution Law 1) must be applied. The Chief Execution Officer is not authorised to hear evidence either in order to discover the meaning behind words and their context, or for the purpose of interpreting a judgment which is clear.

 

9. In that respect, therefore, it seems to me that the second respondent was wrong in reading into a judgment an intention inconsistent with that expressed in clear words. But the question still remains: is this defect by itself a sufficient ground for quashing the second respondent's later decision and restoring his first decision? The answer to that must, in my opinion, be in the negative. For it is not to the second respondent's reasons that the petitioner objects, but to the actual decision itself; and if the material to be found in the affidavits of the parties and in the other exhibits produced to us in fact shows that the decision is erroneous, the court will reverse it in substantio, whereas if the decision was right, then the reversal of that decision and the revival of the decision that preceded it Should be like repairing a technical defect by means of a grave injustice - something we are hardly likely to do.

 

10. The arguments of counsel for the petitioner and the first respondent as to the merits of the case may be summarized thus: counsel for the petitioner contends that the order of custody is not subject to execution, in that it was made by a Religious Court without any substantive jurisdiction, and that the order itself is contrary to the principles of justice and equity. Counsel for the first respondent argues, on the other hand, that the Religious Court of the Greek (Catholic Community was competent to decide what it did, and that the order itself cannot be regarded as offending against justice and equity.

 

11. The substantive law which we have to consider is contained in the Palestine Order in Council, 1922. Article 54 of the Order in Council reads, inter alia, as follows:

 

            "54. The Courts of the several Christian communities shall have:-

           

            (i) Exclusive jurisdiction in matters of marriage and divorce, alimony, and confirmation of wills of members of their community other than foreigners...

           

            (ii) Jurisdiction in any other matters of personal status of such persons, where all the parties to the action consent to their jurisdiction."

           

            Matters of personal status were defined in Article 51 of the Order in Council in these words:

           

            "...matters of personal status means suits regarding marriage or divorce, alimony, maintenance, guardianship, legitimation and adoption of minors, inhibition from dealing with property of persons who are legally incompetent, successions, wills and legacies, and the administration of the property of absent persons."

           

12. Those Articles, therefore, deal with the definition of the nature of matters involving personal status, and determine the exclusive and concurrent jurisdiction of the Religious Courts of the various Christian communities in those matters, relating to members of their community other than foreigners. Before we can solve the question as to whether the Greek Catholic Court was competent to adjudicate in personal disputes between the petitioner and the first respondent, we must necessarily determine first of all what is the petitioner's religion and to which religious community she belongs.

 

13. No one disputes that before her marriage the petitioner was a member of the Protestant Community. Dr. Weil contends that, for the purpose of determining somebody's personal status, he is not to be regarded as having changed his religion unless he satisfies the requirements stated in section 2 of the Religious Community (Change) Ordinance. In the present case, he argues, the petitioner's change of religion was not registered in the register of the District Commissioner, as required by section 2(1) of that Ordinance, nor was the certificate, mentioned in section 2(2), sent either to the Greek Catholic Community which, according to counsel for the first respondent, she joined, or to the Protestant Community 1) which, according to the same submission, she left. Therefore, concludes Dr. Weil, and without taking into account the wedding ceremony that took place in the Catholic Church in accordance with the canons of that Church, the petitioner was and still remains a Protestant.

 

14. This argument was considered, and even answered, in Shomali v. Chief Execution Officer, Jerusalem (4). In that case, the court stated (ibid., at p. 444) : "As Protestants are not mentioned in the second schedule to Article 2, Palestine (Amendment) Order in Council, 1939, they do not belong to a Religious Community"; and further down on the same page : "Before it can be said that section 2(1) of the Ordinance applies, a person must already belong to one of the scheduled Religious Communities. We stress the use of the word "change" his religious community. She (the Respondent in that case), in first, never became a member of any Religious Community till her marriage, so it cannot be said that she ever changed her Religious Community." In other words, the aforementioned requirements in the Ordinance referred to apply only to such persons as belong to one of the religious communities recognised by law and who substitute their religious community for a different religious community which, too, is recognised by law. Exceptions to that rule are persons joining an unrecognised religious community or leaving such a religious community. Such persons are exempt from registering the change in their religious community. The present petitioner, like the second respondent in Shomali's case (4), had never belonged to one of the recognised religious communities until she married (and I shall further consider the question as to what extent that marriage affected her personal status at a later stage), and therefore it cannot in any way be said that she altered or changed her religious community. Moreover, to use the language of the court in Shomali's case (4), (ibid., at p. 445) : "She may have changed her religion, or to put it in another way, she may have become a member of another Church"; but that fact by itself does not impose on her the obligations, nor confer on her the benefits, set out in the Ordinance. That Ordinance does not, in fact, apply to her at all.

