Women

 

CrimA 5338/17

 

 

Appellants:

Moshe Abutbul – Mayor of Beit Shemesh Beit Shemesh Municipality

v.

 

Respondents:	1.  Nili Phillip 2.  Eve Finkelstein 3.  Miriam Sussman 4.   Rachelli Shluss 5.  Miri Shalem 6.  The Israel Religious Action Center – Israel Movement for Reform and Progressive Judaism 7.  Attorney General

 

Appeal on the decision of the Jerusalem District Administrative Affairs Court (Judge Y. Merzel) of June 7, 2017 in AP 049319-05-15

 

 

Israeli Supreme Court cases cited:

[1]       LCA 6897/14 Radio Kol Barama Ltd. v. Kolech – Religious Women’s Forum (Dec. 9, 2015) [https://versa.cardozo.yu.edu/opinions/radio-kol-baramah-v-kolech-%E2%80%...

[2]       HCJ 746/07 Ragen v. Ministry of Transport (Jan. 5, 2011) [https://versa.cardozo.yu.edu/opinions/ragen-v-ministry-transport]

[3]       HCJ 153/87 Shakdiel v. Minister for Religious Affairs [1988] IsrSC 42(2) 221 [https://versa.cardozo.yu.edu/opinions/shakdiel-v-minister-religious-affa...

[4]       HCJ 4541/94 Miller v. Minister of Defense [1995] IsrSC 49(4) 94 [https://versa.cardozo.yu.edu/opinions/miller-v-minister-defence]

[5]       HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [1998] IsrSC 52(3) 630 [https://versa.cardozo.yu.edu/opinions/israel-womens-network-v-minister-l...

[6]       CrimA 517/06 Boaz Manor v. KPMG Inc. (July 24, 2007)

[7]       CrimA 126/62 Dissenchik v. Attorney General [1963] IsrSC 17(1) 169 [https://versa.cardozo.yu.edu/opinions/dissenchick-v-attorney-general]

[8]       CrimA 519/82 Greenberg v. State of Israel [1983] IsrSC 37(2) 187

[9]       CrimApp 4445/01 Gal v. Katzovshvili, [2001] IsrSC 56(1) 210

[10]     LCrimA 3888/04 Sharbat v. Sharbat [2004] IsrSC 59(4) 49

[11]     CrimA 1160/98 SHIZAF Marketing, Promotion and Construction Projects v. Ashkenazi [2000] IsrSC 54(1) 230

[12]     LCrimA 48/98 Ezra v. Zelezniak [1999] IsrSC 53(3) 337

[13]     CA 371/78 Hadar Lod Taxis v. Biton [1980] IsrSC 34(4) 232

 

 

The Supreme Court sitting as the High Court of Justice

(Before: Deputy President H. Melcer, Justice (emer.) U. Shoham, Justice D. Mintz)

 

 Judgment

(Nov. 1, 2018)

 

Deputy President H. Melcer

1.         This is an appeal on the decision of the Jerusalem District Court, sitting as a Court for Administrative Affairs (Judge Y. Merzel) in AP 49319-05015 of June 7, 2017, in the matter of a request filed by Respondents 1-6 (hereinafter: the Respondents), in the framework of which an order was issued against the Appellants under the Contempt of Court Ordinance (hereinafter: the Ordinance), as explained below.

I will now present the information necessary for deciding the entire matter.

 

Factual Background

2.         On April 26, 2015, the Respondents filed an administrative petition with the Administrative Affairs Court (hereinafter: the administrative petition), concerning the removal of signs placed at various locations throughout the city of Beit Shemesh containing offensive demands, requests and statements concerning women (hereinafter: the signs). The petition was directed against the Appellants – the Beit Shemesh Municipality (Appellant 2), and the Mayor, Mr. Moshe Abutbul (Appellant 1).

To complete the picture, we would note that in June 2012, the Respondents approached the Appellants by various means, demanding that the signs be removed, and on Feb. 20, 2013, Respondents 1-4 even sued the Appellants in the Beit Shemesh Magistrates Court (CC 41269-02-13), claiming that they must compensate them for the humiliation and the offense caused to them due to the Appellants’ failure to remove the signs as required.

3.         On Jan. 25, 2015, the Magistrates Court (Judge D. Gidoni) ruled that the signs that were the subject of the claim convey an offensive, discriminatory message, and that the Appellants bear a conceptual and concrete duty of care to act to remove them. This ruling also determined that the Appellants were negligent in not taking reasonable action to remove the signs, putting them in breach of their duty of care. The Magistrates Court awarded each of the four plaintiffs in that proceeding compensation in the amount of NIS 15,000, as well as legal costs.

4.         After a long period during which the Respondents waited for the signs to be removed by the Appellants, the Respondents filed the said administrative petition. On June 19, 2016, at the conclusion of the deliberations on the administrative petition, the agreements arrived at by the parties were given the force of a judgment (hereinafter: the consent judgment), with the following determinations:

       a.         The Respondents [in the present case – the Appellants – H.M.] once again inform the Court that signs of the type that are the subject of the petition are illegal.

       b.         The Respondents [in the present case – the Appellants – H.M.] have the authority to exercise enforcement measures in respect of the violation of the law by the placement of signs of this type.

       c.         The Respondents [in the present case – the Appellants – H.M.]     will exercise all powers of enforcement at their disposal under law (including imposition of fines) in order to bring about the removal of the signs that are the subject of the petition, as well as other signs that bear the same illegality. Effective enforcement measures will be implemented immediately and continuously, and this matter will be accorded importance in the framework of the enforcement and budgetary priorities of the Municipality.

        d.         In particular, and in relation to the sign marked “A”, a request will be filed with the Beit Shemesh Court for Local Affairs to enter into courtyards within 15 days from today, in order to obtain from the Court an order like the order that was issued in the past, following which the Respondents [in the present case – the Appellants – H.M.] themselves will remove the signs. This will not be deemed to exhaust any other enforcement measures that are available to the Respondents [in the present case – the Appellants – H.M.] under any law, including the imposition of fines.

        e.         The signs that were marked B and G will be removed by the authorized bodies on behalf of the Respondents [in the present case – the Appellants – H.M.] within 21 days of today. This will not be deemed to exhaust any other enforcement measures that are available to the Respondents [in the present case – the Appellants – H.M.] according to any law (including the imposition of fines). The Respondents [in the present case – the Appellants – H.M.] undertake to remove these signs, if they are put up again, as soon as possible, subject to effective enforcement constraints.

        f.                      Within 15 days from today, an official request (complaint, if necessary) will be made by the Respondents [in the present case – the Appellants – H.M.] to the Beit Shemesh precinct of the Israel Police in regard to the  specific investigation of the placement of the signs marked A, B and G. A copy of the request will be sent to the Attorney General’s representative.

        g.         I once again notify the Court [this refers to counsel for the Municipality, Adv. Gastwirth – H.M.] that the Municipality requested (some 50) cameras from the Ministry of Public Security as part of the “City Without Violence” program, with a recommendation to place them, inter alia, on Nahar Hayarden Street, at the corner of Yehuda Hanasi (sign A) [additions mine  – H.M.].

5.         On Feb. 20, 2017, some eight months after the consent judgment was handed down, the Respondents filed a request with the Administrative Affairs Court, pursuant to the Ordinance, asking the Court to compel the Appellants to comply with the provisions of the consent judgment granted in the framework of the administrative petition. In the framework of the request, it was argued that despite the long string of events that preceded the filing of the administrative petition, and despite the ongoing harm to women in the city of Beit Shemesh, the Appellants are not exercising significant, effective enforcement measures in accordance with their undertakings in the consent judgment.

6.         On June 7, 2017, the Administrative Affairs Court granted the request in part, and ruled that the consent judgment had indeed been violated with respect to the sign marked “A” in the administrative petition, which was placed on the corner of Nahar Hayarden and Yehuda Hanasi Streets, and the signs that had been placed on Hazon Ish Street in place of the signs marked “G”. It ruled that this breach constitutes sufficient grounds for imposing a conditional fine upon the Appellants. The Court ruled that if all the said signs are not removed by July 6, 2017, the Appellants will pay a fine of NIS 5,000 for each day of delay in their removal. At the same time, the Court ruled that the part of the request concerning new signs placed after the consent judgment, regarding which no concrete order had been issued in that judgment, could not be granted, in light of the procedural framework of contempt of court proceedings.

7.         The present appeal was filed against this decision of the Administrative Affairs Court, together with a request to stay execution of fine. At the conclusion of the hearing before me on the request to stay execution, on July 6, 2017, I ordered that the decision of the Administrative Affairs Court, which was the subject of the appeal, be stayed in part, until such time as a different decision be handed down and subject thereto, provided that the following conditions be met:

a.         The two signs placed on Hazon Ish St. in Beit Shemesh, which call for the banishment of women from the sidewalk on the said street (a photograph of one of these two signs was submitted to the Court file and marked “G”), will be removed by inspectors on behalf of the Respondents [in the present case – the Appellants – H.M.], with the help of the Israel Police, within 14 days of today.

b.         Within fourteen days of today, cameras will be installed by the Municipality, and funded by it, on Hazon Ish St. for the purpose of identifying those attempting to replace such prohibited signs on the street, or of those spraying graffiti with similar content.

c.         The Respondents [in the present case – the Appellants – H.M.] will submit, by July 24,2017, a report on the execution of the instructions in ss. (a) and (b) above, and on all the legal actions and steps that they have taken in order to implement the removal order that was issued by the lower court in respect to the sign placed on Nahar Hayarden St., corner Yehuda Hanasi, in Beit Shemesh, in which women were exhorted to appear in the neighborhood, and in the Hareidi (ultra-Orthodox) shopping center there, in modest dress (a photograph of the sign was submitted to the Court file and marked “A”) (additions mine – H.M.).

8.         Subsequent to the above decision, counsel for the Appellants provided an update in their report of July 20, 2017 as follows:

a)         The two signs that were placed on Hazon Ish St. in Beit Shemesh, which call for banishing women from the sidewalk of the said street, were removed by inspectors on behalf of the Appellants, with the help of the Israel Police, on July 19, 2017 in the afternoon, but the signs were replaced during the night.

b)         On July 11, 2017, Appellant 2 installed wireless cameras, but on July 12, 2017, unknown persons damaged the cameras, rendering them inoperable.

c)         The Appellants concluded that the most effective way to remove the sign (marked “A”) was not by means of the order to enter courtyards and remove the sign forcibly, but by imposing fines on the owners and residents of the building on which the sign was hung.

Accordingly, the Appellants once again requested a stay of execution of the decision of the Administrative Affairs Court until the decision on the appeal.

9.         In her response, counsel for the Respondents stated that the Appellants “continue to drag their feet unceasingly in all their handling of the signs.” She argued that reasonable conduct on the part of the Appellants would be to remove the signs on Hazon Ish St. at night, in order to reduce opposition and friction, but Appellant no. 2 chose to remove them in the afternoon; the Appellants did nothing to repair the cameras; imposition of fines had not as yet brought about the removal of the signs, and in any case, under the circumstances, the conditions for staying execution have not been met.

10.       Counsel for Respondent 7 explained in his response that from the report of the Appellants and from the response of the police it emerges that the Appellants did not act in complete coordination with the Israel Police, and it is possible that had there been such coordination, the result would have been different with respect to the signs that were removed and replaced on July 19, 2017. Counsel for Respondent 7 further argued that the measures taken by the Appellants were insufficient, and that the Appellants are not fulfilling their obligations under the consent judgment. In this context, it was argued that limiting action to the imposition of fines does not amount to fulfilment of the  consent judgment, and once the Appellants made it clear both in the oral hearing and in their response that they do not intend to take action to remove the sign (marked “A”) – there is no justification for staying execution of the decision of the lower court.

11.       On Sept. 4, 2017, I denied the request to stay execution, and ruled that the partial stay of execution that I ordered on July 6, 2017 will lapse on Sept. 10, 2017 (hereinafter: commencement date). I also ruled that the Appellants will pay the costs imposed upon by the  Administrative Affairs Court as of the commencement date, unless the consent judgment is fully and irrevocably carried out prior to the commencement date.

12.       I shall now turn to the arguments of the parties to the appeal.

Arguments of the Parties to the Appeal

13.       According to the Appellants, the District Court erred in its ruling that they were in breach of the consent judgment, and alternatively, even if there had been a breach, in the special circumstances of the case at hand there was no justification for invoking the extreme, exceptional tool of contempt of court proceedings against them. They also argued that the consent judgment could be interpreted in more than one way, and that under the circumstances, there had not been a clear, unequivocal breach – which would have been a fundamental condition for invoking the mechanism of contempt of court proceedings.

In this context it was argued that the District Court did indeed rule that the Appellants had been in breach of the consent judgment in relation to the sign marked “A”, but the consent judgment did not set a time for removing the sign. Therefore, the Appellants were authorized, so they say, to exercise their discretion in regard to the enforcement policy to be adopted in relation to the said sign. Accordingly, after weighing all the relevant considerations, including the fact that the said sign had already been removed in the past, but replaced a few days later, the Appellants concluded that the most effective way of handling this sign was by imposing fines on the owners and residents of the building on which the sign was placed, and enforcing the said fines.

It was further argued that the signs marked “G” were indeed removed by the Beit Shemesh Municipality on July12, 2016, but were replaced on August 8, 2016. The District Court ruled that the Appellants were in breach of the consent judgment in regard to the new signs that were put up, but as opposed to the signs marked “G”, no date had been set for the removal of the new signs, and all that had been decided was that they should be removed “as soon as possible, subject to constraints upon effective enforcement”. Therefore, the Appellants argue that the obligation to remove them in the framework of the consent judgment had no time limitation, but was subject to their discretion. In this context, and after the Appellants weighed all the relevant considerations, including the fact that the signs concerned had been removed several times in the past but replaced each time, the Appellants concluded that the most effective way of handling these signs was not by removing them, but by surveillance of those responsible for posting them.

14.       The Appellants further argue that the caution that must be exercised in relation to invoking the extreme and exceptional tool of contempt of court is even more necessary when, as in our case, the matter concerns enforcement of the policy of an administrative authority. This, according to the Appellants, is because the court will not interfere in the discretion of the competent authorities in determining enforcement policy, other than in the most exceptional cases in which there is a total disregard for enforcement of the law, or unreasonable avoidance thereof on the part of the authorities. The Appellants claim that this is not the situation in the present case. In their view, despite the difficult situation that exists in Beit Shemesh, which includes, inter alia, violence towards municipal workers and inspectors, the Municipality has acted and continues to act to enforce the law in the matter of the signs. Under these circumstances, and bearing in mind that, in any case, the local police take extensive action against all acts of violence, the responsibility for all that concerns the removal of the signs should fall, according to the Appellants, on the police as well, and not only on the Beit Shemesh Municipality. Furthermore, examination of the breach of the consent judgment and the conducting of contempt of court proceedings should be carried out against the backdrop of the harsh reality that pertains in the city with respect to enforcement of the law in general, and with respect to handling the matter of the modesty signs in the city in particular. The Appellants also argue that the rulings of the District Court did not give due weight to the fact that the Appellants invested, and are still investing, great efforts in dealing with the matter of the signs, and these efforts have indeed brought about the removal of some of the signs, even though new ones have replaced them.

15.       As opposed to this, the Respondents argue that although their arguments were accepted in all the legal proceedings, and despite the fact that the Appellants were ordered to remove the signs, the situation today is that signs are still hanging throughout the city. They argue that the Appellants have displayed a consistent and continuous attitude of contempt for the rights of the women in the city, as well as for the principle of the rule of law, throughout the entire legal proceedings. They say that the Beit Shemesh Municipality takes great pains to avoid enforcing the by-law that it itself enacted, and that the Mayor even declared in the past that he supports the hanging of signs. As such, the Respondents further argue that the Appellants are in clear breach of the consent judgment, deliberately and by virtue of an intentional decision, and that they ignore the fact that this is a final judgment that includes clear obligations, and now they wish to reopen their arguments with respect to the means that they should adopt for the purpose of dealing with the signs.

The Respondents also claim that the Appellants are acting with a total lack of good faith, and that they never removed even a single sign without a legal action having been initiated in court. The Respondents add that the Appellants are in contempt not only of the consent judgment, but also of the decision of this Court of July 6, 2017, because new cameras were not installed after the damaging of the cameras, and no additional attempt was made to remove the signs marked with the letters “A” and “G”. The Respondents further note that the obligation to pay the fine is imposed on the Appellants up until such time as the signs are removed permanently, whereas a one-time removal, following which the sign is hung again within a few hours, does not exempt the Appellants from their obligation under the consent judgment to pay the fine and to exercise effective means of enforcement to again remove the signs that were replaced, as well as the other signs hanging in the city.

16.       According to Respondent 7 – the Attorney General – Appellant 2 did not fully fulfill its obligation under the consent judgment to exercise its powers in relation to signs that are hung within its boundaries in an effective, satisfactory manner. Respondent  7 emphasized that the signs are an extreme violation of human rights, including the right to equality, to freedom of movement, to dignity and to autonomy. It was also contended that the conduct of Appellant 2 in implementing the consent judgment is inconsistent with the decision of this Court of Sept. 4, 2017, in the framework of which it was explained that the obligation to pay the fine imposed on the Appellants in the contempt proceedings applies to the Appellants up until such time as the signs are completely removed. Clearly, pinpoint removal, following which the signs are immediately replaced, does not relieve the Appellants of their obligation. In this context, it was argued that the Beit Shemesh Municipality did not adopt all the requisite measures to remove the signs, and that it almost entirely refrains from enlisting the aid of the Israel Police for this purpose.  The Appellants did indeed attempt to comply with the consent judgment, but according to the Attorney General, they did not make the requisite effort, given their obligation to comply with the judgment, and in view of the extreme offensiveness of the signs. It is further claimed that following the action taken by the Municipality to remove the signs on Sept. 10, 2017, and given that the Appellants knew that new signs had been hung, the Municipality has confined itself merely to imposing fines. Clearly, since the Appellants refrained from implementing effective enforcement measures that would lead to the permanent removal of the signs addressed in the consent judgment for more than two months after the time of their pinpoint action, their one-time action cannot be regarded as implementation of the judgment, but rather, as disregard of the duty it imposes on them. Respondent 7 explained that the Israel Police is prepared to extend to the Municipality whatever assistance is necessary, but the burden of initiating and executing enforcement measures lies with the Beit Shemesh Municipality and not with the Israel Police. In addition, regarding the Appellants’ claim that the measure that they adopted is the most effective, it was argued that the approach adopted by the Beit Shemesh Municipality is effective to a certain degree, but it cannot replace the primary action of removing the signs.

Unfolding of Events since the filing of the Appeal

17.       On Dec. 4, 2017, a hearing on the appeal was held before this Court, in the course of which the parties repeated their main arguments. In the course of the hearing, the Appellants stated that the signs – the subjects of the contempt motion – as well as other signs that had been hung in the meanwhile, with similar wording, would be removed by Dec. 18, 2017. The representative of the State Attorney, with the knowledge of the Israel Police, declared that the Israel Police would help the Appellants remove the signs, and would increase its presence in the relevant areas. We granted these declarations the force of a judgment, and ordered that counsel for the parties provide an updating report on implementation of the above by Dec. 21, 2017.

18.       On Dec. 14, 2017, the Appellants provided an update in which they notified the Court that on Dec. 11, 2017 a widespread operation had been conducted by the Appellants, accompanied by the Police, to remove all the signs placed throughout the city. In the framework of this operation, which was  met by riots and disturbances of the peace, six of the eight existing signs were removed by municipal inspectors. The Appellants claimed that the two remaining signs were not removed due to the decision of the Police to stop the operation for fear of matters getting out of control. Several hours after the end of the operation, a number of small signs were hung, and later, the large sign, marked “A” was once again replaced. Subsequently, on the night of Dec. 12, 2017, the Appellants began another extensive operation to remove the signs in the city, removing no less than 15 signs throughout the city, including the sign marked “A”. In addition to the above operations, the Appellants said in their updating report that they will continue to impose fines on the owners and residents of the properties on which the signs appear, and they will examine how and when it will be possible to install a camera at the corner of Yehuda Hanasi and Nahar Hayarden streets, where the large sign marked “A” appeared.

In light of the above, the Appellants asked the Court to rule that there is not, nor was there, reason to pursue contempt of court proceedings against them, and accordingly to grant the appeal and reverse the decision of the District Court on the matter.

19.       From the response of counsel for Respondent 7 that was submitted to this Court on Dec. 22, 2017, it emerges that on Dec. 14, 2017, extensive action was indeed taken, in which additional signs were removed. It was also reported that the Israel Police increased its presence in the streets of Beit Shemesh, with emphasis on those streets where trouble was likely, and that it is dealing with events that occurred in response to the removals, providing a response to developing events and helping the Beit Shemesh Municipality in carrying out its duty to remove the signs. It was also noted that the Israel Police attempted to initiate additional actions to remove the signs, and to this end it approached certain people in the Municipality, but the cooperation on the part of the Beit Shemesh Municipality, so it was claimed, was limited. In this context, the response of Respondent 7 described four cases in which police officers from the Beit Shemesh station contacted various people in the Municipality in order to initiate action, but either there was no response to their request, or the response was negative.

20.       On Dec. 28, 2017, the Respondents filed their response to the Appellants’ report. According to the Respondents, as opposed to the picture of the situation that the Appellants sought to paint, there were no widespread, violent riots and disturbances of public order, but gatherings of several dozen citizens at most, against whom no measures were taken to disperse the demonstrations. The Respondents also claimed that, as emerges from the response of Respondent 7, the Appellants are again dragging their feet and refraining from seeking police help for the purpose of further removal of the signs. It was also explained that there are currently more signs hanging throughout the city of Beit Shemesh than were hanging at the time that the proceedings were conducted in this Court on Dec. 4, 2017. The Respondents also said that in addition to the many signs, graffiti had been spayed, and a great number of stickers calling for modest dress affixed (and not removed by the municipal inspectors). The Respondents also said that to the best of their knowledge, to this day no suspects have been arrested for placing signs or for spraying the offending graffiti. It was further noted that on Dec. 15, 2017, a notice calling upon people to harass Respondents 1-5 was distributed, aimed at causing them to desist from their legal battle against the modesty signs. The notice contained the personal details of Respondents 1-5, and after its distribution, Respondents 1-5 began receiving threatening calls.

The Respondents further contended that neither the Appellants nor the police are doing what they ought to be doing to put an end to the shameful phenomenon that has made its appearance, according to them, throughout Beit Shemesh. They said that despite the Appellants’ declaration that they are pursuing the process of imposing fines on the residents of the buildings on which the signs are placed, from an investigation conducted by the Respondents it emerges that hundreds of hearings that had been scheduled for arraignments in cases in which those accused of placing the signs opted for a trial had been postponed at the request of the Municipality. Furthermore, despite the fines having been imposed many months ago, the Municipality has not taken any steps to collect them. In addition, it was stressed that the cameras that the Appellants were supposed to install at the main points of friction have not yet been installed either. The Respondents also noted in their response that following the hearing that was held in this Court on Dec. 4, 2017, Appellant 1, the mayor of Beit Shemesh, was interviewed on the Reshet Beit radio station, and he stated that Respondents 1-5 must respect the sensibilities of the residents and desist from acts of provocation.

21.       In their response dated Jan. 1, 2018, the Appellants argued that they had proved, time after time, that they are committed to an uncompromising war on the phenomenon of the signs, and that even if some of the signs are replaced before being removed again, there is no real justification for pursuing the contempt proceedings against them. The Appellants argued that in the course of a period of two weeks, they conducted three operations to remove the signs. Each such operation imposed a heavy financial burden on the Beit Shemesh Municipality, and it is therefore not able to carry out such operations on a daily basis. In this context it was further argued that it is the police that have failed time after time to eradicate the phenomenon of the signs, and in an attempt to hide its failures it seeks to lay the full responsibility on the shoulders of the Appellants. In all that concerns the installation of cameras, it was explained that the Municipality acquired “a camera with face-recognition technology and real-time transmission […] but as of the present time, the police have not yet decided on the place and time for installation of the camera.”

22.       After a careful reading of the updating reports from the parties, on Jan. 15, 2018 I ordered that a further hearing be conducted on the appeal. The parties would be allowed to submit additional updates on their behalf until three days before the date of the hearing, which was set for Feb. 18, 2018.

23.       On Feb. 15, 2018, the parties submitted updating reports in accordance with the order to do so. In the framework of the report submitted on behalf of the Appellants, it was claimed that they continue in their consistent, vigorous activity against the phenomenon of the signs in the city, which they say has led to a significant decline in the dimensions of the phenomenon. The report also mentioned that on Jan. 15, 2018, the Municipality embarked on an additional, extensive operation, accompanied by the police, to remove the signs. The Appellants claimed that the said operation was met by violence and disturbances, and that 18 signs were removed in the operation, including large signs that had been hung on buildings. These were removed by means of a crane. It was argued that following the above operation, no large signs remain on buildings. The few remaining signs are small, or stickers that call for maintaining modest dress, and their contents are not, according to them, offensive, as were the contents of the large signs that were posted in the past. It was also mentioned that the signs marked “G”, which call to refrain from using the sidewalk, were removed by the Appellants on the evening of Feb. 14, 2018, and that it is their intention to continue to take action against all the signs throughout the city, including the small signs and the stickers that call for maintaining modest dress. It was further mentioned that together with removing the signs, the Appellants are taking legal action against the owners of the apartments in the buildings on which the signs were hung. In this framework, and following the fines imposed on the owners and their request to be tried for the said fines, the Appellants said that of late, plea bargains have been made with some of the residents, which include payment of the fines and an undertaking to refrain from committing offenses under the Beit Shemesh (Notices and Signs) By-Law, 5715-1955. On the subject of the cameras, it was argued that the Appellants are acting to install the cameras throughout the city, but in order to decide on the place and time, serious, systematic groundwork is being done by the city in cooperation with the police.

24.       The updating report submitted by Respondent 7 stated that the Israel Police is continuing to take various steps to provide assistance and security support to the Beit Shemesh Municipality in its actions to remove the signs and to prevent their replacement with new signs. It was also stated that the Israel Police holds frequent discussions with various entities in the Beit Shemesh Municipality, with the aim of initiating additional action to remove the signs. In this framework, on Dec. 26, 2017 the Beit Shemesh Municipality took action to remove signs, with the help of police forces, and 15 signs were removed. As was also stated in the updating report submitted by the Appellants, additional, similar action was taken on Jan. 15, 2018,  in the framework of which 18 signs were removed. According to the report, this action was met by various provocations and disturbances, and only the police presence made it possible for the Municipality inspectors to continue carrying out their job as planned. It was also stated in the report that the police and the Municipality carried out an advance reconnaissance to remove the graffiti, and that the Municipality is waiting for a quote to carry out the removal.

25.       The Respondents’ updating report stated that since the hearing held on Dec. 4, 2017, there had indeed been several operations to remove the signs, but some of the signs had been replaced. In addition, many stickers calling for modest dress had been affixed, and nothing came of calls to the municipal inspectors to have them removed. In this context, the Respondents noted that most of the signs and the stickers are located in the public domain at a low level, and therefore, it is not physically difficult to remove them. According to the Respondents, the fact that the signs and the stickers are still evident throughout the city means that both the Municipality and the police are not doing enough to eradicate the phenomenon. The Respondents emphasized in their report that to date, cameras have not been installed at the friction points in the city, despite the fact that in the consent judgment, the Appellants declared that they had applied to the Ministry of Public Security to receive cameras as part of the “City Without Violence” project. It was stated that the Ministry of Public Security approved a budget for the Municipality for seven security cameras, but contrary to its undertaking, the Municipality chose not to install these cameras in the areas that were the main friction points. It was further stated that despite the willingness of the Ministry of Public Security to authorize municipal inspectors in Beit Shemesh as support inspectors, the Municipality refuses to ask the Ministry of Public Security to authorize the inspectors, thereby preventing, in effect, the reinforcement of the security set-up in the city, in a way that would help in enforcing the law and eradicating the phenomenon of the signs.

26.       On Feb. 18, 2018, at the end of the additional hearing before us, in which we learned of a degree of progress that had been made in carrying out the provisions of the consent judgment, we made it clear in our decision that this progress is still insufficient in the circumstances, and that the Appellants must act, within 30 days –

        a.  To install seven cameras in the neighborhood in which there are violations, the budget for which has been approved for the Municipality by the Ministry of Public Security and the Israel Police (in the framework of the “City Without Violence” project).

        b.  To remove the large offending sign that is still in place – at the corner of Nahar Hayarden St. and Yehuda Hanasi St. (45 Rabbi Elazer St.) [the sign marked “A” – H.M.].

        c.  To remove the offending signs that were hung in the city, and to erase or cover the graffiti relating to the exclusion of women.

        d.  To move forward with the proceedings that were initiated against owners or residents of the buildings who aided in hanging the offending signs/notices.       

        e.  To remove immediately any new sign or notice that is hung.

(Emphases added – H.M.)

It was also ruled that the Appellants must report by March 20, 2018 on the actions taken by the Municipality, and the other parties must respond to their report by March 26, 2018.

27.       On March 20, 2018, the Appellants submitted their updating report. The report stated that after the hearing, three dates were set for operations to remove the signs. Accordingly, on Feb. 27, 2018, the Municipality carried out an extensive operation, with police support, to remove the signs. It was argued that in the course of this operation, hundreds of stickers, dozens of graffiti inscriptions and a number of signs, including the large sign marked “A”, were removed. The operation was met by disturbances of the peace, and there was even one incident of stone-throwing at a municipal vehicle which had municipal employees inside. After the operation, several graffiti inscriptions reappeared, including at the location of the sign marked “A”, and the report stated that these will again be removed in the course of the operation planned for the near future.

As for legal proceedings against the residents of the buildings on which the signs were hung, the Appellants said in their report that subsequent to the fines that were imposed on the residents and their requests to go to trial, plea bargains were signed and approved in respect of all the residents. These plea bargains included payment of the fines and an undertaking to refrain from committing offenses of this type, and most of the residents have already paid the fines that were imposed on them in the framework of the agreements.

Concerning the installation of the cameras, the Appellants said that this was a complex matter, and that it was not possible to complete the task within 30 days of the decision of this Court. They said that for the purpose of installing the cameras, the Ministry of Public Security allocated a budget of NIS 318,000, and that the Municipality intended to use this budget, and even to add to it, in order to install as many cameras as possible, but that this was likely to take up to 150 days (note: in the meanwhile, 150 days have passed and the Appellants have not reported that the installation has been carried out).

28.       On March 29, 2018, the Respondents submitted their response to the above report. Concerning the installation of the cameras, they said that the Municipality has been declaring its intention to install cameras in the sensitive areas for a long time, but these intentions have remained on paper, and in fact, not even one camera has been installed in those areas. The Respondents claim that although there is a budget, and although the Municipality has been saying for years that it intends to install cameras in the areas that are the main centers of dispute, it continues to refrain from installing the cameras, and it thus continues to disregard the decisions of this Court. In this context, the Respondents explained that there are dozens of cameras in every neighborhood in Beit Shemesh – except for those neighborhoods that are the main trouble-spots. It was also claimed that the proceedings conducted by the Municipality involved residents who were not involved in hanging signs, and only by installing cameras will it be possible to locate and initiate proceedings against those responsible for hanging the signs and violating the by-law.

The Respondents further maintain that the Appellants’ claim that “there are no longer any large signs on buildings throughout the city” is not true. They say that the large sign, marked “A”, was indeed removed, but that the same building now bears graffiti with identical wording to that of the sign that was there, and despite several actions by the Municipality to remove the signs, the city is still festooned with signs, stickers and graffiti  calling for modest dress.

29.       The updating report from Respondent 7, submitted on March 29, 2018, states that the Israel Police continues taking various steps to provide help and security support to the Beit Shemesh Municipality in its activity to remove the offending signs and prevent additional signs being hung. It also mentions that together with the various operations that took place on Feb. 15, 2018, Feb. 27, 2018, March 6, 2018 and March 21, 2018, in coordination with the Beit Shemesh Municipality, in which signs, stickers and graffiti were removed, the Israel Police reinforced its presence in the relevant areas within the boundaries of the city of Beit Shemesh. 

As for the of installation of cameras, the claim was that the Israel Police did indeed recommend that the Municipality erect high poles in order to cover a wide area and prevent vandalization of the cameras. However, a letter sent by the Chief of Police in Beit Shemesh to municipal officials explained that this was only a recommendation. Therefore, the delay in installing the cameras was not caused by the Israel Police, and the responsibility for their installation lies with the Beit Shemesh Municipality alone.

30.       On April 24, 2018, the Respondents reported in writing to the Court that in the month since the responses were submitted, the situation in Beit Shemesh in relation to the signs had deteriorated significantly. They noted that as of the date of writing the notice, there had been no progress on the installation of cameras. Moreover, graffiti was spreading, and the serious harassment of girls and women in the city in regard to modesty was continuing.

31.       On May 6, 2018, the Appellants submitted their response, in the framework of which they denied outright the assertions of the Respondents that they are disregarding the decisions of this Court. It was further emphasized that the present concern is an appeal of the decision of the District Court according to the Ordinance, on the matter of the consent judgment. The Appellants claim to have already fulfilled all the provisions of the consent judgment, and everything that is being carried out in accordance with the decisions of this Court is well beyond the scope of the consent judgment. They also claimed that, as is evident from the many updating reports that were submitted to this Court both by the Appellants and by Respondent 7, over the last year the Municipality conducted many operations with police support to remove the signs and the graffiti throughout the city. It was also argued that the consistent, vigorous actions of the Municipality, both on the physical level of removing the signs and on the legal level of taking action against the residents of the buildings, has led to the almost total eradication of the phenomenon of signs in the city.  However, alongside the gradual eradication of the phenomenon of the signs, the phenomenon of stickers and graffiti has grown. The Appellants declared that in accordance with the decisions of this Court, they acted and will continue to act to remove the stickers and the graffiti, as well. At the same time, they argued that hanging the signs, affixing the stickers and painting graffiti in the public domain constitute criminal offenses, and the responsibility for preventing them lies primarily with the police, which alone has the tools to find and arrest the perpetrators.

As for installing cameras, the Appellants notified the Court that the Municipality had issued a tender to the suppliers of the Ministry of Public Security for the installation of seven cameras, but the budget allocated by the Ministry of Public Security is much lower than the one bid that was tendered, and therefore a meeting of the Municipality was called for the purpose of approving the bid and attempting to lower the price.

Deliberation and Decision

32.       After studying the arguments of the parties, reviewing all the material that was submitted to us, and hearing the arguments of counsel for the parties, my position is that the appeal must be denied, and I will suggest to my colleagues that we decide accordingly. I shall explain below the reasons for this conclusion. However, before I address the questions that must be decided in this appeal, I will say a few words about the general phenomenon of the exclusion of women from the public domain.

Exclusion of Women from the Public Domain

The term “exclusion of women” refers to sweeping discrimination on the basis of sex, the main characteristic of which is withholding from women, due to the fact that they are women, the possibility of receiving public services, of participating in public activity, or of maintaining a presence in the public sphere. The exclusion of women is liable to manifest itself in several ways. One expression of it, for example, is gender separation, whereby certain public services are in fact provided to women, but in a separate manner. The exclusion of women may express itself in another form when women are prevented or categorically restricted from receiving services or from active participation in activity that takes place in the public domain.

34.       The practices that are suspect as being exclusionary of women give rise, by their very nature, to different questions in a variety of legal spheres, the central one of which is the constitutional-public sphere. These practices emphasize the tensions surrounding the rights of women to equality, dignity, freedom of expression, autonomy, and freedom of occupation, as against opposing rights and interests deriving from the principles of multi-culturalism, freedom of religion and the desire to prevent offense to religious sensibilities (see: LCA 6897/14 Radio Kol Barama Ltd. v. Kolech – Religious Women’s Forum [1]  (hereinafter: Kol Barama); HCJ 746/07 Ragen v. Ministry of Transport [2] (hereinafter: Ragen); Ruth Halperin-Kaddari, Women, Religion and Multiculturalism in Israel, 5 ucla j. int'l & for. aff. 339, 362-66 (2000); Susan M. Okin, Is Multiculturalism Bad for Women? in Is Multiculturalism Bad For Women? 9-24 (Joshua Cohen, Matthew Howard & Martha C. Nussbaum, eds., 1999)).

