Ritual baths

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

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 fulfill 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.

Voting Justices:

Vogelman, Uzi

Primary Author

majority opinion

Hayut, Esther

majority opinion

Hendel, Neal

majority opinion

Full text of the opinion:

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

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.

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 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

Expected number of users 30%
Necessary for well-being in the town 25%
Appropriate to the character of the town 25%
Cost relative to number of expected users 10%
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).

Full opinion:

Sela v. Yehieli.pdf

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/11/620/006/m19/11006620.m19.pdf

Conservative Movement v. Be'er Sheva Religious Council

Case/docket number:

AAA 5875/10

Date Decided:

Thursday, February 11, 2016

Decision Type:

Appellate

Topics:

Constitutional Law

Basic Law: Human Dignity and Liberty

Abstract:

Facts: An appeal of an administrative judgment finding that there was no defect in the decision of the Beer Sheva Religious Council to prevent the Masorti (Conservative) Movement and the Movement for Progressive (Reform) Judaism from using the mikve [ritual bath – plural: mikvaot] in its jurisdiction for the purpose of their conversion ceremonies.

Held: The Court (per Deputy President E. Rubinstein, Justice S. Joubran and President M. Naor concurring) granted the appeal, holding as follows:

Inasmuch as a number of local councils that permit the immersion of converts from the official conversion system in their mikvaot, the question of whether immersion for the purpose of conversion falls within the scope of a “religious service” is rendered superfluous, inasmuch as the service is actually provided, and it may be presumed that it is provided lawfully, as no one has argued otherwise in the matter before us. The question to be decided, therefore, is whether the state/local council can lawfully distinguish between converts in the official conversion system and converts in other frameworks – including those of the Appellants – and the same is true, of course, for the religious council.

In the opinion of the state, the distinction between official and private conversion in regard to mikvaot is justified by three reasons: (1) the supervision over the official conversion system, which is lacking in regard to private conversion; (2) the legal consequences that arise from official conversion, which are absent in private conversion; (3) official conversion has a “public dimension”. The Court was of the opinion that those reasons could not justify preventing immersion for the purpose of private conversion in pubic mikvaot.

First, the existing discrimination in the general policy (in choosing who to supervise and how) cannot justify the discrimination exercised in practice (in regard to access to the mikvaot). Such behavior is inconsistent with an administrative authority’s obligation to act equally in all of its endeavors. Second – the legal significance of immersion in a mikve and the issue of unofficial conversion – which is pending before the Court – is irrelevant to the matter of placing limits upon immersion itself. From the moment that the state erected public mikvaot and made them available to the public – including for the purpose of conversion – it cannot employ a policy of different measures, large and small (Deut. 25:14), in regard to their use. In this regard, there is no importance to the legal consequences, or lack thereof, attendant to the immersion itself, nor to any worldview, legitimate as it may be, in regard to the religious significance under these circumstances. Third, as we are concerned with public mikvaot that are financed with pubic funds, it is hard to understand the state’s contention that the religious council is under no obligation to serve private bodies. This is particularly so when private Orthodox organizations that conduct conversions encounter no difficulty in arranging for immersion in various mikvaot, even if it may be the case that some of them may be private.

As for the exemption included in the Prohibition of Discrimination in Products, Services, and Entry into Places of Entertainment and Public Places Law, 5761-2000, sec. 3(d)(1) states that “The following shall not be deemed discrimination under this section – when that is necessitated by the character or nature of the product, public service or public place.” According to the Respondents, the matter before us falls within the scope of this section, inasmuch as mikvaot are, by their character and nature, intended for the immersion of Jews, whereas converts are, at present, not Jews. The Court rejected this argument. As long as the Respondents permit the immersion of converts from the official conversion system – who all agree are not yet Jews at the time of their immersion – they cannot prevent the immersion of the converts of the Appellants on a claim that the mikve is intended for Jews alone.

Section 6A of the Religious Services Law which states that “The religious council and its members will act in accordance with the rulings of the local rabbinate and the Chief Rabbinate of Israel – like any public authority in every matter in the realm of the functions and authorities of the religious council” cannot make it “kosher” to bar the Appellants’ converts from public mikvaot, as the Rabbinate – like any public authority – is not empowered to establish a policy of discrimination. The above is also required by the freedom of religion and worship granted to all in the State of Israel, subject to the Validity of Laws clause in Basic Law: Human Dignity and Liberty.

The appeal was therefore granted in the sense that converts from the the Appellants’ private conversion system must be permitted to immerse in a public mikve in Beer Sheva, including the presence of a rabbinic tribunal in the course of the immersion. Inasmuch as the arguments in this case were general, and inasmuch as Respondent 2 represents the state in this matter, the Court added that a similar solution must be found for the mikvaot of other councils that permit immersion for conversion.