 

15. Accordingly, we must investigate the other circumstances of the case in order to see whether they include any factors likely to affect the petitioner's personal status and to determine the laws applying to that personal status. But fact we shall clarify certain fundamental rules deriving from both written and case law, which can serve as pointers for determining a person's personal status.

 

16. Dr. Klug, on behalf of the fact respondent, says that the final word on the question as to a person's belonging to a particular community is with those members of that community who speak with authority on its religion. Since in the present case the priests of the Greek Catholic Religion have expressed the view that the petitioner is numbered among their flock, there can be no disputing their opinion. In support of this submission, Dr. Klug quotes the rule laid down in Shtark v. Chief Execution Officer, Tel Aviv (5), but that case has nothing to do with the problem in hand. All that was decided there the question of the juridical validity and legal effect of a marriage contracted between a Jew and a Jewess is within the jurisdiction of the Religious Courts of the Jewish Community. The question of the membership or non-membership of either or both the spouses in the Jewish Community did not arise at all, and this court did not so much as hint in its decision that the Religious Court is the final authority on this question.

 

17. The weakness of Dr. Klug's argument becomes apparent especially in a case such as the one before us; for here the Anglican Church also claims the petitioner for itself, as can be seen from the letter from Bishop Khalil Jamal, head of the Arab-Anglican Community in Nazareth. Who can say which of the opinions of the rival religious heads is to be preferred ?

 

18. It should be noted in parenthesis that the Palestine legislator - or, more accurately, the constitution-maker for Palestine - foresaw the possibility of such differences of opinion as have been revealed in the present case. In order to settle those differences, he laid the foundation for legislation in the future which would enable these matters to be regulated. By Article 51(2)(b) of Council (which was added in 1989 to the Order in Council, 1922), the legislator was empowered to enact a law ''for determining the circumstances in which a person shall be regarded as a member of any religious community". Such a law, however, has not yet been enacted, and although the Religious community (Change) Ordinance is still in force, as stated in the proviso to Article 51(2)(b) (see Article 9(2) of the Palestine (Amendment) Order in Council, 1939), yet, as has already been stated, there is nothing in that Ordinance which can throw any light on the solution of the problem under discussion here.

 

19. Article 54 of the Order in Council empowers the Religious Courts of the various Christian communities to try matters relating to personal status. But, whether the jurisdiction conferred on those courts is exclusive as regards the matters set out in subsection (1) of Article 54, or concurrent as regards all other matters relating to personal status, a sine qua non for both of them is that the litigants be members of that community before whose religious court they bring their suits. Notwithstanding the plain meaning of that provision, the courts (in the time of the Mandate) were disposed in the public interest not to be too strict, and, in a long line of cases, held that that provision is not absolute, in the sense of "fiat justitia ruat coelum", and that there are instances where the public welfare demands that the law should not be strictly applied. Thus, for example, it was held in 'Amer v. Chief Execution Officer Jerusalem (6), that a husband who had conducted himself as a Catholic for several years before his marriage, and whose wedding took place with his consent according to the canons of the Catholic Church, could not be heard to say that he is a member of the Moslem faith and that the Latin Court was accordingly incompetent to try his wife's suit in the matter of alimony. Again, in Baqluq v. Baqluq (7), it was held, following 'Amer's case (6), mentioned above, that a person who had regarded himself as a member of the Latin Catholic Community for twelve years prior to his marriage, and had represented himself at the time of the wedding ceremony as being a member of that community, could not, when sued by his wife in the Latin Religious Court, be heard to contend that he had from the first been a member of the Greek Orthodox Community and that his change of community had not taken place in accordance with the Religious Community (Change) Ordinance. Finally, in Saffouri v. Salman (8), this court (in the time of the Mandate) held that a woman, who had married according to the rites of the Greek Orthodox Church and who sued her husband in the Religious Court of the Greek Orthodox Community, which gave its decision on her case, was estopped from arguing afterwards that the court was not competent to decide the matter because she was a Protestant.