35.       The exclusion of women in Israel sometimes involves a unique element that includes religious considerations, due to which we must ask whether, in special circumstances, it is possible to justify separate, or limited, treatment of women in the public domain, in view of the whole array of relevant interests (see, inter alia: Kol Barama case [1]; Alon Harel and Aaron Shenrech, The Separation Between the Sexes on Public Transport, 3 Alei Mishpat 71 (2003) (Heb.); Noya Rimmelt, Separation Between Men and Woman as Sexual Discrimination, 3 Alei Mishpat 99 (2003) (Heb.); Zvi Traeger, Separation Between Men and Women as Sexual Harassment, 35 Iyyunei Mishpat 703, 709-13 (2013) (Heb.); Alon Harel, Regulating Modesty Related Practices, 1 Law and Ethics of Human Rights 211 (2007)).

36.       The Report of the Ministry Team for Investigation of the Phenomenon of Exclusion of Women in the Public Domain (Jan. 5, 2012) (hereinafter: the Ministry Report), whose conclusions were adopted by the Attorney General in May 2013, examined in depth the phenomenon of the exclusion of women in this context. Gender separation and distinction in cemeteries, in state ceremonies, on public transport and in regard to the freedom of movement of women as pedestrians in ultra-Orthodox neighborhoods were all examined, including the various cultural and religious (halakhic) interests. As mentioned in the Ministry Report, the criterion that was adopted for considering the constitutionality of each occurrence that was suspect of being exclusionary of women was the criterion that was formulated in the case law of this Court regarding discrimination, namely, the question to be asked is whether there is a “relevant difference” that stems from the nature and the substance of the public services that are provided that would justify gender separation. At the same time, it was noted that in the framework of this examination, the unique cultural aspects of the ultra-Orthodox community must also be considered, including the question of how to relate to the fact that the women in the ultra-Orthodox community are a group that constitutes a “sub-minority” within the ultra-Orthodox minority (paras. 13, 25 and 242 of the Ministry Report; Kol Berama case [1]).

37.       At this point it should be noted that not every activity or policy that is said to constitute “exclusion of women” will necessarily be classified ultimately as prohibited discrimination, since the reality of life in these contexts is complex, and it does not permit the adoption of a simplistic, extreme approach with all its implications. Indeed, a practice that is suspect as being exclusionary of women will be examined on its substance, in accordance with its nature and characteristics, and according to the norms established in the case law (see, inter alia: Aharon Barak, Human Dignity: The Constitutional Right and its Daughter-Rights, vol. 2, 703-05 (2014) (Heb.); HCJ 153/87 Shakdiel v. Minister for Religious Affairs [3], 242-43; HCJ 4541/94 Miller v. Minister of Defense [4], 109-10; HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [5], 652-60 (hereinafter: Israel Women’s Network).

38.       “Modesty signs” are part of the disturbing phenomenon of excluding women from the public domain. Chapter 17 of the Ministry Report deals with the specific subject of the signs, and states that a local authority must refrain, insofar as possible, from allowing such exclusionary signs to be hung within its bounds, certainly in the public domain, in that they restrict the ability of women to move freely in that domain. The Ministry report makes it clear that placing signs in the public domain that call for women to dress in a modest manner, or to refrain from being in a certain place, expresses an illegitimate message whereby women are not free to use any part of the public space that they wish, or that their presence in that space is conditional upon being dressed in a certain way, even though the sign does not constitute an actual physical barrier limiting the public domain (see: p. 9 of the Ministry Report).

39.       The signs under discussion, which are displayed in the public domain, apparently announce the rules governing that location, and they instruct women to dress in accordance with certain norms, and not to be present in certain places. These rules receive written approval from the local people, institutions and city officials. The requirement is addressed to women only, and relates to the external appearance that is required of them, or to the place in which they may not be present. The signs present an explicit demand that imposes upon women the obligation to dress in accordance with a particular dress code as a condition for permission to pass through the places in which they are located. It may, in fact, be said that they constitute an expropriation of the public domain from women, converting it into private domain, while applying social pressure and infringing the autonomy and security of women. In such cases, therefore, the local authority has a duty to consider the said harm, act diligently to remove the signs, and also take action in accordance with the existing law against those who are responsible for their placement.

Moreover, to the extent that there is a concern about violence and disturbance of the peace due to action to remove the signs, the authority has a duty to ask the Israel Police for help with security, and to act in “real time” to restore order while exercising its relevant powers of enforcement. Indeed, the local authority may set an order of enforcement priorities, and as a rule, there is no room to interfere in its discretion when it has considered the benefit as opposed to the harm in certain enforcement activity, and decided ultimately to take other effective steps to achieve the appropriate purpose. At the same time, the action of the local authority must accord suitable weight to the severe breach of human rights caused by the placement of the signs described in the Ministry Report.

And now, a few preliminary words about the need for compliance with judicial orders.

The Rule of Law and Compliance with Judicial Orders

40.       The courts have ruled that the effectiveness of the rule of law is tested, inter alia, by the ability of the governing authorities to enforce judicial decisions and orders. Non-compliance with the orders of the court is a violation of the rule of law, and undermines the democratic foundations upon which society is built. For the purpose of dealing with the possibility of such violation, the courts were given power to employ certain means in order to ensure that the non-complier would eventually comply with the orders of the court that had been violated (see: CrimA 517/06 Boaz Manor v. KPMG Inc. [6] (hereinafter: Manor)). The process of preventing contempt of court is therefore essential to instill in society an awareness of the duty to respect the law and the orders of the judicial system in order to protect the status of the judiciary. From a broad perspective, the duty to enforce judicial orders is one of the distinguishing features of a free and democratic regime (Manor case; CrimA 126/62 Dissenchik v. Attorney General [7] , 179).

41.       In a different vein: the contempt of court process under sec. 6 of the Ordinance is a special one, which belongs in the “twilight zone between civil procedure and criminal procedure” (CrimA 519/82 Greenberg v. State of Israel [8](hereinafter: Greenberg); Manor case). The purpose of this process is to bring about compliance with the judicial order, and take it from the potential to the actual by means of a fine or imprisonment (CrimApp 4445/01 Gal v. Katzovshvili [9]). At this point it should be stressed that the contempt of court process is not essentially a punitive one; the measure that is applied by virtue of this process is in the nature of compulsion to perform an act, or to desist from an act, and it is not concerned with attaching a punitive taint to the person violating the order (LCrimA 3888/04 Sharbat v. Sharbat [10], 57-58; CrimA 1160/98 SHIZAF Marketing, Promotion and Construction Projects v. Ashkenazi [11]; LCrimA 48/98 Ezra v. Zelezniak [12], 346; CA 371/78 Hadar Lod Taxis v. Biton [13], 239-40).

Thus, the contempt of court process is a harsh enforcement process, whose ramifications, by way of imposition of an ongoing fine or imprisonment, may cause harm. The ongoing fine is liable to cause serious harm to the pockets and the property of a person, and imprisonment constitutes real harm to a person’s liberty – basic rights that are anchored in Basic Law: Human Dignity and Liberty. As such, enforcement measures under the Ordinance must be exercised with moderation, as the exception, and they must be confined to situations in which all other measures have been exhausted and have not helped, and all that remains is recourse to the process of contempt of court in order to ensure the enforcement of a judicial order (see: Manor case [6]; Greenberg case [8], at 192).

We shall now proceed from a review of the relevant normative rules to their application in the present case.

From the General to the Specific

42.       In the agreed judgment, the Appellants undertook, inter alia, to exercise all the enforcement powers available to them by law for the purpose of removing the signs that are the subject of the appeal, as well as other signs that are similarly unlawful. In addition, the Appellants agreed to ensure that enforcement measures would be adopted in a continuous and immediate manner, and that they would be repeated if the signs that had been removed were replaced. Moreover, this would be given high priority by the Municipality (see: secs. 3 and 5 of the consent judgment).

From the picture that emerges in the present matter, it is evident that the Appellants did not fully comply with the consent judgment, and they did not exercise all the enforcement powers available to them in order to remove the signs. In this regard, it should be stressed that at the end of the hearing held before us on Feb. 18, 2018, we ruled, further to the consent judgment, that the Appellants must “install seven cameras in the neighborhood in which there are violations, the budget for which was approved for the Municipality by the Ministry for Public Security and the Israel Police (in the framework of the project “City Without Violence”).” Clearly, installation of the cameras at the friction points constitutes an effective means of enforcement that allows for the identification of those violating the law in order to bring them to justice. As stated, the Ministry approved a budget for the Municipality for installing seven security cameras, but this has not yet been executed. From the updating reports submitted by counsel for the parties after the said decision was handed down it transpires that despite the undertakings to which the Appellants committed themselves with respect to installation of the cameras, no camera has been installed in the trouble-prone areas. As such, no option remains but to resort to the process of contempt of court in order to ensure enforcement of the said undertakings.

 Summary

43.       In exercising the powers of enforcement that it has been given, a local authority, like every governmental body, must bear in mind the need to protect the basic rights of every person, and to do all that is possible to put an end to the infringement of these rights (see: secs. 4, 11 of Basic Law: Human Dignity and Liberty). In the present case, beyond the expectation from the Appellants to act to eradicate the phenomenon of the signs, the Appellants also committed to do so several times, both in the framework of the consent judgment and in the hearings in the Court, as well as in the decisions that followed.

Regrettably, despite the serious violation of the basic rights of women, and despite the undertakings to which the Appellants committed themselves and which were given binding force of a consent judgment or of judicial decisions, the city of Beit Shemesh is still rife with unlawful signs, stickers and inscriptions. We cannot accept this grave state of affairs. The words of our colleague Justice Danziger in the Kol Barama  case [1] are apt here:

This is an illegitimate, unworthy phenomenon that has been describes as one that “delivers a mortal blow to human dignity” (HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [5], at 658-659), and it is a gross violation of the basic, fundamental rights of women. Moreover, the exclusion of women also has the potential of instilling a conception that the public domain belongs to “men only”, and consequently, of perpetuating gender-driven gaps in status and behaviors that by their very nature humiliate, degrade and debase women. This is particularly evident when women are forced to turn to the authorities and the courts for a declaration that they are “permitted” to execute basic acts in the public sphere, and clearly the harm that this involves is not limited only to their individual matter, but involves injury to society as a whole… [at para. 25].

44.       It is indeed evident that the Appellants took partial action in various ways in their attempt to comply with the court orders, but the reality proves that the measures that they adopted were insufficient. Since the Appellants have refrained to date from installing the seven cameras in the neighborhood in which there have been disturbances, and from again removing the signs that were taken down but replaced, the action that they have taken cannot be regarded as full implementation of the consent judgment and of the undertakings that followed, which were anchored in the decisions of this Court.

45.       Thus, in the event that the seven cameras are not installed in the neighborhoods in which there are breaches by Dec. 31, 2018, and in the event that the prohibited signs are not taken down by that date, I propose to my colleagues that the appeal before us be deemed as denied from that date on. On the other hand, if the Appellants act as stated by the above date, then bearing in mind the efforts made by the Appellants to date, and taking into account their compliance with the commitments they undertook (even if belatedly), the fines that were imposed upon them and that accumulated as of Feb. 18, 2018 and thereafter will be cancelled retroactively.

In addition, should the Appellants not comply with what is demanded of them here by Dec. 31, 2018, the Respondents will be permitted to renew the contempt proceedings in the Jerusalem District Court, and demand enforcement of the orders that were imposed by additional means, together with the fines.

46.       In conclusion, I would express the hope that the exclusion of women in the city of Beit Shemesh, the concern of these proceedings, will cease, and that the signs and the events described in this judgment will become a thing of the past.

 

Justice (emer.) U. Shoham

I concur.

 

Justice D. Mintz

I concur.         

 

Decided in accordance with the opinion of Deputy President H. Melcer

23 Heshvan 5779 (Nov. 1, 2018)

 

 

 

 

 

 

 

 

HCJ 8213/14

 

 

Petitioners:                  1. Batya Kahana Dror

                                    2. "Mavoi Satum" Association

                                    3. Na'amat Movement of Working Women and Volunteers

                                    4. WIZO Women's International Zionist Organization

 

v.

 

Respondents:              1. Minister of Religious Services

                                    2. President of the Great Rabbinical Court

 

 

The Supreme Court sitting as High Court of Justice

(Aug. 15, 2017)

Before: Deputy President (Emeritus) E. Rubinstein, Justice U. Shoham, Justice M. Mazuz

 

                                               Petition for a decree nisi

 

Israeli Supreme Court cases cited:

[1]       HCJ 2671/98 Israel Women's Network v. Minister of Labor and Social Affairs, IsrSC 52(3) 630 (1998).

[2]       HCJ 8134/11 Moshe Asher, Adv. and Acct. v. Minister of Finance, Dr. Yuval Steinitz (Jan. 29, 2012).

[3]       HCJ 6407/06 Doron, Tikotzky, Amir, Mizrahi, Advocates v. Minister of Finance (2007).

[4]       HCJ 153/87 Shakdiel v. Minister of Religious Affairs, IsrSC 42(2) 221 (1998).

[5]       HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa, IsrSC 42(2) 309 (1988).

[6]       HCJ 3856/11 Anonymous v. Supreme Sharia Court of Appeal (2013).

[7]       HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security (June 13, 2017).

[8]       HCJ 453/94 Israel Women's Network v. Government of Israel, IsrSC 48(5) 501 (1994).

 

Attorneys for the Petitioners:  Adv. Gali Etzion; Adv. Irit Gazit, Adv. Batya Kahana-Dror

Attorneys for the Respondents: Adv. Avinoam Segal-Elad; Adv. Yonatan Zion-Mozes

 

 

 

J U D G M E N T

 

Deputy President (Emeritus) E. Rubinstein:

 

1. The petition before us addresses the procedure for selecting the Director of the Rabbinical Courts, while focusing on the possibility that a woman be appointed to the position.

 

Background and Chain of Events

 

2. In recent years, this Court has addressed the issue of the procedure for appointing the Director of the Rabbinical Courts in a series of petitions that requested one thing: Permitting the selection of a woman to the position, either by interpreting sec. 13 of the Dayanim Law, 5715-1955[1] (hereinafter: the Dayanim Law or the Law), under which the Director of the Rabbinical Courts is appointed, as permitting women to apply for the position, or by overturning that section of the Law for alleged unlawful infringement of a woman’s constitutional right to equality.

 

3. Section 13 of the Dayanim Law states:

(a)        The Minister shall, with the consent of the President of the Great Rabbinical Court, prescribe in regulations or in administrative rules, as applicable, the administrative procedures of the Rabbinical Courts, and shall appoint one of the dayanim or a person who is qualified to be elected as a Municipal Rabbi, to be responsible for their performance; the appointment under this subsection of a person who is qualified to be elected as a Municipal Rabbi is subject to the approval of the Appointments Committee.

(b) The appointment of a Director of the Rabbinical Courts who is not a dayan shall not require a public tender, and he shall be regarded, for the purposes of section 17 and the Holders of Public Office (Benefits) Law, 5729-1969, as a dayan.

 

Thus, the section provides that the Director of the Rabbinical Courts can be one of two: a dayan of a Rabbinical Court, or a person who is qualified to be elected as a Municipal Rabbi whose appointment was approved by the Committee for the Selection of Dayanim. The qualifications for election to the position of a Municipal Rabbi are set out in regs. 4 and 5 of the Jewish Religious Services (Election of Municipal Rabbis) Regulations, 5767-2007 (hereinafter: the Regulations or the Religious Services Regulations), which state as follows in this regard:

 

4. The following are qualified to be elected as a Municipal Rabbi:

(1)       A person who presides or presided as a dayan or a person who possesses a valid certificate of ordination pursuant to the Dayanim (Conditions for Ordination and Procedures) Regulations, 5716-1955, and is qualified to be appointed as a dayan;

(2)       A person serving or who served as Chief Rabbi of the Israel Defense Forces;

(3)       A person serving or who served as a Military Rabbi of a Command or a Corps, and was ordained as a rabbi by the two Chief Rabbis of Israel, and the Chief Rabbinate Council decided that he is qualified to serve as a Municipal Rabbi;

(4)       A person who has a valid certificate from the Chief Rabbinate Council attesting that he is qualified to preside as a Municipal Rabbi (hereinafter: a "Certificate of Qualification)".

5.         (a) The Chief Rabbinate Council shall grant a Certificate of Qualification to a person who meets the following requirements:

1. His lifestyle and character befit, in its opinion, his status as a rabbi in Israel;
2. He passed examinations in Talmud and Jewish law decisors. These examinations shall be prepared in writing, by a committee of three or more rabbis appointed by the Chief Rabbinate Council;
3. He signed an affidavit that he shall fulfill any decision of the Chief Rabbinate Council.

(b)       If the Chief Rabbinate Council is convinced that a person is an outstanding scholar who is proficient, inter alia, in all of the Jewish laws related to the fulfillment of the position of Municipal Rabbi, it may exempt him from the examinations stated in sub-regulation (a)(2), provided that the Chief Rabbis of Israel were among those who voted in favor of the exemption…

 

The proper interpretation of these legislative provisions, and its implications for the possibility of women standing for the position of Director of the Rabbinical Courts are the focus of the petition. We shall now summarize the relevant facts and the proceedings before this court.

4.         Resolution 1154 of the 32^nd Government regarding "Limiting the Tenure of Senior Officials in the State Service" was adopted on December 27, 2009. The resolution set a four-year term limit upon the Director of the Rabbinical Courts, with an option of a four-year extension. Thereafter, on June 11, 2010, the Dayanim Appointment Committee decided that Rabbi Eliyahu Ben Dahan – who had then served as the Director of the Rabbinical Courts for 21 years – would finish his term in office on August 11, 2010 (hereinafter: the Committee's Decision).

 

5.         Following the Committee's Decision, a petition was filed with this Court on July 29, 2010 (HCJ 5720/10 Ruth and Emanuel Center for the Advancement of the Status of Women v. Minister of Justice), that petitioned for remedies in regard to the procedure for appointing the Director of the Rabbinical Courts, and primarily that this Court construe sec. 13 of the Dayanim Law as permitting a woman to be appointed to the position, or alternatively, that it declare the provision void due to its alleged unconstitutionality. On August 17, 2010, the petition was denied in limine (Justices A. Grunis, M. Naor, and U. Vogelman) as premature, because the ramifications of sec. 13 for the appointment of a woman as Director of the Rabbinical Courts had not yet been addressed by the appointing authorities.

 

6.         In the interim, on August 15, 2010, the then presiding Minister of Justice – who was then responsible for appointing the Director of the Rabbinical Courts – appointed former Great Rabbinical Court Dayan Rabbi Shlomo Dichovsky as the acting Director of the Rabbinical Courts. On March 1, 2011, with the consent of the President of the Great Rabbinical Court, and with the approval of the Dayanim Appointment Committee, Rabbi Dichovsky was appointed permanent Director of the Rabbinical Courts, until August 15, 2014, and he held that position for that period.

 

7.         On January 6, 2011, an additional petition was filed with the Court (HCJ 151/11 Ruth and Emanuel Rackman Center for the Advancement of the Status of Women v. Minister of Justice), arguing that the procedure for appointing Rabbi Dichovsky suffered material defects that justified its cancellation. The petitioners reiterated their requests for the same remedies in regard to sec. 13 of the Dayanim Law, with the purpose of promoting the appointment of a woman to the position of Director of the Rabbinical Courts. The petition was denied on December 27, 2011 (Justice (Emer.) E. Levy, and Justices H. Melcer and Y. Danziger), primarily on the grounds that in view of Rabbi Dichovsky's appointment as permanent Director of the Rabbinical Courts, the petition had become theoretical. There was no dispute as to his suitability to the position and no material flaws were found in the procedure for his appointment.

 

8.         On May 8, 2014, towards the end of Rabbi Dichovsky's term as Director of the Rabbinical Courts, Petitioner 1 – the Director General of the Mavoi Satum Association, which addresses the matter of Israeli women who are denied a get [Jewish writ of divorce] and agunot – submitted her candidacy for the position of Director of the Rabbinical Courts. On August 14, 2014, after no consensus candidate had been found to replace Rabbi Dichovsky, the Minister of Justice charged the Director General of the Ministry of Justice, Adv. Emi Palmor, with the administrative responsibility for the administration of the Rabbinical Courts.

 

9.         The present petition was filed on December 2, 2014, requesting that the Court to instruct the Respondents to refrain from appointing a permanent Director General of the Rabbinical Courts until sec. 13 of the Dayanim Law is amended in a manner that will permit women to contend for the position. Alternatively, identical remedies to those requested in the two previous petitions with regard to sec. 13 of the Law were requested, so that women, including Petitioner 1, would be allowed to "genuinely contend" for the position of Director of the Rabbinical Courts. An interim order instructing to refrain from appointing a Director of the Rabbinical Courts pending the judgment in the petition, was also requested. A few days later, before the procedure of appointing a permanent Director of the Rabbinical Courts was completed, the Knesset dispersed (see: Dissolution of the Nineteenth Knesset Law, 5775-2014). Elections for the twentieth Knesset were held a few months thereafter.

10.       Following the elections, the 34^th Government adopted Resolution no. 180 (hereinafter: the Resolution) on July 5, 2015, in the framework of which the responsibility for the Rabbinical Courts was transferred from the Ministry of Justice to the Ministry of Religious Services. Additionally, authority under the Dayanim Law, including the appointment of the Director of the Rabbinical Courts, was also transferred to the responsibility of the Minister of Religious Services (hereinafter also: the Minister). Three days after the Resolution, on July 8, 2015, the Minister of Religious Services appointed Adv. Rabbi Shimon Ya'acobi, who had served as legal advisor to the Rabbinical Courts for many years, as Director of the Rabbinical Courts by a temporary appointment for a period of three months. At this point it should be noted, with no offence intended to Rabbi Ya'acobi, that his appointment violated the State's undertaking to the Court of December 15, 2014, that the Court would be notified of any intention to appoint a Director of the Rabbinical Courts (see the decision of Justice D. Barak-Erez of December 16, 2014). In light of the procedural defects in Rabbi Ya'acobi's appointment, the State informed the Court, on July 23, 2015, that his appointment is to be deemed void. However, eventually, and with Court's consent and encouragement, as shall be explained below, the State retroactively ratified the acting appointment for a period of four months, with the approval of the Dayanim Appointment Committee. In practice, due to the prolongation of the proceedings, Rabbi Ya'acobi continues to serve as acting Director of the Rabbinical Courts, with the Court's consent, until the present day.

11.       Returning to the matter at hand, we held four hearings on the petition. Prior to the first hearing, which took place on July 27, 2015, the State gave notice that, in light of the sensitivity of the matter, it has not yet succeeded in formulating its position regarding the Petitioners' arguments. In our decision at the end of the hearing, we instructed the State to inform us as to its position by September 20, 2015. We also suggested to its representatives that given the need for an appointment, and in view of the prolongation of the proceeding and the absence of a Director of the Rabbinical Courts, it consider appointing Rabbi Ya'acobi as a temporary Director of the Rabbinical Courts, subject to a conflict of interest arrangement. As noted, this suggestion was adopted by the State. It should further be noted that the case was addressed, in part, together with HCJ 6691/14, in the different context of appointing dayanim to the Great Rabbinical Court, however on August 1, 2016, that petition was dismissed by consent as its objectives were exhausted.

12.       In its response, which was filed – following postponements – on November 12, 2015, the State argued that the petition should be dismissed. It explained that, in the opinion of the Attorney General, sec. 13 of the Dayanim Law can be construed as allowing the appointment of a woman as Director of the Rabbinical Courts. According to the Attorney General, women can also be included in the scope of the term "a person qualified to be elected as a Municipal Rabbi" for the purpose of candidacy for the position of Director of the Rabbinical Courts, provided they pass the Municipal Rabbi examinations in Talmud and religious law decisors, or their equivalent, in accordance with reg. 5(a)(2) of the Religious Services Regulations. In order to give that interpretation practical effect, the Attorney General instructed the Ministry of Religious Services and the Chief Rabbinate to hold such Jewish law examinations – for both men and women – so that all will be able to contend for the position of Director of the Rabbinical Courts. The Attorney General's position was – and continues to be – based on the presumption that a person serving as Director of the Rabbinical Courts must not only have managerial capabilities, but also "must have deep familiarity with the substantive law under which cases are adjudicated in the Rabbinical Courts", even though, in his opinion, "this is not a position that is intrinsically a religious position, but is rather a strictly administrative position". A position taking exception to appointing a woman was presented on behalf of the Chief Rabbis, including the President of the Great Rabbinical Court, and on behalf of the Minister of Religious Services, arguing that what is concerned is a religious position that is, therefore, subject to the exception under sec. 7(c) of the Equal Rights for Women Law, 5711-1951, that the provisions of that law shall not apply to an appointment to a religious position in accordance with religious law.

13.       In response, the Petitioners argued that, for all practical purposes, the Attorney General's interpretation of sec. 13 of the Law frustrates the possibility of appointing a woman to the position of Director of the Rabbinical Courts, in light of the demand to pass examinations in Jewish law that require many years of study in religious institutions, which is not ordinarily available to women, and in light of the fact that the Certificate of Qualification that would allow a woman to apply for the position would be issued by the Chief Rabbinate, which already expressed its reservations regarding women vying for the position of Director of the Rabbinical Courts.

14.       On December 31, 2015, the Respondents informed us of their consent that the petition be heard as though an order nisi had been granted. On January 7, 2016, the second hearing of the petition was held. In our decision following the hearing, we stated: "We have no doubt, in principle … that the position of Director of the Rabbinical Courts should be perceived… as an administrative position that a woman can perform, of course after meeting certain threshold conditions that include a proper understanding of the subject of the Rabbinical Courts and their work.” We clarified that we do not see the position of Director of the Rabbinical Courts as being a religious or judicial position, and therefore sec. 7(c) of the Equal Rights for Women Law does not apply to the present case. As for the option of administering examinations in Talmud and decisors for women similar to those held for serving as a Municipal Rabbi, we stated that based on reasons of practicality and fairness, the Attorney General must examine an option of a different format of examinations, so that they would also be appropriate for women who did not have a yeshiva education. We also raised the option of adding an additional track to the four Municipal Rabbi qualification tracks appearing in reg. 4 of the Religious Services Regulations that would treat only of qualification for the purpose of sec. 13 of the Dayanim Law, and would prescribe qualifying conditions that would apply to both men and women. We instructed the Attorney General to state his opinion of the proper track within 30 days. We also noted that under the circumstances, and in light of the anticipated expiration Rabbi Ya'acobi's temporary appointment, we see no impediment to his continuing to serve as temporary Director of the Rabbinical Courts.

15.       On February 28, 2016, the Attorney General informed us that in accordance with the Court's recommendation, the Minister of Religious Services decided to promulgate regulations by virtue of the Dayanim Law, in the framework of which an additional qualification track will be added for the purpose of sec. 13 of the Law. It was also noted that a draft of the said regulations was already distributed to all the relevant entities at the various government offices, and that it is expected that the text of the regulations will be presented for discussion by the Knesset's Constitution, Law and Justice Committee (hereinafter also the Constitution Committee or the Committee) – for its approval pursuant to sec. 27(b) of the Dayanim Law – "in the coming weeks". That discussion eventually took place many months after the notice.

16.       Only on May 11, 2016, was a draft of the regulations sent to the Constitution Committee, and concurrently to the Petitioners. We shall now present its original version:

 

Dayanim (Qualification of the Director of the Rabbinical Courts) Regulations, 5776-2016

 

By virtue of the power and authority vested in me under sec. 27 of the Dayanim Law, 5716-1955, and with the approval of the Knesset's Constitution, Law and Justice Committee, I promulgate these regulations:

 

Qualification

 

1. Notwithstanding what is stated in reg. 4 of the Jewish Religious Services (Election of Municipal Rabbis) Regulations, 5767-2007, for the purpose of the qualification of a Director of the Rabbinical Courts, a person shall be deemed qualified to serve as a Municipal Rabbi also if all of the following terms and conditions are met:

1. He is a resident of Israel;
2. He is a lawyer, and in addition holds one of the following: a license as a rabbinical pleader or a master’s degree in Jewish law.
3. He passed the examination administered by the Ministry of Religious Services by an examining committee appointed by the Minister of Religious Services, with the consent of the President of the Great Rabbinical Court, including an examination in the practical field of the profession;
4. He has at least 5 years of experience in appearing before the Rabbinical Courts;
5. In terms of his character and lifestyle, he is worthy of serving in the position of Director of the Rabbinical Courts.

 

17.       The essence of the arguments in the Petitioners' response to the draft regulations was that they incorporate obstacles and stumbling blocks that could prevent any real possibility for women to compete for the position of Director of the Rabbinical Courts, inter alia, in light of the threshold requirements that relate to the candidate's education and the need for an examination in the "practical field of the profession", the nature of which is ambiguous.

18.       On February 15, 2017, following adjournments, the Constitution Committee held its first discussion of the draft regulations. As emerges from the State's response (no minutes of the discussion were prepared), the Committee discussed various reservations that were raised with respect to each of the proposed regulations, except that which requires that the Director of the Rabbinical Courts be a resident of Israel. However, prior to the Committee's second meeting, which was held on May 10, 2017, reg. 1(2) was amended, with the apparent intention that it would also allow persons with a master’s degree in Talmud or Oral Law to apply for the position of Director of the Rabbinical Courts (in the words of the proposed regulation: "He is a lawyer, and in addition he has one of the following: a license as a rabbinical pleader or a master’s degree in the field of Jewish law in the framework of legal, Talmud or Oral Law studies”; and see in this regard, Minutes no. 378 of the Twentieth Knesset's Constitution, Law and Justice Committee, dated May 10, 2017, page 3 (hereinafter: the Committee's Minutes)). The issue of the threshold requirements for submitting candidacy for the position of Director of the Rabbinical Courts was discussed by the Committee, at the end of which the Chairperson pro tempore of the Committee, Knesset Member Revital Swid, concluded that the amendment to the draft regulations that was prepared in preparation for the discussion "is not an amendment that in any way or form materially changes the fact and the difficulties placed before a woman to be appointed to the position" (Committee's Minutes, p. 36). It was concluded that the Respondents would consider additional changes to the regulations, in accordance with the Knesset Members' remarks in the discussion, and particularly in all that relates to the conditions of education and professional training required of the candidates.

19.       An additional Committee meeting was held on June 6, 2017, but the Respondents did not submit an updated version of the draft of the regulations. Again, the Committee did not reach a decision, and no vote on the draft regulations was held. The Chairperson of the Constitution Committee, Knesset Member Nissan Slomiansky, announced that he would act within approximately two weeks vis-à-vis the government representatives in an attempt to formulate an agreed version of the regulations, which would be presented for the Committee's approval. On June 26, 2017, the State informed us that Knesset Member Solmiansky's attempts were unsuccessful. In our decision dated July 2, 2017, we instructed the State to once again provide an update as to the status of the Committee's approval of the draft regulations, and we clarified that following the update, a judgment on the petition would be delivered. A notice submitted on behalf of the State on July 24, 2017, reported that no significant progress had been made regarding the approval of the draft regulations by the Constitution Committee. The State reiterated that in light of the Attorney General's interpretation of sec. 13 of the Dayanim Law, the petition should be dismissed.

 

Prior to Ruling: Incidentally – The Appointment of a Female Deputy Director General of the Rabbinical Courts

20.       Before ruling on the issue at the focus of the present matter, we will briefly address a subsidiary issue – which is important to the this matter – that arose while addressing the petition, and which concerns the appointment of a female Deputy Director General of the Rabbinical Courts. During the first hearing of the petition, on January 7, 2016, the Director General of the Ministry of Religious Services informed us that he would act to appoint a woman to the position of Deputy Director General of the Rabbinical Courts, as suggested by this Court. As stated in our decision of September 19, 2016:

 

The Rabbinical Courts system, in which inequality is deeply embedded due to the fact – which we are not addressing at the moment – that there are no women dayanot, while it is undisputed that 50% of those who require the services of the Rabbinical Courts are women… It is clear that a woman's presence in the Rabbinical Courts' senior administration is vital to enhancing the trust of the women who turn to the Rabbinical Court.

 

We are not concerned here with any particular gender ideology, nor even with equality in its basic format.

We will not set out the details of the State’s responses to this matter in the months following the hearing. We will but note that on several occasions we were informed that despite the declaration of the Director General of the Ministry of Religious Services, it had not succeeded in appointing a female Deputy Director General for various reasons related to appointment procedures in the public service. In these circumstances, we were required to issue a large number of decisions in order to promote that which was desired. Later update notices filed by the State informed us of attempts to facilitate such an appointment procedure in various ways, whether by upgrading a slot already staffed by a woman in the Rabbinical Courts system to the level of deputy director general, or by adding a deputy director general position by virtue of a Government resolution in accordance with sec. 15A(b)(2) of the State Service Law, or by means of an inter-ministerial transfer through which a woman who is serving as a deputy director general at another governmental agency would be appointed as Deputy Director General of the Rabbinical Courts. When these attempts failed and no solution appeared on the horizon despite the said promise, on April 3, 2017 – after we held an additional hearing on the petition – an decree nisi was granted instructing the Respondents to explain "why a woman will not be appointed to the position of Deputy Director General of the Rabbinical Courts".

21.       On May 1, 2017, following lengthy – and it must be said, with all due respect, excessively so, given the scope of the matter – exchanges between the Court and the State, we were informed that after consultations among the senior echelons of the Public Service Commission, the Attorney General, the Ministry of Religious Services and the administration of the Rabbinical Courts, it was decided to effect an inter-ministerial transfer in accordance with sec. 15A(b)(1) of the State Service (Appointments) Law, 5719-1959 (hereinafter: the State Service Law), and sec. 10.232D(d) of the State Service Regulations. On June 29, 2017, after a number of update notices in the matter, the State informed us that the appointment of Ms. Michal Goldstein to the position of Deputy Director General of the Rabbinical Courts was approved on June 15, 2017. On July 24, 2017, the State informed us that Ms. Goldstein is scheduled to take up her position as Deputy Director General of the Rabbinical Courts on September 1, 2017, and the matter was resolved. The outcome, of course, should be commended, and we have already noted that this may be significant both in the interface with the world of the Rabbinical Court judges and in the interface with the public that needs the Rabbinical Courts. Therefore, the order nisi in this regard, dated April 3, 2017, is rescinded. We wish Ms. Goldstein every success and godspeed. We will now address the primary issue raised by the petition – that of the appointment of the Director of the Rabbinical Courts, which is the main issue, although some of our statements regarding the matter of the deputy director general are, of course, a fortiori, relevant to the matter of appointing a director general.

 

Decision

22.       In the hearings before us in the course of the ongoing handling of the case, we encouraged and urged the State to find a solution that would make our decision superfluous. However, when there was no significant progress for too long in the sensitive matter on the agenda, and when it became clear that the decision makers do not deem addressing the matter as particularly urgent, and that no further date had even been set for discussing the draft  regulations – in one version or another – in the Constitution Committee, we are left with no choice but to rule on the petition, as we stated in the past. After review, we have concluded that the Petitioners are correct in principle. We therefore make the order nisi absolute, in accordance with the outline that will be set out below.

23.       As stated, we view the position of Director of the Rabbinical Courts as one that is essentially an administrative management position. The Attorney General is also of the opinion that it is a "clearly administrative" position and not a religious one. Therefore, in light of the fundamental principles of Israeli law, and primarily the principle of equality, which is a "fundamental principle of governance – standing head and shoulders above all other principles " (HCJ 2671/98 Israel Women's Network v. Minister of Labor and Social Affairs [1], 650 per Justice M. Cheshin (hereinafter: the Israel Women's Network case)), and the provisions of sec. 6C of the Women’s Equal Rights Law, which requires that "in a public body… there shall be proper representation of women, given the circumstances of the matter, in the types of positions and the various levels among the employees, the management…" (emphasis added – E.R.), and of sec. 15A(a) of the State Service Law, which prescribes that "Among the employees in the State service, at all levels in all professions, in any office and any auxiliary unit, proper expression shall be given, to the extent that circumstances allow, to the representation of members of both sexes…", we are of the opinion that there is no legal impediment to appointing a woman as Director of the Rabbinical Courts, if and to the extent she is be found suitable for the position in accordance with the terms and conditions that will be specified. This conclusion is consistent with various legislative acts, including the Basic Laws regarding human rights, the Women’s Equal Rights Law, and the Employment (Equal Opportunities) Law, 5748-1988, and with the need for proper representation of women in the public sector in general, and in the administration of the Rabbinical Courts in particular, as we will be set out below.