Voting Justices:

Rubinstein, Elyakim

Primary Author

majority opinion

Naor, Miriam

Author

concurrence

Joubran, Salim

majority opinion

Full text of the opinion:

AAA 5875/10

Appellants: 1. Masorti Movement

2. Movement for Progressive Judaism in Israel

Respondents: 1. Beer Sheva Religious Council

2. Ministry of Religious Services

Attorneys for the Appellants: Orly Erez-Likhovski, Adv., Einat Hurvitz, Adv.

Attorney for Respondent 1: Dr. Amram Melitz, Adv.

Attorneys for Respondent 2: Roi Shweka, Adv., Yochi Genessin, Adv.

The Supreme Court sitting as Court of Administrative Appeals

2 Adar II 5776 (Feb. 11, 2016)

Before: President M. Naor, Deputy President E. Rubinstein, Justice S. Joubran

Appeal of the judgment of the Beer Sheva District Court sitting as Court of Administrative Affairs (Deputy President B. Azoulay) in AP 237/08 of March 3, 2010.

Summary:

An appeal of an administrative judgment finding that there was no defect in the decision of the Beer Sheva Religious Council to prevent the Masorti (Conservative) Movement and the Movement for Progressive (Reform) Judaism from using the mikve [ritual bath – plural: mikvaot] in its jurisdiction for the purpose of their conversion ceremonies.

The Court (per Deputy President E. Rubinstein, Justice S. Joubran and President M. Naor concurring) granted the appeal, holding as follows:

Judgment

Deputy President E. Rubinstein:

A. This is an appeal of the judgment of the Beer Sheva District Court sitting as a Court of Administrative Affairs (Deputy President B. Azoulay) in AP 237/08 of March 15, 2010, finding that there was no defect in the decision of the Beer Sheva Religious Council to prevent the Masorti (Conservative) Movement and the Movement for Progressive (Reform) Judaism from using the mikve [ritual bath – plural: mikvaot] in its jurisdiction for the purpose of their conversion ceremonies.

Background and Prior Proceedings

B. The Appellants are associations that advance the interests of Conservative and Reform Jews in Israel. In the framework of their activities, the Appellants operate a private conversion system, the legal status of which is pending before this Court (HCJ 11013/05 Dahan v. Minister of the Interior, and related cases). A decision in regard to private Orthodox conversions is also pending before this Court (HCJ 7625/06 Ragacova v. Minister of the Interior, and related cases). On May 7, 2006, the Appellants petitioned to permit their representatives, who accompany their converts, to enter the public mikvaot for the purpose of ritual immersion that constitutes a kind of “commencement ceremony” to the conversion process (HCJ 3775/06). We should explain here that the immersion of the convert constitutes the final stage of the conversion process, which is performed before a three-member religious tribunal. The petition was denied on Aug. 2, 2007, holding that the proper procedure in this matter was the filing of a petition in the Court of Administrative Affairs. On Feb. 19, 2008, following an initial enquiry and an exchange of correspondence with the Beer Sheva Religious Council (hereinafter: Respondent 1), the Appellants filed a petition in the Beer Sheva District Court sitting as a Court of Administrative Affairs. We should note that the Appellants claimed that they are generally denied entry to the mikvaot – with the exception of one mikve in Kibbutz Hannaton (a Conservative kibbutz) in the north of the country – and that they are forced to conduct immersions for the purpose of conversion in other places, such as the Mediterranean Sea. The Court of Administrative Affairs rejected the petition on March 15, 2010. The court held that there is a relevant distinction between the state-supported official conversion system – which is granted entry to the mikvaot for the purpose of conversion – and the private conversion system operated by the Appellants. Another distinction cited by the court was between conversion that carries legal effect (official conversion) and conversion that is not of legal effect (private conversion). It was further held that immersion for the purpose of conversion is not one of the services that the Religious Council is legally required to provide. An appeal of the District Court’s judgment was filed with this Court on Aug. 5, 2010, after the Appellants request for an extension for the filing of the appeal was granted.