 

20. It appears at first sight that the rule laid down in Shubeita v. Chief Execution Officer, Jaffa (9), in Goldenberg v. Chief Execution Officer, Tel Aviv (10), and in Levi v. Assistant Chief Execution Officer, Tel Aviv (11), is inconsistent with the principle embodied in 'Amer (6), Baqluq (7), and Saffouri (8), mentioned  above. But this "inconsistency" is capable of being explained. In it was decided that the Religious Court of the Greek Catholic (Melkite) Community was not competent to declare a husband, a member of that community, liable to pay alimony to his wife because the wife, who had been a member of the Latin Community before her marriage, had never changed her religious community and the marriage, though celebrated according to the rites of the Melkite Church, was not of itself sufficient to transfer her from one religious community to another. In Goldenberg (10), and in Levi (11), it was held that for the purposes of Article 54 of the Order in Council (which corresponds to Article 58 and determines the jurisdiction of the Religious Courts of the Jewish Community), it is essential that both spouses be members of Knesset Israel1), so that non-membership of one of them ousts the jurisdiction of the Rabbinical Court. Two facts, however, should be noted : first, both the latter cases concerned Jewish parties, and the question of the membership or non-membership of Jews in Knesset Israel may easily be settled by reference to the register of adults with the proper registering authority, namely, the Va'ad Leumi2), which is not the case with the members of other communities; when any doubt arises as to whether a person is a member of one or other of the communities, it cannot be so easily solved. Secondly, and more important, the question in each of the three cases mentioned above was to what extent the consent of the parties to have their case tried before a religious court affects the jurisdiction of that court, and the court held that consent whether given expressly or implied from silence, is insufficient to confer jurisdiction on a religious court when the law does not confer such jurisdiction upon it. The question whether a person is estopped from arguing non-membership of a particular religious community was not dealt with at all. In the case of 'Amer (6), and in the cases that followed that decision, on the other hand, the question of consent was not stressed at all, and in the present case we have not yet reached the stage of considering that question. The question that was asked there, and which is before us at the present stage of our deliberations is whether, in given circumstances and for a particular purpose, a person is estopped from arguing that he is not a member of a particular community. The court in the time of the Mandate, as we have seen, answered that question in the affirmative; and that view, with all due respect, seems to be the right one, and I propose to follow it.

 

21. I shall now pass on to the question whether any factors may be found in the conduct of the petitioner towards the first respondent which can conclusively establish her personal status for the purpose of the litigation with her husband, the first respondent, and what are those factors.

 