24.       We will reiterate fundamental principles: When considering candidates for the position of Director of the Rabbinical Courts, the Minister of Religious Services acts as a public trustee, and he is subject to the entire scope of rules of administrative discretion. He must reach his decision reasonably, after weighing all of the relevant material considerations on the question of the candidate's personal and professional suitability to the position, while striking a proper balance among them (compare with HCJ 8134/11 HCJ 8134/11 Moshe Asher, Adv. and Acct. v. Minister of Finance, Dr. Yuval Steinitz [2], para. 12 of the opinion of Deputy President E. Rivlin; HCJ 6407/06 Doron, Tikotzky, Amir, Mizrahi, Advocates v. Minister of Finance [3], para. 6 of the opinion of Justice E. Arbel and the supporting references there). The fact that a candidate is a woman, in and of itself, is a foreign, irrelevant consideration in the matter of her suitability to the position, and the Minister may not take it into consideration as a disqualifying criterion of candidates for the appointment. The words of Deputy President M. Elon, in a context similar to the case at hand, regarding the possibility of electing a woman as a member of a Religious Council, are appropriate::

… the exclusion of a female candidate from appointment to a religious council because she is a woman, clearly contradicts a fundamental principle of Israeli law that prohibits discrimination on grounds of sex. This fundamental principle was laid down in the Declaration of Independence, and is among those that have gone beyond recognition in the case law to become enshrined in legislation (HCJ 153/87 Shakdiel v. Minister of Religious Affairs [4], 240).

            It is well-known that religious systems are conservative, especially in all that concerns the status of women. However, over the years these obstacles have been overcome (see for example the Shakdiel case; HCJ 953/87 Poraz v.  Mayor of Tel-Aviv-Jaffa [5]; HCJ 3856/11 Anonymous v. Supreme Sharia Court of Appeal [6] ).

25.       I will not deny that in the present case,  the high road might have been for the legislature to have amended sec. 13 of the Dayanim Law, such that it would be crystal clear that the position of Director of the Rabbinical Courts is open to all. Amendment of the Regulations could also have been possible. However, once we have concluded – as did the Attorney General – that sec. 13 of the Law should be interpreted as allowing a woman to be appointed to the position, we no longer deem it necessary to address the amendment of the Regulations, and leave that as an aspiration for the future. In light of the above, and in accordance with our proposal from January 7, 2016, to which the Minister of Religious Services agreed in principle, we thus instruct, as a matter of purposive interpretation of sec. 13, the objective of which is to find the preferred Director of the Rabbinical Courts, that an additional qualification track be added under sec. 13 of the Dayanim Law that will apply to both men and women. The outline of the said qualification track will be in the spirit of the draft of the regulations, with certain modifications that we believe are required due to the nature and substance of the position of Director of the Rabbinical Courts, and due to the need to be certain that a woman's candidacy to the position be considered by those concerned with an open heart and mind, all as will be specified below. We will add that we also decided to wait no longer because the position of Director of the Rabbinical Courts has not been filled by a full appointment for some three years, and we say this with no offence intended to the acting Director of the Rabbinical Courts, Adv. Rabbi Ya'acobi, but rather as a normative matter.

26.       After considering the matter, we have concluded that for the purpose of sec. 13 of the Dayanim Law – and in the matter at hand, for the purpose of being appointed as Director of the Rabbinical Courts –  a person can be deemed qualified to serve as a Municipal Rabbi if they meet all of the following conditions:

1. He is a resident of Israel;
2. He has a license as a rabbinical pleader, or is a lawyer with a master’s degree in Jewish law or Talmud; preference to be given to a lawyer who is also a rabbinical pleader;
3. He has at least 7 years of experience appearing before the Rabbinical Courts;
4. In terms of his character and lifestyle, he is worthy to serve in the position of Director of the Rabbinical Courts.

 

Clearly, and to allay any doubt, the conditions are directed to both females and males. Attention should also be drawn to the fact that the said conditions are the result of our interpretation of sec. 13 of the Dayanim Law, and the Minister of Religious Services must examine candidates for the position of Director of the Rabbinical Courts in accordance with them. It is the authority's obligation to act within its authority within a reasonable period of time, a fortiori when what is at issue is a fundamental right that has been unlawfully infringed, and the lack of proper representation in the Rabbinical Courts system has been extremely conspicuous for some time (compare with HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security [7], para. 119 of my opinion), and where an important position has not been filled by way of an ordinary appointment.

            We will now briefly address the reasons why we deemed it fit to prescribe threshold conditions that are slightly different from the last version of the draft regulations that was submitted to the Constitution Committee.

27.       As for the education condition, and considering the nature of the position of Director of the Rabbinical Courts, we are of the opinion that it is inappropriate to prevent a licensed rabbinical pleader who is not a lawyer from submitting candidacy for the position. It is reasonable to assume that a person who met the threshold conditions for such a license – which include studies at a yeshiva or an educational institution recognized by the Great Rabbinical Court, alongside examinations, including in the practical field of the profession (see sec. 2 of the Rabbinical Pleaders Regulations, 5761-2001) – is sufficiently familiar with religious law to vie for the position of Director of the Rabbinical Courts. However, a rabbinical pleader who is also a lawyer will have an advantage. Additionally, we agree with the State that a lawyer who wishes to submit candidacy for the position must possess "something more", in the form of relevant religious education. To this end, we deemed it appropriate to state explicitly that a master’s degree in Jewish law or Talmud are sufficient, however it is clear that this is not a closed list and the Respondents, of course, may consider candidates with other degrees that in their view meet the required familiarity with religious law (regarding the education condition, see our decision dated August 3, 2016, where we stated with respect to the original draft regulations, that "in our opinion, there are matters that require clarification (such as the question whether it is not appropriate to have the qualification alternatives be a lawyer or rabbinical pleader, with the lawyers (and not pleaders) being required to take examinations…"). Having said that, it is clear that the candidates must have a real familiarity with the Rabbinical Courts system, and therefore, after taking the Petitioners' proposal in this matter into consideration, we deemed it fit to prescribe that they must have at least 7 years of experience in appearing before the Rabbinical Courts, and not to suffice with five years as appeared in the draft regulations. It should be noted in this context that similar preconditions that can attest to a candidate's familiarity with the legal system are also prescribed for the appointment of judges (see secs. 2-4 of the Courts [Consolidated Version] Law, 5744-1984). Having said that, we do not find any reason to set a threshold condition regarding passing examinations – both theoretical and practical – in order to qualify to serve as Director of the Rabbinical Courts. Such examinations do not exist in corresponding positions in the public service. The Director of the Rabbinical Courts does not make decisions on the basis of religious law and is not required to have extraordinary knowledge of Halakha that needs to be put to a test. It is presumed that candidates who meet the education condition, and who have significant professional experience of more than a few years in appearing before the Rabbinical Courts, will bring the necessary expertise to the position of Director of the Rabbinical Courts, even without examinations on Halakha, which, as noted, by their nature place women at a disadvantage. It should be noted in this regard that there are no threshold requirements regarding knowledge of religious law in the religious courts of other religious communities (see sec. 16 of the Druze Religious Courts Law, 5723-1962, and sec. 10(a) of the Qadis Law, 5721-1961). Moreover, in the civil courts system, the law requires the appointment of a Director of the Courts "who may or may not be a judge" (see sec. 82(a) of the Courts [Consolidated Version] Law, 5744-1984). Given the appointing body and its position on the matter of women's qualification to serve in this position, we also found it appropriate to instruct, without casting suspicion or aspersion on anyone, that the procedure of appointing a Director of the Rabbinical Courts be accompanied by the Attorney General, who will be able to confirm a person’s administrative qualification, if necessary. We will further add, without derogating from this ruling as it stands, that for the sake of good order and transparency, it would be appropriate for the Minister of Religious Services to consider grounding this ruling in regulations.

28.       In our view, the said qualification conditions reflect the kind of professional skills that are required of the candidates for the position of Director of the Rabbinical Courts, including the necessary familiarity with the entire Rabbinical Courts system. These conditions also facially grant equal opportunity to women and men to vie for the position, and what we stated in para. 20 above and are a fortiori relevant here.

29.       Therefore, and considering the "inherent inequality" in the Rabbinical Courts system, it seems to me that it is appropriate to also mention and emphasize sec. 6C of the aforementioned Women’s Equal Rights Law, which provides that "in a public body … there shall be proper representation of women, given the circumstances of the matter … provided that if for the purpose of effecting this provision it is necessary to prefer a woman, such preference shall be given if the candidates of both sexes have similar qualifications" (emphasis added – E.R.), as well as the aforementioned sec. 15A(a) of the State Service Law, which provides that "among the employees in the State service … proper expression shall be given, to the extent that circumstances allow, to the representation of members of both sexes …" (and see the words of Justice Cheshin in the Israel Women's Network case [1]: "… in attempting to achieve proper representation of women in public entities, a real duty is imposed on the competent authority to search for suitable female candidates" (ibid., at p. 668)). Below are the words of Justice E. Mazza, which concern the interpretation of sec. 18A of the Government Companies Law, and which are relevant, mutatis mutandis, to the case at hand:

… the burden of proof that in the circumstances of a specific case it was not possible to appoint a woman rests with the appointing minister. This burden is not a light one. In order to discharge it, the appointing minister must show that he examined the possibility of appointing a suitable female candidate, but discovered that, in the circumstances of the case, this was impossible. Even his duty to make such an examination is not simple. In order to discharge it, the minister must adopt reasonable measures to locate a suitable female candidate. The scope of these measures depends on the type of appointment in question … This does not mean that the minister must seek, at any cost, to locate an unknown female candidate who has the necessary qualifications. But he also will not have done his duty by making a “formal” search for any female candidate. In order to do his duty properly, he must adopt reasonable measures designed to lead to the discovery and appointment of a suitable female candidate. (HCJ 453/94 Israel Women's Network v. Government of Israel [8], 529; and compare with the Israel Women's Network case [1], para. 52 of Justice Cheshin's opinion).

 

30.       At this (fortunate) time when women have a respectable presence in a variety of positions in the public service, it is unreasonable that women should not be given proper representation in the administration of the Rabbinical Courts. As noted, opening the gates of the Rabbinical Courts to women to serve in administrative positions is of great value not only to women , but also for the sake of reinforcing the Rabbinical Courts' status, given that public trust is vital for its proper functioning. We would note that while Ms. Goldstein's appointment to the position of Deputy Director General of the Rabbinical Courts should be applauded, the possibility of there being a woman at the head of the administrative pyramid, as the Director of the Rabbinical Courts, in a system in which the central administrative positions comprise a large male majority, is important in and of itself, and realizes the value of equality in its material sense. Of course, in stating this we do not mean to express an opinion regarding any candidacy for the position.

31.       In conclusion, we therefore order that the qualification defined as qualification to serve as a Municipal Rabbi for the purpose of sec. 13 of the Dayanim Law, can also be in accordance with the conditions set out above in para. 26. If the Minister of Religious Services choose to appoint a "person qualified to be elected as a Municipal Rabbi" (as opposed to a Dayan), he has a duty to consider candidates in accordance with these conditions, in addition to the conditions prescribed in regs. 4 and 5 of the Religious Services Regulations. As stated, in this sense the order is made absolute. The Respondents will pay the Petitioners’ costs in the amount of NIS 15,000 (inclusive).

 

 

Justice M. Mazuz:

            I concur.

 

Justice U. Shoham:

            I concur in the clear, comprehensive judgment of my colleague Deputy President (Emer.) E. Rubinstein, and I am also of the opinion that an order absolute should be granted as proposed.

            Due to the importance of the matter, I will add the following. First and foremost, I wish to join in congratulating Ms. Michal Goldstein on her appointment as Deputy Director General of the Rabbinical Courts, and I wish her every success in her new position.

As my colleague made clear in para. 26 of his opinion, the necessary qualifications for the appointment of a male or female Director of the Rabbinical Courts must be established by the interpretation of sec. 13 of the Dayanim Law, 5729-1969. However, it would be preferable if the Minister of Religious Services would attend to grounding those qualification conditions in regulations, without derogating therefrom or adding anything thereto, as my colleague stated "for the sake of good order and transparency".

                                                                         

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

 

Given this 23^rd day of Av 5777 (August 15, 2017).

 

 

 

LCA 6897/14
Radio Kol BaRamah	Applicant:
v.

 

Kolech – Religious Women’s Forum	Respondent: Attorney for the Applicant: Moti Arad, Adv. Attorneys for the Respondent: Asaf Pink, Adv., Orly Erez-Likhovski, Adv.
The Supreme Court   Before Justices E. Hayut, Y. Danziger, D. Barak-Erez   Application for leave to appeal the judgment of the Jerusalem District Court of September 9, 2014,  in Class Action 23955-08-12, delivered by the Honorable Judge Gila Kanfi Steinitz   12 Tammuz 5775 (June 29, 2015)

 

 

Israel Supreme Court cases cited

[1]        LCA 8671/09 Cellcom Israel Ltd. v. Fattal (6.5.2010).

[2]        LCA 2282/15 Psagot Provident and Pension Funds Ltd. v. Levy  (8.7.2015)

[3]        HCJ 746/07 Ragen v. Ministry of Transport (5.1.2011) [http://versa.cardozo.yu.edu/opinions/ragen-v-ministry-transport]

[4]        HCJ 153/87 Shakdiel v. Minister of Religion [1988] IsrSC 42(2) 221 [http://versa.cardozo.yu.edu/opinions/shakdiel-v-minister-religious-affairs]

[5]        HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSc 49(4) 94 [http://versa.cardozo.yu.edu/opinions/miller-v-minister-defence]

[6]        HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [1998] IsrSC 52(3) 630

[7]        LCA 8821/09 Prozansky v. Layla Tov Productions Co. Ltd. (16.11.2011) [http://versa.cardozo.yu.edu/opinions/prozansky-v-layla-tov-productions-ltd]

[8]        CA 5378/11 Frankl v. Allsale (22.9.2.2014).

[9]        LCA 9615/05 Shemesh v. Focaccetta Ltd. (5.7.2006) [http://versa.cardozo.yu.edu/opinions/shemesh-v-focaccetta-ltd]

[10]      CA 9494/08 Pan v. Israel Railways (27.6.2013)

[11]      CA 6887/03 Resnik v. Nir Cooperative (20.7.2010)

[12]      LCA 3814/14 Hogla Kimberley Marketing Ltd. v. Mastei (6.7.2015)

[13]      LCA 1868/15 Yetedot T.S.M.V. Publishing and Advertising Ltd. (15.3.2015)

[14]      HCJ 6111/94 Committee for the Preservers of Tradition v. Chief Rabbinical Council of Israel [1995] IsrSC 49(5) 94

[15]      HCJ 1514 Gur Aryeh v. Second Authority for Television and Radio [2001] IsrSC 55(4) 267 [http://versa.cardozo.yu.edu/opinions/gur-aryeh-v-second-television-and-r...

[16]      HCJ 1067/08 Noar KeHalacha Assoc. v. Ministry of Education (6.8.2009) [http://versa.cardozo.yu.edu/opinions/noar-kehalacha-v-ministry-education]

[17]      LCA 8014/09 Dikla Insurance Co. Ltd. v. Friedman (21.4.2011)

[18]      LCA 729/04 State of Israel v. Kav Mahshava Ltd. (26.4.2010)

[19]      CA 10085/08 Tnuva Central Cooperative for the Marketing of Agricultural Produce in Israel v. Estate of Tufik Raabi (4.12.2011) [http://versa.cardozo.yu.edu/opinions/tnuva-central-cooperative-v-raabi-e...

[20]      LCA 2128/09 Phoenix Insurance Co. Ltd. v. Amossi (5.7.2012)

[21]      CA 4534/14 Daniel v. Direct Teva Ltd. (14.6.2015)

[22]      HCJ 428/86 Barzilai v. Government of Israel [1986] IsrSc 40(3) 505

[23]      HCJ 910/86 Maj. (ret.) Ressler v. Minister of Defense [1988] IsrSC 42(2) 441

[24]      CA 8416/99 E.I.M. Electronics and Computers (1999) Ltd. v. Mifal Hapayis [2000] IsrSC 54(3) 425

[25]      CA 7699/00 Tamgash Management and Project Development Co. Ltd. v. Kishon River Authority [2001] IsrSC 54(4) 873

[[26]    LCA 3489/09 Migdal Insurance Co. Ltd. v. Zevulun Valley Metal Plating Ltd., (11.4.2013)[27]      AA 980/08 Minirav v. State of Israel – Ministry of Finance, (6.9.2011)

[28]      HCJ 7200/02 D.B.S. Satellite Services (1998) Ltd. v. Council for Cable and Satellite Broadcasts [2005] IsrSC 59(6) 21

[29]      HCJ 6792/10 D.B.S. Satellite Services (1998) Ltd. v. Knesset (20.7.2014)

[30]      HCJ 1030/99 Oron v. Speaker of the Knesset [2002] IsrSC 56(3) 640

                       

Israeli District Court cases cited

[31]      Class Action (Econ.) 2484-09-12 Hatzlaha, Consumer Movement for the Promotion of a Fair Society and Economy v. Cohen (18.2.2013)

[32]      CC (Center-Lod District Ct.) 25435-03-15 Kolian v. Yetedot T.S.M.V. Publishing and Advertising Ltd. (13.3.2015)

 

Israeli Magistrates Court cases cited

[33]      CC (Bet Shemesh Mag. Ct.) 41269-02-13 Phillip v. Aboutbul (2015).

[34]      SC (Βeer Sheva) 33424-02-12 Michaeli v. Chevra Kadisha – Ofakim Religious Council (15.6.2012).

[33]      SC (Bet Shemesh) 2917-10-11 Marsden v. Negdi  (5.7.2012).

 

United States courts cases cited

[36]      Wal-Mart Stores, Inc. v. Dukes et al. 564 U.S. 1, 11 (2011).

[37]      Brown v. Board of Education, 347 U.S. 483 (1954)

[38]      Amchem Products, Inc. v. Windsor 521 U.S. 614 (1977)

 

Israeli Legislation cited

Basic Law: Human Dignity and Liberty

Civil Wrongs Ordinance [New Version], sec. 6

Class Action Law, 5766-2006

Equal Rights for Persons with Disabilities Law, 5758-1998, sec. 19(53)

Prohibition against Discrimination in Products, Services and Entry to Places of Entertainment and Public Places Law, 5761-2000

 

Abstract

 

The District Court certified the application of Kolech – Religious Women’s Forum Organization (hereinafter: Kolech) to bring a class action against the radio station Kol BaRamah Ltd. (hereinafter: the radio station), holding that the declared policy adopted by the radio station in the years 2009-2011, whereby women could not be heard on the station’s broadcasts, constituted prohibited discrimination under the Prohibition against Discrimination in Products, Services and Entry to Places of Entertainment and Public Places Law, 5761-2000 (hereinafter: Prohibition against Discrimination Law). (It should be noted that the change in the management of the radio station as of the year 2011 was the result of a regulatory and monitoring process instituted by the Second Authority). Hence this Application for Leave to Appeal, which was heard as an appeal, at the center of which lie the following questions: Does the policy of the radio station, according to which women are not heard on its broadcasts, constitute cause for bringing a class action? Under what conditions is an “organization” authorized to bring such an action?

The Supreme Court (per Justice Y. Danziger, Justices E. Hayut and D. Barak-Erez concurring) dismissed the appeal, except for comments on the question of quantification of damages and subject to the determination that in adjudicating the case, the District Court will not address violations that occurred in the period after the beginning of the process of regulation, for the following reasons:

After a short discussion of the general phenomenon of exclusion of women from the public domain, and after the Supreme Court expressed its feeling of disgust and revulsion at the existence of this phenomenon in those cases in which it amounts to prohibited discrimination, and after setting the parameters of the discussion as a class action on grounds of discrimination, the Court proceeded to examine the central questions presented by the case. The Court concluded that there were no grounds  to intervene in the majority of the determinations of the District Court or in its conclusion that the said action is suitable for adjudication as a class action, both in its substance and in the manner in which it was submitted. In particular, no grounds were found for intervening in the two central determinations according to which Kolech is an organization that is eligible to bring a class action by virtue of section 4(a)(3) of the Class Actions Law, and there is prima facie cause for bringing a class action under the provisions of sec. 3(a) of the Class Action Law and item 7 of the Second Appendix to that Law.

Sec. 4(a)(3) of the Law states that an “organization” (within the meaning of the definitions section of the Law) may bring a class action, provided that the action addresses an area that is among its public purposes, and provided that it would be difficult to submit the application on behalf of a plaintiff who has a personal cause of action. In the opinion of Justice Danziger, narrow, cautious interpretation should normally be adopted in removing the procedural barriers that the above sec. 4(a)(3) places before organizations that wish to submit an application for certification of a class action, out of concern that lack of caution in this regard is liable to encourage the phenomenon of bringing baseless actions, and even affect cases in which there would not seem to be any difficulty in bringing the action in the names of plaintiffs with personal causes of action.

An organization seeking to bring a class action in place of a plaintiff with a personal cause of action must meet the following cumulative conditions:  first, the organization must prove that it complies with the conditions of sec. 2 of the Class Action Law, which include proving that it is an active, recognized organization, that regularly and actually operates, and has been doing so for at least a year, and that the purpose of its activity is clearly a public purpose; secondly, the organization must prove that the lawsuit is within the area of one of its public purposes; thirdly, the organization must prove that a difficulty exists in submitting the application in the name of a person with a personal cause of action. The term “difficult” should be examined in accordance with the case and its circumstances, and with regard to several indicators, among them a lack of financial means among potential plaintiffs; areas or situations in which the direct victims are not aware of the fact of the harm done to them due to gaps in knowledge or an inability to comprehend the harm; and cultural barriers which make it difficult to find a plaintiff with a personal cause of action. All these are relevant to situations characterized by the existence of a cultural gap that deters plaintiffs with a personal cause of action from turning to the courts, and does not constitute a closed list. As a rule, proving this condition will require that evidence be presented showing that the organization acted with “due diligence” to locate a plaintiff with a personal cause of action, in both the quantitative and the qualitative sense, but  subject to the possibility of there being exceptional situations in which the court will be satisfied that there is an inherent difficulty, or that there are special, known and convincing data arising from the circumstances of the case that would suffice to show a difficulty in finding a plaintiff with a personal cause of action.

As the District Court determined, Kolech – whose purpose is promoting the status of women in the religious community and in Israeli society – complies with the above conditions, and it is therefore a “qualified organization” for the purpose of bringing a class action. The main reason supporting the conclusion that it was difficult to find a plaintiff with a personal cause of action in the present case is that there is a reluctance on the part of ultra-Orthodox women to place themselves at the forefront of the struggle to increase gender equality in the ultra-Orthodox community, for fear of harm to their position in the community. In this regard, the cultural aspect carries great weight, and it is sufficient to support the concern that had  Kolech not submitted the application for certification of the class action, it would not have been submitted at all. The Court added that even had it been possible to locate a plaintiff with a personal cause of action who could have submitted the application herself, it would not have been right in the circumstances to order that the request be denied or dismissed in limine, but at most, to order that the organization be replaced by that plaintiff.

As for the cause of action, the Court decided that the Prohibition against Discrimination Law applies in the circumstances of the case. As the District Court determined, the prohibition against discrimination in the provision of a “public service” refers not only to access to the broadcasts of the radio station, but to all the services that the station provides to listeners, including the possibility of listeners participating in programs. Denying this possibility to women because they are women – provided such denial is proved – is certainly liable to amount to discrimination to which the Prohibition against Discrimination Law applies. Pursuant to this, the Court dismissed the argument of the radio station that gender distinction is necessitated by the traditional religious nature of the radio station and is due to the halakhic position of the station’s rabbinical committee, and therefore there is no discrimination, or alternatively, that the exceptions specified in the Prohibition against Discrimination Law apply such that it is not possible to sue the station for its policy. The Supreme Court held that the policy adopted by the radio station does, indeed, constitute discrimination under sec. 3(a) of the Law, and that there are no grounds for applying the exceptions prescribed in secs. 3(d)(1) and 3(d)(3) of the Law, according to which it will not be considered discrimination where “the action is necessitated by the character or nature of the product” and that it is possible to maintain “separate frameworks for men or women, as long as this separation is justified”. In this context, the Court determined that in order for either of the two above exceptions to apply, it must be proven that the religious norm is indeed binding, or at least justifies adopting the differential attitude to women. In the present case, it cannot be said that religious practice mandates or justifies application of the exceptions in the Prohibition against Discrimination Law, particularly when the halakhic opinion upon which the station relies – that of the late Rabbi Ovadia Yosef – stated specifically that the prohibition on allowing women’s voices to be heard is not in the category of a halakhic prohibition, but rather, in the category of “enhancing a precept” [hidur mitzvah]. Moreover, the facts in the present case show that the cultural and the religious character of the radio station was preserved even after the said practice of excluding women from the broadcasts of the station was stopped in the framework of the regulatory process, and what is more, the scope of the activity of the station actually continues to grow. Moreover, the exception specified in sec. 3(d)(3) of the Law does not apparently apply in our case, inter alia, for the reason that it refers to the existence of “separate frameworks” for men and women, i.e., an arrangement of separation. In our case, there was no arrangement of separation but an arrangement that apparently prevented women, and only women, from participating in the broadcasts of the radio station.

Further, no cause was found for intervening in the determinations of the District Court with respect to the immunity provided in sec. 6 of the Civil Wrongs Ordinance.

With respect to harm and calculating the compensation, even though the Court accepted some of the arguments raised by the radio station regarding the harm, it was of the opinion that this element was proved by Kolech at the required prima facie level for this stage of the proceedings, and therefore there is no reason to depart from the final conclusion of the District Court that it had been proven to the required extent that the members of the class incurred harm due to the policy of the station. At the same time, the Court decided to intervene in certain determinations of the District Court in this context, such as the determination regarding the possibility of awarding damages in the suit “without proof of harm”. The Court held that it was not possible to award damages without proof of harm in the circumstances of the case, notwithstanding the possibility of doing so under the Prohibition against Discrimination Law in matters other than a class action. A second comment referred to the matter of the relief that was sought – NIS 104,000,000. It was noted that the case raised questions concerning the appropriate method of calculation of the compensation in the circumstances of the case.

No grounds were found for intervening in the determination of the District Court whereby a common question existed in respect of all the members of the class, i.e., “whether the station acted in a prohibited discriminatory manner against the members of the class in that it prevented women from being heard on air from the time it began operating and until today, Nov. 6, 2011…”; according to the Court, the focus on the issue of the common question should be on the tortious conduct of the radio station during the period of the declared policy. This question is one that stands at the center of the action. The District Court should not address questions that relate to the period of time after the commencement of the regulatory process, in the course of which the two concrete violations occurred. The Supreme Court also found no grounds to intervene in the determination that there is a “reasonable possibility” that the above question will be decided in favor of members of the class.

Neither was reason found to intervene in the determination of the District Court that a class action is the suitable means of conducting the said dispute, insofar as the period prior to the beginning of the regulatory process is concerned. As opposed to this, the Court held that with respect to the period of the particular instances of violation, a class action is not necessarily the most efficient way of conducting the particular dispute, and it is preferable that it be adjudicated in the framework of personal actions brought by the women who were allegedly harmed, to the extent that they wish to do so.

Furthermore, the conditions laid down in secs. 8(a)(3) and 8(a)(4) were met. There is reasonable basis to assume that the interests of all members of the class will be represented and conducted in an appropriate manner and in good faith.

Consequently, it was ruled that the decision of the District Court will stand, except for any changes necessitated by what has been said above.

Justices E. Hayut and D. Barak-Erez concurred with the above and added comments, inter alia, regarding procedural questions related to class actions being brought by means of an organization, and on the substantive issue of the exclusion of women, including reference to an additional aspect relating to the “location” of the present case on the private-public continuum.

.

 

 

JUDGMENT

 

Justice Y. Danziger

Does a radio station’s policy that women will not be heard on its broadcasts constitute cause for bringing a class action,  and under what conditions will an “organization” be permitted to bring such an action? These are the central questions before the Court.

 

Introduction

1.         The Jerusalem District Court granted an application to certify a class action submitted by the organization “Kolech – Religious Women’s Forum” (hereinafter: Kolech) against the Kol BaRamah Ltd. radio station (hereinafter: the radio station or the station), claiming that the station’s declared policy that women would not be heard on its broadcasts constitutes prohibited discrimination under the Prohibition against Discrimination in Products, Services and Entry to Places of Entertainment and Public Places Law, 5761-2000 (hereinafter: the Prohibition against Discrimination Law).  The court dismissed various arguments raised by the radio station regarding the suitability of the action for adjudication as a class action. Thus, for example, the station’s argument that the application for approval should be dismissed because it was not submitted by a plaintiff who has a personal cause of action was dismissed.  In addition, the argument that there was no cause for bringing the action since the Prohibition against Discrimination Law does not apply in the circumstances of the case was dismissed. It was held that the policy adopted by the radio station constitutes blatant gender discrimination under the Prohibition against Discrimination Law, and therefore there is cause for adjudicating the suit as a class action. It was further held that the action raises questions that are common to all members of the class; that it is the efficient and fair way to decide the dispute; that there is a reasonable possibility that the dispute will be decided in favor of the members of the class; and that it is reasonable to assume that the action will be presented and conducted in the appropriate manner. The application for leave to appeal was lodged against this decision

 

The Pertinent Facts

2.         The radio station Kol BaRamah has operated since 2009 by virtue of a concession for radio broadcasts issued by the Second Authority for Television and Radio (hereinafter: the Second Authority). The concession was issued to the station after it won a tender published by the Council for the Second Authority for granting a concession for a radio station intended for the “religious-traditional-Sephardic” community.  As emerges from the material submitted to us, the radio station has significant influence in the communications market, and today it is the fifth-largest regional radio station in the State of Israel. There is no dispute that since its establishment in 2009 and until the end of 2011, the radio station  maintained a declared policy whereby women would not be heard on its various broadcasts. Moreover, there is no dispute that following various regulatory directives, the station changed its policy, and as of November 2011, women’s voices began to be heard in its broadcasts.

3.         The change in the policy of the radio station, which began towards the end of 2011, was the result of regulatory and oversight procedures that were adopted by the Second Authority, in the framework of which various directives were issued to the radio station. The Second Authority began to adopt these procedures after it received complaints against the radio station, which upon investigation, revealed that the policy was based on directives that had been issued by the “Rabbinical Committee”, which is the station’s “halakhic” [Jewish law] committee, and which plays a role in the station by virtue of the terms of the concession. The purpose of the procedure was to establish rules pertaining to women’s voices being aired in the station’s broadcasts, while, insofar as possible, conducting a dialogue with the radio station. Against this background, various directives were issued ordering, inter alia, that the station allow women who hold public office to be heard on the radio broadcasts, and that its broadcasting schedule would devote a “weekly program” intended for its female audience. These directives were first published in a letter sent by the Second Authority to the station on Oct. 10, 2011, as follows:

“1.  News or currently breaking events  transmitting a message to the Israeli public will be broadcast live and unedited. This directive is effective immediately.

2.    When the response of a female public official is required on a particular subject, for journalistic or ethical reasons, or when the public official initiates a request to respond to a particular subject, the station will allow the said official or her representative to participate in the broadcast and to be heard. This directive is effective immediately.

3.    The station will incorporate into its broadcasting schedule a weekly program intended for the station’s female listeners, in the framework of which women will be able to speak and make their position heard. This directive will take effect at the beginning of November, 2011.

       You are requested to inform the Authority of the manner in which the program will be integrated into the schedule of broadcasts no later than Oct. 24, 2011.

4.    The station will continue to provide a complementary response to the station’s male and female listeners by means of the IVR system, inter alia, by means of rabbis’ wives, insofar as necessary, in different and varied areas. This directive is effective immediately.

       As clarified in our discussion, implementation of these directives will be carried out on all the frequencies that serve the station’s broadcasts. As stated, the manner of implementation will be reviewed by the Authority at the end of four months from the times specified above.

4.         In accordance with the terms of the letter, the radio station established a weekly program intended for the female audience, albeit at an early hour. Approximately three months later, the Second Authority approved the broadcasting schedule submitted by the station for the year 2012, but at the same time, added a requirement that the station include broadcasts of women holding public office, and that it incorporate into its scheduled programs a “daily broadcast strip”, amounting to several weekly hours, in which women would be able to speak on the programs. This requirement, too, was issued in writing, as follows:

1.    The station will include women who hold public office in all current events programs of the station. This applies both when the female public official asks to comment on a particular subject that is raised in the program, and when such comment is relevant and required for journalistic reasons.

2.    The station will include women who have expertise in various areas in all its broadcasts. This directive is effective immediately.

3.    The station will air news or currently breaking events on live transmission without editing that includes considerations of gender distinction. This directive is effective immediately.

4.    The station will incorporate into its broadcasts two weekly hours of programming intended for female listeners, with the participation of women. These two hours will be incorporated into the broadcasts of the station as of April 15, 2012, and will be brought prior to that date to the attention of the Board of the Authority.

5.    The station will incorporate into its broadcasts two weekly hours in addition to those specified in sub-section (4), in which women will be incorporated into the programs intended for all listeners. These two hours may be in consumer programs, conversations with listeners, youth programs, etc. These two hours will be incorporated into the station’s broadcasts as of April 15, 2012.

       The Council notes the statement of the station’s owner, Mr. Zvi Amar, on behalf of all the owners of the station, that the station will act diligently and in good faith to include women who are public figures and experts in all broadcasts of the station.

5.         The dialogue in the framework of the regulatory process continued into the years 2013-2014, when the Second Authority approved the broadcasting schedule submitted by the station in relation to those years, but it continued to oversee and to issue directives to the station. Inter alia, the Second Authority decided that the station would increase the number of weekly hours in which women would be permitted to go on air. The latest relevant directive that was issued to the radio station appeared in writing on Jan. 8, 2014, and it determined that there would no longer be any restrictions on women being included in the station’s broadcasts:

1.    There will be no restriction on women being heard in the station’s broadcasts.

2.    At the request of the station, the Council approves one hour of broadcasts daily that will be devoted to sermons and to conversations of listeners with rabbis, in which the station will be permitted to exclude the voices of women. The Council is of the opinion that approval of this limited scope in which women will not be heard also provides a response to the most ultra-Orthodox listeners of the station, and it is reasonable and proportionate.

3.    In light of the long regulatory process on this matter, which already began in 2011 with the station’s declared policy in regard to allowing women to be heard, the Council directs the station’s administration to initiate action to encourage women being included in its broadcasts, including female public figures and female experts in various fields.

4.    The Council stresses that the station must ensure that it acts lawfully, including in relation to the employment of women at the station.

6.         And indeed, the process of gradual regulation that began in 2011, at which time the declared policy of the station stated that women would not be heard in its broadcasts, took shape. By 2014, all the previous restrictions on airing women’s voices in the station’s broadcasts were removed, with the exception of the restriction in sec. 2 of the letter dated Jan. 8, 2014. The Second Authority even emphasized its satisfaction with the dialogue and with the process of “genuine internalization” on the part of the station, and it announced that the station’s concession would be extended for another three years.

 

Report of the Departmental Team for Examining the Phenomenon of “Exclusion of Women”

7.         Parallel to the regulatory procedures undertaken by the Second Authority, the Attorney General also turned his attention to this matter and examined the phenomenon of “exclusion of woman” in the public domain in general, and the activity and policy of the Kol BaRamah radio station in particular. This was pursuant to an increasing number of reports on various manifestations of exclusion of women. On Jan. 5, 2012, the Attorney General appointed a team to investigate all aspects of this phenomenon. The team was asked to examine the legal aspects of some of the manifestations of the phenomenon in the public domain, and to formulate recommendations for addressing them. In this framework, the team also examined the policy of the radio station. On March 7, 2013, the team submitted a report to the Attorney General (hereinafter: Report of the Departmental Team). Insofar as the policy of the radio station was concerned, the Report stated that “exclusion of women” on the part of the station was expressed in that, initially, women were not heard at all. At the same time, the report described the change that had taken place at the radio station in complying with the directives of the Second Authority, noting that over time, women began to be heard over the airwaves, and that a noticeable trend of adding broadcasts and programs dedicated to women could be discerned.