Arguments of the Parties

C. According to the Appellants, immersion for the purpose of conversion constitutes a “religious service” for the purpose of the Jewish Religious Services (Consolidated Version) Law, 5731-1971 (hereinafter: the Religious Services Law), and therefore Respondent 1 must provide it. Under their approach, the operation of the mikvaot is conducted by virtue of that law, and there is no reason to distinguish between the use of a mikve for the purpose of conversion and its use for other purposes related to ritual purity. It is further argued that the Respondents are improperly discriminating in permitting converts from the official conversion system to immerse in their mikvaot while preventing such immersion for those converting by means of the Appellants. In addition to the fundamental breach of equality, the Appellants aver that this constitutes a violation of the Prohibition of Discrimination in Products, Services, and Entry into Places of Entertainment and Public Places Law, 5761-2000 (hereinafter: the Prohibition of Discrimination Law). According to the Appellants, the Respondents’ distinction between official conversion and private conversion is not relevant under the circumstances, and is therefore improper. A similar argument was made in regard to the distinction that the Respondents make between conversion that has legal effect and conversion that lacks legal effect. According to the Appellants, the Respondents must permit converts to immerse in the mikve regardless of whether it is part of a process that will lead to a change in their legal status (e.g., in regard to the Law of Return). The Appellants further argue that insufficient weight was given to freedom of religion and the principle of pluralism, which support granting converts access to the mikve. According to the Appellants, the Respondents cannot make recourse to sec. 6A of the Religious Services Law – which provides that the Religious Council act in accordance with the rulings of the Chief Rabbinate – to justify their decision, inasmuch as, according to the Appellants, the section is relevant to the erection of the mikvaot, but cannot justify discrimination.

D. Respondent 1 stressed that it does not prevent the immersion of private individuals on the basis of their association with a particular stream of Judaism. It avers that the Appellants have not shown a single concrete case in which access to a mikve was denied. Moreover, in its view, it is not obligated to provide immersion services for the purpose of private conversion, and that such does not constitute discrimination. The Ministry of Religious Services (hereinafter: Respondent 2) also argued that conversion does not fall within the purview of a “religious service”. In its view, immersion is an inherent part of conversion – which is not a “religious service” – and therefore there is no obligation to permit immersion conducted in the framework of conversion. It was further argued that there is a relevant distinction between official conversion – for which Respondent 1 may provide immersion services – and private conversion, in that official conversion, as opposed to private conversion, is supervised, has a “public dimension”, and legal consequence. In the view of Respondent 2, even if the policy somewhat infringes freedom of religion and worship, it is an infringement that does not warrant the Court’s intervention, inasmuch as immersion is a single, one-time event for a convert, and therefore, the inconvenience caused by the need to travel to a distant mikve that will accommodate him – as noted, the Appellants stated that they have access to another mikve located in Kibbutz Hannaton – is not a serious infringement of his rights. As for the Prohibition of Discrimination Law, it is argued that the subject before us falls within the scope of the exception under sec. 3(d)(1), according to which: “The following shall not be deemed discrimination under this section – when that is necessitated by the character or nature of the product […]”. It was further argued that Respondent 1 is required to operate the mikvaot in its jurisdiction in accordance with the directives of the Chief Rabbinate, as stated in sec. 6A of the Religious Services Law, with which the Appellants’ demands are not consistent.

E. The Appellants argued in their rejoinder that just as discrimination is prohibited in regard to the providing of support for preparation for conversion (as held in HCJ 11585/05 Movement for Progressive Judaism v. Ministry of Immigrant Absorption (2009)), so it is prohibited in regard to the use of mikvaot for the purpose of conducting conversions. The Appellants emphasized that its prospective converts are all Israeli citizens and residents. It was further argued that the official conversion system allows only for Orthodox conversion, and that the state is not promoting any official conversion path that is not Orthodox. Moreover, the Appellants claim that their suggestion that mikvaot be erected for their use, or that existing mikvaot be designated for that purpose was rejected. The Appellants argue that it is unreasonable that a resident of southern Israel who wishes to convert under their auspices be required to travel to Kibbutz Hannaton in the north of the country for immersion, when there are 13 public mikvaot in Beer Sheva.

Discussion

F. Following requests for adjournments, the case was set for a hearing before a panel (President Grunis, then Deputy President Naor, and the author of this opinion) on Feb. 26, 2014. The Appellants stressed that the issue affects a large number of people – some 250 people a year. It was argued that the State is estopped from arguing that a proper distinction can be drawn between private and official conversion inasmuch as the state prevents the Appellants from participating in official conversion. The attorney for Respondent 1 argued that the prevailing legal situation under sec. 6A of the Religious Services Law does not permit immersion for non-Orthodox conversion in public mikvaot. The attorney for Respondent 2 reiterated the argument that Respondent 1 is not required to provide immersion services for the purpose of conversion. In his opinion, Respondent 1 may provide such a service for the official conversion system inasmuch as that constitutes an allocation of a public resource (the mikve) to a public entity (the official conversion system). It was further argued that there is a public interest in distinguishing between official and private conversion. It was emphasized that Respondent 1 does not permit immersion for private conversion even in the case of Orthodox conversion. It was further noted that a private member’s bill had been submitted [to the Knesset] with a view to regulating conversion. According to the Appellants, that proposed legislation is not relevant to non-Orthodox private conversion.