22. Both parties call in aid first and foremost the marriage certificates in their possession. According to what we have been told, those certificates are extracts of entries made at the time when the wedding ceremony took place in the books of the Court of the Greek Catholic Community. The certificate in the possession of the first respondent was apparently given to him shortly after the wedding, whereas the certificate produced by the petitioner was prepared in July, 1947, for the purpose of the present case. It should be said at once that those certificates contain nothing that can throw any light on the problem as they contradict each other on the most important details, even though, as stated, they were both presented as copies of the same original entry. Thus, for example, the copy produced by the wife states that her religion is Protestant, whereas in the copy that was delivered at the time to the husband the wife's religion is not noted at all. The husband says in his affidavit that he himself examined the register of entries in the Greek Catholic Church of Nazareth and discovered that the wife is not registered in it at all as a Protestant. An affidavit made by Archimandrite George Nonni, who delivered the copy to the wife, was also produced in support of the husband's contentions, and in that affidavit he states that the word "Protestant", appearing in the copy given to the wife, was interpolated by him (the Archimandrite) by mistake. What is the origin of that mistake? This is his explanation, in paragraph 8 of his affidavit : "This mistake in filling in the marriage certificate was caused because the petitioner told me then, in July 1947 (the date of the copy) the reason why she needed the certificate, but my attention was not drawn to the real reason which lay behind her contention that she was a member of the Protestant Community". That is a somewhat surprising explanation. It should not be forgotten that the petitioner applied to the Archimandrite, not in order that he might determine her religion, but in order to receive a certified copy of the entry once made in an official register in the custody and possession of the Greek Catholic Church in Nazareth. One would have thought that there is nothing simpler and easier than copying what is stated in a book precisely as it has been written. But such was not the case here. Details of a person's description were inscribed in a copy which do not appear in the original, and the explanation therefore is that the person requesting the copy did not disclose the real intention behind his contention that those details fit his description. The matter becomes even more puzzling when one considers another statement in Archimandrite George Nonni's affidavit. In paragraph 5 of his affidavit, he declares that "in the description of the marriage in question, appearing in the marriage register, it is not stated what is the religion of the spouses." Those remarks do not fit the facts, for in the body of each certificate - that of the husband and that of the wife - it is stated that the husband is a member of the Greek (in Arabic, the "Roman") Catholic religion. We have not been told whether an error has occurred here as well, but from another paragraph in Archimandrite Nonni's affidavit it may be gathered that the respondent's version is nearer the truth; for in paragraph 6 he declared that "the said register (the register of entries) notes the religion of both spouses only where one of them is not a member of the Greek Catholic (Melkite) Community." If these last words are in fact correct, since one of the spouses, namely, the husband in the present case, is described in the register as a member of the Greek Catholic religion, it may be assumed, on the basis of the Archimandrite's affidavit itself, that the second spouse, namely the wife, was not regarded at the time of the celebration of the marriage as a Catholic. However, those matters remain within the sphere of conjecture only, especially in the light of the abovementioned inconsistencies, and for that reason it would be best to ignore the marriage certificates, both the one in the respondent's possession and the one in the petitioner's possession, and for the purpose of determining the position of the petitioner as regards her personal status, I prefer to consider other factors, the correctness of which is not in doubt.

 

23. It is not disputed that the fact of the petitioner's being a Protestant before her marriage was not overlooked by the first respondent; but before the marriage was celebrated, the petitioner visited the Church of his community together with the fact respondent in order to participate in a Catholic Mass. The marriage itself took place in the Catholic Church, according to the rites and ceremonies of that Church. From the evidence of Archimandrite Zaton and Father Mosoubah (who based their observations on Canon 1061 of the Codex Juris Canonici) before the Chief Execution Officer, it appears that the Catholic Church does not permit mixed marriages unless certain formalities are previously observed and certain certificates are signed. Thus the two spouses, for example, undertake in writing to baptise the children born to them of the union and to educate them as Catholics, and the member of the alien religion has to declare and announce, when the ceremony of marriage takes place, that he elects to adhere to his own religion even after the wedding. Those formalities were not observed in the present case, the undertaking was not signed and the marriage took place as if between two Catholics. In point of fact, the petitioner behaved as a Catholic after the wedding too; she came to the Catholic Church to pray, and the child that was born to them was baptised with the consent of the Melkite Church. It should be emphasised - as was emphasised in Baqluq (7), mentioned above - that we are not dealing with a case of change of religion and with the determination of the membership of one of the parties in one religious sect or another, but with the question of the rights and duties as regards the spouses and in relation to each other, flowing from the marriage bonds created between them. In the light of the principle laid down in 'Aztec (6), Baqlua (7), and Saffouri (8), above mentioned, my opinion is that, for the purpose of investigating the question of personal status as between the petitioner and the first respondent, the petitioner is estopped from alleging that she is not a member of the Greek Catholic (Melkite) Community. I have not overlooked the fact that there is in that conclusion a certain extension of the scope of the principle that was laid down in 'Amer (6), and in the cases that followed that decision, but, in my view, the essential principle remains the same.

 

24. Having reached the conclusion that the petitioner is, in the circumstances of the case, estopped from arguing that she is not a member of the Greek Catholic (Melkite) Community. I have still to see whether the Religious Court of that community was competent to try the matter brought before it, in view of the other factors upon which the jurisdiction of a court is made conditional by Article 54 of the Order in Council.