8.         The Report of the Departmental Team added that three meetings had been held on the subject of the activities of the radio station, and that there had been meetings with the representatives of the Second Authority, the Commission for Equal Opportunity in the Workplace, and the representatives of the radio station. The Departmental Team noted that it was impressed by the significant progress that had been made following the actions of the Second Authority, which led to women being heard on the broadcasts of the radio station. Nevertheless, it was noted that at the time of the writing of the Report, the broadcasting of women’s voices by the station was still subject to significant restrictions. The team was of the opinion that these circumstances raised legal and constitutional difficulties. An important point in relation to the case at hand, which is addressed in the Report of the Departmental Team, addresses the application of the Prohibition against Discrimination Law to the activities of the radio station. In this context, the Departmental Team thought that the statutory provision according to which “communications services” constitute a “public service” also applied to the activity of the radio station, and therefore its policy should be “treated” in accordance with the provisions of the Prohibition against Discrimination Law. This point was summarized in para. 198 of the Report of the Departmental Team, which noted that the routine broadcasting arrangements “entail a violation of the basic rights to dignity, equality and freedom of expression and they are contrary to the provisions of the Prohibition against Discrimination Law…”.

9.         The Attorney General adopted the Report of the Departmental Team, and subsequently sent a letter, on May 7, 2013, to a number of government ministers. The letter included specific reference to the activity of the radio station, and mentioned that its broadcast practices entailed a serious violation of women’s basic rights. It should be noted that the Government of Israel also adopted  the Report [Resolution no. 1526 of the 33rd Government of Israel, “Prevention of the Exclusion of Women from the Public Domain” (March 30, 2014)].

 

Arguments of the Parties in the District Court

10.       Kolech submitted its application for certification of the class action as a non-profit organization devoted to social and cognitive change in regard to gender equality in the religious community in Israel. Kolech claims that the station’s policy constitutes unlawful discrimination under the provisions of sec. 3(a) of the Prohibition against Discrimination Law, which prohibits, inter alia, acting in a discriminatory manner in the provision of a public service “due to gender”.  Kolech concentrated its arguments on two major focal points of discrimination that existed, in its view, in the activity of the radio station. The first point of discrimination lay in not allowing women to “appear on air”. In this context, it was alleged that in the relevant periods, the radio station prevented women from appearing on air and speaking in the broadcasts, first in a comprehensive manner, and later, in a partial manner, whereas men were allowed to be heard. The second point of discrimination lay in the “deprivation of content” from the male and female listeners of the radio station. This point of discrimination related to the fact that due to the policy of the radio station, listeners received communications services “purely from the male sex”, with women being excluded from the world of communications content. As a consequence of the policy adopted by the station, the listeners were deprived of the opportunity to listen and to be exposed to the opinions of women. Kolech added that these two focal points of discrimination reflect conduct that is a serious violation of the basic rights of women under Basic Law: Human Dignity and Liberty and its derivatives, including their right to dignity, to equality, and to freedom of expression.

11.       On the legal plane – since we are dealing with the area of class actions – Kolech argued that the suit should be certified as a class action under item 7 of the Second Appendix to the Class Action Law, 5766-2006 (hereinafter: Class Action  Law), namely, for a cause according to the Prohibition against Discrimination Law. In accordance with the various provisions of the Class Action Law, Kolech asked that it be determined that the “class” in the name of which the class action would be conducted would include “all the female listeners of the radio station and all the women who wished to listen to the station but refrained from doing so due to the discrimination against women at the station”, and that the “relief” would be “by way of issuing an order directing [the station] to cease discriminating against women at the Kol BaRamah radio station, and financial compensation for members of the class”. It should be noted that Kolech brought support for its various arguments, both concerning the definition of the class and with respect to the damage caused to its members, in an expert opinion prepared by the Sarid Institute for Research Services Ltd. In the framework of this opinion, a survey was conducted that examined the extent of damage to women from the policy of the station. Based on the data from the survey, Kolech estimated the number of women who were harmed by the policy of the station “to a great extent” at some 64,000 women. Kolech pointed out that, indeed, it is difficult to quantify the non-monetary damage, but at the same time, it is possible to do so based on cases in which compensation was awarded for violation of the Prohibition against Discrimination Law. Against this backdrop, Kolech set the sum of compensation at NIS 104,000,000, explaining that the compensation for each member of the class amounted to between NIS 1,000 and 2,000. Kolech added that the action raises questions common to all members of the class; that a reasonable possibility exists that the action will be decided in its favor; and finally, that the class action is the most efficient way to decide the dispute.

12.       The radio station requested that the application to approve a class action be denied. First, the station contended that Kolech – as an organization that is not an injured party with a personal cause of action – is not qualified to file a class action. It argued that Kolech had not proved that it had acted with due diligence to locate a person with a personal cause of action prior to submitting the class action, as required by the Class Action Law. In that context, it was contended that Kolech is also not qualified to submit the class action because there is a difference between its national-religious world view and the world view of the women who constitute the target audience of the radio station, who are from the ultra-Orthodox Sephardic sector. On the merits, the radio station contended that there is no cause of action because sec. 3(a) of the Prohibition against Discrimination Law does not apply in the circumstances of the case. In this context it was contended that the section requires that there be no discrimination in access to the service or product, whereas in the present case, the service that the radio station provides is accessible to all listeners, and every woman can listen to the radio station, just like any man. Therefore, it was argued, the relevant section of the Prohibition against Discrimination Law does not apply. Alternatively, it was argued that the practice adopted by the station does not in any way constitute “discrimination”, but is rather a “permitted distinction”. The radio station’s version was, therefore, that if it is held that the Prohibition against Discrimination Law applies, then the exceptions enumerated in secs. 3(d)(1) and 3(d)(3) apply, whereby an act is not considered to constitute discrimination when it “is necessitated by the character or nature of the product,”  and by which it is permissible to maintain “separate frameworks … for men or women …  on condition that the separation is justified …”

13.       The radio station further argued that apart from the fact that no grounds exist for submitting a class action, no harm was caused to the members of the class. Inter alia, it was argued that women in the relevant class are not at all interested in being exposed to or having their voices heard in the wider public, and similarly they are not interested in hearing the voices of other women. In this context, the radio station also attacked the findings of the survey, pointing out that Kolech did not submit any substantial proof for the existence of harm, as was claimed. As for the requested relief, the radio station claimed that if it is awarded, the station’s character will be harmed and the purpose for which it was established will be frustrated. The radio station additionally claimed that weight should also be attributed to the regulatory procedures it underwent, and to the fact that it complied with the directives of the Second Authority. In this context, it was argued that due to the fact that its activity was in accordance with the directives of the Second Authority, it has immunity from being sued under sec. 6 of the Civil Wrongs Ordinance [New Version] – immunity that applies to acts that were done in accordance with statutory provisions or by virtue of legal authority. It was argued that this immunity applies as of the date on which the station was established, since the concession to operate the station stated that a “spiritual committee” would be set up that would determine the rules for its broadcasts. It was noted that the station acted in light of these provisions in good faith, in the reasonable belief that it acted in accordance with the valid legal permission of the spiritual committee not to broadcast women’s voices, and upon the basis of the opinions of the leading rabbis in Israel.

 

The Decision of the District Court

14.       The District Court initially addressed the qualification of Kolech to apply for certification. The court noted that the provisions of sec. 4(a)(3) of the Class Action Law allow  an “organization” to submit a class action subject to two cumulative conditions: one, that the action filed is within the area of one of the objectives of the organization; and two, that in the circumstances of the case, submitting the request for certification on behalf of a person who has a personal cause of action would prove problematic. The District Court held that Kolech met these two conditions. It stated that Kolech provided proof that it was an organization that had been acting for years to promote the status of women in religious Jewish society, and as such, the action was clearly within the area of its objectives. It also stated that Kolech proved that it would be difficult to find a woman with a personal cause of action, in that there is an inherent difficulty in placing an ultra-Orthodox woman “at the forefront of the battle”, due to the fear of reprisal by the society in which she lives and the social harm that she would likely incur. The court also found support for its conclusion in the findings of the survey that was submitted on behalf of Kolech, from which it emerges that the percentage of women who stated that they are prepared to take legal action to change the policy of the station is extremely small. Finally, the court remarked that because the action raises issues that are of public importance, the fact that it was submitted by an organization that has resources and knowledge has the potential to realize the objectives of the Class Action Law.

15.       The court subsequently addressed the question of whether, in the circumstances of the case, there were grounds for submitting a class action.  Central to this issue was the question of whether sec. 3(a) of the Prohibition against Discrimination Law applied in the circumstances. The Court dismissed the narrow interpretation of the radio station, whereby the section treats only of prohibiting discrimination in the form of access to a service or a product, and therefore, would not appear to be relevant in our case. It was noted that the language of the section refers to the prohibition of discrimination in providing a “public service”, and the Law defines communications services as such a service. Furthermore, the communications services provided by the radio station include news and commentary broadcasts, as well as offering listeners the opportunity to express their opinions on the air. The court emphasized that this conclusion is also necessitated by the purpose of the Law, which is the prevention of discrimination, and in particular discrimination of the type expressed in the case at hand. The court therefore held that the policy of the radio station may fall within the purview  sec. 3(a) of the Prohibition against Discrimination Law, however it distinguished between two different periods in which discrimination, as defined by the Law, occurred, as follows:

a.  The period of the declared policy (2009 – Nov. 6, 2011): In relation to this period, the District Court held that the policy adopted by the radio station constituted prohibited discrimination within the meaning of sec. 3(a) of the Prohibition against Discrimination Law. It added that the exceptions in secs. 3(d)(1) and 3(d)(3) of the Prohibition against Discrimination Law, according to which an action is not deemed to be discriminatory where it “is necessitated by the character or nature of the product” and by which it is permissible to maintain “separate frameworks … for men or women …  on condition that the separation is justified …” do not apply. Inter alia, the court explained that it was not proven that there was a “relevant difference” between men and women that justified the gender distinction that was adopted, for even according to the radio station, the distinction was not based on an explicit religious precept, but was adopted as a “stringency” (“enhancement of the precept” [hidur mitzvah]) that is not a halakhic requirement. It was also held that the policy of the station in any case does not meet the condition of maintaining “a separate framework”, since the matter at did not involve separation, but rather prevention directed solely at women.

b. The period of specific violations (Nov. 6, 2011 –Aug. 28, 2012). In this period, regulatory procedures were undertaken, but it was alleged that in two instances the radio station violated the directives it was given. The first instance occurred in November 2011, when the station refused to interview Prof. Sofia Ish Shalom of Rambam Hospital because she was a woman. In respect of this event, the Second Authority imposed a fine of NIS 10,000 on the station. The second instance occurred in the same month, when one of the station’s producers requested of Rambam Hospital that a medical resident discuss a certain topic on the air. Here, too, the producer stressed that the interviewee must be a man and not a woman. The District Court held that these two violations constituted cause under sec. 3(a) of the Prohibition against Discrimination Law, and it saw no reason to change its conclusion due to any exceptions in the Law.

16.       In the framework of the deliberations on the cause of action, the court also considered the radio station’s contention that it enjoyed immunity by virtue of section 6 of the Civil Wrongs Ordinance [New Version]. The court considered this argument, even though it pointed out that the radio station had not raised it in its response but only at a later stage, apparently in a “change of front”. On the merits, the court held that the argument should be partially accepted. The court explained that, as of the end of 2011, the radio station began to operate in dialogue with the Second Authority and subject to its directives. In these circumstances, it was held that the station should not be held liable in tort for actions that were conducted in the framework of the regulatory process, and that its actions during this period are covered by the immunity granted under sec. 6 of the Civil Wrongs Ordinance. On the other hand, it held that this immunity did not extend to acts carried out by the radio station prior to the regulatory processes, nor to acts carried out at in the course of the regulatory processes but which deviated from the directives of the Second Authority.

17.       Upon completing its deliberations on the cause for bringing a class action, the court proceeded examine the additional conditions for certification. The court held that under the circumstances of the case, the action raises substantial questions that are common to all the members of the class. One question was “whether [the station] wronged the members of the class through unlawful discrimination in that it prevented women from being heard on the air from the time that it began its operations and until November 6, 2011…”. A second question was “whether [the station] wronged the members of the class through unlawful discrimination in that it prevented women from being heard on the air in the two instances…”. The court further held that a class action was the efficient and fair way to decide the dispute, noting that there is an inbuilt advantage in conducting such an action against the background of concerns about various constraints that exist amongst the female members of the class in relation to filing personal actions. It explained that conducting this action as a class action was likely to facilitate modes of proof and relief that would not be possible in personal suits. It was also likely to enable many women to receive appropriate relief for breach of the law, where it was doubtful that these women would turn to the courts as individuals. In relation to the relief, it was further pointed out that according to the Prohibition against Discrimination Law, it is possible, in the circumstances of the case, to award compensation even “without proof of harm”. Finally, the court noted that it believed that the case of the members of the class would be conducted in a suitable manner and in good faith.

18.       The court summarized its determinations by saying that Kolech had met the burden of proving the fulfillment of all the required conditions for approving a class action. Therefore, and as provided by the legislature in section 14(a) of the Class Action Law, the court held that the class in whose name the class action would be conducted was: “All the female listeners of the Kol BaRamah radio station and all the women who were interested in listening to the station but refrained from doing so due to discrimination against women at the station from the date of the beginning of the activity of the station and until the date of submission of the application for certification”. The court also held that Kolech and its attorneys would serve as the representatives in the action, and that the requested relief is an order requiring the radio station to desist from its discrimination against women, as well as monetary compensation for the members of the class.

 

The Application for Leave to Appeal

19.       The arguments of the radio station essentially restate the arguments it raised in the District Court, and I will therefore repeat only the main points. The radio station believes that filing a class action is not appropriate in the circumstances of the case, inasmuch as it operated in cooperation with representatives of the Second Authority and in accordance with its directives. In addition, the station believes that the court erred in all its determinations and in its decision to certify the class action. Thus, for example, the radio station claims that the court erred in its determination that Kolech was qualified to submit the class action as an organization. It also claims that there was a mistake in the court’s ruling on the existence of a “cause” under sec. 3(a) of the Prohibition against Discrimination Law, and in its ruling that the immunity under sec. 6 of the Civil Wrongs Ordinance applied only from the beginning of the regulatory process and not from the time that the station was set up. Another central argument in the application for leave to appeal is that the court did not explain what “harm” was allegedly caused to the class that would give rise to an entitlement to monetary relief. Inter alia, it was stated that the Court erred in its determination that compensation can be awarded “without proof of harm”, in view of sec. 20(e) of the Class Action Law which precludes the possibility of doing so in a class action. The station also contests the finding concerning the “definition of the class”. According to the station, there was no justification for including all the female listeners of the station in the class. Rather, the class should, at most, comprise only those listeners who requested to be heard on air and were refused. Finally, it was argued that the members of the class do not in any way share common questions. For these and other reasons, the radio station reiterated its position that the class action should not be certified.

20.       Kolech objects to the application for leave to appeal. Kolech argues that the decision of the District Court is well-founded and reasoned, and reveals no flaws. As a preliminary argument, it says that the application for leave to appeal does not meet the criteria laid down in the case law of this Court for granting leave to appeal a decision certifying a class action. On the merits, Kolech supports the findings of the District Court both in relation to its qualification and in relation to the existence of cause under sec. 3(a) of the Class Action Law, and with respect to the extent of immunity by virtue of sec. 6 of the Civil Wrongs Ordinance. Kolech objects to the argument of the radio station whereby women were apparently not harmed, since they could “listen” to the radio station. Kolech argues that preventing the possibility of women having their voices heard does not harm only those women who were not permitted to go on air, but it conveys a harmful and humiliating message to all female listeners that the class to which they belong – that of women – is an “inferior” class. Concerning the damage, Kolech adds that at the stage of certifying the class action it is not necessary to prove the exact harm caused to each of the members of the class, and that the harm will be calculated and assessed in the principal procedure itself. In any case, Kolech argues, harm was certainly caused due to the significant breach of the rights of the members of the class to dignity and equality.

 

Deliberation and Decision

21.       After examining the material that was presented to us, I have reached the conclusion that granting the application for leave to appeal, and adjudicating it as an appeal, is justified. Even though the criterion for granting leave to appeal a decision to certify a class action has been narrowed over the years (see: LCA 8671/09 Cellcom Israel Ltd. v. Fattal [1]; LCA 2282/15 Psagot Provident and Pension Funds Ltd. v. Levy, paras. 11-10 [2]), my opinion is that the present application raises several exceptional legal questions that must be discussed already at this procedural stage. Accordingly, the following discussion will address the arguments of the radio station on the merits. I will begin with a short discussion of the general phenomenon of exclusion of women from the public domain, and I will also define the questions relevant to the class action in the present case. I will subsequently examine whether the conditions for certifying a class action have been met in the present case, focusing particularly on those conditions that relate to the party that is seeking certification and the existence of cause of action.

 

(A)       Exclusion of women from the public domain – Some preliminary comments

22.       The phenomenon known as “exclusion of women” refers to the particular case of generic discrimination on the basis of sex, the main characteristic of which is not allowing women – by virtue of being women – to receive public services or to take part in public activity. In one sense, the phenomenon is liable to manifest itself in gender separation, i.e., in situations in which public services are in fact supplied to women, but separately. This, for example, is the case in relation to gender separation between men and women on buses or in health clinic waiting rooms. In another sense, exclusion of women might also manifest itself in a situation in which women are categorically prevented or constrained from receiving services or from being active participants in activity that is taking place in the public domain, as if there were a sign to the effect that the service is provided “for men only”. This is the situation in respect of the sweeping prohibition on broadcasting women’s voices, as in the present case. The practices suspected of being exclusionary of women inherently give rise to questions on different legal planes, and in particular on the public-constitutional plane, where they emphasize the tensions surrounding the rights of women to equality, dignity, freedom of expression, autonomy and freedom of occupation, as opposed to contrary rights and interests that derive from the principle of multi-culturalism, freedom of religion and a desire to prevent harm to religious sensibility (for a discussion of the various considerations, see, e.g.: HCJ 746/07 Ragen v. Ministry of Transport [3]; Report of the Departmental Team, at 10-34; Ruth Halperin-Kaddari, Women, Religion and Multiculturalism in Israel, 5 UCLA J. Int’l & For. Aff. 339, 362-366 (2000); Susan M. Okin, Is Multiculturalism Bad for Women? in Is Multiculturalism Bad for Women? 9-24 (Joshua Cohen, Matthew Howard & March C. Nussbaum eds., 1999).

23.       The theoretical center of gravity in relation to the exclusion of women in Israel – as reflected in the relevant literature and in the Report of the Departmental Team – lies in various manifestations of the phenomenon in contexts that include religious-halakhic aspects. In particular, disagreement arises in relation to the question of whether these aspects justify according a separate or limited status to women in the public sphere, having regard to the entire range of conflicting interests (see, inter alia: Alon Harel and Aharon Schnarch, Separation of the Sexes on Public Transportation, 3 Alei Mishpat 71(2003)  (Hebrew) (hereinafter: Harel & Schnarch)); Noya Rimalt The Separation between Men and Woman as Discrimination between the Sexes, 3 Alei Mishpat 99 (2003) (Hebrew) (hereinafter: Rimalt); Zvi Triger, Separation  between Women and Men as Sexual Harassment, 35 Iyunei Mishpat 703, 709-713 (2013) (Hebrew) (hereinafter: Triger); Alon Harel, Regulating Modesty Related Practices, 1 Law and Ethics of Human Rights 211(2007)). As we have said, the Report of the Departmental Team dealt in depth with the phenomenon of the exclusion of women in this context. In doing so, specific instances of the phenomenon were discussed, and the various cultural and halakhic interests were considered – including gender separation and distinction in cemeteries, in state ceremonies, on public transportation and the free movement of female pedestrians in ultra-Orthodox neighborhoods. As mentioned in the Report of the Departmental Team, the criterion that was adopted for examining the constitutionality of every instance that was suspect in relation to exclusion of women was that which had been formulated over the course of many years in the case law  of this Court in relation to discrimination. According to this criterion, what must be examined is whether there is a “relevant difference” that derives from the character and nature of the public service that justifies the gender separation. As the Court has pointed out, in the framework of this examination, weight should also be attributed to the unique cultural aspects of the ultra-Orthodox community, including the question of how to relate to the fact that women in the ultra-Orthodox community are members of a class that is a “sub-minority” within the ultra-Orthodox minority (Report of the Departmental Committee, paras. 13, 25 and 242).

24.       Indeed, the practice that is suspected of being exclusionary will be examined on its merits, according to its nature and characteristics, and according to the rules that were laid down in the case law in relation to similar instances of discrimination, all, of course, with the necessary changes by virtue of the various interests resting on the scales (see: Aharon Barak, Human Dignity: The Constitutional Right and its Derivatives, vol. 2, 703-705 (2014) (Hebrew); HCJ 153/87 Shakdiel v. Minister of Religion [4], at 242-243); HCJ 4541/94 Miller v. Minister of Defence [5], at 109-110; HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [6], at 652-660). Not every activity or policy that is alleged to constitute “exclusion of women” will necessarily be classified, ultimately, as prohibited discrimination. We will already say that the reality of life in these contexts is complex, and does not allow for the adoption of a simplistic, radical approach to all its  manifestations. This was discussed by Justice S. Joubran in HCJ 746/07  Ragen v. Ministry of Transport [3], who explained that the context of the practice of separation is likely to  shed a different light on our view concerning constitutionality, having regard to the circumstances of each individual case, paraphrasing the words of Justice T. Marshall of the United States Supreme Court (Cleburne v. Cleburne Living Ctr. 473 U.S. 468-469 (1985)): “A sign that says ‘Men Only’ looks very different on a bathroom door than on the door of a bus.” This, therefore, will be the starting point for examining suspected incidents of exclusion of women, including in our case.

25.       As I mentioned, the general discussion of the phenomenon of exclusion of women from the public domain is merely an introduction to the main subject with which we are concerned, viz., the class action. However, I have decided to express at the outset my sense of revulsion and repugnance at this phenomenon, which seems only to be increasing in those cases in which it amounts to prohibited discrimination. This is an illegitimate, unworthy phenomenon that has been describes as one that “delivers a mortal blow to human dignity” (HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Welfare [6], at 658-659), and it is a gross violation of the basic, fundamental rights of women. Moreover, the exclusion of women also has the potential of instilling a conception that the public domain belongs to “men only”, and consequently, of perpetuating gender-driven gaps in status and behaviors that by their very nature humiliate, degrade and debase women. This is particularly evident when women are forced to turn to the authorities and the courts for a declaration that they are “permitted” to execute basic acts in the public sphere, and clearly the harm that this involves is not limited only to their individual matter, but involves injury to society as a whole (I had occasion to discuss a matter in this spirit, in a slightly different context, in LCA 8821/09 Prozanski v. Layla Tov Productions Co. Ltd. [7], paras. 17-30).

 

(B)       Class action on grounds of discrimination – the parameters

26.       Both in the District Court and in this Court, the arguments of the parties did not focus on the question of the suitability, in principle, of class actions for dealing with the general phenomenon of discrimination, and in that context, for dealing with the exclusion of women from the public domain. In my opinion, they were correct in not doing so. The absence of any disagreement on this point derives from the understanding that, in principle, insofar as the alleged discrimination is prohibited under any of the sections of the Prohibition against Discrimination Law, a class action can be employed as a means for realizing or protecting the rights that have been violated. This is the legislative desire, and it derives directly from a combination of the provisions of sec. 3(a) of the Class Action Law and item 7 of the Second Appendix to the Law, in which the possibility of filing a class action for a cause pursuant to the Prohibition against Discrimination Law is regulated. A different question, which might require consideration in the future, is whether it would be possible to file a class action for  a discriminatory practice that is not regulated under the provisions of the Prohibition against Discrimination Law, and what (if any) might constitute the appropriate ground for basing such an action. In any case, consideration of this question is not required here, since in the present case, certification of the class action is based on the provisions of the Prohibition against Discrimination Law alone.

27.       The above notwithstanding, and without taking a definitive stand on this matter, I will comment as an aside, that in the past, the professional literature raised the possibility that a class action might provide a possible device for addressing cases of collective harm, such as discrimination, and for repairing the damage it had caused,  apparently even independently of the Prohibition against Discrimination Law  (see, e.g., Guy Halfteck, A General Theory Regarding the Social Value of Class Actions as a Means for Law Enforcement, 3 Mishpat ve-Asakim 247-331, note 31 (2005) (Hebrew); Yifat Bitton, Bringing Power Relations within the Scope of Negligence Liability, 37 Mishpatim 145, 212-213 (2008) (Hebrew); Yifat Bitton, Dignity Aches: Compensating Constitutional Harms, 9 Mishpat uMimshal 137, note 5 (2005) (Hebrew) (hereinafter: Bitton, Dignity Aches); Assaf Pink, Class Actions as an Instrument of Social Change, 6 Maasei Mishpat  157 (2014) (Hebrew) (hereinafter: Pink, Class Actions); and see, mutatis mutandis, Daphne Barak-Erez, Constitutional Torts 296 (1993)). Furthermore, quite apart from the discussion of class actions, recent judgments of the trial courts in “regular” – not class action – civil suits have granted recognition to the right of female injured parties to non-monetary compensation for distress, humiliation and violation of dignity caused by a policy of exclusion of women adopted in their regard (see: CC (Bet Shemesh Mag. Ct.) 41269-02-13 Phillip v. Aboutbul [33]; SC (Beer Sheva) 33424-02-12 Michaeli v. Chevra Kadisha – Ofakim Religious Council [34]; SC (Bet Shemesh) 2917-10-11 Marsden v. Negdi  [35]).

28.       The discussion below – except for a brief discussion regarding the “efficient and fair” way to conduct the proceedings – will not deal with the general argument that a class action should not be used in cases of discrimination because there would seem to be “more suitable” alternatives, such as seeking relief on the constitutional and administrative planes (see the discussion of this argument in Bitton, Dignity Aches, at 139. Bitton argues that in the case of collective harm to the dignity of women and their right to equality, the instrument of class action is, indeed, available, but it may be that “the relief of a court order is a more suitable remedy”). As stated, in our case there is no dispute that on the legal level, compensation for discrimination under the Prohibition against Discrimination Law can be sought in a class action procedure, even if other legal possibilities exist. Moreover, the possibility of being awarded relief on the administrative and constitutional planes does not necessarily rule out the possibility of receiving parallel relief by way of a class action. It must be borne in mind that a class action may include applications for relief of several kinds at once, and that sometimes, the actions on separate legal planes are addressed from the outset to different bodies. Furthermore, a class action sometimes constitutes a vital instrument of enforcement precisely when the administrative sanctions are insufficient (see, e.g.: CA 5378/11 Frankl v. Allsale, para. 34 [8]; LCA 9615/05 Shemesh v. Fucacheta Ltd., para. 5 [9]).

29.       In the absence if a need to discuss the questions mentioned above, our deliberations will focus on the question of whether the conditions for approving a class action are met in the present case. As we know, the Class Action Law states in secs. 3(a) and 8(a) that an applicant who seeks certification of a class action must prove several cumulative conditions: (a) One condition is that the cause of action must be one of the causes of actions for which a class action may be brought; (b) A second condition is that the action raises substantive questions of fact or law that are common to all members of the class, and that there is a reasonable possibility that they will be decided in favor of the class; (c) A third condition is that the class action is the most efficient and fair way in which to decide the dispute; (d) The fourth and fifth conditions are that there are reasonable grounds to assume that the concerns of all the members of the class will be represented, and that the matter will be conducted in an appropriate way and in good faith. Additional conditions  specified in sec. 4 of the Class Action Law require that the plaintiff in the class action be authorized in advance to bring and conduct the action; and that insofar as one of the causes of action is harm, the plaintiff in the class action proves prima facie, already at this procedural stage, that harm was caused to a member of the class or that there exists a reasonable possibility that harm was caused to the class (on the conditions, see: CA 9494/08 Pan v. Israel Railways, para. 5 [10]; CA 6887/03 Resnik v. Nir Cooperative, para. 24 [11]).

 

(C)       Interpretation of section 4(a)(3) of the Law – Is “Kolech” qualified to file the action?

30.       Section 4 of the Class Action Law treats of the question of who may apply for certification of a class action. The section specifies the said persons, and in particular, sec. 4(a)(3) of the Law provides that an “organization” (as defined in the Law) may also submit a class action, provided that the action concerns an area that is included in one of its public objectives, and provided that submission of the application by a plaintiff with a personal cause of action would prove difficult. The Law states as follows:

 

By whom and in whose name may an application for approval of a class action be brought	4(a) The following are entitled to submit to the Court an application for approval of a class action as specified below:
		(1)	A person who has cause for an action or matter specified in section 3(a), which raises substantive questions of fact or law common to all members of a class of persons – in the name of that class;
		(2)	A public authority in an action or matter specified in section 3(a) that is within the sphere of one of the public purposes in which the public authority engages – in the name of a class of persons, if that action or matter raises substantive questions of fact or law common to all its members;
(Amendment no. 4) 5768-2008		(3)	An organization in an action or matter specified in section 3(a) that is within the sphere of one of the public purposes in which the organization engages – in the name of a class of persons, if that action or matter raises substantive questions of fact or law common to all its members, on condition that the Court is satisfied that – under the circumstances of the case – it would be difficult to submit the application in the name of a person specified in paragraph (1); however, the Israel Consumer Council, as defined in the Israel Consumer Council Law 5768-2008, may apply for approval of an action as a class action, even if it is not difficult for a person to submit the application as stated in paragraph (1).

The definitions section of the Law defines “organization” as follows:

 

Definitions

2.

In this Law: “Organization” – a body corporate, other than a body corporate set up by a law or a religious trust, which exists and operates in practice and in a regular manner and has done so for at least one year for the advancement of one or more public purposes, its assets and income being used only for the achievement of public purposes, on condition that its activity is not on behalf of a political party or of some other political body, or in connection with a party or aforesaid body or for the advancement of their purposes;

 

 

31.       The interpretation of sec. 4(a)(3) of the Law has not yet been decided by this Court, but it has been addressed in the past by the Economic Department of the District Court (Judge C. Kabub) in Class Action (Econ.) 2484-09-12 Hatzlacha, Consumer Movement for the Promotion of a Fair Economic Society and Economy v. Cohen [31]). The District Court held that in order for an organization to qualify to bring a class action, it must prove that there are prima facie grounds, that there is a difficulty involved in locating a plaintiff with a personal cause of action, and that it is a suitable organization per se. With respect to interpretation of the word “difficult”, the Court held that this requirement attests to the fact that the legislature did not wish to open too wide a portal through which organizations could bring class actions. However, at the same time, it was held that a narrow, pedantic approach should not be adopted, as it might divest the purpose of the law of content in that it would not be possible at all for organizations to file class actions. Against this background, it was decided that the term “difficult” would be examined “in accordance with each matter and its circumstances” (para. 68), and in that particular case, the court added that “the organization that is petitioning bears the burden of proving that it acted with due diligence to locate a person with a cause of action” (para. 64), and that the attempt to locate such a person will be examined from a “quantitative” as well as a “qualitative” perspective (para. 77). The court also noted that “[I]t must be recalled that a class action is indeed a collection of personal suits, but at the same time it has the status of a public action. Therefore, where there is a public interest in the action, this might lead to a certain leniency with respect to the procedural conditions for its submission” (para. 34).

32.       My fundamental view is that a narrow, cautious approach should be adopted to the question of the interpretation of sec. 4(a)(3) of the Law. Careless removal of the procedural barriers, which would allow organizations to submit applications for approving class actions with no limitations, is liable to increase the extent of the phenomenon of submitting groundless claims, even in cases in which there is apparently no real problem in the applications being submitted by plaintiffs who have a personal cause of action (for a discussion of the general concern about groundless actions, see e.g., Alon Klement, Keren Weinshall-Margel, Ifat Taraboulous and Ronnie Avissar-Sadeh, Class Actions in Israel – An Empirical Perspective 9 (2014) (Hebrew) (hereinafter: Class Actions – Empirical Perspective). Another concern is that removing the barriers will motivate certain elements to unite for the sole purpose of facilitating class actions. As I shall explain below, the narrow approach is also the consequence of reading the provisions of the Class Action Law themselves. In this context, the provisions of sec. 4 of the Law present several significant hurdles which organizations must overcome in order that they be allowed to submit an application for certification of a class action, and which attest to the legislative desire to limit their power and to allow them to submit class actions only in cases which are indeed suitable. Moreover, this conclusion also derives from the legislative history of sec. 4 of the Law, it being evident that the legislature did, indeed, wish to allow organizations to bring class actions, but at the same time it did not totally abandon the model that had prevailed in Israeli law prior to the enactment of the Law, whereby the party that brought the class action had to be a member of the injured class (see: Steven Goldstein, Comments on the Class Action Law, 5766-2006 6 Alei Mishpat  7, 16-18 (2007) (Hebrew)).  

33.       The point of departure in the Law is that it is preferable if the person bringing the class action is “a plaintiff with a personal cause of action” or a “public authority” and not an “organization”. This conclusion can be deduced from a reading of sec. 4 of the Class Action Law, in which the legislature established a clear hierarchy among the three bodies. First, sec. 4(a)(3) of the Law states that the application should not be made by an organization if the action can be brought by a plaintiff with a personal cause of action,. Secondly, it is evident that the legislature similarly prefers that the class action be brought by a “public authority” under sec. 4(a)(2) of the Law, as may be inferred from the broad authority granted to such authorities. And note that the three bodies defined as a “public authority” are authorized to bring class actions in certain areas, in view of the recognition that in these areas, it may be difficult to file suit in other ways. The legislature deemed it advantageous to concentrate bringing class actions in these areas in the hands of public authorities, in view of their accumulated experience , their human resources and the fact that at times they have parallel administrative powers, so that they have a more varied means at their disposal for dealing with the wrongdoers. The legislative preference is evinced primarily from the scope of the authority conferred on public authorities, in that they are authorized to bring class actions without even being required to prove the difficulty involved in bringing the action in the name of a plaintiff with a personal cause of action. The language of the Law and the wide power given to the public authorities attest to a clear legislative preference that the plaintiff in class actions be “a plaintiff who has [personal] cause for an action” or a “public authority”. This preference is significant also from the aspect of the qualification of the organization seeking to bring a class action.

I would incidentally note that I am aware of the argument that, in practice, the public authorities have yet to exercise their power (see: Class Actions – Empirical Perspective, at 15-16; Appeal in Class Actions, at 638). However, I do not think that this argument adds or detracts from the empirical analysis above.

34.       Another point of departure is that the term “organization” must be interpreted narrowly, solely in accordance with its definition in the Class Action Law only, and not according to its definition in other laws. And note that in several laws enumerated in the Second Appendix to the Class Action Law, the status of an organization is recognized in various contexts, and they are sometimes vested with the power to sue. Thus, for example, sec. 7(a) of the Prohibition against Discrimination Law states that a corporate body that is engaged in the defense of rights may bring a civil action for a tort under the Law, even when the tort was perpetrated against an individual, as long as that individual has consented thereto. The legal question is whether the fact that an organization was accorded a status by means of an “external law” exempts it from the conditions pertaining to organizations in the Class Action Law. Apparently, it can be argued that putting the organization in the shoes of the plaintiff with a personal cause is effected by way of an external law, and not by means of sec. 4(a)(3) of the Class Action Law. According to this approach, the organization comes within the bounds of the Class Action Law as a “person with a cause” according to sec. 4(a)(1) of the Law, and it is therefore not required to overcome the hurdles placed before an organization under sec. 4(a)(3) of the Law (on this view, see Pink, Class Actions, at 166).

35.       My position, as stated, is that no analogy can be drawn from the status accorded to an organization under external laws with respect to its status for the purpose of bringing a class action. When the provisions granting a status to organizations in external laws were enacted, no examination was conducted of all the aspects required to grant status to an organization as a plaintiff in a class action. Furthermore, the Class Action Law sets hurdles and conditions with respect to organizations that do not exist in the external laws, such as the requirement of operating in practice and in a regular manner for the duration of at least one year. It may well be added that an understanding of the background to the enactment of the Class Action Law leads to a similar conclusion, bearing in mind that the legislature wished to concentrate all the procedural aspects connected to the filing of class actions under one law (see sec. 1 of the Class Action Law: “The purpose of this law is to prescribe uniform rules on the submission and conduct of class actions, in order to improve the protection of rights …”; and  the memorandum to the Class Action Law 5765-2005). Accordingly, it is clear that adoption of an interpretation that allows an organization to be accorded a status by virtue of external laws for the purpose of submitting a class action will lead, in effect, to the decentralization, contrary to the legislative intent, of those procedural aspects that were deliberately concentrated under the Class Action Law.