G. At the conclusion of the hearing, it was decided that updated notices be submitted within 90 days, in order to allow the parties to reach an agreement. On June 10, 2014, Respondent 2 submitted an updated notice according to which a meeting was held by the Deputy Attorney General (Civil Affairs) without the participation of the Appellants, in which it was found that there no religious council in many local councils, and the mikvaot are operated by the local councils. It was noted that the possibility of using those mikvaot for private conversions was examined. On June 11, 2014, the Appellants submitted an updated notice according to which they stated their rejection of the solution offered by Respondent 2, and demanded that they be granted access to the mikvaot in the main cities (in which there are religious councils) – Jerusalem, Tel Aviv, Haifa and Beer Sheva. After several requests for adjournments by the parties, the state submitted an updated notice on Jan. 29, 2015, stating that the attempt to locate a mikve in a local council that was not operated by a religious council had failed, and that the possibility was currently being examined for erecting a mikve for the purpose of conversion that would also serve the Appellants. It should be noted that the Appellants voiced their objection to this proposal as well, inasmuch as it concerned the erection of a single mikve which they would have to share with other bodies. We would add that due to the retirement of President Grunis, Justice Joubran was appointed to the panel.

H. On Nov. 10, 2015, following delays due to the elections for the 20^th Knesset and the forming of a new government, Respondent 2 submitted an updated notice. The notice explained that – contrary to the claim of the Appellants – the immersion of converts under their auspices is permitted and actually carried out in at least two local councils, in addition to the mikve in Kibbutz Hannaton. As for the erecting of new mikvaot, we were informed that it requires that the local councils meet certain criteria. On Nov. 17, 2015, the Appellants submitted an updated notice stating that their use of the mikvaot cited by the State followed “a tortuous path” and were performed without official permission. It was further argued that even if regular immersion were permitted in those mikvaot, it would still not present a sufficient solution for the Appellants, who request that mikvaot be made accessible in the center of the country – in Jerusalem and Tel Aviv – where most of the converts reside. According to the Appellants, the fact that the erection of a mikve requires the cooperation of the local council does not prevent the erection of a mikve that would serve their needs. On Nov. 13, 2015, the Court President ordered that the Ministry of Religious Services inform the Court which local councils have mikvaot that are open to the Appellants, which of their organs expressed willingness to help, and whether there is substance to the Appellants’ claim that their members are required to immerse “like thieves in the night”, and how they may be permitted immersion in an orderly, proper manner. On Dec. 16, 2015, Respondent 2 submitted its response. It argued that it was not clear how the Appellants could demand to be allowed to immerse in the mikvaot in Jerusalem and Tel Aviv in the framework of an appeal in regard to immersion in Beer Sheva, and when the Appellants had previously submitted a petition in regard to immersion in Jerusalem that was subsequently withdrawn after the Jerusalem Religious Council declared that it does not permit immersion for the purpose of conversion at all, not even for the official conversion system. It was further argued that the Appellants’ claim that the mikvaot are used by a “tortuous path” is unclear inasmuch as immersion for the purpose of conversion is, by its very nature, carried out in private. The Appellants submitted their response on Dec. 21, 2015, arguing that their demand for the provision of mikvaot in the center of the country was consistent with this Court’s decision that asked the parties to reach an agreement in principle and not necessarily in regard to the specific matter of Beer Sheva. The Appellants noted that the solutions currently to be had in Hannaton, Modiin and Omer are insufficient, as they are temporary rather than systemic solutions. On Jan. 14, 2016, the Appellants gave notice that they do not insist upon a further hearing of oral arguments, and request that a judgment be rendered that would permit their converts to immerse wherever converts of the official conversion system are permitted to immerse – Safed, Afula, Tel Aviv, Kiryat Gat, Beer Sheva, and Mevasseret Zion. The Respondents also submitted notice of their agreement to the rendering of a judgment on Dec. 23, 2015 and Jan. 14, 2016. On Jan. 18, 2016, this Court requested a factual clarification from the Ministry of Religious Services in regard to the possibility for the immersion of the Appellants’ converts in Omer and Modiin. On Jan. 28, 2016, the Director General of Respondent 2 submitted a notice declaring that, to the best of his knowledge, the Appellants are granted access to the mikvaot in those two places, pursuant to telephone conversations with the head of a local council in the south (Omer, but the name was not mentioned), and with the director general of a municipality in the center (Modiin, but its name was also not mentioned for some reason). On Feb. 4, 2016, the Appellants submitted a notice – accompanied by the affidavit of the Secretary of the Conversion Court of the Council of Progressive Rabbis – according to which local authorities do not permit the immersion of their converts, and immersion in Omer and Modiin is conducted like “thieves in the night”. The affidavit gives details of discussions with those responsible for the mikvaot in Modiin and the rabbi of Omer. The former referred them to the Director General of the Ministry of Religious Services, and the latter asked for what purpose they required immersion, and suggested they refer to others, adding that the mikve is not in use at all, and “that we ask whoever can to permit us, and why are things being thrown at him”.