 

25. It is clear - and no one disputes the fact - that if the matter in question falls within the compass of subsection (i) of Article 54, the Religious Court has exclusive jurisdiction to try it, and its judgment will be valid and effective even in the absence of consent on the part of the petitioner to have her case tried by that court; whereas if, on the other hand, it is held that subsection (ii) applies to the matter in question, the jurisdiction of the Religious Court is conditional upon the consent of the parties.

 

26. This case concerns the custody of an infant. Even though that matter is not expressly referred to among the matters enumerated in Article 54(i), it has nevertheless been held by this court (in the time of the Mandate) that where the application for the custody of infants is subsidiary to another suit involving a matter of personal status, which is subject to the jurisdiction of the Religious Court, that same court is competent to decide the question of custody also (see Yedidia v. Yedidia (12), Salman v. Assistant Chief Execution Officer Jerusalem (13), Khasho v. Chief Execution Officer, Jerusalem (14), and the authorities there cited). But the question is whether the fact respondent's suit before the Religious Court for the custody of his infant son was in fact subsidiary to some other suit in a matter of personal status which was before that court, and which the court was competent to try.

 

27.  Dr. Klug submits that the remedy of custody was subsidiary But if one speaks of "subsidiary", there is a presumption that there is a "principal" claim too. What is the principal claim in the present case? As stated, two orders were made by the Greek Catholic Court on the suits of the first respondent, in addition to the custody order : one of them was the "ta'a", before the custody order, and the other was the separation order, after it. "Ta'a" is, in substance, certainly a matter flossing from the marital relationship, within the meaning of Article 54(i); but custody can by no means be said to be subsidiary to it. For the very essence of the "ta'a" is that it is a vehicle for restoring the domestic peace of the couple. Had the petitioner, for example, complied with that order, the first respondent would not have had recourse to the action for custody. Those two remedies, therefore, are really a "contradiction in terms" and are, by their very nature, incapable of existing under one roof. The one may, at the very most, provide an alternative remedy to the other, that is to say, either a "ta'a" order or an order for custody. But apart from the fact that two alternative remedies are sought in one application and, when granted, are granted in the body of one single order, in the present case they were sought in two separate applications and granted in two separate orders. The custody order was not made until after the "ta'a" had been made final, when it was apparent to everyone that the petitioner would not comply with the directions contained therein. Apart from that, the very concept of an "alternative" remedy indicates that it is not consequential upon some other remedy, the main one, nor is it subsidiary to it, but stands on its own and only serves as a substitute for some other remedy, some main remedy, particularly where that main remedy cannot be granted. It is the failure of the application for the granting of the main remedy that gives rise to the application for the alternative remedy. Can then, that latter remedy be called subsidiary?

 

28. Further, can custody of a child be regarded as subsidiary to separation of husband and wife? A custody order may be subsidiary to a separation order. When does that occur? When the application contains a main prayer for separation and a consequential prayer for custody, or when the application for custody is no more than the natural continuation of an application for separation or of a separation order. Here, the custody order was made on July 27, 1946, and in the body of the order it was emphasised that it was final, whereas the separation order was only made two months or more later. Can the later order be regarded as a natural continuation of the earlier one? Dr. Klug contends that the custody order is no more than a single, intermediate chapter in one painful episode, that lasted over a period of time and terminated in the making of the separation order. No one disputes that. But from the very nature of things, each chapter in that episode has to be read independently, the object of one being different from that of the others. Each chapter must stand by itself, one independent of the other, though the story may be a single whole. Accordingly, this is not a case of a principal and a subsidiary claim, but a number of independent principal claims. When lodging the application for custody, it may be that the husband at no time considered that at some later stage he would have to ask for separation also. It may be that the main object of the application for custody was in order to force the wife to carry out the order of "ta'a" that preceded it, so that there would be no necessity either for separate custody or for living separately. At all events, each of the remedies the husband sought, and obtained, was designed for a particular end; and whilst this is a case of proximity of events, it is not a case of a principal and a subsidiary claim.

 

29. That being so, the question of custody was not within the exclusive jurisdiction of the Religious Court.

 

30. Here Dr. Klug submits that a distinction should be drawn between "guardianship" and "custody", and that the Codex Juris Canonici only recognises the institution of guardianship.