36.       The first hurdle placed before an organization that seeks to submit a class action in place of a plaintiff with a personal cause of action appears in sec. 2 of the Law. This section defines the term “organization” for the purpose of sec. 4(a)(3) of the Law, and in so doing, establishes a number of conditions that must be met by the organization. In particular, the section prescribes that the organization must prove that it operates in practice and in a regular manner, and has done so for at least a year, that its activities serve a public purpose, and that its assets and income are used only for achieving the public purpose. As noted above, these preconditions prescribed in the definitions section of the Class Action Law demonstrate that the legislature sought to open the door to the bringing of class actions only to active organizations that have proven records in their clearly public area of activity, and which did not incorporate merely for the purpose of bringing a class action.

37.       On the assumption that an organization that wishes to bring a class action has overcome the hurdle of sec. 2 of the Class Action Law, the next hurdle it faces is to prove compliance with the two central conditions for qualification, namely, the conditions prescribed in sec. 4(a)(3) of the Law. First, the applicant organization must prove that the action is within the area of one of its public purposes. This limitation, too, attests to the legislative desire to allow class actions to be brought by organizations only sparingly, in a manner that will ensure that the organization is in fact fit to conduct the class action in the name of the class, inter alia, due to its expertise in and knowledge of that area. Secondly – and this condition apparently constitutes the main obstacle placed before an applicant organization – the organization must convince the court that it would be difficult to submit the application in the name of a person with a personal cause of action. This condition reveals a clear preference of the legislature that class actions not be pursued by organizations, but by a plaintiff with a personal cause of action, who  has been directly harmed, based on an understanding of the importance that a direct victim insists on his rights.

38.       With respect to the statutory requirement of proving that it would be difficult to locate a plaintiff with a personal cause of action, in principle I accept the interpretative approach whereby the word “difficult” must be understood in accordance with the circumstances of each case. Nevertheless, and without making a categorical statement, one can conceive of several indications that would indicate the existence of such a difficulty. Thus, one can imagine that a lack of financial means among potential plaintiffs may indicate a difficulty. Clearly, the higher the anticipated cost of submitting an application for certification of a class action, the greater the concern that a plaintiff with a personal cause of action who would agree to institute the proceeding will not be found. This concern is relevant, for example, in situations in which the class of victims is from a “weak” sector whose members lack sufficient economic means, particularly when the application for certification of the class action must be accompanied by a costly expert opinion. One can also imagine areas or situations in which the direct victims are not aware of the harm done to them due to gaps in knowledge or the absence of the ability to comprehend the harm. In such situations, when the direct victims have difficulty in assessing the damage done to them, it is liable to be difficult to convince them to submit a class action in their own names. Cultural barriers are also liable to make it difficult, at times, to find a plaintiff with a personal cause of action. These are relevant to situations characterized by the existence of a culture gap that deters plaintiffs with a personal cause of action from turning to the courts (see, mutatis mutandis, Yuval Elbashan Access to Justice of Underpowered Communities in Israel 3  Alei Mishpat  497, 510 (2004) (Hebrew)).

39.       It should be emphasized that the burden of proving the difficulty in finding a plaintiff with a personal cause of action lies with the petitioning organization. In this context, I accept the basic approach of the District Court in Hatzlacha v. Cohen [31] according to which the organization must prove that it acted “with due diligence” to locate a plaintiff with a personal cause of action, both in the “quantitative” and in the “qualitative” sense. My view, too, is that there is no reason to accept the argument that it is difficult to find a plaintiff with a personal cause of action where the said argument has not been supported by a true attempt to find one. The basic assumption is that the organization must prove that it tried to find a plaintiff who would meet the conditions of sec. 4(a)(1) of the Law, even though there should be no automatic dismissal of the possibility that there may be exceptional situations in which the court may be convinced that it is difficult to find a plaintiff with a personal cause of action, even where no attempt has been made to approach potential plaintiffs directly. In this context it is possible that the court may be convinced that there is an inherent difficulty or that there are other special, substantial and convincing circumstances which suffice to lead to the conclusion that it is difficult to find a plaintiff under sec. 4(a)(1) of the Law.

40.       Finally, it should be noted that even if the organization does not overcome the hurdles prescribed in sec. 4(a)(3) of the Law, this does not necessarily mean that the application for certification must be dismissed or denied. It should be recalled that the Class Action Law states that insofar as the application for certification of the class action meets the requirement criteria, the court may approve it even in cases in which the applicant party does not meet the conditions prescribed in sec. 4 of the Law. Thus, sec. 8(c)(1) of the Class Action Law states that the Court may approve the action “if it concludes that those conditions can be assured by the addition or replacement of a representative plaintiff or of a representative attorney, or in some other manner,” and sec. 8(c)(2) of the Law states that “…if the Court concludes that all the said conditions in subsection (a) have been met, but that the conditions in section 4(a)(1) to (3), as the case may be, are not complied with in respect of the application, then the Court shall approve the class action but in its Order it shall order the representative plaintiff to be replaced.” In other words, a finding that the organization does not meet the conditions prescribed in sec. 4(a)(3) of the Law does not automatically preclude the action itself, and it is possible to proceed with it by replacing the plaintiff. Thus, for example, if the organization does not meet the conditions of the Law because there is a plaintiff with a personal cause of action, it is possible to replace the organization with that plaintiff and to proceed to adjudicate the case. In the same manner, if the organization does not meet the conditions of the Law in that, for example, its public purpose is different from that of the subject of the action – it is possible to replace it with another organization whose objectives are consistent with the subject of the action (for a more extensive discussion of this matter, see para. 32 in Hatzlacha v. Cohen [31]).

41.       To sum up this chapter, an organization that wishes to bring a class action in place of a plaintiff with a personal cause of action must meet the following cumulative conditions:

a.     First, the organization must prove compliance with the conditions of sec. 2 of the Class Action Law, including that it is a proven, active corporation, and that it has operated in practice and in a regular manner for at least one year, and that the objective of its activity is a patently public purpose;

b.    Secondly, the organization must prove that the action is within the area of one of its public objectives;

c.     And thirdly, the organization must prove that it is difficult to bring an action in the name of a person who has a personal cause of action, where the term “difficult” will be interpreted in accordance with the case and its circumstances, and having regard to a number of indicators as mentioned above, which is not a closed list. As a rule, proving this condition will require that data be presented showing that the organization acted “with due diligence” to find a plaintiff with a personal interest, both in the quantitative and in the qualitative sense, subject to the possibility of exceptional situations in which the court will be convinced that there is an inherent difficulty or that there are other special, substantial and convincing circumstances which suffice, per se, to demonstrate the difficulty in finding a plaintiff with a personal cause of action.

42.       In our case, the District Court held that the Kolech Organization meets the above conditions, and it is therefore a “qualified organization” to bring the class action. My impression is that this conclusion is justified and that there is no basis for intervention. First, it will be noted that the radio station does not dispute the existence of the first condition, which relates to the organization meeting the condition in sec. 2 of the Class Action Law, as it does not object to the factual findings of the District Court that Kolech is “an organization that has operated for several years” (para. 46 of the decision), its activity is carried out in a regular and actual manner, and its declared objective is primarily the public objective of “promotion of the status of women in religious Jewish society and in Israeli society” (ibid.). As opposed to this, the radio station’s arguments focus on challenging Kolech’s compliance with the two conditions prescribed in sec. 4(a)(3) of the Class Action Law, namely, the second and third conditions. According to the radio station, Kolech did not prove that the action deals with an area in which it operates in practice, and primarily, that Kolech did not prove that it is difficult to bring the action in the name of a plaintiff with a personal cause of action.

43.       I will first note that I see no cause to intervene in the determination that Kolech proved that the action is within the area of its public objectives. The District Court based this determination on evidence that was presented to it, and held that the condition is factually met – a determination in which the appeal court does not customarily intervene. Moreover, the radio station’s argument in this context relies on its opinion that the objectives of Kolech are apparently inconsistent with the class that it purports and seeks to represent. According to the radio station, “the purpose of the organization must be identical to that of the class” (para. 42 of the application for leave to appeal). With all due respect, this argument is baseless. As pointed out in the decision of the District Court, sec. 4(a)(3) of the Class Action Law does not include a condition of identity or congruence in the world view of the organization with each plaintiff in the class that was injured. Section 4(a)(3) of the Law concentrates on the question of whether the action addresses the public aims of the organization, and in the present case it may clearly be said that Kolech has set as its objective, promotion of the status of women in the religious community and in Israeli society. The fact that the action also involves women who belong to the ultra-Orthodox community does not indicate a departure from the area of the objectives of the organization in a way that would negate the qualification of Kolech. This is even more true in view of the court’s determination that in fact, Kolech is also active in the ultra-Orthodox sector; that in any case the concession that was given to the radio station was not defined as being for the ultra-Orthodox community only, but “to establish a ‘Torani-traditional-Sephardic radio,’ i.e. to establish a radio station intended for the religiously observant public and not only for the ultra-Orthodox”; and that the radio station itself declared that its listening public is not limited only to ultra-Orthodox listeners (for elaboration, see para. 46 of the judgment of the District Court).

44.       After giving careful thought to the matter, my conclusion is that we should not intervene in the determination that Kolech proved that it was difficult to submit the application in the name of a plaintiff with a personal cause of action. I am not unaware of the fact that Kolech confined itself to noting that “there is an inherent difficulty” in the circumstances of the case, without having tried to prove that difficulty by presenting any facts showing that it acted “with due diligence” to find a plaintiff with a personal cause of action. Similarly, as the radio station contends, with a good deal of justification, it is possible that an approach on the part of Kolech to potential plaintiffs who had been directly harmed by the policy of the radio station would not have been pointless. The argument of the radio station whereby from the findings of the survey that Kolech submitted, it emerges that 2.4% of the women who were asked said that they are prepared to take legal action to change the situation, shows that there are women – albeit only a few – who could and would have been prepared to be plaintiffs in a class action under sec. 4(a)(1) of the Law. However, the District Court found, on the basis of other justified, convincing reasons, that in the circumstances of the case, it is difficult to bring the class action in the name of a plaintiff with a personal cause of action, basing this finding on many logical arguments. I concur with the District Court on this point.

45.       The main reason supporting the conclusion that it would hav been difficult to find a plaintiff with a personal cause of action in the present case is that there is a reluctance on the part of ultra-Orthodox women to stand at the forefront of the battle to promote gender equality in the ultra-Orthodox community, due to their concern that their position in the community will suffer. This conclusion was supported by the testimony of Dr. Hannah Kehat, Director General of Kolech, which was found to be reliable, and I see no cause for intervention. This reason is also consistent with the declaration of the radio station according to which some of the female listeners of the station are accustomed to abiding by the religious code of conduct, such that it is reasonable to assume that they would not rush to initiate a class action, even if they felt degraded and that their dignity had been offended. We encountered a similar phenomenon when we considered the matter of the “Mehadrin bus lines”, when the picture that emerged in relation to gender separation in that case was that “women who did not immediately conform to the new arrangement were subjected to harassment, insults, pressure and threats, and matters reached the point of actual physical violence” (Rimalt, at 117), and that “many of those who objected expressed this position anonymously … for fear of reprisals” (Triger, at 726). Against this backdrop, my conclusion is that indeed, the weight of the cultural aspect in the present case is decisive, and it is of sufficient import to justify the concern that if the Kolech organization had not submitted the application to certify the class action, it would not have been submitted. Moreover – and this is very important in our context – even if I were convinced of the correctness of the argument of the radio station that it would have been possible to find a plaintiff with a personal cause of action who could have submitted the application herself, I do not believe that it would have been right to order that the action be dismissed in limine or denied. At most, an order could have been given to substitute that plaintiff for the organization. For these reasons, my conclusion is that there is no reason to intervene in the determination of the District Court, based on the particular circumstances of the case, that Kolech proved to the extent required that it would be difficult to find a plaintiff with a personal cause of action, within the meaning of sec. 4(a)(3) of the Law.

46.       Hence, the first argument of the radio station whereby Kolech is not “qualified” to bring the class action is rejected. As explained, even though as a rule, a interpretation should be adopted in relation to sec. 4(a)(3) of the Law, in the present case, the conditions for compliance with the section have been proven. Therefore, I recommend to my colleagues that we not intervene in the determination of the District Court in this regard.

 

(D)       Cause of Action

47.       A discussion of the subject of the cause of action must begin with the question of whether the Prohibition against Discrimination Law applies in the circumstances of the case. Insofar as it is found that the Law does indeed apply, and insofar as the policy adopted by the station indeed constitutes prohibited discrimination under the Law, there is no dispute that cause exists for bringing a class action on the basis of a combination of the provisions of sec. 3(a) and item 7 of the Second Appendix of the Class Action Law. The relevant sections for the purpose of analyzing the argument concerning the application of the Prohibition against Discrimination Law are secs. 2(a), 3(a), 3(d)(1), 3(d)(3) and 5(a) of the Law, which state as follows:

   

Definitions	2(a) In this law -
		“Public service” – Transportation Services, communications, energy, education, culture entertainment, tourism and financial services, intended to serve the public.
	[…]
Prohibition against discrimination (Amendment no. 1) 5765-2005 (Amendment no. 3)5774-2014	3(a)	A person who deals in the provision of a product or a public service or in operating a public venue, will not discriminate in the provision of the product or the public service, in allowing access to the public venue or in providing a service in the public venue, for reason of race, religion or religious affiliation nationality country of origin gender, sexual orientation, outlook, political affiliation, age, personal status or parenthood. […]
	(d)	The following shall not be deemed discrimination under this section —
		(1)	If the act is required by the nature or the essence of the product, the public service or the public venue;
		(2)	[…];
		(3)	In the establishment of separate frameworks for men and women, in the event that non-separation will prevent the provision of the product or the public service, or access to the public venue, or provision of the service in the public venue, to part of the public, provided that the separation is justified considering, inter alia, the nature of the product, the public service or the public venue, the extent to which it is essential, the existence of a reasonable alternative, and the needs of the public which is liable to be harmed by the separation.
	[…]
Civil wrong	5(a)	An act or omission contrary to sections 3 and 4 constitutes a civil wrong, and the provisions of the Civil Wrongs Ordinance [New Version] will apply thereto, subject to the provisions of this Law.

 

48.       As stated, the first question on the subject of the cause is whether the Prohibition against Discrimination Law applies. The District Court answered in the affirmative, dismissing the narrow interpretation urged by the radio station to the effect that the Prohibition against Discrimination Law deals only with access to the service or product. The court held that this interpretation is not consistent with the language of the Law or its purpose, and that the prohibition against discrimination in the provision of a “public service” applies not only to access to the broadcasts of the radio station, but to the entire range of services that it provides to its listeners, including newscasts, commentary and programs in which listeners express themselves on the air.

49.       I completely accept the approach of the District Court in this regard, and I see no need to expand at length upon its decision. First, it will be noted that the court discussed the subject of the cause in depth, even though at this procedural stage, an prima facie examination would have sufficed (cf. my opinion in LCA 3814/14 Hogla Kimberley Marketing Ltd. v. Mastei, para. 11 [12]).  On the merits, the interpretation presented by the District Court is compatible with earlier rulings of this Court with respect to the scope of the Prohibition against Discrimination Law, according to which the Law reflects a long-standing trend of extending the scope of application of the principle of equality to areas of private law as well, and that the purpose of the law requires that an interpretation which leaves instances of discrimination in place must be rejected (see, LCA 8821/09  Prozanski v. Layla Tov Productions [7], para. 29; HCJ 746/07 Ragen v. Ministry of Transport [3], per Justice E. Rubinstein, para. 34). An examination of the various legislative proceedings, too, reveals the legislative intent to extend the reach of the Law widely to instances of discrimination, and in particular to phenomena of generic discrimination on the basis of gender (cf., e.g., the Prohibition against Discrimination in Products, Services and Access to Places of Entertainment and Public Places (Amendment no. 4) (Prohibition against Humiliation or Degradation due to Discrimination) Bill, 5774-2013).  It is worth noting that the position taken by the District Court on the question of the prima facie application of the Prohibition against Discrimination Law is also consistent with the position expressed in the report of the Departmental Team, which  stated: Section 3(a) of the Prohibition on Discrimination in Products, Services and Entry to Places of Entertainment and Public Places Law 5761-2000 provides that communications services constitute a “public service”. Therefore it is prohibited for the station to discriminate in the provision of the public service due to gender” (para. 179). This position is also compatible with the approaches that support a narrow interpretation in relation to the application of the Prohibition against Discrimination Law (see: Moshe Cohen-Elia, Liberty and Equality in the Prohibition of Discrimination in Products and Services Law, 3 Alei Mishpat 15, 35 (2003) (Hebrew) (hereinafter: Cohen-Elia)).

50.       I will briefly state that the radio station’s focus on the question of access to the radio broadcasts is not clear to me. The fact that women are permitted to listen to the radio station like men does not negate the argument that, at the same time, discrimination was practiced against them in the provision of other services. Moreover, the argument raised by the radio station displays signs of a practice whereby “entry is permitted – but participation is forbidden.” This is similar, therefore, to a club which allows entry to all those who arrive on its doorstep, but which permits only some of those arrivals to take part in the activity going on inside. Even if women could listen to the broadcasts of the station, they were not permitted to take part in the activity included in the broadcast. Can it be said that this practice does not constitute apparent discrimination? It is clear to me that the answer to this question is negative. There is no doubt that some of the services provided by the radio station to its listeners include the possibility of the listeners participating in the programs and expressing their opinions: this is an “activity” (“service”) that the station offers. Therefore, preventing women from invoking this possibility because they are women – to the extent that such prevention is proved – is certainly liable to amount to discrimination to which the Prohibition against Discrimination Law applies. Therefore, the argument of the radio station that the women have no “vested right” to come on air and express their position must be dismissed. The question is not the right of women to participate in the radio broadcasts – and in any case, we are not concerned here with that question – but the right of women to be treated equally, in a manner in which possibilities will not be closed off to them when they are open and accessible to men.

On this matter, it would not be superfluous to mention that a recent case before the courts concerend the refusal of an ultra-Orthodox newspaper to publish the election propaganda of an electoral list of female ultra-Orthodox candidates to the 20^th Knesset, based on the fact that they were women. The District Court expressed its position that this practice, per se, constitutes prohibited discrimination within the meaning of the Prohibition against Discrimination Law, although the application for leave to appeal was granted for other reasons (see: CF (Center-Lod District Ct.) 25435-03-15 Kolian v. Yetedot T.S.M.V. Publishing and Advertising Ltd. [32], per Judge Y. Spasser; LCA 1868/15 Yetedot T.S.M.V. Publishing and Advertising Ltd .[13], per Justice N. Hendel).

51.       In view of my ruling that rejects the narrow interpretation of the radio station in principle, I will now proceed to address the question of whether the policy adopted by the radio station indeed constitutes apparent discrimination for the purposes of sec. 3(a) of the Law, and to the extent that it does so, whether the exceptions specified in secs. 3(d)(1) and 3(d)(3) of the Law apply – exceptions according to which a case will not be deemed discriminatory where “the act is required by the nature or the essence of the product” and in addition that it is possible to establish “separate frameworks for men and women … provided that the separation is justified…”. The argument of the radio station in this context is, as will be recalled, that gender distinction is required due to the traditional, religious character of the radio station, and due to the halakhic position of the rabbinical council, and therefore there is no discrimination, and alternatively, that the exceptions specified in the Prohibition against Discrimination Law apply, and therefore it cannot be sued in respect of that policy.

52.       With respect to sec. 3(a) of the Law, there would seem to be no doubt that the basic assumption is that the policy of the station constitutes discrimination against women in the sense of the Law. As may already be understood from the general discussion above concerning exclusion of women, a norm that prevents women from taking part in an activity in the public sphere only because they are women is presumed ab initio to be a breach of the women’s right to equality, even if at the end of an investigation that assumption is rebutted, and it is found that the gender discrimination is permitted due to a “relevant difference” or for some other justified reasons (on this assumption, see also sec. 6(2) of the Prohibition against Discrimination Law).  In our context, to the extent that it transpires that women were not permitted to participate in the broadcasts of the station, whereas men were permitted to do so, it is not inconceivable that the activity of the station will fall within the bounds of sec. 3(a) of the Prohibition against Discrimination Law. The question which must now be addressed is whether this assumption is apparently rebutted by proof of a “relevant difference” that justified differential treatment of men and women in the circumstances of the case. This question must be examined in the framework of a discussion of the applicability of the exceptions specified in the Law.

53.       With respect to the exceptions, there is no dispute that the balancing formula that appear in secs. 3(d)(1) and 3(d)(3) of the Law allows for recognition of practices involving gender separation between men and women for religious reasons. The legislature explicitly expressed its opinion on this matter in the framework of the sections, and even included a concrete provision in sec. 3(d)(3) of the Law in the matter of arrangements for separation between men and women. However, in order for one of the above two exceptions to apply, it must be proven that the religious norm indeed mandates or at least justifies the adoption of a differential policy towards women. In the professional literature, we find that in order to reach such a conclusion, an examination must be made, inter alia, of the weight of the religious norm amongst the relevant population in view of its culture, and also whether the weight is so great as to tip the balance in its favor, despite the violation of the rights of the individual. It has also been said that one important distinction that might help in weighing the conflicting interests in the matter is the distinction between norms that the religion requires and those that the religion permits. To the extent that the religious practice of separation between women and men is based on a religious precept (commandment), and to the extent that this requirement is found at the halakhic or cultural core, the scales tip in the direction of applying the exceptions, and vice versa. Professor Amnon Rubinstein discussed this at length in his article The Decline, but Not the Death, of Multi-Culturalism, 49(1) Hapraklit 47, 89-90 (2006) (Hebrew):

Another distinction is that made by the Israeli Supreme Court between norms that the religion mandates and norms that the religion permits. Thus for example, Islam does not mandate polygamy, but merely permits it, and therefore the prohibition against bigamy does not violate a religious norm or freedom of religion.

A question of this type arose in the Knesset in its deliberations on the subject of the Prohibition against Discrimination in Products, Services and Entry to Places of Entertainment and Public Places Law, 5761-2000. The purpose of the Law is “to promote equality and to prevent discrimination in entry to public venues.” The prohibition against discrimination also applies to a person’s gender. The question arose: What is the law in relation to venues that serve ultra-Orthodox Jews or orthodox Muslims in which separation between men and women is required by their culture and their heritage, and without which the women and the men will not use the service or the place? In the Constitution, Law and Justice Committee, which dealt with this subject in a series of sessions in which arguments abounded, opinions were divided. The women’s organizations – which represent those dedicated to equality between the sexes – asked that separation be banned, whereas the ultra-Orthodox representatives, who spoke in the name of multi-culturalism, pointed out that if there is no separation, the ultra-Orthodox community will refrain from using the service or the venue. Ultimately the Constitution, Law and Justice Committee adopted a compromise, which found expression in sec. 3(d)(3) of the Law …

This compromise is problematic in its reference to separation between the sexes, and even more problematic with respect to separation between religions and ethnicities. However, every case must be judged on its merits in accordance with the particular circumstances, and with the criteria for balancing that were proposed above. This, for example, is the case with the Jewish-Haredi or the Muslim community, in relation to which we are concerned with norms that are mandated (and not only permitted) by the religion, and the weight of the religious prohibition is so great and significant that non-separation can prevent use of the service or the product …. It is also necessary to consider the balancing criteria that were proposed above – in relation to the magnitude of the harm to the religious-traditional norm in particular, the weight of the religious norm in the culture, and the question of whether it is a matter of a religious precept or a religious possibility [emphasis partly added – Y.D.].

For a similar approach attesting to the importance of the distinction between an “enabling” religious norm and a religious “prohibition”, see HCJ 153/87 Shakdiel v. Minister of Religion [4], para. 22; HCJ 6111/94 Committee for the Preservers of Tradition v. Chief Rabbinical Council of Israel [14], at 101-102; HCJ 1514 Gur Aryeh v. Second Authority for Television and Radio [15], at 282, in which it was said, for example in the dissenting opinion of Justice D. Dorner, that the criterion is “whether the prohibited action is forced upon those who are observant or whether they are prevented from performing a religious obligation”; and Menachem Elon, The Status of Women – Law and Jurisdiction, Tradition and Transition: The Values of a Jewish and Democratic State 53 (2005) (Hebrew). For criteria that differ slightly from those proposed by Prof. Amnon Rubinstein in his above article, see Harel & Schnarch, at 75; for reservations about the criteria proposed by Harel & Schnarch, see Rimalt, at 127.

54.       In the present case, it cannot be said that religious practice mandates or justifies the application of the exceptions in the Prohibition against Discrimination Law. I find it difficult to accept the position of the radio station whereby its policy is justified by virtue of halakhic norms and the instructions it received, and I certainly do not think that the weight of this norm in the ultra-Orthodox community justifies the apparently severe harm to the basic rights of women. It should be emphasized that even according to the approach of the radio station, the religious norm that underlies the gender distinction in the broadcasts is not a binding norm; rather it is an enabling  norm, and the halakhic opinion upon which the station relies – that of the late Rabbi Ovadia Yosef – stated explicitly that the prohibition on women being heard does not constitute a halakhic prohibition but rather, it is in the category of enhancing the precept (see: para. 62 of the judgment of the District Court; para. 181 of the Report of the Departmental Team). Moreover, the data relating to the present case shows that the cultural and religious character of the radio station has been preserved even after the alleged practice of excluding women from the broadcasts of the station was stopped in the framework of the regulatory processes, and what is more, the scope of the activity of the station has only grown. In these circumstances, it was not proven that the religious norm mandates or justifies adopting a differential attitude towards women, and it is even difficult to argue that ceasing to abide by that norm caused real harm to the radio station. From here it is but a small step to the conclusion that at this prima facie stage, the two exceptions to the Prohibition against Discrimination Law do not seem to apply.

55.       Furthermore, the exception that appears in sec. 3(d)(3) of the Law apparently does not apply in our case, also for the reason that it refers to the existence of “separate frameworks” between men and women, i.e.,  an arrangement of separation, similar, for example, to the circumstances in HCJ 746/07 Ragen v. Ministry of Transport [3]. However, our case does not involve an arrangement of separation, but an arrangement which apparently prevented women, and only women, from participating in the broadcasts of the radio station. For this reason, too, it would appear that the section does not apply in view of its language and its purpose.

56.       It may and should be added with respect to the above two exceptions that despite the fact that the Prohibition against Discrimination Law recognizes them, in any case “not every cultural class practice must be accorded recognition, and the free ‘will’ of a member of a particular cultural class need not always be acknowledged as free will, and not all ‘free will’ need be respected” (per Justice E. Rubinstein in HCJ 746/07 Ragen v. Ministry of Transport [3], para. 10), and clearly in certain cases, in which the harm to the individual is critical, the religious or cultural practice may be ruled out even if it is based on religious precepts and apparently lies at the core of the culture or the religion. This approach has been expressed several times by this Court, which has said, inter alia, that most of the theoretical approaches justify almost categorical subjection of the cultural and religious practices to certain basic criteria, such as that of the right to human dignity in its core sense (cf. the opinion of Justice H. Melcer in HCJ 1067/08 Noar KeHalacha Assoc. v. Ministry of Education, para. 6 [16], and the sources cited there). In this sense, it may be assumed that the exceptions to the Prohibition against Discrimination Law will not apply in those cases in which these criteria are not maintained. In any case, this is over and above what is necessary, for as stated, my conclusion is that there is no apparent ground to invoke the exceptions to the Prohibition against Discrimination Law for the reason explained above, and therefore there was no flaw in the conclusion of the District Court in this context.

57.       I also find no flaw that would justify intervention in the decision of the District Court on the question of immunity by virtue of sec. 6 of the Civil Wrongs Ordinance. On this matter I accept the distinction drawn by the District Court between the period prior to the commencement of regulatory proceedings and the period subsequent thereto. To be precise, there is no dispute that as long as the radio station was subject to close oversight and conducted an ongoing dialogue with the Second Authority, and as long as it operated in accordance with the directives that were addressed directly to it, it had immunity. This determination is also solidly grounded in the case law of this Court (CLA 8014/09 Dikla Insurance Co. Ltd. v. Friedman, para. 5 [17]; CLA 729/04 State of Israel v. Kav Mahshava Ltd., paras. 12-13 [18]). As opposed to this, immunity should not apply to anything pertaining to the period in which the activity of the station was apparently not conducted in accordance with the said directives. In this context, the argument of the station whereby it also enjoyed immunity prior to the commencement of the regulatory process, because in that period it relied on the directives of the Spiritual Committee in the reasonable and good faith belief that this Committee had legal authority by virtue of the terms of the license, cannot be accepted. Even if the terms of the concession recognized the status of the Spiritual Committee, this clearly does not mean that this Committee had the legal authority to confer “legal license” on the radio station to operate in apparent contradiction to the Law. The Spiritual Committee cannot permit an act that is contrary to the terms of the license or unlawful. Moreover, as we have said, the opinion of the Spiritual Committee in our regard did not state that there is a halakhic prohibition on women being heard on air, and therefore the decision to prevent women from participating in the broadcasts was, to a great extent, that of the radio station itself. In these circumstances, and having regard for the prima facie nature of our hearing, the argument of the radio station that its activities were conducted in good faith in the belief that they were legally authorized, in reliance on the position of the Spiritual Committee, must be dismissed.

58.       To conclude the discussion of the issue of cause, I propose to my colleagues that we decide that at this procedural stage, that there are no grounds for our intervention in the determinations of the District Court on this point. As I explained above, no fault can be found in the determination that the Prohibition against Discrimination Law applies, prima facie, in the circumstances of the case. The prima facie determination that the policy of the radio station constitutes “discrimination” within the meaning of sec. 3(a) of the Law is correct, as well. As was further explained, in the circumstances of the case the exceptions found in the Prohibition against Discrimination Law do not pertain, and neither is there room to change the determination of the District Court with respect to the scope of immunity as prescribed in sec. 6 of the Civil Wrongs Ordinance. Hence, the determination of the District Court, namely, that cause by virtue of sec. 3(a) of the Class Action Law has been proved to the extent necessary at this stage, should stand.

 

(E)       The damage and calculation of the compensation

59.       As stated, a large part of the arguments of the radio station deals with the issue of the harm and calculation of the compensation. In this context, the radio station argues that no “harm” was caused to the members of the defined class, and alternatively that the only women who were harmed are the women who asked to be heard and were turned away. It was also argued that calculating the damage is problematic, and that the District Court erred in its ruling with respect to the possibility of awarding compensation “without proof of harm.”  First I will note that I have seen fit to address these arguments immediately following the discussion of the question of cause since, in our case, the two matters are related, as will be explained. On the substantive level, even though I believe that some of the arguments raised by the radio station regarding the harm are correct, my conclusion is that this element was proven to the extent required at this procedural stage, and there is therefore no reason to depart from the final conclusion of the District Court in this regard.

60.       Section 4(b)(2) of the Class Action Law states that in the case of an application for certification of a class action submitted by an organization, the organization must show “that prima facie, harm was caused to a member of the class, or that it is reasonably possible that harm was caused to the class, in whose name the application was submitted.” Clearly, the burden of proof in relation to the element of harm at the stage of approving the application for a class action is not an onerous one. The applying organization is not required to prove the harm to the members of the class in full or a precise manner, but only prima facie; the exact harm will be calculated and assessed in the main procedure. Moreover, the leniency regarding the burden of proof of the harm at the stage of certifying the class action is also expressed in the fact that at this procedural stage, it is already possible to rely on the possibility that ultimately, collective relief will be awarded for the benefit of the class (see: Yuval Procaccia and Alon Klement, Reliance, Causation and Harm in Consumer Class Actions, 37 Tel Aviv U. L.Rev. 7, 33-34 (2014)(Hebrew).

61.       The main question, therefore, is whether Kolech proved, at the prima facie level required at this stage, that harm was caused to the members of the class or to the class itself. This question must be answered in the affirmative. Recognition of the existence of harm and the legal right to receive compensation for it emanate in the circumstances of the case from within the Prohibition against Discrimination Law, even without recourse to other legal frameworks to support the conclusion. The Prohibition against Discrimination Law assumes, as a working assumption, that when there is discrimination within the meaning of its provisions, harm is caused by that discrimination, and that harm is compensable. A basic conception embodied in the provisions of the Law is that “the refusal to allow a person access to a public venue or to supply him with a service or a product, merely because of his affiliation to a class, and particularly a class in respect of which there is a history of past discrimination, constitutes a grave violation of human dignity” (Prohibition against Discrimination in Products, Services and Access to Places of Entertainment and Public Places Bill, 5760-2000). Moreover, the legislature even suggests, in the Prohibition against Discrimination Law, devices for receiving compensation and a ceiling on the amount of compensation that can be awarded without proof of harm.

62.       Prof. Barak Medina adds on this matter as follows:

               The psychological harm involved here is in addition to the direct harm caused to a person who is discriminated against due to the low wages that he earns or due to the inability to purchase some product or service. In terms of economic theory, the psychological harm is calculated according to the sum that the individual would have been willing to pay in order not to incur discrimination. Apparently, the fact that in the absence of legislation, those belonging to the victimized class do not “purchase” their right not to suffer discrimination demonstrates that the monetary value of the harm done to them is less than the utility that the owner of the business derives by virtue of the discrimination, and therefore the efficient consequence is actually to refrain from imposing a prohibition on discrimination.

However, this difficulty can be resolved. First, the special nature of the harm involved here – the feeling of humiliation that derives from the discrimination – rules out a “market solution” to the problem, i.e., it rules out the possibility of preventing discrimination by way of “purchasing” the right not to be discriminated against. As Donohue noted, payment to a business owner in order that he refrain from practicing discrimination creates, of itself, harm and emotional damage of the type that is caused as a result of discrimination (Barak Medina, Prohibition against Discrimination in the Private Sector from the Point of View of Economic Theory, 3 Alei Mishpat 37, 55-56 (2003) (Hebrew) (hereinafter: Barak Medina); emphasis added – Y.D.).

And see also Cohen-Elia:

Israeli law requires individuals to act in accordance with the value of equality, in the sense of discrimination being prohibited. It prohibits discrimination on the basis of race, nationality, sexual orientation and for other analogous reasons, and thereby it realizes a value regarding which there is relatively wide consensus; a value the breach of which is liable to cause acute harm to people and to decrease their autonomy (p. 22, emphasis added – Y.D.).

63.       Another, no less important question that merges with additional questions, particularly with the definition of the class, is: to whom was the harm caused? One could argue that in our case, harm was caused only to women who took active steps and asked to come on air but were refused. However, I think that the discriminatory policy adopted by the station caused harm to additional women as well, even though they did not attempt to participate in the broadcasts, but simply listened to them. The harm to these women is, first of all, the psychological harm inherent in the very knowledge that only because they are women, they are not permitted to participate in the broadcasts of the station. This knowledge is harmful, degrading and humiliating, and it suffices in order to indicate that harm has been incurred by those women. Moreover, harm is also caused in the sense that women refrain from the outset from attempting to be heard on air due to their knowledge that their request would anyway be refused, i.e., there is effective harm to the possibility of access of women to the public service that is being offered. Therefore, it is difficult to accept – at this preliminary stage – the argument that no harm at all was caused to women who “only” listened to the station, even if one may wonder whether a distinction should be made between these women and those who took active steps to be heard on air at the station, on the basis of reasons such as the magnitude of the harm, the degree of distance from the humiliating event and so forth.

What Barak Medina writes later in his article is very apt in this context:

It must be recalled that adopting a discriminatory policy usually has a negative effect on third parties as well, mainly those who belong to the class against which there was discrimination. This is a matter of psychological harm that is caused in light of the knowledge of the existence of the discrimination. These are “external effects”, i.e., the effect of the discriminatory policy on a person who is not party to the transaction between the business owner and the worker or the potential customer …

The negative external effect of adopting a discriminatory policy is significant mainly in the case of supplying a product in the course of “business”, and certainly with respect to providing a public service or operating a public venue. In these cases, even if the business owner does not have a monopoly, and even if he is not supplying an essential product, the policy he adopts is liable to have a negative impact on third parties, beyond the harm to the potential customer of the business owner. In such cases, the assumption is that the extent of the activity of the business – and hence, also, the number of cases in which its potential customers will encounter a discriminatory policy – is relatively high, and so, too, the extent of the “distribution” of the negative impact of its policy. It is thus possible to explain the application of the Prohibition against Discrimination Law with respect to these cases (ibid., at 56-58. Emphasis added – Y.D.).