Decision

I. The case before us well demonstrates how principled arguments run up against reality, in all that it entails, in a manner that prevents a pragmatic solution. We will not deny that from the outset we believed that the appropriate solution for the matter before us should be found by reaching an agreement and arrangement in accordance to what appeared to be the prevailing situation. In other words, if the Appellants had been allowed regular, respectable access to the mikvaot in Omer, Modiin and Hannaton, as was purported to be the case, we would have been satisfied, inasmuch as according to the data provided by the Appellants, we are concerned with fewer than 300 people a year, and one mikve in each central area of the country would meet the need. We have no interest in addressing the ideological issues in dispute in these contexts, and we hoped to address practical solutions. But from reading the last affidavit submitted by the Appellants – which names specific local actors in the communities cited by the State Respondents who do not appropriately permit access to the mikvaot – it would appear that the picture is not as we had hoped. We would note that this last, detailed affidavit, submitted, as aforesaid, by the Appellants stood in contrast to the ambiguity and terseness that, with all due respect, characterized the affidavit submitted by the state. These matters having come before us, we have no alternative but to decide the matter on the merits, which might have been unnecessary were it not that the history of the issue (and it is not an isolated issue) demonstrates that “more is less”. We will state at the outset that we are not oblivious to the fact that the original relief sought related exclusively to immersion in the mikvaot in Beer Sheva, and upon that we will decide. But inasmuch as the arguments in this case were general, and inasmuch as Respondent 2 represents the state in this matter, it should be clear that the applicable principle will obtain in other places in which the state and other public authorities have a hand.

J. It also bears noting that the question hiding behind the scenes is, to a large extent, “who is a rabbi”. In other words, it would seem that a significant part of the Respondents’ positions is not founded simply upon the fear of immersion, but rather upon the fear that the Appellants’ religious tribunals will come to the mikvaot, which may imply some quasi “recognition” of them. This matter is not, in and of itself, relevant to deciding the issue before us, and we will take no stand on it here. There is also something of an ironic “double reverse” in the refusal to permit immersion, inasmuch as all agree that immersion is one of the three elements required of a male convert (circumcision, immersion, and acceptance of mitzvoth), and one of the two required of a female convert (immersion and acceptance of mitzvoth). There is a raging argument – which cannot be resolved here – in regard to the nature of the acceptance of mitzvoth, as to whether it must be “total” or in the spirit of “he is informed of some of the minor and some of the major commandments” (Maimonides, Laws of Forbidden Relations 12:2), but when a person seeks to immerse for the purpose of conversion, why stop him when – unfortunately, in my opinion – there is no universally accepted, official conversion?

K. We would note that none of the parties dispute that there are a number of local councils that permit the immersion of converts from the official conversion system in their mikvaot. Those councils are: Safed, Afula, Tel Aviv, Kiryat Gat, Beer Sheva, and Mevasseret Zion (hereinafter: the relevant councils). That renders superfluous the question of whether immersion for the purpose of conversion falls within the scope of a “religious service”, inasmuch as the service is actually provided, and it may be presumed that it is provided lawfully, as no one has argued otherwise in the matter before us. The question to be decided, therefore, is whether the state can lawfully distinguish between converts in the official conversion system and converts in other frameworks – including those of the Appellants – and the same is true, of course, for the religious council.

L. Let us first recall basic principles. The principle of equality is a fundamental principle of our legal system. It is deeply rooted in our identity as a Jewish and democratic state. As Justice Turkel aptly stated some time ago (HCJ 200/83 Wathad v. Minister of Finance [1984] IsrSC 38 (3) 113):

The principle of equality and prohibition of discrimination, embodied in the Biblical commandment “You shall have one law, it shall be for the stranger, as for one of your own country” (Leviticus 24:22), that has been construed by the Sages as requiring “a law that is equal for all of you” (Babylonian Talmud, Ketubot, 33a; Bava Kamma 83b) has been sanctified in the law of Israel since we became a nation. Having returned to its land and declared the independence of its State after thousands of years of exile, during which its children were the victims of discrimination among the nations, it inscribed at the beginning of its Declaration of Independence the promise of maintaining absolutely equal social and political rights for all of its citizens, without distinction of religion, race or gender. Therefore, we are required, more than any other nation, to scrupulously check that there be no open or hidden taint of discrimination, so that we not be found to suffer from what we suffered (and see HCJ 98/69 Bergman v. Minister of Finance IsrSC 23 (1) 693 (1969) [English translation: http://elyon1.court.gov.il/files_eng/69/980/000/Z01/69000980.z01.htm ; HCJ 7245/10 Adalah v. Ministry of Social Welfare, (2013), para. 48 of the opinion of Arbel, J. [English translation: http://versa.cardozo.yu.edu/opinions/adalah-%E2%80%93-legal-center-arab-minority-rights-israel-v-ministry-social-affairs].