 

31. It is not essential for the purposes of the present case to investigate and examine the distinctions that Dr. Klug draws between those two concepts, for even if we are at one with him that the Religious Court made an order for the guardianship of the infant boy, and not for his custody, that does not further his principal argument. For guardianship is not included among the matters of personal status set out in subsection (i) of Article 54 and, as was stated earlier, since the application for this remedy was not joined as consequential relief to the other, the principal remedy, which is within the exclusive jurisdiction of the Religious Court, subsection (ii) of Article 54 is the one applying to the application for guardianship; and for the purpose of the matters stated in that subsection, the parties must consent to submit to the jurisdiction of the Religious Court. The petitioner did not consent to that jurisdiction and is adamant in her objection thereto to this very day. Hence, the order made by the Religious Court, be it an order for custody or for guardianship, was made without any jurisdiction, and cannot therefore, in my view, be carried into effect.

 

32. In the light of that conclusion, we are, in my opinion, relieved from the necessity of dealing with the other arguments of counsel for the petitioner, namely, that a Religious Court cannot grant a subsidiary remedy unless the parties submit to the jurisdiction and that in the case of custody of an infant the jurisdiction is conditional upon the infant's agreeing through his guardian, and that in the present case the benefit of the child demands that he should remain with the mother.

 

            SMOIRA P. I had the advantage, when considering this case, of having before me the comprehensive judgment of my learned colleague, Cheshin J.   I concur in his conclusion that we must make the order nisi absolute, and it is my intention to add, for my own part, only a few observations.

           

            I agree with his view that, generally speaking, the Chief Execution Officer is entitled to alter previous decisions made by him, especially in cases such as Elmaleh (1), and Attar (2). But in the case under consideration, the Chief Execution Officer would, in my opinion, have been better advised if, after giving his first decision, in which he refused to order the execution of the judgment of the Religious Court, he had referred the party that was not satisfied with his decision, namely, the husband (the first respondent) to the Supreme Court, instead of giving a second decision in the case. However, I do not wish to go into this point at length, for, in my opinion, our decision does not turn on it.

           

            I am in entire agreement with what my learned colleague said in paragraphs 25 to 32 of his judgment concerning the merits of this case. I consider, with respect, that my colleague demonstrates conclusively in that part of his judgment that in any case the Religious Court had no jurisdiction to try the question of tile custody of the infant son without the consent of both parties, as the question was not tried by the Religious Court as subsidiary to another suit in a matter of personal status. Since that ground is sufficient and decisive for making the order absolute I regard myself, together with my colleague, as relieved from the necessity of dealing with the submissions of Dr. Weil, counsel for the petitioner, mentioned in paragraph 32 of the judgment of Cheshin J., and relieved also from the necessity of considering the arguments dealt with by my colleague in paragraphs 13 to 23 inclusive of his judgment, namely, the question of the construction of section 2 of the Religious Community (Change) Ordinance, and the question whether the petitioner is estopped, by reason of her conduct, from arguing that she is a member of the Greek Catholic (Melkite) Community.

           

            I reserve to myself, therefore, the right to express my view, when the occasion calls for it, on these two questions, namely:

           

            (1) If Dr. Weil was right in his contention that section 2 of the Ordinance also applies when a Protestant enters a recognised community, was the Supreme Court correct in its judgment in Shomali (4) ?

           

            (2) Should the rule that follows from the judgments in 'Amer (6), Baqluq (7), and Saffouri (8), be preferred to the rule which follows from the judgments in Shubeita (9), Goldenberg (10), and Levi (11) (see the citations in the judgment of my learned colleague, Cheshin J., in paragraphs 19 and 20), in regard to the question whether a person is estopped, by reason of his behaviour, from arguing membership of a certain religious community.

 

            I cannot conclude without saying, on behalf of my colleagues and myself, that the court is indebted to Dr. Weil for volunteering to act as counsel for the petitioner, who appeared before us at first without any legal assistance, and that the court was greatly assisted by the able arguments of Dr. Weil and Dr. Klug.

           

            ASSAF J.   I agree, as to the main part of the judgment, with the opinions of my learned colleagues, and at the same time concur in the observations of the learned President.

 

                                                                                     Order nisi made absolute.

                                                                                     Judgment given on January l3, 1950.