64.       With respect to the station’s arguments regarding the question of calculation of the harm, it is not necessary that we delve deeply into these arguments at this procedural stage. The entire array of aspects relevant to the issue will be discussed in detail in the framework of the principal proceedings. One cannot deny that, indeed, the task of calculating the value of the compensation in the present case raises complex questions, particularly since the alleged harm deals with subjective, individual feelings of humiliation and violation of dignity. It has been said, in relation to a slightly different issue, that calculation of the damage in cases such as these is liable to be a difficult task, particularly in the case of a class action lawsuit (see, mutatis mutandis, the opinion of my colleague E. Hayut in CA 10085/08 Tnuva Central Cooperative for the Marketing of Agricultural Produce in Israel v. Estate of Tufik Raabi [19]). Without expressing any position, I do not rule out the possibility that possible models for awarding compensation will be examined as the need arises, including those contained in secs. 20(a)(3) and 20(c) of the Class Action Law, in the framework of which the possibility of awarding comprehensive monetary relief  and relief for the benefit of the class or the public is regulated. It may also be assumed that in examining the question of compensation, the arguments concerning the difference between the injured parties and the extent of the harm they have incurred will be considered in depth, as will the arguments concerning the possibility of invoking models for calculating harm which are used in cases of discrimination in other areas of law.

65.       In any case, I believe it appropriate to make two comments already at this stage about calculation of the harm and the compensation. One is that the radio station is correct in its argument against the ruling of the District Court with respect to the possibility of awarding compensation “without proof of harm.” In this context, the Class Action Law provides in sec. 20(e) that: “The Court will not, in a class action, award exemplary damages, and it will not award damages without proof of harm, except in an action as specified in item 9 of the Second Appendix; however this will not prevent the award of compensation for damage that is not financial damage…” (cf. also Tnuva v. Tufik Raabi [19], para. 39). Hence, it is not possible to award compensation without proof of harm in the circumstances of the case, notwithstanding the possibility of doing so under the Prohibition against Discrimination Law when the suit is not brought by way of a class action.

66.       Another comment relates to the relief that is being sought. Apparently, and without taking a categorical stand, it appears that the relief that is sought in the present case – Kolech is asking for compensation in the amount of NIS 104,000,000 – raises questions about the appropriate method of calculating the harm in the circumstances of the case. We need not put the cart before the horse. Suffice it to say that the question arises as to whether in determining the compensation it would be correct – also due to the complexity of the circumstances – to attribute weight to the change that the radio station has undergone in the framework of the regulatory process. Even though awarding compensation in the framework of a class action “looks to the past”, weight should, perhaps, be attributed to the fact that the radio station changed its practice and mended its ways through dialogue and with openness, in a manner that actually renders the requested declaratory relief unnecessary. Of course, this issue, too, will be examined and elucidated in the principal process by the District Court.

67.       My conclusion as to the question of the damage is that it has been proven to the degree required at this procedural stage that the members of the class incurred harm due to the policy of the station. As I mentioned above, even though there is justification for our intervention in certain determinations of the District Court in this context, such as the determination with regard to the possibility of awarding damages in the action “without proof of harm”, there is no reason to depart from the final conclusion that the element of harm indeed exists.

 

(F)   Does the action raise substantive questions of fact or law that are common to all members of the class, and is there a reasonable possibility that they will be decided in their favor?

68.       The first condition specified in sec. 8(a)(1) of the Class Action Law requires that there be “common questions” vis-à-vis the members of the class. Difficulty in proving that this condition has been met is especially liable to arise when the action does not deal with a single instance of tortious conduct on the part of the wrongdoer that caused harm to a large number of victims, but rather with a series of behaviors in relation to which the “connecting thread” is not clear. Indeed, it is natural that when several separate instances of tortious conduct are involved, there may be a need to examine different factual and economic data, and various issues may arise in relation to each separate case that will not necessarily be relevant to all members of the class (see: Alon Klement, Guidelines for Interpretation of the Class Action Law, 5767-2006, 49 Hapraklit 131, 140-179 (2007) (Hebrew) (hereinafter: Klement, Guidelines for Interpretation)). In the present case, the radio station contends that “common questions” do not arise amongst the members of the class, since there are differences among the members. It claims, for example, that there are differences between women who sought to be heard on air and were refused, and women who simply listened to the radio broadcasts. Similarly, according to the radio station, there are differences between women whose world view is similar to its own and women whose world view differs. Moreover, there are differences among the various women in the class due to the fact that each one’s experience of harm is individual, as explained above. It was further argued in relation to two specific instances of discrimination that allegedly occurred during the regulatory period, that they, too, do not raise questions that are “common” to all members of the class, but only to the specific women who were harmed.

69.       The arguments that were raised by the radio station in this context disregard the fact that the discrimination in the case before us was a matter of policy, and that it is this fact that underlies the common questions of the members of the class. To be precise, where it is a matter of discriminatory policy, the “connecting thread” between the members of the class is the policy itself that was adopted in relation to them. This is different from discrimination that occurred in various factual situations, in departure from the customary practice of the wrongdoer. It must be recalled that the questions common to a class are usually connected to the liability of the defendant (Klement, Guidelines for Interpretation, at 141). Where the matter is one involving the defendant’s policy, the question of liability for the harm caused by that policy is indeed common to all those harmed, even if the compensation awarded to each of them is different (ibid.: “The difference in the relief cannot, of itself, stand in the way of an action being certified as a class action”). 

70.       The United States Supreme Court, too, discussed this distinction in the case of Wal-Mart Stores, Inc. v. Dukes et al. [36], noting that in proving a pattern or practice, and certainly in proving discriminatory policy adopted by the wrongdoer, a rebuttable quasi-presumption arises whereby all the members of the class suffered from that discriminatory pattern, and therefore they share “common questions” that are connected to the liability of the defendant in relation to this pattern:

               In a pattern-or-practice case, the plaintiff tries to “establish by a preponderance of the evidence that … discrimination was the company’s standard operating procedure [,] the regular rather than the unusual practice” … If he succeeds, that showing will support a rebuttable inference that all class members were victims of the discriminatory practice …

(See ibid., note 7 of the opinion of Justice Scalia. See also p. 7 of the opinion of Justice Ginsburg. Emphasis added – Y.D.).

I would stress that in the Wal-Mart case, it was ruled that the “pattern or practice” were not proved, and I am also aware that the subject of that case was discrimination in employment, which of course has somewhat different aspects from those of our case. In addition, needless to say, the American case must be read with due caution in view of possible differences between the legal systems, inter alia, regarding the question of causes of action and relief. Nevertheless, it may be said with respect to the determination on principle to the effect that discriminatory policy establishes questions that are common to members of the discriminated class, that what was said there is also applicable in our case.

71.       In other words, even if there are, indeed, certain differences in our case among the women who make up the class of victims in its entirety, such as the differences relating to the magnitude and extent of the harm, common questions of fact or law arise in relation to them all. In the circumstances of the present case, the spotlight, from the point of view of the common questions, is focused more on the conduct of the station, and less on the differences that there may be among the women who were harmed. The “common questions” in our case concern the lawfulness of the policy that was adopted by the radio station, and the extent of its legal liability for this policy. Thus, for example, the question of whether the policy of the station even constitutes a tort for which compensation could be claimed is certainly a question common to all members of the class. A “connecting thread” exists with respect to these and similar questions among all the plaintiffs in the class. This is so even if it is possible to conclude that not all of them were exposed to the activity of the station in an identical fashion, or that they were all harmed equally. Therefore, I do not think that there is reason to intervene in the first determination of the District Court that there exists a substantive question common to all members of the class and it is “whether the station acted in a prohibited discriminatory manner against the members of the class in that it prevented women from being heard on air from the time it began operating and until Nov. 6, 2011…” (para. 102 of the judgment of the District Court).

72.       The above reason is, of course, not valid in relation to the period in which the discrimination perpetrated by the radio station was not a matter of policy. In this context, the radio station’s argument that the two particular instances of discrimination that occurred during the period of time in which regulatory procedures were under way do not give rise to questions that are “common” to all members of the class, but rather they are individual and specific in nature with respect to each case, is sound. I tend to agree with this argument due to the change in the set of factual and legal circumstances in relation of the period of time in which the particular instances of violation occurred. To be precise, the policy of the radio station in relation to first period constituted prohibited discrimination within the meaning of the Prohibition against Discrimination Law, which does not enjoy immunity under sec. 6 of the Civil Wrongs Ordinance. The situation is different in relation to the period in which the particular instances of discrimination occurred, that is, in the period from Nov. 6, 2011 until Aug. 28, 2012. Owing to the fact that regulatory procedures were under way during this period, it was correctly found that the activity of the radio station in this period is covered by the immunity granted under sec. 6 of the Civil Wrongs Ordinance. Similarly, the instances of violation that were perpetrated during this period are bound by time and place, and they constitute a departure from the practice at that time. In view of the above, I am of the opinion that due to the possible factual and legal disparities between the periods of time, different questions are liable to arise with respect to the tortious conduct of the radio station during the period subsequent to the beginning of the regulatory processes. Moreover, even were I prepared to assume that these cases give rise to the same “common questions”, it is possible that they are better suited to being adjudicated other than in the framework of a class action, and more will be said about this below.

73.       The second condition prescribed by sec. 8(a)(1) of the Class Action Law requires proof of a “reasonable possibility” that the common questions will be decided in favor of the members of the class, the main objective being to prevent situations in which applications are submitted for certification of class actions even though their chances are slim, thus preventing an unjustified risk to defendants (see: LCA 2128/09 Phoenix Insurance Co. Ltd. v. Amossi [20]; Klement, Guidelines for Interpretation, at 142). I do not think that the case before us is of the type that gives rise to such a concern, in that the various determinations until now lead me to the conclusion that the questions arising here reveal, at the very least, a “reasonable possibility” of ultimately being decided in favor of the members of the class.

74.       To summarize: I do not think that there are grounds for intervention in the determination of the District Court that a question common to all the members of the class exists, and it is “whether the station acted in a prohibited discriminatory manner against the members of the class in that it prevented women from being heard on air from the time it began operating and until Nov. 6, 2011…”, with the main focus in relation to the issue of the common question being on the tortious conduct of the radio station during the period of the declared policy. I would recommend to my colleagues that this question be the focus of the lawsuit, and that the District Court not address questions that relate to the period of time after the beginning of the regulatory process, in which the two concrete instances of discrimination occurred. I would also recommend to my colleagues that we not intervene in the determination of the District Court that a “reasonable possibility” exists that the above question will be decided in favor of the members of the class.

 

(G)       Is a class action the efficient and fair means of deciding the dispute?

75.       As mentioned in the section dealing with the parameters of the discussion (paras. 26-29 above), I do not think that this decision is the appropriate place for a fundamental discussion of the extent to which class actions are appropriate for dealing with the range of cases of discrimination, particularly when the parties raised no arguments on point. The examination required, in accordance with the provisions of sec. 8(a)(2) of the Class Action Law, is whether under the circumstances, when deciding the case relies on the provisions of the Prohibition against Discrimination Law, “the efficient and fair means of deciding the dispute” is a class action. The case law has held that for the purpose of responding to this question it is possible to consider, inter alia, factors such as the size of the class and the extent to which deciding the questions common to all the members will help resolve the individual dispute between each of the members and the defendant. It is also possible to bring into the equation the advantages and the disadvantages of conducting a lawsuit by way of class action, as compared to the conducting of personal actions – “cost versus utility” (see LCA 2128/09 Phoenix Insurance Co. Ltd. v. Amossi [20], para. 19; Klement, Guidelines for Interpretation, at 125-146; Eran Taussig, Appeals in Class Actions, in Hemi Ben-Nun and Tal Havkin,  Civil Appeals  (3^rd ed.) 632 (Hebrew) (hereinafter: Appeals in Class Actions)).

76.       The District Court was of the opinion that in the present case, the advantages of conducting the lawsuit as a class action outweighed the disadvantages involved. It was mentioned, inter alia, that precisely because we are dealing with an “action the main cause of which is unlawful gender discrimination, on the basis of declared policy, and not on the basis of individual cases … there is an advantage to conducting it by way of a class action” (para. 103). It was added that the advantage of conducting the lawsuit as a class action in the circumstances of the case is particularly relevant “where there is a concern about various constraints on members of the class bringing a personal action” (ibid.), and that approving the lawsuit as a class action can realize the whole range of objectives that appear in the Class Action Law, inter alia because this will promote the interest of “enforcement of the law and deterrence against its breach” (ibid.), and because in this way, those women who were harmed will be able “to realize the right of access to the court, including those who find it difficult or who are afraid to turn to the court as individuals” (ibid.).

77.       I concur with the reasons of the District Court in their entirety, and I will further add that I did not find substance in the arguments raised by the radio station regarding its determinations. Thus, for example, the argument that the apparent “difference” among the members of the class means that there is no use in conducting a class action must be dismissed for, as stated, the spotlight in our matter must be turned primarily on the tortious conduct of the radio station. In this sense, the utility in adjudicating this tortious conduct in the framework of a class action far outweighs the utility of individual adjudications through personal lawsuits. In addition, I believe that in the present case, bringing a class action will prevent “erosion” of the rights of the potential plaintiffs in relation to some who, it may reasonably be assumed, would not turn to the courts for relief, so that by approving the class action the goals of deterrence and compensation will be achieved in a better manner than by other procedural means (See Alon Klement,  Overcoming the Advantages of a Single Defendant over Multiple Plaintiffs – The Class Action Device, 21 Mehkerei  Mishpat 387, 401 (2004) (Hebrew)). Moreover, as stated in the decision of the District Court, it is possible that it is the actual conduct of the lawsuit as a class action that allows for means of proof and relief that are not possible in personal actions (see a discussion in this context, although dealing with discrimination in the field of employment, in Alon Klement and Sharon Rabin-Margaliot, Employment Class Actions – Did the Rules of the Game Change? 31 Iyunei Mishpat 369, 410-415(2009) (Hebrew)).

78.       From between the lines of the application for leave to appeal, the argument emerges that apparently the class action is not appropriate in the circumstances of the matter due to the fact that the Second Authority acted on the regulatory plane. The uncertainty in relation to this point increases in view of the fact that the regulatory procedures indeed were productive. The answer to this argument is that the fact that the radio station mended its ways is indeed commendable, however, this does not constitute a barrier to an action for compensation relating to past wrongdoing. The fact that the radio station has made positive progress in the framework of the process of regulation, and that it (so it seems) is conducting itself lawfully at this time, does not immunize it from a suit for the wrongs it perpetrated in the past, even though, as stated, this may be taken into consideration in relation to the compensation. Moreover, as explained above, in the circumstances of the present case there is no dispute that on the legal plane, compensation for discrimination by virtue of the Prohibition against Discrimination Law may be claimed in the process of a class action, and the possibility that these and other bodies have of acting in different frameworks does not negate the possibility of receiving parallel relief  in the framework of class actions (as an aside, one may mention that in the United States, recourse has been made to class actions by plaintiffs who were harmed as a result of gender or racial discrimination – see Appeals in Class Actions, at 636; Brown v. Board of Education [37] – where the United States Supreme Court expressed its opinion that these cases of discriminatory policy, in the area of labor,  for example, are clear examples of cases that are inherently suited to being heard in the procedural framework of a class action: Amchem Products, Inc. v. Windsor [38]).  

79.       My conclusion, therefore, is that there are no grounds for intervention in the determination of the District Court that the class action is the appropriate means for conducting the present dispute, insofar as the period prior to the beginning of the regulatory process is concerned. As opposed to this, and as I explained above, with respect to the period of the particular instances of discrimination, I do not think that a class action is necessarily the efficient means of adjudicating the individual disagreements. As stated, these are two instances of concrete violations which, even if it is ultimately decided to litigate them, should not be adjudicated in the framework of a class action, but rather in the framework of personal actions brought by the women who were allegedly harmed, if they wish to do so. In summary, I shall recommend to my colleagues that even in view of the condition prescribed in sec. 8(a)(2) of the Law, there are no grounds for our intervention in the determinations of the District Court, except for the determination concerning the period of the particular instances of violation.

 

(H)  There are reasonable grounds to assume that the interests of all members of the class will be represented and conducted in an appropriate manner and in good faith

80.       Examination of compliance with these conditions, prescribed in secs. 8(a)(3) and 8(a)(4) of the Class Action Law, is marginal in the circumstances of the case, also in view of the fact that the parties hardly argued the point. In any case, in order to complete the picture I will mention that these conditions, too, have been met in the present case. In my opinion, Kolech has the required tools to conduct the class action in a manner that is suited to the needs of the members of the class, inter alia, in view of its professional familiarity with the field, and having regard also to the conclusion of the District Court which conducted the certification hearing. In addition, I do not think that the case before us gives rise to any concern about the action not being conducted in good faith (cf: CA 4534/14 Daniel v. Direct Teva Ltd., para. 5 [21]).

 

Conclusion

81.       No grounds have been found to intervene in the majority of the determinations of the District Court, nor in its final conclusion whereby the lawsuit is suited to being adjudicated as a class action both in its substance and in the manner in which it was submitted. In particular, no grounds have been found to intervene in the two central determinations according to which Kolech is an organization that is qualified to bring the class action by virtue of sec. 4(a)(3) of the Class Action Law, and there is apparent cause for bringing a class action under sec. 3(a) of the Class Action Law and item 7 of the Second Appendix to that Law.

82.       In view of what I have written above, I propose to my colleagues that we dismiss the appeal, subject to my comments in the framework of the discussion of the question of the harm and calculation of the compensation, and subject to my determination in the framework of the discussion of the issue of the questions common to the class, whereby in adjudicating the action, the District Court will not discuss the violations that occurred in the period of time after the commencement of the process of regulation (from Nov. 6, 2011 until Aug. 28, 2012). Consequently, the decision of the District Court will stand, except for the changes required by virtue of the above.

83.       I also recommend to my colleagues that we decide that the radio station bear the costs of the proceeding and the legal fees of the Kolech Organization, in the amount of NIS 50,000.

 

Justice E. Hayut

I concur in the conclusions reached by my colleague Justice Y. Danziger as stated in para. 82 of his opinion, and I would like to add a few comments.

1.         My colleague concluded that the respondent organization complies with the requirements of sec. 4(a)(3) of the Class Action Law in that it is an organization within the meaning of sec. 2 of the Law that engages, inter alia, in a public purpose that is central to the action, in the name of the class of women who have been harmed by the conduct of the appellant radio station.  Justice Y. Danziger is of the opinion that, as a rule, narrow and cautious interpretation should be employed in removing the procedural barriers placed by the said sec. 4(a)(3) in the path of organizations that wish to submit applications to approve class actions, for fear that lack of caution in this context is liable to increase both the scope of the phenomenon of groundless actions being brought, even in cases in which, prima facie, there is no difficulty in applications being submitted in the name of plaintiffs with personal causes of action (para. 32 of the opinion of Justice Danziger).  However, in the particular circumstances of this case, Justice Danziger found that the Respondent proved to the extent required that it would be difficult to find a plaintiff who had a personal cause of action against the Appellant, and he therefore held that the Respondent met the conditions of sec. 4(a)(3) of the Law, even according to the narrow interpretation that he supports (paras. 45-46 of his opinion).

2.         I, like my colleague, am of the opinion that the Respondent complied with all the threshold conditions specified in sec. 4(a)(3) of the Law, and I would add that there is no small measure of symbolism in the fact that an organization by the name of “Kolech” [translator’s note: “Kolech” means “your (female) voice”] should be the one standing in the front line of the class action on grounds of exclusion  and silencing of the women of the religious community who are among the listeners of the appellant radio station. With respect to symbolism, it should be mentioned that the name of the organization, like the name of the appellant radio station [translator’s note: “Kol BaRamah” means “A voice in Ramah”], are taken from our Jewish sources, and in both of these sources, the voice is that of a woman, the power and Jewish significance of which is indeed great. Thus we find in the Book of Isaiah 40:9: “O Zion, that bringest good tidings, get thee up into the high mountain; O Jerusalem, that bringest good tidings, lift up thy voice [kolech] with strength; lift it up, be not afraid”; and in the Book of Jeremiah 31:14, the voice in Rama is the voice of our matriarch Rachel who is weeping for her children, as it is written: Thus saith the Lord: “A voice was heard in Ramah [kol b’ramah nishma], lamentation and bitter weeping; Rachel, weeping for her children…”.

3.         The central objective that the respondent organization has inscribed on its banner, and which my colleague Justice Danziger discussed, is to pioneer a social and cognitive change on the subject of gender equality in the religious community in Israel. This objective is indeed consistent with the matter for which the Respondent sought certification of the class action, and therefore the District Court correctly found Kolech to be qualified as an organization, from this aspect, to serve as a voice for the class of women who are apparently harmed by the silencing policy adopted by the Appellant. I will further mention that on the level of principle, and unlike my colleague, I tend to the opinion that too narrow an approach in interpreting the threshold requirements of sec. 4(a)(3) of the Class Action Law is liable to detract from the power of the class action as an instrument for promoting public interests. The explanatory notes to the Class Action Bill noted that the law was being enacted in “recognition of the public role of the instrument of the class action for enforcing the law and … the desire to encourage the bringing of class actions which are of public importance” (Explanatory Notes to the Bill). One means that the legislature found for promoting the said objective is the flexibility that it adopted, inter alia, in the area of the laws of standing, in that, similar to the standing accorded to public petitioners in the High Court of Justice (HCJ 428/86 Barzilai v. Government of Israel  [22]; HCJ 910/86  Maj.(ret.) Ressler v. Minister of Defense [23]), and to a person who does not have a personal cause in the laws of tenders (CA 8416/99 E.I.M. Electronics and Computers (1999) Ltd. v. Mifal Hapayis [24]; CA 7699/00 Tamgash Management and Project Development Co. Ltd. v. Kishon River Authority [25], at 883), in the Class Action Law, too, standing is accorded to a wide range of bodies that are active in the promotion of public purposes, allowing them to submit applications for certification of class actions; these include public authorities (some of which, like the Israel Consumer Council, achieved a similar status by way of concrete legislation that preceded the Class Action Law. See: Chap. 6.1 of the Consumer Protection Law, 5741-1981, which was repealed in sec. 33 of the Class Action Law), and organizations as defined in sec. 2 of the Law.

4.         The flexibility in relation to formal-procedural requirements that the legislature adopted in this area of class actions as opposed to regular actions, emphasizing the substantive analytical criteria, also finds expression in sec. 8(c)  of the Law, according to which it is possible to replace the representative plaintiff, and in secs. 20(a)(3) and 20(c) of the Law in which the legislature departed from the normal rules of damages in torts. All this was for the purpose of realizing the rationales and the objectives underlying the institution of the class action as an effective instrument of civil-public enforcement (on this, see my article, The Class Action as a Means of Civil-Public Enforcement 19 Mishpat ve-Asakim (forthcoming, 2016).)

 

Justice D. Barak-Erez

1.  I concur in the judgment of my colleague Justice Y. Danziger, and with the comments of my colleague Justice E. Hayut. Nevertheless, I would like to relate briefly both to the procedural question of bringing a class action by means of an organization, and to the substantive issue of the exclusion of women that underlies it all, in general, and in this case, with its special characteristics, in particular.

 

Bringing a Class Action by Means of an Organization and the Special Difficulties of Action within the Community

2.         Under the Class Action Law, bringing an action by an organization whose objectives comport with those of the action is made conditional, inter alia, on the Court being “satisfied that – under the circumstances of the case – it would be difficult to submit the application in the name of a person…”.  Here, the Law expresses its known preference for a specific injured party standing before the court in order to enable the court to form an unmediated impression of the injury. Nevertheless, it is important to note that the Law makes do with it being “difficult” in to bring the action in the name of a person. The bar that the Law sets on this matter is not low, but neither should it be too high. Indeed, it is normally to be expected that an organization that seeks to sue will show in a concrete manner that attempts were made to bring the action in the names of individuals. At the same time, there may be exceptions to this rule, and in any case its implementation must take into consideration the context and the concrete circumstances of the matter. As a rule, recognition of the power of organizations to bring class actions is one of the innovations of the Class Action Law (see: Steven Goldstein, Comments on the Class Action Law, 5766-2006 6 Alei Mishpat 7, 17-18 (2007) (Hebrew)), and overly-high barriers that would cause a reversion to the approach that prevailed prior to the passage of the Class Action Law ought not to be erected in this context.

3.         More specifically, I am of the opinion that weight should be attributed to the legislative recognition of the fact that bringing an action for discrimination against the members of a weak class involves, by its very nature, a “difficulty”. Several of Israel’s laws dealing with equality, and particularly the Prohibition against Discrimination Law, recognize the right of action of an organization that deals with protection of the rights of a person against whom it is prohibited to discriminate. These constitute exceptions to the regular tort laws. Section 7(a) of the Prohibition against Discrimination Law prescribes as follows on this matter:

               An action in tort under this Law may be brought by a corporate body that engages in the protection of the rights of a person against whom it is prohibited to discriminate under this Law, provided that if the cause of action is discrimination against a particular person, that person has agreed thereto.

Similar provisions may be found in additional laws that are concerned with equality (see, e.g.: sec. 19(53) of the Equal Rights for Persons with Disabilities Law, 5758-1998). These provisions are powerful witnesses to the statutory assumption as to the existence of a difficulty in bringing an action for discrimination when the potential plaintiff belongs to a class that suffers from social weakness.

4.                                                            The above applies with even greater force when already at the preliminary stage of submitting the application for approval of the action as a class action, confrontation is expected between the plaintiff and the social/communal class with which s/he is affiliated. This does not come out of nowhere. In effect, the position adopted by the Respondent regarding the fact that its spiritual leadership supported not putting women on the air, i.e., that this is a policy that had the support of the rabbis –  the leaders of the community – attests in itself to the difficulty inherent in an identified representative plaintiff coming forward. In such a situation, the accompanying social barriers are in the category of res ipsa loquitur.  Moreover, this is not the first time that this Court has been called upon to consider situations of separation between men and women in the public domain. After the commencement of the deliberations in the petition against the separation on the “Mehadrin bus lines” in HCJ 746/07 Ragen v. Ministry of Transport [3], a public committee was convened to discuss the matter (The Committee to Examine Transportation Arrangements on Public Transport on Lines that Serve the Haredi Sector – Concluding Report (2009)). In its report, the Committee discussed women who objected to separation, while careful to preserve their anonymity (they were referred to as G. and H.). As opposed to this, religious women who supported the separation appeared before the Committee and were identified by  their personal and family names (pp. 25-26 of the Report). As such, it is precisely when the subject under discussion is the voice that is not given to women within the community that the path to their being given a voice should not be blocked, even if that path is being paved by an organization. More generally, the justification for allowing the action to be brought by means of an organization, for the purpose of protecting rights, increases when such an action helps in giving a voice to all the members of the class. In other words, bringing a class action by means of an organization in order to help those who belong to the community and are interested in remaining affiliated with it is a means of giving a voice to those whose voices are not heard.

5.         On a more general level, it seems that the “bar” that the organization must reach in order to satisfy the Court that it took sufficient steps to ascertain that there is a difficulty in bringing the action by means of a flesh and blood person must also take into account the costs involved in taking such steps, in order not to place obstacles that are too great in the path of the representative plaintiffs, having regard to the context of the particular action. The application for approval of a class action must, in any case, meet a certain level of requirements, which is not marginal (see: LCA 3489/09 Migdal Insurance Co. Ltd. v. Zevulun Valley Metal Plating Ltd., para. 13 of my judgment [26];  AA 980/08 Menirav  v. State of Israel – Ministry of Finance para. 13 [27]). These are joined by additional conditions with which an organization that wishes to act as a representative plaintiff must comply (see para. 41 of the judgment of my colleague). Against the background of all these, I agree with the comments of my colleague Justice Hayut that it is not appropriate to overburden the organization that seeks to act as a representative plaintiff. One might add that at the stage following certification of the class action, too, the Respondents still have the opportunity to try to prove that – as they contend – the number of women who in fact identify with the claim of discrimination on which this action is based is not large. This question ought to be decided at the stage of adjudicating the action itself.

 

The Characteristics of Exclusion of Women in the Present Case: Discrimination and Silencing

6.         I agree wholeheartedly with the apt and incisive words of my colleague Justice Danziger regarding the harm done by the exclusion of women, and in fact, of any class, from the public domain. Such exclusion is by its very nature a type of discrimination. To this it must be added that the present case is particularly grave due to the fact that the exclusion also involves silencing. As my colleague explained, full participation in the modern world of communications includes the element of active involvement in the opportunity to “be heard” and not only the passive component of “hearing”, just as full participation in the democratic process means not only the right to vote but also the right to be elected. In this sense, the discrimination in this case is harmful not only to equality, but also to freedom of expression in its full sense, having regard to its various objectives (both from the aspect of self-realization of women who are prevented from expressing themselves in the public arena, and from the aspect of their potential contribution to the public discourse).

7.         On a wider view, the “shock waves” of  exclusion such as in the present case potentially impact not only the women who listen to the broadcasts of Kol BaRamah and those among them whose path to participation in the broadcasts is blocked. Prevention of participation of women in the broadcasts contributes to impressing and “transcribing” a constitutive world view upon all the listeners of the radio station, both men and women, and there may well be even wider ramifications. This acquires even greater significance in view of the fact that the modern communications reality has a significant role in the way in which we perceive the world (see: Mike Feintuck and Mike Varney, Media Regulation, Public Interest and the Law 1 (2^nd ed., 2006).

8.         The exclusion of a particular class from the public discourse harms not only the excluded class, but also the discourse itself. The “marketplace of ideas”, which is so important, will not express all the positions and the different variations in society when participation in this marketplace is limited in advance, or when the effective means of participation is blocked. Society as a whole loses as a result. In view of these undesirable ramifications of exclusion for other classes – over and above the class included in the class action – as well, it would appear that recourse to the device of class action is especially suitable here. It is well known that recourse to this procedural device, not only in the context of the concrete case before us, creates positive externalities for the wider public, and not merely for the class represented by the representative plaintiff (see: Guy Halfteck, A General Theory Regarding the Social Value of Class Actions as a Means for Law Enforcement, 3 Mishpat veAsakim 247, 269, 287-289 (2005) (Hebrew); William B. Rubenstein, Why Enable Litigation? A Positive Externalities Theory of the Small Claims Class Action, 74 UNKC L. Rev. 709, 720, 723-725 (2006)).

9.         Finally, the harm involved in excluding women in this case is even more marked in view of the special purpose of granting concessions to specialized television channels and radio stations: the encouragement of pluralism, and to hear and make heard the variety of opinions and classes in the population (see: HCJ 7200/02 D.B.S. Satellite Services (1998) Ltd. v. Council for Cable and Satellite Broadcasts  [28],  at 37, 47); HCJ 6792/10 D.B.S. Satellite Services (1998) Ltd. v. Israel Knesset, para. 58 [29]).

 

Extent and Weight of the Obligation Involved in Exclusion

10.       My colleague Justice Danziger discussed the distinction between the religious norm that mandates or justifies adopting differential treatment of women and a religious norm that merely allows this, and he added that since in what is involved our case is not a binding norm but the enhancement of a precept, the weight of the religious argument here is reduced. My colleague did not base his decision on this distinction (as explained in para. 55 of his opinion). Nevertheless, I wish to address this distinction, due to its extensive discussion in my colleague’s opinion, even if it was over and above what was required. I will begin by saying that I agree that the distinction between a binding norm and an enabling norm is important, but I would add that in cases similar to that before us, it is better not to base a decision on it. First, the answer to the question of whether the practice of separation is an “obligation” or an “enhancement” is liable to be controversial, and the Court ought not to be the arbiter on this question. Second, and more importantly, we must bear in mind the possibility that there may be strict religious approaches that view separation or total exclusion of women from the public sphere as a real obligation. In my view, even if this were the case, it would not be right to accord this consideration precedence in those cases in which the violation touches the core of the right to equality (in the spirit of para. 56 of my colleague’s opinion).

11.       In effect, the matter may be presented as follows: when the practice of separation and exclusion does not stem from a binding religious norm, but from a desire to enhance a precept, the weight that must be attributed to following this practice as against protection of the right to equality should be relatively low. However, the opposite conclusion should not be derived from this, namely, that when the practice of separation and exclusion stems from a binding religious law, it ought to take precedence over the right to equality for that reason alone.

 

Between the Private and the Public

12.       I wish to address an additional aspect relating to the “placement” of the present case on the continuum between the private and the public. The cause of action is grounded in the Prohibition against Discrimination Law, which also applies to use of resources, for which there is no formal limitation as to number or extent beyond the constraints resulting from market conditions (such as businesses of various types). At the same time, the cause of action acquires added power and gravity when the exclusion involves activity to which access is limited from the outset, and which is therefore monitored and regulated by the state. In such cases, in which the activity belongs to some extent or another in the “public” arena as well, the weight of the claim of exclusion is even greater, as is the harm. An example of use of a resource of this type is found in the area of public transport (see: HCJ 746/07 Ragen v. Ministry of Transport [3]). Similarly, a broadcast on a radio frequency constitutes a clear use of a public resource which is even subject to quantitative limitations (see: HCJ 1030/99 Oron v. Speaker of the Knesset [30], at 651). It is therefore important to emphasize that this case does not involve intervention in an internal communal area, but rather, it involves fashioning the face of the public sphere – a fact that adds to the justification for certifying the class action.

 

A Final Word

13.       “A voice is heard in Ramah” – may that also be the voice of Rachel.

 

Decided as per the judgment of Justice Y. Danziger

27 Kislev 5776

9 December 2015

 

 

 

 

 

 

LFA 3151/14

 

           

 

Applicant:                   A

 

                                    v.

 

Respondent:                B

 

                                   

                                   

                                   

           

 

Attorneys for the Applicant:   Doris Golsha-Netzer, Adv.; Roy Ashkari, Adv.

                                     

 

Attorney for the Respondent:             Maxim Lipkin, Adv.

 

 

                                   

The Supreme Court

 

Before: Deputy President E. Rubinstein, Justice Z. Zylbertal, Justice D. Barak-Erez

 

Application for Leave to Appeal the judgment of the Tel-Aviv District Court of March 23, 2014 in FA 21043-02-1311 (Deputy President I. Schneller, and Judges K. Vardi and R. Levhar-Sharon)

 

 

 

 

Abstract

 

In a majority opinion (E. Rubinstein D.P. and Z. Zylbertal J.), the Supreme Court held that the family courts may limit the period of payment of spousal support to a woman due to her refusal to accept a get [Jewish religious divorce], even in the absence of a divorce order by the Rabbinical Court. As an operative outcome, the appeal was granted, as it was held by majority (D. Barak-Erez and Z. Zylbertal J.,) that, under the circumstances, the court should not have set a time limit for the payment of the Applicant’s support.

 

*Family – Spousal Support – Recalcitrant Spouse

*Family – Spousal Support – Right to Spousal Support

*Family – Spousal Support – An Unemployed Woman

*Family – Spousal Support – Rehabilitative Support

 

An application for leave to appeal a judgment by the District Court concerning the fixing of a time limit for spousal support awarded the Applicant despite the fact that the Rabbinical Court did not rule that she is a ”recalcitrant wife”. The application was heard as an appeal.

 

Background: The parties were married to each other for over 35 years. The Applicant was rarely employed outside the home during the marriage, and the Respondent was the sole supporter. The parties have been separated since 2011, and have conducted various legal proceedings related to the separation – divorce proceedings, proceedings concerning the woman’s right to support, and proceedings concerning the division of the family assets. Both the Family Court and the District Court believed the Applicant should be awarded support for a fixed period of time. In the course of the proceedings, the Court addressed the question of whether the Family Court could revoke a woman’s support due to her “get recalcitrance” in the absence of a decision by the Rabbinical Court ordering her to accept a get, and in the absence of a positive finding that the couple’s marriage had come to an end. What are the considerations that the Family Court must take into account when it is requested to fix a time period for support, or revoke the support of a married woman who it believes is refusing to agree to a divorce for financial reasons?

 

The Supreme Court (per D. Barak-Erez J., Z. Zylbertal concurring with the operative outcome, over the dissenting opinion of E. Rubinstein D.P.) granted the appeal:

 

In Justice Barak-Erez’s view, the principle of comity between courts required the civil court’s restraint and thus, in her opinion, as long as the couple’s divorce proceeding is pending in the Rabbinical Court, the civil court may not base its ruling on spousal support upon “get recalcitrance” in the absence of an appropriate finding by the Rabbinical Court on this issue. Justice Barak-Erez added that this conclusion stems not only from the principle of comity between courts, but also from the Jewish religious law that applies to this case, which dictates that revoking the right to spousal support in a case of a divorce obligation must be accompanied (based on many opinions) with supplemental steps that are under the exclusive jurisdiction of the Rabbinical Court, and which require the active involvement of the Rabbinical Court (entrusting a get [Jewish bill of divorce] and the financial obligation required under the ketubah [Jewish marriage contract] to a third party).