That was written prior to the enacting of Basic Law: Human Dignity and Liberty, and although equality does not appear there as such, it has been construed as comprising it (see HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61 (1) 619 (2006)) and it would seem to me self-evident, and see my book Netivey Mimshal Umishpat 280 (5763 – 2003) (Hebrew): “Grounding the principle of equality, which I see as interconnected with the two parts of the equation – Jewish and democratic – is the statement in our rabbinic sources of the great Tanna Hillel the Elder, ‘what is hateful to you, do not do to your neighbor’ (Babylonian Talmud, Shabbat 31a).”

M. Equality means – as demanded by common sense – equal treatment of equals (see HCJ 528/88 Avitan v. Israel Lands Administration, IsrSC 43 (4) 297, 300 (1989)). And note that the common characteristic of the members of the equal group is not formal but substantive. Thus we held in HCJ 1438/98 Masorti Movement v. Minister of Religious Affairs, IsrSC 53 (5) 337 (1999)) that the Ministry of Religion’s decision to grant financial support only to religious-culture institutions over a certain size was not equal, as the size of an institution is not the only relevant characteristic of the members of the equal group in this regard. A similar message was sent by this Court’s decision in HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister, 2006 (1) IsrLR 105 [http://versa.cardozo.yu.edu/opinions/supreme-monitoring-committee-arab-affairs-israel-and-others-v-prime-minister-israel], which held that the Government’s policy for granting benefits on a geographic basis yielded a discriminatory result, such that even if the criteria were formally equal, the substantive result was discriminatory. Similarly, we must now examine whether the Ministry of Religion may distinguish between “official” conversion and private conversion in regard to access to public mikvaot.

N. In the opinion of the State Respondents, the distinction between official and private conversion in regard to mikvaot is justified – as noted – by three reasons: (1) the supervision over the official conversion system, which is lacking in regard to private conversion; (2) the legal consequences that arise from official conversion, which are absent in private conversion; (3) official conversion has a “public dimension”. I am afraid that these reasons, which should not be disregarded in some respects – and as stated, if there were appropriate legislation, then perhaps we might achieve conversion harmony, which is not unattainable – cannot justify preventing immersion for the purpose of private conversion in pubic mikvaot, as we shall explain below. We would note here that we are stating this prior to the rendering of decisions in the pending conversion cases mentioned in para. B, above, and of course, our decision in this case is subject to the decisions that will be issued in those cases, and does not prejudice them.

O. First – and this is stated as self-evident – the State of Israel is, of course, at liberty to oversee the use of its mikvaot, to the extent that we are concerned with equal regulation. The State’s choice not to oversee immersion conducted in the course of private conversion cannot justify preventing such immersion. Common sense prevents us from accepting the argument that actual discrimination (in regard to access to mikvaot) can be justified by reason of discrimination in the general policy (concerning who to supervise and how). Such behavior is inconsistent with an administrative authority’s obligation to act equally in all of its endeavors (HCJ 6698/95 Ka’adan v. Israel Lands Administration, IsrSC 54 (1) 258 (2000) [English: http://versa.cardozo.yu.edu/opinions/ka%E2%80%99adan-v-israel-land-administration]; AAA 7335/10 Rehabilitation Officer v. Lupo, para. U. (2013)).

P. Second – the legal significance of immersion in a mikve and the issue of unofficial conversion – which, as noted, is pending before the Court – is irrelevant to the matter of placing limits upon immersion itself. As a rule, the religious act and its legal significance are distinct matters. Indeed, there is no denying that Israel does not maintain Church-State separation according to the American or French models, and there are instances wherein the legislature chose to set limits upon religious practices carried out by private bodies in order to prevent deception and confusion. However, the basic principle is that “every person has the right […] to worship his God in his own manner and in accordance with the dictates of his own conscience” (HCJ 563/77 Dorflinger v. Minister of the Interior, IsrSC 33 (2) 97, 102 (1979), per Shamgar J.). That is to say that from the moment that the state erected public mikvaot and made them available to the public – including for the purpose of conversion – it cannot employ a policy of different measures, large and small (Deut. 25:14), in regard to their use. In this regard, there is no importance to the legal consequences, or lack thereof, attendant to the immersion itself, nor to any worldview, legitimate as it may be, in regard to the religious significance under these circumstances.