 

In her opinion, the  means at the disposal of the civil court for addressing the phenomenon of “get recalcitrance” deriving from financial motivations, is through awarding “rehabilitative” support under the general principles of the civil law (on the basis of the principles of reliance and good faith.) Of course, since these are “civil” principles, they would also apply, mutatis mutandis, to a divorcing man under these very same conditions. In her opinion, it is possible to award rehabilitative support under civil law only where the partner is no longer entitled to support under the personal status law, and this at two points in time: “when before the divorce is granted, there is cause for revoking support; or after the granting of the divorce has extinguished the right to support.” The central factor that must be considered in order to determine wither one of the partners is entitled to rehabilitative support, and its amount, is the prospect for alternative sources of income. Therefore, the questions of the home-based partner’s vocational or professional training and work experience, age (including how close they are to the age of retirement), the value of the couple’s property  and whether it has already been divided, are of importance.  On the other hand, considerations of fault as to the responsibility for the separation are not relevant.

 

As applied to the matter before the Court, Justice Barak-Erez was of the view that the appeal must be granted, and that as long as there is no change in the couple’s circumstances, including the circumstances surrounding the proceedings in the Rabbinical Court, the Respondent must continue to pay the Applicant support as decided by the Family Court, without setting a termination date.

 

As opposed to this, the Deputy President, joined by Justice Zylbertal, disputed Justice Barak-Erez’s position regarding jurisdiction. In their view, under the principle of good faith, the civil courts may revoke a married woman’s spousal support when they are persuaded that the marriage has effectively ended and that the woman refuses to accept her get solely for financial reasons, even in the absence of a finding by the Rabbinical Court that the woman is required to accept the get. The Deputy President explained that often the civil court is called upon to make incidental findings that are required for the determination of the issue of spousal support and property matters that are in its primary jurisdiction (section 76 of the Courts Law.) According to the Deputy President, a civil court’s finding whereby a woman loses her spousal support for being a “recalcitrant spouse” does not lead to the end of the marriage in the Jewish halakhic sense, and does not conflict with the principle of comity between courts. The Deputy President added that he did not rule out the method proposed by Justice Barak-Erez as to the awarding of rehabilitative support in appropriate cases, however in his view, it is a tool in the Family Court’s “toolbox”, which is to be used according to the circumstances of the case in order to resolve the issue of alternative sources of income (while noting other tools, such as an unequal division of resources.)

 

According to the Deputy President, under the specific circumstances of the case at hand, and once the lower courts, including the Rabbinical Court, were persuaded that the marriage had come to an end, and that the Applicant is delaying the divorce only to improve her financial circumstances, the Family Court, and subsequently, the District Court, correctly fixed the period of support payments, and the District Court’s approach which met the Applicant more than halfway, is acceptable. Therefore, in his view, the appeal must be denied. At the end of the period set (December 2014), the possibility to extend the period of support payments would be revisited.

 

Justice Zylbertal, who, as noted, concurred with the view of the Deputy President on the matter of jurisdiction, concurred with the view of Justice Barak-Erez as to the operative result, whereby the appeal must be granted.

 

In Justice Zylbertal’s opinion, the considerations the court must take into account before revoking a woman’s support due to “get recalcitrance” are, inter alia: what is the reason for the refusal – personal vindictiveness or extortion, or a lack of sufficient financial protection for the financially weaker partner upon divorce, and the woman’s ability to continue to support herself after the divorce. In this context, the court must examine the woman’s ability to secure an income, and to this end, it should also consider her age, her share in the husband’s pension, and when she will be entitled to receive her share of those funds.

 

According to Justice Zylbertal, in the circumstances of this case, it is inappropriate to fix a timeframe for the Applicant’s support, both because her delaying of the divorce is not necessarily the result of vindictiveness or extortion, that is – not a lack of good faith that warrants fixing the period of support – and in light of the understandings that characterized the couple’s marriage, the Applicant’s age (over 50), and her prospects of integrating into the workforce during the short adjustment period left until the partners reach the age of retirement.

 

It should be noted that, in addition to the above, the members of the panel briefly discussed an issue related to the matter at hand – the possibility of awarding financial compensation in cases of get recalcitrance in the framework of a tort suit.

 

 

Judgment

 

15th Iyar 5775 (May 4, 2015)

 

Justice D. Barak-Erez

 

1.A married couple are  separated and conducting various, related legal proceedings – divorce proceedings, proceedings regarding the women’s right to spousal support, and proceedings regarding the division of the family property. Under the circumstances, was the Family Court correct in granting the woman spousal support for a fixed period of time, after which the woman would no longer be entitled to support, even if the couple do not divorce? This is the central issue at bar. Its determination raises additional questions, among them: can the Family Court rule that, for the purpose of deciding spousal support, a woman may be deemed a recalcitrant spouse even if the Rabbinical Court refrained from making such a finding in the course of the divorce proceedings between the parties? To what extent may the Family Court consider the fact that the woman lacks the capacity to earn an income, and may it refrain from awarding her spousal support even if she is entitled to such support under the personal-status law, because the couple are about to divorce, or because the Court is under the impression that the woman is a recalcitrant spouse?

 

The Factual Background and the Proceedings thus far

 

2.The Applicant and the Respondent (hereinafter: “the couple” or “the partners”) married in 1976. They are parents to three children, and grandparents to eight common grandchildren. Throughout their marriage, the Respondent worked for a large public corporation, while the Applicant ran their household. The Applicant worked outside of the home for only short periods of time. The couple own a house (hereinafter: the house) to which an additional residential unit is attached, and which is still under mortgage (though its amount is currently insignificant compared to the value of the house.)

 

3.In 2011, a dispute erupted between the partners. About a year and a half before the conflict started, the couple moved into a rental apartment in Holon, and rented out the house they owned, as well as the attached residential unit (which was rented when they resided in the house as well.) In July 2011, as a result of their dispute,  the Respondent left the apartment in Holon where the two resided.

 

4.On August 15, 2011, the Applicant filed suit in the Family Court for support for herself and for the couple’s youngest son, who was a minor at the time (FC 24331-08-11). As we will explain below, this was the suit that led to the application at bar.

 

5.Pursuant to that, several additional suits were filed between the parties. On the same day, the Applicant filed a suit for orders to preserve property rights and for accounts (FC 24358-08-11). On November 16, 2011, the Respondent filed for divorce in the Rabbinical Court, and later filed suit for a division of community property in the Family Court (FC 39732-11-12.) In the course of that proceeding, the Applicant argued that, under the circumstances, the couple’s property should be divided unequally, in view of the fact that she lacks any sources of income, and this under the court’s authority under section 8(2) of the Spouses (Property Relations) Law, 5733-1973 (hereinafter: the Property Relations Law). On February 24, 2013, the Family Court ruled that if the Applicant wishes to request a remedy of unequal property division, she must file the proper suit. Accordingly, on March 18, 2013, the Applicant filed a suit for resource balancing (FC 33489-03-13,) in which she requested that the balancing of resources deviate in her favor from the principle of equal division (so that she will receive 80% of the community property,) and that it additionally be held that a second apartment that the Respondent inherited from his father is a property subject to resource balancing.

 

6.On September 27, 2011, the Applicant moved out of the Holon apartment and back into the house. On January 4, 2012, the Applicant filed a suit for reconciliation with the Rabbinical Court, and was granted an order for specific residence in the house.[1] 

 

7.On December 12, 2012, the Family Court delivered its decision in the suit for support (FC 24331-08-11, Judge J. Shaked). The Family Court held that, in this case, the traditional grounds recognized in Jewish law for ruling that the wife lost her entitlement to support were not proven. However, the Family Court added that it would seem that the partners lead separate lives, they both view their marriage as having reached a crisis, and that the marital relationship between them had “died”. The Family Court further held that in this regard that when a “dead” relationship is concerned, there is no justification for preserving it by awarding the woman support. The court also noted that awarding support is subject to the good-faith requirement (referencing LFA 3148/07 A v. B (June 13, 2007) (hereinafter: LFA 3148/07)). Therefore, the court held that for the purpose of the proceedings in regard to support, the court should take notice of the Applicant’s refusal to divorce the Respondent “artificially, in order to gain advantages in the legal proceedings between them,” as well as the fact that the Applicant was deliberately delaying the division of common property in regard to the house (which is valued at about two million shekels), as well as the resource balancing between the couple, by moving into the house and even obtaining an order of specific residence (that was still in effect at the time). The Family Court found that, under the circumstances, obstructing the sale of the house by the Applicant was inconsistent with the good-faith requirement.

 

8.In ruling on spousal support, the Family Court took into account the Applicant’s behavior, on one hand, while also noting her age (over fifty), the fact that she had not worked in more than three decades during the marriage, as well as the family’s lifestyle, on the other hand. Against that background, the court ruled that spousal support in this case should be awarded only for a fixed period of time. The Family Court explained that awarding spousal support for a fixed period would ensure legal certainty to both parties so that they might plan their next steps and will be more emotionally and financially free to negotiate and reach an agreement that would end their relationship.

 

9.After examining the Applicant’s expenses, the Family Court ordered spousal support in the amount of NIS 5,650 per month (assuming that she was paying the mortgage on the house), or in the amount of NIS 3,500 (if she was not paying the mortgage), for a fixed period of 24 months from the day the suit was filed, that is until July 15, 2013. Additionally, the Family Court dismissed the Applicant’s suit for support of their son, who was a minor at the time the suit was filed, because the claim was not adequately proven, and considering that at the present time he was already serving in the IDF and did not exclusively reside in the Applicant’s home.

 

10.The Applicant appealed the Family Court’s ruling on spousal support to the District Court  (FA 21043-02-13, Deputy President I. Schneller, and Judges K. Vardi and R. Levhar-Sharon.) On March 23, 2014, the District Court granted the Applicant’s appeal, but only in regard to the date set for the period of support. The District Court held that it was appropriate to fix the period of the Applicant’s support, subject to setting a later date for ending the period during which the Respondent must pay it, as detailed below.

 

11.The District Court ruled against intervening in the amount of the support set by the Family Court, as it was based on factual findings, and limited the discussion before it to the general issue of the possibility of limiting the period of support payment and its resolution in the specific case.

 

12.The District Court noted that the premise for discussion must be that a woman’s support is based on personal status law. At the same time, the District Court reviewed the case-law developments in regard to taking account of the woman’s income prospects in deciding the amount of support, as well as the circumstances of the case (including the length of the marriage and the circumstances of the separation), and the approach that the awarding of support must be subject to the principle of good faith and public policy. As a result, the court noted that where there is “get recalcitrance” by the woman, this would affect her support, while examining whether this should be reflected in the amount or in denying right to support altogether. The District Court commented that denying a woman support on grounds other than religious law ought to serve as a legal tool for overcoming get recalcitrance, and as an incentive for the parties’ divorce, similar to the developments that had taken place in regard to tort claims for get recalcitrance.

 

13.The District Court went on to specify the factors that must be taken into account in considering a woman’s right to spousal support when she is a “recalcitrant spouse.” In doing so, the District Court considered the following factors, without exhausting the list: the primary reason for refusal – is it a result of a desire to continue to receive support, or a result of other proper reasons; the length of the marriage and its quality; the party at fault for delaying the divorce, and the Rabbinical Court’s findings in this context; the lifestyle prior to the separation, including the issue of the woman’s employment and her ability to secure an income compared to that of the husband; and the issue of whether the property matters between the couple had already been resolved. The District Court emphasized that denying the woman support is not a “penalty” and thus, the court must ensure that she has financial resources even when she is refusing the divorce. Additionally, the District Court emphasized that denying the right to support, or reducing it, is based on the principle of good faith – which is not a “one way street” – and thus the husband’s behavior is also important and should be examined from a broad perspective.

 

14.The District Court addressed the Family Court’s finding that, in this case, the woman refuses to arrange the divorce, although the Rabbinical Court did not make such a finding, and decided to intervene in that finding. The District Court addressed that fact that the couple had been married for over 35 years, and the Respondent is the one who elected to leave the family home. Therefore, this is not a case of get recalcitrance, particularly when the Family Court refrained from addressing the circumstances around the husband’s leaving. Additionally, the District Court noted that the Applicant was permitted to demand that the property matters be settled before the divorce, and that in light of the fact that there are financial resources of which the Applicant is entitled to part, a situation in which the Respondent enjoys these resources whereas the Applicant must wait for her share is unacceptable. Additionally, it was held, that even were it appropriate to set a limit to the period of support payments, it would have been appropriate to allow the Applicant a longer period in order to get “organized” for the future. This is because the result of the decision by the Family Court could have been that the Applicant would be compelled to agree to any demand presented to her in regard of the financial and property matters.

 

15.The District Court addressed the fact that the Respondent is expected to retire from his job in several years, and that at that time, the Applicant will be entitled to her share of his pension. On the other hand, the District Court considered the fact that the Respondent’s own entitlement to his pension had not yet materialized. The District Court held that it, indeed, would appear that the couple’s marriage had come to an end, but this finding alone, and the fact that the Applicant was granted an order for specific residence, are insufficient for denying her support considering the other circumstances. Ultimately, the District Court ruled that the date for the  expiration of support would be delayed for a period of three years from the date the Family Court handed down its decision, that is until December 31, 2015, or until the date when the Applicant would start receiving her share in the Respondent’s pension rights, according to the earlier of the two.

 

16.To complete the picture, it should be noted that the order for specific residence awarded by the Rabbinical Court was revoked in its decision of October 14, 2013. The Rabbinical Court noted the civil court’s impression that the marital relationship between the partners had expired, and that the Applicant was not interested in reconciliation. The Rabbinical Court recommended that the couple negotiate in order to end the marriage.

 

17.It should further be noted that on March 12, 2015, decisions were handed down in the two suits filed by the Applicant – for preserving property rights and for resource balancing (FC 24358-08-11 and FC 33489-03-13.) As mentioned, in the course of her suit for resource balancing, the Applicant requested that the property be divided unevenly so that 80% of the property would be handed over to her and only 20% would be awarded the Respondent, under section 8(2) of the Property Relations Law. Additionally, she requested the rights to the apartment that the Respondent inherited from his father. The Family Court was presented with an accountant’s report which pointed to two options for balancing the resources between the parties – one based on the current value of the rights, including the pension rights the Respondent had accrued, and the other based on the date the rights are to be realized. Under the latter option, the Applicant would receive most of the payments to which she is entitled through a monthly allocation of a fixed portion of the Respondent’s pension payments, each, once he retires. The Family Court rejected the Applicant’s claim that the resources be unevenly divided in her favor, as well as her claim to include the apartment inherited by the Respondent as property subject to resource balancing. In effect, it was held that the resource balancing would be even, according to the second alternative presented in the expert opinion, that is, in accordance with the date the pension rights would actually materialize. The Family Court added that it was under the impression that the Applicant was obstructing the divorce and refused to accept a get from the Respondent. As a result, the court held (referencing sections 5(c) and (d) of the Property Relations Law) that for the time being, the Applicant would be entitled to a sum of about NIS 73,000 unconditionally, while the remainder of the sums would be awarded her only later, subject to settling the divorce or any other decision by the Family Court. It was also decided that the Applicant bear the Respondent’s costs in the amount of NIS 59,000. The Applicant informed us that she intended to appeal the judgment. Needless to say, we are not concerned with this, and only mention it to complete the picture.

 

18.We would further add that in the course of the suit for dissolving the common property, and after the Rabbinical Court revoked the order for specific residence, the Family Court ordered to dissolve the community property rights in the house owned by the parties, and appointed the parties’ attorneys as receivers (FC 39732-12-11, decisions dated February 24, 2013, February 25, 2013 and April 14, 2013). Additionally, at the parties’ request and with their consent, a property appraiser was appointed on March 26, 2014, in order to prepare an appraisal of the house  for its sale.

 

The Application for Leave to Appeal

 

19.The application for leave to appeal before us challenges the District Court’s decision in regard to fixing the period of the Applicant’s support. The Applicant focuses her arguments on the fact that the District Court elected, despite the considerations it detailed, to terminate her support at the end of 2015, a date which she maintains is “speculative.” According to the Applicant, the District Court’s decision raises a fundamental question as to the Family Court’s authority to set a fixed period of time for spousal support in order to induce the parties to divorce, a decision which effectively denies the woman support contrary to the personal status law that applies to the parties, and despite the fact that the Rabbinical Court did not find her to be a recalcitrant spouse. In the Applicant’s view, this is a novel decision that provides the Family Court with new tools to compel parties to divorce.

 

20.On the merits, the Applicant maintains that, under the circumstances, her husband must be obligated to pay her support without an end date, and all subject to future developments (including the Respondent’s retirement in about five years time). The Applicant emphasized that she was married to the Respondent for over 35 years, during which time she did not work. She argues that she is currently over 56 years old, she is incapable of working and producing her own income, so that her entitlement to support is essential for her livelihood until she begins to receive her share in the Respondent’s pension in a way that ensures her continual income.

 

21.On the other hand, the Respondent argues that the request fails to invoke any special legal issue that warrants granting leave to appeal. He claims that the District Court ”was very gracious toward the Applicant”, in light of her unreasonable financial demands – demands which he believes hinder the resolution of the conflict by creating an “artificial delay” of the process. The Respondent adds that had the Rabbinical Court panel deciding the case not been substituted, their divorce decree would have been granted long ago.

 

22.The Respondent additionally claims that the Applicant’s conduct and her persistent refusal to accept a divorce in the Rabbinical Court, as well as deliberately delaying the hearings there, in stark contrast to her vigorous activity before the civil courts, should have been considered as bad faith that justifies revoking the support. The Respondent further argues, while addressing the unfolding of proceedings between the parties, that the lower courts examined the proceedings between the parties, as well as the factual circumstances, reviewed extensive evidence and made factual findings in which we should not intervene.

 

23.On May 5, 2015, a hearing on the Application was held before us. In the course of the hearing, the parties provided updates as to the ongoing proceedings between them in the various courts.

 

24.For her part, the Applicant insisted that the Rabbinical Court decided, on March 16, 2015, that her actions did not justify ordering a get, and rejected the Respondent’s request that she be required to divorce. The Rabbinical Court’s decision noted that, in accordance with the Applicant’s declaration, she is willing to live with the Respondent, and it was possible to end the case with the Applicant’s consent to divorce while granting her appropriate and reasonable compensation.

 

25.During the hearing, the Respondent updated us that, in the meantime, a decision was handed down by the Family Court in regard to the division of property between the parties, in the course of the Applicant’s suit for resource balancing. Additionally, the parties updated us that the house has yet to be sold, and that they still await the appraiser’s report on the matter.

 

26.At the end of the hearing, we instructed the parties to submit briefs on the question of whether it is permissible to fix the time period for support during the marriage.

 

27.On May 31, 2015, the Applicant submitted her brief. In her brief, the Applicant explained that requiring the Respondent to pay support stems from the personal status law that applies to them, which is Jewish religious law, which obligates the man to support his wife until the end of their marriage in divorce. The Applicant added that there is no obligation for a woman to work outside the home in order to be entitled to support, where she had not worked before and is unable to meaningfully produce an income, as in her circumstances. The Applicant notes further that there are no grounds to deny her support under the personal status law, and neither is there justification in her case to reduce the support or deny it for lack of good faith, which puts her in an impossible situation wherein she will remain without any source of income for several years until she becomes entitled to her share of the Respondent’s pension payments. The Applicant further argues that, in principle, there is no decision by this Court that has approved the denial or fixing of the term of support for a woman who is not working, is unable to produce an income, and is completely dependent on her husband for her livelihood.

 

28.On June 6, 2015, the Respondent filed his brief. The Respondent addressed a husband’s obligation for support under Jewish personal status law, but noted that the case-law balances these obligations against the principle of good faith, and created pragmatic rules to suit the changing times. Through good faith, he argued, the courts tend to reduce or deny support in general, and spousal support in particular, when necessary, as was done in this case, where the court is under the impression that the suit for support was designed merely to create “artificial pressure” in the property negotiations between the parties. The Respondent maintained that it is, indeed, common for family courts to fix the period of support, and that this approach can also be found in the writings of halakhic decisors. In this context, the Respondent presented the view of Rabbi Shaul Yisraeli  (Responsa Mishpatei Shaul, 5) according to which a man is not obligated to support his wife unless she is with him, “and if she leaves, there is no justification for this [halakhic] regulation as all”. It was also argued that the District Court’s decision is pragmatic and eliminates the need for additional deliberation on the issue of the amount of support and setting the date for its termination, as well as practices of investigations and surveillance of the woman in order to determine the extent of her expenses. The Respondent added that the courts’ approach as to fixing the term of a woman’s support is rooted in rehabilitative support awarded a common-law wife based on general contract law. It was thus argued that where the religious law discriminates against a man compared to a woman, its discriminatory instructions to this effect must be interpreted narrowly. One way of doing so may be fixing the period for support, as was done in this case. Additionally, it was argued that the approach adopted in the  case-law of the family courts is to prevent artificial continuation of the marriage where it no longer exists, and that, in this case, that approach should effectively have led to the denial of support altogether.

 

Discussion and Decision

 

29.After hearing the parties’ arguments, we are convinced that the law requires granting leave for appeal in this case, and we have decided to hear the application as if an appeal had been filed with the leave of the Court. The issue of fixing the period for a man’s support payments to his wife during their marriage is a new question that relates to the intersection between civil family law and the personal status law, as well as the “synchronization” between the decisions of the religious courts (in our case, the Rabbinical Court) and the rulings of the Family Court. In the background, as I will explain below, are additional questions touching on the financial survival of a partner who relies on the marriage in terms of income, considering, inter alia, that under Jewish religious law a woman is not entitled to support after the divorce (but without restricting the discussion in this context only to women, as opposed to men, who depended on the marriage in a manner that impacted their ability to produce an income). For the purposes of examining the question before us, I shall begin by presenting the complex tapestry of the relevant legal issues to be determined – some are matters of substantive law and some are matters concerning the jurisdiction of the relevant judicial tribunals.

 

30.Against this background, I will explore the rules that apply to spousal support, both through the lens of the personal status law that applies to the parties and through the lens of general civil law, all as related to the question of the “division of labor” between the family courts and the rabbinical courts as mandated under current legislation.

 

The Premise: The Connection between Entitlement to Support and the Marital Relationship under Personal Status Law and the Issues it raises

 

31.Section 2(a) of the Family Law Amendment (Maintenance) Law, 5719-1959 [13 L.S.I. 73] (hereinafter: the Maintenance Law) mandates: “A person is liable for the maintenance of his spouse in accordance with the provisions of the personal law applying to him.” Therefore, the premise for the discussion before us is the personal status as it applies to the parties. In our case, this is Jewish religious law, which closely links the woman’s entitlement to support to the marital relationship. As a general rule, only a married woman is entitled to support (subject to considering the income “of her own labor” in setting the amount of support). As opposed to this, after the divorce the woman is no longer entitled to support for herself (and this, as apposed to the maintenance awarded minor children that are, in effect, paid to the woman if the children are in her custody) (see also: Ben-Zion Schereschewsky and Michael Corinaldi vol. 1, 291-379 (2015) (hereinafter: Schereschewsky and Corinaldi)). This approach of Jewish religious law binds the family courts as well. This is an important point of departure for the discussion here, although it is not its final destination, as we explain below and considering the need to account for a wide range of principles that apply in the area of family law, including those drawn from civil law.

 

32.The application of Jewish religious law on awarding support between Jewish partners who married according to Jewish law – which is, as mentioned, the premise for the current legal situation – may occasionally create difficulties, and even incentives for unfavorable conduct. One of the immediate outcomes may be leaving the woman with no source of income after the end of the marriage, and in certain cases, even beforehand. Apparently, this outcome is not anticipated in the case of a woman who has worked and has been fully integrated into the workforce even during the marriage (and in any event, the amount of support to which she is entitled is often balanced against “her own labor”). However, this outcome is also highly problematic when we are concerned with a woman who, under the “division of labor” between her and her partner, did not participate in the workforce, and possibly has no profession or prospects of becoming integrated into the workforce due to her relatively advanced age (even if she may “formally” seek employment, and without detracting from the duty to combat the phenomenon of age-based discrimination). There is, thus, concern that women who divorce at an advanced age, and who are not integrated into the workforce, would descend into poverty, particularly when the community property amassed over the years is itself modest. As a result, women under these circumstances may refuse to divorce, even when there are no real prospects for the marital relationship to continue. This is because when support is contingent upon the marital relationship, as in Jewish law, divorce is likely to cut off their source of income.

 

33.The concern about the implications of ending the marital relationship on the entitlement to support for a woman who did not work during the marriage is exacerbated in those situations where the division of property between the parties is yet to be done. Should the woman stop being entitled to support, on one hand, while at the same time not be awarded immediate control over her share of the community property, on the other hand, the difficult outcome may compel her into a situation of no alternative but to unnecessarily waive some of her rights to the community property, in an attempt to achieve a prompt agreement as to the division of property and the ability to realize it.

 

34.The case before us demonstrates, so I believe, the complexity of the described situation. Of course, get recalcitrance – for financial reasons of any others – must not be encouraged, but it is also imperative to provide solutions for one who relied on the relationship and can no longer be integrated into the workforce, or alternatively requires a relatively extended training period in order to do so (for instance, by acquiring a new profession). This applies, of course, mutatis mutandis, to male partners who have relied on a  relationship in which his partner is part of the workforce and advances in it. Though the personal status law recognizes only a woman’s right to support, as I show below, under the general civil law, in the appropriate cases, a man’s reliance on the marital relationship may also be considered when granting the proper remedy to facilitate “adjustment” to independent financial existence (to the extent the “division of labor” in the former relationship justifies this).

 

 

Jewish Personal Status Law: The Death of Marriage, Obligation to Divorce and the Termination Date for Support

 

35.As noted, since the point of departure in the case before us is the personal status law that applies to the parties, we must first outline its principles in regard to an obligation to divorce and denying a woman’s right to support. In effect, the case before us raises two questions that, while related to one another, must be distinguished from one another. The first question is under which circumstances a woman my be declared a “recalcitrant spouse” even when there are no “classic” grounds for divorce, only because she refuses to divorce despite the fact that her relationship with her husband has reached an end in the sense of “disgust”, often described as the “death of the marriage” (see for example, Avishalom Westreich inhereinafter: Westreich)). The second question is what are the conditions to denying a woman’s right to support under circumstances characterized as the “death of the marriage.” These questions should be addressed briefly – not in order to purport to resolve the religious law disputes regarding them, but in order to understand their scope and their implications to the case before us.

 

36.The death of the marriage as grounds for divorce – as a general rule, there is a dispute among Jewish law decisors as to the whether an irreparable rift between the couple (regardless of the question of fault leading to this situation) justifies obligating a divorce (Westreich, 91). There is, indeed, halakhic support for the view that an irreparable rift in a marriage may give rise to a right to divorce, although that view is not universally accepted (Westreich,  93.) Such an approach is also consistent with economic concepts of human dignity that guide Israeli law. In any event, as I will explain below, determining this question does not “automatically” impact upon the determination in of the support issue. First, even if the Rabbinical Court decides to order the parties to divorce, it must still decide  upon the implications of that decision for the obligation of support. Requiring a divorce may be the “first step” toward revoking the right to support, but such a decision is a separate one, which may involve additional steps such as entrusting the get and the ketubah to a third party, that is depositing them with the Rabbinical Court for the woman. Second, even in the absence of a decision to require a divorce, it may be appropriate, in certain cases, to revoke the right to support, and this, as well, in a decision that may require additional steps such as entrusting the get and the ketubah to a third party.

 

37.Right to Support in the situation of the Death of a Marriage: As was already explained, the woman’s right to support in Jewish religious law stems from the marriage itself. This right expires when the woman is considered “rebellious” under Jewish law or where she is required to divorce under a “classic” ground for divorce, such as adultery (see:  Schereschewsky and Corinaldi, 309). Ordinarily, a woman is entitled to support only when she lives with her husband. When they live separately, the reason for the separation must be investigated (ibid., 335). Generally, a woman loses her right to support when she was the one to leave the home, unless “he was the cause”, i.e., she had a good reason to do so (ibid., 335, 354-57).

 

38.The issue of the right to support becomes more complicated in cases such as the one at hand, that is, in the case of the “death of a marriage.” The issue is partially related to the issue discussed above – whether the “death of a marriage” is grounds for requiring a get. However, as explained, these issues do not fully overlap. Doubts arise, inter alia, from the fact that denying the right to support may be seen as undermining the Decree of Rabbeinu Gershom prohibiting divorce without the woman’s consent due to the fact that non-payment of support may create economic pressure that would compel the woman to divorce against her will. In this context, Rabbi Elijah Mizrachi’s (the Re’em) position is well known. According to him, the husband may be exempted from supporting his wife when he could have lawfully divorced her against her will, but is prohibited to do so only due to the Decree of Rabbeinu Gershom. However, this position is considered, in many ways, a minority approach, and many halakhic decisors establish conditions for exempting the husband from paying support in this situation. Thus, for example, according to the view of Maimonides, this is contingent upon the husband depositing the get and ketubah with a third party. Additionally, Rabbi Herzog wrote, in regard to the approach of the Re’em, that “where the court is persuaded that she is responsible for disturbing a peaceful life (although the law does not require her to accept a get), and that there is no longer hope for restoring peace in the home, then it is permissible to rely on this approach, along while providing compensation so that she is not left without support, but of course this requires care and prudence and serious review in each and every case, in accordance with the situation and the circumstances.” In any event, clearly the basis for releasing the husband from paying support is an authorized finding of the Rabbinical Court that the marriage has come to an end, in terms of a ”disgust” claim (though the Rabbinical Court may refrain from deciding on actually requiring a get). Such a finding, and a consequent denial of support, usually involves entrusting the get and ketubah to a third party, acts that require, of course, active participation of the Rabbinical Court (see also: HCJ 7407/11 A v. Great Rabbinical Court in Jerusalem, para. 12 (January 27, 2013) and references there. For a detailed account of the approaches in Jewish law regarding support where the woman refuses to divorce, see: Rabbi Meir Batist, A Woman Obligated to Accept a Get: Has She Lost Her Support?, 23 125 (2003) (Hebrew); Rabbi Moshe Be’eri and Yuval Sinai, Obligating Support for A Woman Who Refuses a Get, The Center for Applied Jewish Law (February 9, 2007.) (Hebrew)).

 

Questions of Jurisdiction: Jurisdiction over Divorce, Jurisdiction over Support and the Relationship between them

 

39.Questions of jurisdiction must also be examined, alongside the examination of the substantive law, and we must address the dual system of litigation in the area of family law – in the rabbinical courts and in the family courts.  As we will see, the answer to the question before us is, in significant part, as much a result of the division of jurisdiction in family law as of the principles of substantive law that apply in this field.

 

40.As we know, the religious courts have exclusive jurisdiction over matters at the “core” of marriage and divorce. Family courts, too, hold jurisdiction over other matters in the area of personal status law. For the purposes of the case before us, it is unnecessary to elaborate on the distinctions between the different faiths’ religious courts and it is sufficient that we address rabbinical courts’ exclusive jurisdiction over all matters regarding marriage and divorce, as regulated by the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953.

 

41.The Family Court is indeed authorized to hear a claim for a woman’s support, but as already discussed above, under the Maintenance Law the decision itself should be a product of the principles of personal status law detailed above, in this case Jewish law. Accordingly, when the Family Court hears a claim for support, it must determine whether there are grounds to end it in accordance with halakha.

 

42.What, then, must the Family Court do when faced with a claim for support where the husband argues in his defense that he is not obligated to pay because the woman is a “recalcitrant spouse?” The answer is that the Family Court cannot deny the right to support in the absence of an appropriate finding by the Rabbinical Court in the divorce case (this is distinct from the “classic” grounds, such as adultery, which the Family Court can consider independently). Indeed, it would appear that the Family Court may also address questions that are not under its “incidental” jurisdiction, in accordance with its authority under section 76 of the Courts Law [Consolidated Version], 5744-1984, and subject to the Rabbinical Court’s authority to find otherwise (CA 634/61 Makitan v. Makitan, IsrSC 15 945 (1962); Issachar Rosen-Zvi, 295 (2015) (Hebrew)). However, when the question at the heart of the dispute is whether to revoke the woman’s right to support for “get recalcitrance” (in the absence of a decision on this question by the Rabbinical Court,) it would be improper for the Family Court to address the issue. First, a claim of recalcitrance is closely tied to the matter of the divorce, which as noted, is under the exclusive jurisdiction of the Rabbinical Court. Therefore, in a case of a claim of recalcitrance, litigation is conducted concurrently in the Rabbinical Court and the Family Court, and thus it must be viewed from the perspective of the principle of comity between courts (see LCA 4982/92 Tabib v. Tabib, IsrSC 48(3) 390, 294-95 (1994); HCJ 8497/00, Feig-Felman v. Felman, IsrSC 52(2) 118, 134-40 (2003); HCJ 9734/04, A v. Great Rabbinical Court, IsrSC 59(2) 295, 303 (2004)). Under this principle, the Family Court should wait for the decision of the Rabbinical Court in the matter. Reciprocal comity requires that as long as the Rabbinical Court believes that a demand for reconciliation by the party wishing not to divorce is sincere and in good faith, and that the time for determining that the marriage has died has yet to come, the civil court should not rule otherwise while the proceeding in the Rabbinical Court is still pending. As noted, considering the principle of comity between courts is necessary in this situation, since the divorce refusal claim cannot be raised out of thin air without the husband having filed for divorce in the Rabbinical Court. Second, as detailed above, according to religious law itself, denying the right to support in a case of requiring a divorce should be followed (in many opinions) by supplemental steps, such as entrusting the get and the ketubah amount to a third party. Denying the right to support, as a stand-alone measure, does not, therefore, reflect the religious law.

 

43.Waiting for the decision of the Rabbinical Court on the issue of divorce obligation is not expected to create any mishaps, considering the temporary nature of a support decision. A decision to award support is always contingent upon changes in circumstances, and a court may be approached repeatedly to decide the support issue in light of changing circumstances. Therefore, the Family Court need not be concerned that it may award support to a woman despite the fact she may be declared a “recalcitrant spouse.” If and when this happens, her partner may apply to the Family Court to adjust the support award. The logic of this proposed approach can be illustrated by the reverse situation, as well. Consider a situation in which the Rabbinical Court finds that the woman is required to divorce and she refuses to accept the divorce. Could the Family Court nevertheless find that she is not a recalcitrant spouse and that she is entitled to support under personal status law? Because the negative answer to this question is clear, it ought to be clear that unilateral intervention by the Family Court in findings in regard get recalcitrance in order to restrict a woman’s support is unacceptable.

 

44.It should be noted in this regard that the Family Court sought to rely on LFA 3148/07, cited above, as an example of considering recalcitrance when awarding support. However, this decision by my colleague (then) Justice E. Rubinstein, which generally addressed the application of the principle of good faith to issues of awarding support, cannot support this. In that case, it was held that a woman’s support may not be increased beyond the rate she was originally awarded  in light of changes in her former partner’s separate financial circumstances. However, our case effectively concerns the revoking of a woman’s support (in the sense of setting a date for their expiration), rather than merely setting their amount. Additionally, invoking the principle of good faith may not be used as a “detour” to waiting for the decision of the Rabbinical Court that is concurrently adjudicating the very same issue.

 

45.Indeed, we must aspire that the partner delaying the divorce without just cause does not gain the upper hand only because that partner falsely made a reconciliation claim (see also: Pinhas Shifman,  122 (2012) (Hebrew)). However, accomplishing this cannot be through limiting entitlement to support while the divorce proceedings are still pending. Of course, a finding by the Rabbinical Court that the woman is required to accept a get, insofar as there is such finding, would itself serve as cause for amending the support award. However, as longs as the proceeding in the Rabbinical Court is pending, and that court believes the time for divorce has not yet arrived, the civil court cannot base its decision on support on a different finding.

 

The Civil Law: Rehabilitative Support and the Marital Relationship

 

46.Though this was not articulated in this way in the District Court’s decision, the case before us, and similar cases, highlight a real difficulty that repeatedly comes up in divorce proceedings – the disincentive to agree to a divorce when the woman has no independent sources of income, and where, under the personal status law (here, Jewish halakha), divorce would leave her without an income. In effect, the Respondent believes that the Applicant refuses to divorce him only in order to continue to be entitled to support, and it seems the lower courts were under the same impression. The avenue these courts have chosen is problematic in light of the principles detailed above. The lower courts based their decisions on the finding that the Applicant is delaying the divorce only because she wishes to improve her financial situation through the support to which she is entitled as long as she remains married. As noted, the jurisdiction to determine whether this is indeed the case is in the hands of the Rabbinical Court, not the civil court. However, admittedly, the difficulty that the lower courts point out is real.