Q. Third, it is hard to understand the state’s contention that the religious council is under no obligation to serve private bodies. While there are public infrastructures (like schools) that primarily serve a public function (like public education), that is not the case in regard to mikvaot that are open to and at the disposal of the general public. While, as a rule, they are open for the purpose of post-menstrual immersion or for ritual purification, we are concerned with public structures that are open to the public, and even – in regard to conversions – to groups acting on behalf of the official conversion system, and under the circumstances, the state cannot hide behind the general claim that a public authority is not obligated to contract with private bodies, but rather must show cause why it would deny access to public mikvaot, funded with public monies, to groups associated with certain private organizations, while private Orthodox organizations that conduct conversions encounter no difficulty in arranging for immersion in various mikvaot, even if it may be the case that some of them may be private. We would further note that the fact that the official conversion system does not comprise a Conservative or Reform conversion track – and as long as there is no judicial decision in regard to conversion in Israel – has consequences for the state’s ability to argue that the use of the mikvaot is reserved for converts in the official conversion system, in light of the principle of good faith and the principle of equality that must guide the actions of every public authority.

R. Now to the matter of the exemption included in the Prohibition of Discrimination in Products, Services, and Entry into Places of Entertainment and Public Places Law, 5761-2000. As noted, sec. 3(d)(1) states that “The following shall not be deemed discrimination under this section – when that is necessitated by the character or nature of the product, public service or public place.” According to the Respondents, the matter before us falls within the scope of this section, inasmuch as mikvaot are, by their character and nature, intended for the immersion of Jews, whereas converts are, at present, not Jews. Such an argument is unacceptable and it were better had it not been raised. Knowledge is easy for one who understands [Proverbs 14:6] that as long as the Respondents permit the immersion of converts from the official conversion system – who all agree are not yet Jews at the time of their immersion – and as noted, it would appear that ready solutions are available to private Orthodox conversions – they cannot prevent the immersion of the converts of the Appellants on a claim that the mikve is intended for Jews alone. It requires quite a stretch to claim that preventing the entry of the Appellants’ converts is required by the nature of the mikvaot, since those who come to convert, come for that very purpose of becoming Jews.

S. The Respondents’ claim that their policy is justified by sec. 6A of the Religious Services Law cannot be tolerated. That section states that “The religious council and its members will act in accordance with the rulings of the local rabbinate and the Chief Rabbinate of Israel in every matter in the realm of the functions and authorities of the religious council.” As stated, this section cannot make it “kosher” to bar the Appellants’ converts from public mikvaot, as the Rabbinate is not empowered to establish a policy of discrimination. This Court holds the Chief Rabbinate in high regard, but it is clear that – as any public authority – it is subject to the provisions of administrative law, which forbid discrimination (HCJ 77/02 Osoblansky Ltd. v. Council of the Chief Rabbinate, IsrSC 56 (6) 249, 273, per Cheshin J. (2002); HCJ 7120/07 Yanuv Crops Ltd. v. Council of the Chief Rabbinate, para. 25 (2007)). The argument that one administrative authority can order another administrative authority to adopt a discriminatory policy is inconsistent with one of the fundamental principles of public law. We should make it clear that no such instruction by the Rabbinate was presented to the Court, and we, for our part, have no interest in turning this case into a decision in regard to important questions that are not before the Court.

T. The above is also required by the freedom of religion and worship granted to all in the State of Israel, subject to the Validity of Laws clause in Basic Law: Human Dignity and Liberty (sec. 10). It has been stated in regard to freedom of religion that “This freedom includes, inter alia, the right to fulfill religious commandments and requirements.” (HCJ 3267/97 Rubinstein v. Minister of Defense, IsrSC 52 (5) 481, 528, para. 36, per Barak P. [English: http://elyon1.court.gov.il/files_eng/97/670/032/A11/97032670.a11.htm]; and see my opinion in HCJ 6298/07 Ressler v. Knesset, para. 9 (2012) [English: http://versa.cardozo.yu.edu/opinions/ressler-v-knesset]). And note, the principle of equality constitutes a necessary element of freedom of religion. Thus, it was held in HCJ/650/88 Movement for Progressive Judaism v. Minister of Religious Affairs, IsrSC 42 (3) 377, 381 (1988), per Shamgar P.:

Freedom of religion and worship is one of the fundamental freedoms recognized by our legal system, and is part of it. The said freedom is, of course, primarily articulated in the freedom of religious expression and action, but that does not suffice. Inter alia, we derive from the existence of that freedom that all believers be treated equally, and that the governmental authorities distance themselves from any act or omission toward the believers of all streams, as well as their organizations and institutions, that may be tainted by wrongful discrimination.

Freedom of religion comprises two directives for the state – one positive and one negative, much as in the sense of “Depart from evil, and do good” (Psalms 34:15): first, to refrain from intervening in a person’s religious life; second, to provide appropriate infrastructure for the realization of religious life (see Daniel Statman & Gideon Sapir, “Freedom of Religion, Freedom from Religion, and the Protection of Religious Feelings,” 21 Bar-Ilan L. Stud. 5, 21-27 (2004) (Hebrew)). The second aspect of freedom of religion is, of course, influenced by budgetary considerations. In this regard, the words of Netanyahu J. in HCJ 3742/92 Bernard v. Minister of Communications, IsrSC 47 (3) 143, 152, are appropriate: “No society has unlimited resources. No authority operating in society under the law may or can ignore budgetary exigencies and provide services without considerations of cost, as important and necessary those services may be” (and see Rivka Weill, “Healing the Budget`s Ills or Budgeting the Healing of the Ill - Is the Constitutional Dilemma,” 6 Law & Business (IDC Law Review) 157 (2007) (Hebrew)). Such considerations are not substantive in the instant case inasmuch as the infrastructures exist in principle, and in any case, Respondent 2 raised no claim in this regard. Having briefly considered the status of freedom of religion in this context, we will again stress that the argument that there is some necessary “bond” between the religious act and its legal consequence is unacceptable. That being so, and without prejudicing the matter at this time, there is no reason in principle for preventing the Conservatives and the Reform from carrying out immersion in public mikvaot, without deciding – here and now – the legal significance of such conversions. As noted, the question of the legal significance of Conservative and Reform conversions is pending before this Court, and will ultimately be decided.

U. As the principle of pluralism has been mentioned in this case, it is appropriate that we note that Jewish law is not reticent in regard to multiple views and approaches. Proof of that can be found in the commentary of the Netziv of Volozhin (Rabbi Naftali Zvi Yehuda Berlin, Head of the Volozhin Yeshiva, 19^th cent., Russia) in his Ha’amek Davar Torah commentary, in regard to the Tower of Babel (cited in Aviad Hacohen, “One Language and the Same Words – Indeed? Multiplicity of Views and a Person’s Right to Speak his Language,” in Parashat Hashavua, Bereishit 32, 34, A. Hacohen & M. Wigoda, eds., (2012). The Bible tells us that there was linguistic unity at the time that the Tower of Babel was built – “Now the whole earth had one language and the same words” (Genesis 11:1) – and this was abhorrent in the eyes of the Creator – “So the Lord scattered them abroad from there over the face of all the earth” (ibid., 11:8). The Netziv explains that the reason for punishing the builders of the Tower of Babel was that they imposed uniformity of thought: “Anyone among them who deviated from ‘the same words’ was sentenced to death by fire, as they did to our Patriarch Abraham. Thus ‘the same words’ among them was abhorrent because they executed those who did not think as they did” (Ha’amek Davar, ibid.). And the Tanna Rabbi Yehuda states in the Tosefta: “The opinions of the individual were only recorded among those of the majority because the time may come when they may be needed and they will be relied upon” (Tosefta Eduyot 1:4). Thus, Rabbi Yehuda preceded John Stuart Mill’s “marketplace of ideas” (On Liberty (1859)) as a means for seeking the truth by nearly two-thousand years.

V. The appeal is therefore granted in the sense that Respondents 1 and 2 will permit the Appellants’ converts to immerse in a public mikve in Beer Sheva, including the presence of a rabbinic tribunal in the course of the immersion. By the very nature of the decision, a similar solution must be found for the mikvaot of other councils that permit immersion for conversion. Each of the Respondents will pay the Appellants’ costs and legal fees in the total amount of NIS 12,000.

Justice S. Joubran:

I concur.

President M. Naor:

I concur in the opinion of my colleague Deputy President E. Rubinstein and with his reasoning.

Indeed, at the outset of these proceedings, we were of the opinion that it would be best to find a pragmatic solution that would provide a satisfactory remedy to the problem raised by the Appellants, and that would make it unnecessary to render a judicial decision in matters that tend to divide society. Sometimes, there are many advantages to practical solutions that are not necessarily all or nothing. Immersion for the purpose of conversion is a one-time event in a person’s life, and if mikvaot could be found within reasonable driving distance, that may have been sufficient. Therefore, I see no need to decide the question of whether there must be mikvaot that can be used for conversion in each and every council.

However, regrettably, and as my colleague pointed out in para. H. of his opinion, although the state, without adequately checking, informed the Court that the Appellants had access to two mikvaot in central locations, it turned out that there was no practical solution, as my colleague explained in detail.

Under the circumstances, there is no alternative but to render judgment, and as stated, I concur in the opinion of my colleague.

Decided as stated in the opinion of the Deputy President E. Rubinstein.

Given this 2^nd of Adar 5776 (Feb. 11, 2016).

Full opinion:

The Conservative Movement v. Be'er Sheva Religious Council.pdf