 

47.I believe that the way to handle this difficulty is different. It should not take the route of denying the right to support based on a finding that the women is a “recalcitrant spouse” (as longs and the Rabbinical Court has not decided this issue in the course of the divorce proceedings), but rather should be based on the recognition that, in appropriate cases, where a woman is divorced after years of not working outside of the home, she should be entitled to “civil” support with a rehabilitative objective, that is “rehabilitative” support according to general principles of the civil law. Of course, since this is a “civil” principle, this must apply, with the necessary changes, to a man who has divorced and is facing the same conditions, as well.  This Court has already said repeatedly that there is a contractual aspect to support, and general principles of fairness and good faith should also be considered on a case-by-case basis. I believe that these are principles that may be taken into account for the purpose of awarding rehabilitative support where, under religious law, the woman does not have a right to support. This would apply to a partner – man or woman – who is left with very limited or no ability to produce an income after the marriage, due to their reliance on the marital relationship and the “division of labor” between the partners during their relationship.

 

48.The right to an award of “rehabilitative support” (under the principles of reliance and good faith) has been recognized by this Court in regard to partners in a  cohabitation relationship that is not subject to regulation by religious personal status law – “common-law” partners (see: CA 805/82 Versano v. Cohen, IsrSc 37(1) 529, 531-32 (1983); CA 2000/97 Lindorn v. Karnit – Road Accident Victims Compensation Fund, IsrSC 55(1) 12, 33-34 (1999)), or even couples married in civil ceremonies abroad (see: CA 8256/99 A v. B, IsrSC 58(2) 213 (2003); HCJ 2232/03 A v. Tel Aviv Regional Rabbinical Court, IsrSC 61(3) 496 (2006) [http://versa.cardozo.yu.edu/opinions/v-tel-aviv-jaffa-regional-rabbinica...).

 

49.To date, this Court has yet to recognize the right of spouses married under Jewish law to “rehabilitative support”. However, at least prima facie, we should not rule out the possibility of awarding support under similar principles of protecting reliance, fairness, and good faith even when the couple is or was lawfully married. For example, consider CA 4590/92 Kahana v. Kahana (January 30, 1994) which addressed the matter of a kohen who married a divorced woman and was obligated to pay her support even after the Rabbinical Court found, in the course of the divorce case, that the woman was required to divorce (given that the marriage was prohibited).

 

50.How can this obligation, to the extent that it regards women, be reconciled with their right to support under religious law? I believe that rehabilitative support may be awarded under the civil law only to a woman who is no longer entitled to support under religious law (and, mutatis mutandis, to a man, too, as he is not entitled to support under religious law to begin with). This may arise at two possible points in time when the man’s duty to pay support expires under Jewish law – either before the divorce is granted but when there is a cause for denying support, or  after the divorce is granted, thus ending the right to support. This is consistent with the approach of Jewish religious law – both relevant points in time, whether before the divorce and after it, are occasions where the marital relationship substantively “ends.” In effect, awarding rehabilitative support even to a woman who was married under Jewish law (subject to appropriate restrictions, such as where she did not work, or worked only on a limited basis, and considering her anticipated challenges in integrating into the workforce) is consistent with the halakhic system in a broad sense. In practice, the woman’s ketubah is meant, inter alia, to guarantee her means of support at least for a period after the end of the marriage, and when she is no longer entitled to support (after divorce) (see for example: Eliav Shochetman, The Woman’s Status in Marriage and Divorce Law, 380, 398-401 (Francis Raday, Carmel Shalev and Michal Liban-Kobi, eds. (1995) (Hebrew)). Adjusting this idea to present circumstances (see and compare: LFA 9606/11 Estate of A (deceased) v. A (May 20, 2013)) supports awarding rehabilitative support to a married woman who was not integrated into the workforce at all, or only partially so, and where the end of the marriage would make it difficult to integrate into the workforce or where time would be needed to adapt in order to do so fully. Additionally, there are halakhic approaches that support awarding compensation to a woman who divorces, as another means (in addition to the ketubah) to provide her a “decent existence” after the divorce, as explained by Menachem Elon in his book (see Menachem Elon, 233-37 (2005) (Hebrew)).

 

51. As noted above, the question of whether the wife has income potential was already examined by the Family Court for the purposes of reducing the amount of the support awarded her under Jewish religious law (see: Halperin-Kaddari, Wife Support: From Perception of Difference to Perception of [In]Equality, 7 767, 789-91 (2005) (Hebrew); CA 6136/93 Bikel v. Bikel (July 6, 1994); CA 5930/93 Padan v. Padan, para. 2 (December 22, 1994)). The other side of the coin would appear to be accounting for a situation where the woman has no income potential, and where this fact results, inter alia,  from her reliance on the marital relationship (as the Court also saw things in the Acase, at 403). Moreover, the enactment of the Basic Laws, and the recognition that the right to a minimally dignified existence is a derivative right of human dignity, appear to reinforce the legal basis for awarding rehabilitative support as a duty stemming from the general  law – regardless of personal status law (though in a manner that is consistent with it, as explained above) – to the extent this is necessary for a minimally dignified existence. Indeed, a divorced woman has no independent right that her former partner ensure her right to a minimally dignified existence. This right is, first and foremost, a right in regard to the state (HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance, IsrSC 60(3) 464 (2005) [http://versa.cardozo.yu.edu/opinions/commitment-peace-and-social-justice... HCJ 10662/04 Hassan v. National Insurance Institute (February 28, 2012) [http://versa.cardozo.yu.edu/opinions/hassan-v-national-insurance-institute]). However, the factor of guaranteeing a minimally dignified existence should influence the interpretation of support law (as this was already considered in the past for the purposes of limiting the scope execution of a support debt (see and compare: LCA 4905/98 Gamzo v. Yeshayahu, IsrSC 55(3) 360 (2001)).

 

52.Rehabilitative support of this type may reduce the incentive for “get recalcitrance” stemming from economic reasons, as well as provide the civil court with an effective tool for considering fairness and good faith. Such rehabilitative support could provide a partial response to the outcome resulting from  partners who contributed to maintaining the household possibly finding themselves in a situation where their work has no realizable “market value” (see: Shahar Lifshitz 332-334 (2005) (Hebrew) (hereinafter: Lifshitz)). To a certain degree, the possibility of awarding rehabilitative support is an obvious supplement to accounting for “career assets” in the division of property (see: LFA 4623/04 A v. B, IsrSC 62(3) 66 (2007) (hereinafter: LFA 4623/04); HCJ 8928/06 A v. Jerusalem Great Rabbinical Court of Appeals, IsrSC 63(1) 271, 280 (2008) (hereinafter: HCJ 8929/06)). Accounting for “career assets” expresses the “advantage” enjoyed by the partner whose work during the years of marriage acquired a special value, particularly where there are clear disparities in income potential because the partner who stayed at home facilitated the working partner’s ability to maximize their income potential (LFA 4623/04, at 86). On the other hand, awarding rehabilitative support also reflects, in appropriate cases, the special “harm” suffered by the partner who exited the workforce and was thus left in a position in which it became difficult to reintegrate into the workforce because of reliance upon the marital relationship and the understandings created within it. Indeed, these considerations may be reflected in the division of property, but that is not always the reality (Lifshitz, at 350-51.) Of course, awarding rehabilitative support must also take account of the manner of the property division– to the extent it already has occurred.

 

53.It is important to emphasize: rehabilitative support is what the title suggests. It is not a permanent entitlement to support, but an entitlement designed to achieve the rehabilitative objective of integration into the workforce – an end that advances dignified existence for the period of “rehabilitation”, which reflects the reliance upon the partnered relationship to the extent that the ability to produce an income was compromised. In practice, this may also be expressed as a “transition” until the realization of a different right to an income, for example, from a pension fund. Therefore,  as a rule, setting a fixed period for the support payments is possible, and may be required, although under certain circumstances this may be for an extended period, particularly where there is a significant difference between the partner who never worked and the supporting partner, and where the separation is at such a late stage of the partnered relationship that the ability of the partner who stayed at home to produce an income is very low.

 

54.Therefore these are considerations that must be taken into account when determining whether one of the partners is entitled to rehabilitative support, and what their amount ought to be. The central issue in this context is the likelihood of alternative sources of income. Therefore, the questions of professional training and work experience of the “home-based” partner, their age (including how close they are to retirement age,) as well as the value of the partners’ property and whether it has already been divided are important. On the other hand, considerations of fault as to responsibility for the relationship ending should not be taken into account. Generally, the prevalent approach to the property and economic aspect of family law is that it should not be subject to fault considerations (see also: HCJ 8928/06; LFA 7272/10 A v. B, para. 24 of my opinion (January 7, 2014)). To this we may add the fact that considering fault may also hinder the rehabilitative purpose of the support award, since it diminishes the abandoned partner’s incentive to rehabilitate through integration into the workforce.

 

55.In theory, one might argue that recognizing the possibility of awarding rehabilitative support will not reduce the phenomenon of “financial” divorce refusal by women in a case in which a woman may attempt to “drag out” the divorce in order to maximize her right to support as long as the marital relationship continues. This is because while recognizing rehabilitative support may address the concern that the partner who did not work during the marriage would be left without any source of income when it ends, it does not negate the fact that a woman is entitled to support under  personal-status law as long as she is married and there are no grounds for denying it, as explained. Rehabilitative support does not diminish this right and thus one might argue that women would attempt to “drag out” the marriage even where they may be awarded rehabilitative support once the marriage is over. Indeed, rehabilitative support does not fully resolve this problem, but I do believe that it significantly reduces it. First, from the moment when there is real “rift” between the parties and the woman no longer lives with her husband (whether by her desire or by his) it is likely she will attempt to return to the workforce or pursue professional training, and the need to do so, in the absence of any obstacle, is part of the good-faith duty imposed by the general law (to clarify, this duty is distinct from the considerations of fault in the relationship’s dissolution). In this context, the time that has lapsed during which the woman could have attempted to return to work may be factored into the decision whether to extend the “rehabilitative support” (considering her circumstances, including her age and health). Second, recognizing the institution of rehabilitative support may be expected to reduce the incentive for artificial delay of the marriage, which burdens partners in a situation of “rift” (and all the more so for the woman, considering the Jewish law consequences of an extra-marital relationship).

 

Other Civil Aspects of Divorce Refusal

 

56.At first glance, the possibility of seeking civil remedies through a tort suit in cases of get recalcitrance would appear to raise a tangential question to those under examination  (see, for example: FC (Jlem) 21162/07 A v. B (January 21, 2010) (hereinafter: FC 21162/07); FC (Krayot) 48362-07-12 A v. B (February 28, 2013); FC (Jlem) 46459-07-12 Z. G. v. S. G. (August 17, 2014)). As noted, in our case the District Court referred to this practice in order to infer that just as divorce refusal may serve as a cause of action in tort, so the Family Court may consider it for the purpose of reducing (or even revoking) the entitlement to support. In my opinion, this analogy is not at all obvious, and I believe it is misplaced.

 

57.I shall first note that the question as to when one may prevail in such a suit has yet to be addressed by this Court, and the case before us is not the proper case for discussing it (for the dispute on this matter see: Yehiel Kaplan and Ronen Perry, Tort Liability of Recalcitrant Husbands, 28 773 (2005) (Hebrew); Yifat Biton, Feminine Matters, Feminist Analysis and the Dangerous Gaps between Them: A Response to Yehiel Kaplan and Ronen Perry, 28 I, 871 (2005)). I shall, therefore, only note  that even according to the view that filing a tort suit for get recalcitrance does not depend on a prior ruling of the Rabbinical Court “obligating a divorce”, this would not ground an analogy that would permit taking the indirect path of denying a right to support that is prescribed by Jewish law, without an authorized decision by the Rabbinical Court as to the “death of the marriage”. There are several reasons for distinguishing the two types of suits, as I shall explain below.

 

58.In my opinion, the primary reason for distinguishing between the cases is that the right to support ordinarily concerns the ongoing maintenance of the woman entitled to support. Therefore, revoking it may affect her ability to survive in the most basic sense, as earlier explained. A decision to revoke entitlement to support is an extreme act when compared to awarding compensation for get recalcitrance (which, in any event, is subject to the rules governing execution of judgments, which condition enforcement upon ensuring that the party concerned be left with the means for existence). Moreover, denying the right to support may leave the woman destitute, and thus lead to “surrendering” to accepting a divorce in order to survive. On the other hand, taking the opposite step of increasing the support amount paid by the man (even in the absence of a divorce obligation by the Rabbinical Court) would necessarily be limited by laws restricting enforcement so as to ensure the right to a minimally dignified existence, as held in the Gamzo case. The result may, therefore, be asymmetrical for men and women.

 

59.Another, more formal but not unimportant reason for the distinction derives from the fact that tort suits for get recalcitrance are adjudicated exclusively under civil law, in accordance with the tests of the tort of negligence, and in any event, the matter is given to the exclusive jurisdiction of the civil courts. On the other hand, determining issues of support is contingent on the marital relationship and draws upon religious law.

 

From the General to the Particular

 

60.In light of the legal principles detailed above, I am of the opinion that the appeal should be granted.

 

61.First, the District Court (and prior to that, the Family Court) was guided by considerations of preventing “get recalcitrance”, but did so without positively determining that the Applicant is required to accept a get, and this while a parallel proceeding on the matter of the divorce was pending before the Rabbinical Court, which holds exclusive jurisdiction over the matter. A woman’s right to support cannot be revoked merely for considerations related to the subject matter of divorce refusal, without a positive finding of the Rabbinical Court that the woman is required to  accept a get. It must be either one or the other – if the woman is a recalcitrant spouse in the sense that the Rabbinical Court found her to be required to accept a get, or it is found that the marriage has come to its end and the get and her ketubah amount were deposited for her, with all that implies,  then she is not entitled to support under religious law. Or, if she is not a recalcitrant spouse, there are no grounds for revoking her support under religious law and neither can it be set for a fixed period of time at this point.

 

62.Indeed, it would appear from the Regional Rabbinical Court’s decision to revoke the specific residence order, as well as from its most recent decision, which was presented before us, that the Rabbinical Court was also under the impression that the marriage between the parties has, to a large extent, come to an end. However, the Rabbinical Court refrained to find as such, and also refrained from finding that the Applicant was required to accept a get. Instead, the Rabbinical Court sufficed in recommending that the partners reach an agreement between themselves. Of course, such findings are dynamic, and to the extent that the Respondent is able to persuade the Rabbinical Court that his wife is a recalcitrant spouse, this finding would have clear implications as to her entitlement to support, as well.

 

63.In our case, no “classic” ground was found, in the words of the Family Court, for revoking the Applicant’s support under religious law (see para. 17 of its opinion). The District Court did not find otherwise, but only wished to take into account, inter alia, the fact of the woman’s “recalcitrance”, although it noted that under the circumstances this was not “recalcitrance” that immediately leads to revoking the right to support. The District Court addressed additional considerations that are relevant to the “rehabilitation” of the marital relationship and the extent of her fault in ending it. I do not believe that these findings can stand. As explained above, to the extent that at this stage there are no grounds under religious law to deny the Applicant’s support (and even more so in light of the most recent decision of the Rabbinical Court presented to the Court) – she is lawfully entitled to it. In addition, to the extent that it be held in the future that the Applicant is not entitled to her support under religious law (and I do not, of course, take any position in this regard), then it would also be necessary to explore whether she must be awarded rehabilitative support, under the principles outlined, and as a result of a concrete examination of the woman’s prospects for securing an income. Indeed, the District Court noted that in setting the amount of support, a court must consider various factors, including whether the woman would have sources of income. The District Court even stated that one of the rationales for the award is affording the Applicant a reasonable period of time to prepare for the future. However, in applying this principle, it did not clarify to what extent the time it set might facilitate the woman’s ability to secure an income when that period of time comes to an end.

 

64.As noted, after the delivery of the District Court’s decision regarding support, which this proceeding concerns, a decision as to the division of the community property was also handed down, which was presented to us. The Respondent may, therefore, wish to argue that the community property at the woman’s disposal would serve as her source of income. However, this argument must be examined on its merits, and we cannot make the desired assumption. What matters for our purposes is that when the decision regarding support was delivered, there still was no decision regarding the property, and its outcome could have left the Applicant with no source of income. On the merits, the consideration of the woman’s share of the community property for the purposes of her ongoing income must factor in the date of sale of the house, the expected sale price to be received, and other information, while examining the woman’s living expenses during the time she may remain without a source of income, and the fact that she relied on the partnered relationship with her husband and the “division of labor” in that framework.

 

65.Under these circumstances, I would propose that my colleagues decide that the Family Court’s decision as to fixing the period of the support be reversed, and that to the extent that there is not change in the couple’s circumstances, including the circumstances relating to the proceedings in the Rabbinical Court, the Respondent continue to pay the Applicant’s support in accordance with the Family Court’s decision, without setting a time for the payments’ expiration.

 

66.I wish to end my opinion by expressing hope that despite the conflict between the parties and the great pain they have inflicted on one another, they may find the strength to ultimately conclude all the proceedings between them, which at the end of the day, benefit neither of them.

 

Afterward: Between the Principle of Good Faith and the Rules of Jurisdiction

 

67.At this stage, after completing my opinion, I have received the opinion of my colleague Deputy President E. Rubinstein. My colleague believes that fixing the term of the support awarded a woman by reason of “recalcitrance” should be permitted even without an appropriate ruling by the Rabbinical Court, on the basis of the required application of the good-faith principle. He further explains that such decisions may “encourage” the parties to reach agreements and end the marriage. I wish to disagree in this regard, although, of course, I do not dispute the general statement that the principle of good faith should appropriately apply to an adjudication between parties in the area of family law, just as it must apply to any other issue.

 

68.Indeed, there can be no dispute that the principle of good faith is an overarching principle of Israeli law, and rightly so. Additionally, I concur with my colleague that the principles of fairness and decency can also be found in the fundamental principles of Jewish law itself, and that is encouraging. However, as I explain below, the dispute between us does not concern whether the principle of good faith obligates the parties and the trial court, but other questions – how it ought to be implemented, and primarily which court does Israeli law entrust with ruling on the question of the death of the marriage, and what are the consequences of that finding for personal status law?

 

69.Given that in the matter of the parties’ before us two parallel proceedings are pending – both in the Rabbinical Court and in the Family Court – I do not believe that we can accept a situation wherein the Family Court issues a ruling concerning recalcitrance that is inconsistent with the rulings of the Rabbinical Court on this very same issue. Insisting on the principle of comity between courts, a point whose importance my colleague, too, emphasizes, is not consistent with conflicting rulings on this matter on an issue that is at the core of the Rabbinical Court’s jurisdiction, and while this issue is yet pending before it.

 

70.My colleague explains that the special care that the Rabbinical Court exercises in regard to recalcitrance must be taken into account. My view is different. The Family Court cannot impose sanctions under the Rabbinical Courts (Enforcement of Divorce Judgments) Law, 5755-1995, against the husband where it is persuaded that he is a recalcitrant spouse in the absence of the proper finding by the Rabbinical Court, regarding which the Rabbinical Court also exercises great care. Similarly, there is no place for the Family Court to deviate from the Rabbinical Court’s position to the detriment of women in matters of support. Otherwise, we may undermine the delicate balance upon which the division of jurisdiction in Israeli family law is founded.

 

71.Even on the merits, I do not believe that the principle of good faith is directed, in this case, at setting support for a particular period of time. My colleague bases his position, inter alia, on the set of incentives that influences women’s conduct during divorce proceedings, and points to the contribution of the position he expresses in his opinion to promoting compromise between the parties. This is but one possibility. However, a no less reasonable possibility is that of “pressuring” a woman who has no independent sources of income to agree to divorce under unfair conditions, only because of her concern over becoming truly impoverished. We must remember that the procedural equality between the couple when one has a steady income and the other lacks a steady income is a fictional equality, and in this sense, the proverbial sand in the hourglass runs out unilaterally to the woman’s disadvantage.

 

72.The response to my colleague’s concern about divorce “extortion” by the woman may be found in other proceedings of a civil nature. This solution is preferable because it does not involve putting existential pressure on a woman left without a steady income, but rather allows for appropriate “recalculation” after the fact, to the extent it is needed.

 

73.Should my opinion be accepted, I would propose that the appeal be granted as stated in paragraph 65 above, and that the Respondent bear the Applicant’s costs in the amount of NIS 20,000.

 

 

 

Deputy President E. Rubinstein:

 

1.I have carefully read my colleague Justice Barak-Erez’s comprehensive opinion. Her opinion presents weighty questions for consideration, however, at the end of the day, I cannot concur in her opinion as to the outcome of this case, although the idea of rehabilitative support she discusses is appealing. Should my opinion be heard, the District Court’s decision – which, in essence, took the same route as the Family Court – would be upheld. I shall restate the gist of the matter, as my colleague presented the details of the proceedings. We are concerned with a couple who married and lived together for 35 years, after which they separated and proceeded to sue each other. Over the years, the husband (the Respondent) worked continually at a regular workplace, carrying pension benefits, whereas the Applicant worked at home and managed the household. She worked out of the home for only brief periods of time. I shall not go into the issues of property described by my colleague, as we are here concerned with the issue of support. The Family Court believed that in light of the Applicant’s refusal to divorce in order to gain advantages in the property proceedings, and for considerations of good faith, support must be set for a fixed period of time that would take all the factors into account. The period set was for two years from the date of filing the suit in 2011. The District Court noted that refusal of a get affects support, but that in this case the Rabbinical Court has yet to decide on the issue of recalcitrance, and the personal status law applies. Thus the support was set for three years from the date of the Family Court’s decision (December 12, 2012) or until the day the Applicant begins receiving her share of the Respondent’s pension, according to the earlier of the two. Hence the application, and it should be noted that we tried unsuccessfully to lead the parties to a compromise.

 

Support for Fixed Periods

 

2.My colleague believes that as long as there are no grounds under personal status law to revoke a woman’s support, it must be awarded as her legal right. Indeed, in her view, it is incorrect for the Family Court to revoke a woman’s support when the Rabbinical Court refrained from finding that she is a recalcitrant spouse in the course of the divorce proceeding.

 

3.Indeed, as my colleague also noted that, under personal status law, only a married woman is entitled to support. This rule binds the Family Court, which follows personal status law in matters of support (section 2(a) of the Family Law Amendment (Maintenance) Law, 5719-1959; B. Schereschewsky and M. Corinaldi, , vol. 1 (2015) 291-92) (Hebrew), yet, as my colleague carefully explained: “This approach of Jewish religious law … is an important point of departure for the discussion here, although it is not its final destination, as explained below and considering the need to account for a wide range of principles that apply in the area of family law, including those drawn from civil law” (para. 31) (emphasis added – E.R.). One of these – and one of the most important – is the principle of good faith.

 

4.Our law recognizes the principle of good faith as a “‘royal, multi-faceted provision” (HCJ 1683/93 Yachin Plast v. National Labor Court, IsrSC 47(4) 702, 708 (1993) (per Barak J.) which casts its net over the different areas of law (CA 2070/06 Equipment and Construction Infrastructures Ltd. and Others v. Attorney Yaakov Greenwald – Receiver (2008)). The principle of good faith is a flexible legal rule, and the court may fill it with content and meaning, and determine whether any particular act deviates from it or complies with it (CA 467/04 Yitach v. Mifal Hapayis (2004)). In this regard, President Barak’s well-known statement in (CA 6339/97 Rocker v. Solomon, IsrSC 55(1), 199 (1999) is apt: “The principle of good faith establishes a standard for the behavior of people who are each concerned with their own interests. The principle of good faith holds that protecting one’s own interest must be fair, and considerate of the justified expectations and proper reliance of the other party. Person-to-person, one cannot behave like a wolf, but one is not required to be an angel. Person-to-person, one must act like a person” (at 279).

 

5.In CA 10582/02 Ben Abu v. Hamadia Doors Ltd., (2005) (hereinafter: the Hamadia Doors case) I was presented with the opportunity to address the moral aspect of the principle of good faith:

 

I will admit without shame that, in my view, the subject of good faith crystallizes moral principles into the law. As Justice (emeritus) Professor Itzhak Englard said in his lecture The Principle of Good Faith in Israeli Civil Law: “There is basis for the view that the aspiration for comprehensive application of the principle of good faith is also based on the desire to incorporate moral values into human relations, including in the commercial field” (lecture in a judges’ conference in Paris, June 2004, p. 2)… in CA 1662/99 Haim v. Haim, IsrSC 56(6) 295, 340, Justice Strasberg-Cohen wrote that the “theoretical foundation for the doctrine of estopple, like the principle of good faith, is rooted in principles of decency and morality,” and she quoted Professor G. Shalev (Promise, Estopple, and Good Faith, 15 Mihspatim 295, 313 (1989))… I cannot but concur with these words of truth, and under section 61(2) of the Contracts Law, they extend over the entirety of private law…” (para. 15).

 

It should be added that “good faith” is not a common term in Jewish law (although linguistically, the origin of the term “good faith” [tom lev] is in the language of the Bible – “In the integrity of my heart [tom lev] and clean hands” (Genesis 20:5)). In his paper Comments on the Draft Civil Code, 5771-2010, in light of Jewish Law (2011) [Hebrew], Dr. M. Wigoda explains that our Sages recognized three other principles that reflect different aspects of the principle of good faith: “Do what is right and good”, “one is compelled not to act in the manner of Sodom" (one is compelled not to abuse a legal right), and the rule of “lacking faith” (originally this phrase referred to reneging on a promise, and later referred more broadly to reprehensible conduct due to a moral flaw, as opposed to breeching an explicit lawful duty); see also Moshe Silberg, Such is the Way of the Talmud (1964) (chapter 7, pp. 97ff.) [Hebrew]). Dr. Wigoda explains that: “these rules are perceived both as general standards that create certain duties, and as principles that control the entirety private law” (pp. 4-5.) Additionally, according to the commentator to Maimonides’ Mishne Torah, Rabbi Vidal of Tolosa (Spain, 14^th century) (Laws concerning Neighbors 14:5): “And thus [the Torah] said, and you shall do the good and righteous, meaning that one must conduct well and honestly with people, and it was not proper in this matter to command details as the Torah’s commandments are eternal and for all time and apply to every matter and issue,  and one is obligated to do so, but the attributes and conduct of people change with the times and the people. The Sages wrote some useful details under these rules, some are absolute rules and some preferred and ways of piety, and this is all said by them.” See also the Hamadia Doors case (para. 16), particularly as to how the principle of good faith is reflected in the principle “what is hateful to you do not do to others,” and as Hillel the Elder said “this is the entire Torah, and  the rest is commentary, go study” (Babylonian Talmud, Shabbat 31a); and also see there one of the questions by which a person is judged by the heavenly court – “did you deal faithfully?” To summarize, good faith is a central legal and moral principle that must interpreted and applied according to the circumstances of the case, and must not be forgotten.

 

6.In CA 32/81 Tzonen v. Stahl, IsrSC 37(2) 761 (1983) then Justice M. Elon first applied the principle of good faith to spousal support obligations: “Although it is a statutory obligation, it has a contractual nature and it is rooted in the marital relationship, which is itself – by nature and at its core – a contractual relationship” (at 771). In LFA 3148/07 A v. B (2007) (hereinafter: LFA 3148/07) in which the Applicant petitioned to increase her support due to the improvement in her partner’s financial circumstances, I noted:

 

As a general rule, the court must consider not only whether a change in support should be considered under personal status law, but also how awarding increased support as requested would influence the entirety of the relationship, for better or for worse, and particularly whether it is requested in good faith. In our case, therefore, there is no reason to intervene in the decisions of the lower courts, which addressed the entirety of the relationship between the parties… [para. 6(4)) (emphasis added – E.R.)].

 

It should be noted that LFA 3148/07 concerned a decision not to increase spousal support, whereas our case concerns revoking it, and see my colleague’s comments in paragraph 44. Put simply, in these situations the court must exercise exponentially more caution on a legal and the human level. And yet, I believe our words are apt in these situations as well.

 

7.Considering the principles of personal status law under which a woman may be denied her right to support, the family courts have reached the conclusion, under general civil-law principle of good faith, that even if the personal status law obligates the husband to continue supporting his wife, in the case of a long separation and a marriage that has effectively ended (“a marriage on paper”) it may be appropriate to relieve the husband of the obligation to pay support. The family courts did so where they were satisfied that the woman’s objection to the divorce stemmed from her interest in support, and believed it was a “ruse”:

 

To summarize things thus far – only when we are concerned with a long separation will the court carefully consider the matter before it from all angles, and scrutinize its circumstances and root causes. This examination is broad, comprehensive, and multifaceted. However, the court will not easily stray from the primary duty that Jewish law imposes on the husband to pay his wife’s support, and make recourse to the possibilities for relieving him of that fundamental responsibility. The court will also consider who is to blame for the separation, whether there is a real chance for reconciliation between the parties, whether the Rabbinical Court required a divorce or merely recommended it, whether the Rabbinical Court ruled as to reconciliation, who is refusing the divorce and whether this refusal is merited, whether all the property issues between the parties have been resolved, and other factors. After the court has gathered the relevant facts, it must attempt to examine them through two lenses, one is the lens of the essence of the law as it is reflected in halakhic decisions and its interpretation under the civil law, and the other, that of the heart of the law, that is, the principle of good faith, a principle which can take the sting out of the law and reconcile it with logic and common sense… [FC (Fam. Petach Tikva) 51689-11-12, I.L. v. E.L. (2013) para. 28) (Judge Weizman); see also FC (Krayot) 11495-11-08, A v. B (2010); FA 765/05 (Jlem) A v. B et al.  (2006) and many others].

 

And also see that decision in regard to the need to strike a balance between  personal status law and “applying moral norms stemming from the principle of good faith, which also have a place in Jewish law” (para. 18).

 

Clearly, the principle of good faith, which covers all areas of life and applies to relationships between strangers in one-time contractual relations, certainly holds an important place when two individuals who decided to join their lives together wish to end their relationship. I believe that a different conclusion would lead the Family Court to do a disservice to this area of the law, by encouraging the continuation of a marriage that has ebbed, by the artificial means of continuing spousal support in a case of “a marriage on paper.”

 

8.However, this reflects one – fundamental -- aspect of the problem. Of course, I am aware that in many cases the woman is left without a source of income after the marriage ends (R. Halperin Kaddari, Wife Support: From Perception of Difference to Perception of [In]Equality, 7 ebrew))and of the concern about the consequences of the end of the marriage for the woman’s entitlement to support when she has not worked outside the home during the marriage – and I would emphasize: did not work outside of the home, as the common term “did not work” does an injustice to a woman who worked, sometimes to exhaustion, in performing household tasks – increases when the division of property between the couple is yet to be completed. These situations were common in past generations, and even though today there are very many couples where both partners work outside the home for purposes of income and for purposes of self-fulfillment, there are still couples, as in our case, where the woman did not work outside of the home for years, or hardly did so, and often, even when she did work, it was limited and her professional advancement was hindered due to the demands of child raising. Nevertheless, it is hard to accept denying the Family Court the option of encouraging the parties to negotiate, with its understanding of the complex dynamics of life, and its practical experience with cases of the sort (to complete the picture regarding the background for get recalcitrance by a man, and Jewish law’s solutions, see: HCJ 6751/04 M. S. v. Great Rabbinical Court of Appeals, IsrSC 59(4) 817 (2004) and the amendment to the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (Amendment 1 of Section 11 of the Rabbinical Courts (Enforcement of Divorce Judgments) (Temporary Provision) Law, 5755-1995, as well as Yehiel S. Kaplan, Punitive Maintenance as a Solution to the Plight of the Wife of the Recalcitrant Husband, 10 381 (2005)). The solution to the difficulty my colleague describes, which I do not take lightly at all, is provided by the law in the authority granted the court under section 8(2) of the Spouses (Property Relations) Law, 5733-1973, to make an unequal division of assets, along with the additional powers it provides. This is expressed in the Explanatory Notes to the Spouses (Property Relations) (Amendment 4) Law, 5769-2008:

 

Section 8 of the Law establishes that under special circumstances that justify it, the competent court may decide that the balancing of the assets of the partners will not be carried out by means of an equal division between them, but according to a different equation. It is proposed to make clear that in determining such  a division, the competent court also factor the future assets of each of the partners (such as goodwill, professional degrees, professional experience, and workplace tenure) and the income prospects of each of them (section 5(2)). In western countries, there is a growing trend in legislation and jurisprudence of considering the financial gaps between the spouses in proceedings for the division of community assets, inter alia, when awarding one-time or periodic compensation to the weaker partner. Often, these gaps are a result of one partner forgoing their professional development and the consequent income prospects in order to allow the other partner to do so (see Shahar Lifshitz, On Past Assets and Future Assets and the Philosophy of Marital Property, 34(3) Mishpatim 627 (2005), primarily p. 728ff. (Hebrew)) [(emphasis added – E.R.) (Spouses (Property Relations) (Amendment 4) (Earlier Balancing of Assets), 5767-2007, H.H. 163)].

 

Moreover, the current state of the law allows partners who did not earn an income – mostly women – to share the pension that their partner receives upon retirement, as in this case, which has great significance.

 

It should be noted that in our matter, the court (FC 24358-08-11 and FC 33489-03-12) did not find it appropriate to rule in that manner, despite the Applicant’s request, for its own reasons. I shall address the issue of rehabilitative support below.

 

9.My colleague further explains in her opinion that it is inappropriate for the court to consider the matter of get recalcitrance, which is given to the exclusive jurisdiction of the Rabbinical Court. She emphasizes – and this is undisputed – that the situation must be must be viewed from the perspective of the principle of comity between courts, and that it is difficult to accept that in a situation in which the Rabbinical Court believes that the reconciliation claim by the party who does not wish to divorce still stands and that ordering a get would be inappropriate, the Family Court should rule otherwise. The principle of comity is undisputedly a central principle of our system (HCJ 8578/01 Haliva v. Haliva, IsrSC 56(5) 634 (2002)), and the civil courts are scrupulous in that regard, and we need not address the complex questions of res judicata. I am the last to take comity between courts lightly. However, the rabbinical courts  have halakhic concerns regarding the matter of a get, which is an extremely complex subject (“Rabbi Judah said in Samuel’s name: One who does not know the peculiar nature of divorce and betrothal should have no business with them” (a, and they should, of course, be respected. But the civil court sees a broader picture in the financial matters. The Family Court has jurisdiction over issues of support, and it is required to adjudicate under personal status law. It is only logical that in that framework, weight will be given to the general principles of the civil law, as well. Moreover, the courts are often called upon to make incidental rulings that are necessary for deciding upon the support issue (section 76 of the Courts Law (Consolidated Version), 5744-1984). It should be further noted, and this may be the main point, that a finding as to the lack of likelihood for reconciliation (“the death of the marriage”) does not imply a halakhic obligation to divorce, and the lack of a divorce obligation does not mean there was good faith. The possibility for reconciliation, or the lack thereof, is determined by examining the entirety of the relationship between the parties over the years, as we can also see in our matter (see the decision of the Rabbinical Court (Rabbinical Court Judges Rabbi Domb, Rabbi HaLevi, and Rabbi Zer) of October 14, 2013, where the court noted that “it seems the Respondent’s goal is that she have a whole house rather than a peaceful home”). Indeed, the Family Court handed down its decision on December 12, 2012, about ten months before the Rabbinical Court’s decision, and at the Applicant’s request, the Rabbinical Court initially attempted, as is usually the case, to explore the possibility of reconciliation.

 

10.My colleague reminds us (in para. 36) that, in cases in which the Rabbinical Court has orders a get, revoking the right to support  may be accompanied by supplementary steps such as entrusting the get and the ketubah amount to a third party. The issue of entrusting the get is generally relevant in the case of a recalcitrant husband, while the matter of the ketubah is, of course, highly relevant to the general proceedings as to property. My colleague ably reviewed the halakhic literature on the topic of “the death of the marriage.” In my view, the question before us is whether to maintain the moribund marriage  through “artificial respiration” merely because of the property dispute. In general, I do not believe that the doors of the family courts are barred when the Rabbinical Court, for its own considerations, has yet to rule on ordering a get, while the Family Court is persuaded there are no prospects for the marriage, although appropriate caution should be exercised. The Family Court holds jurisdiction over the subject of  support, and in considering the overall picture, there is no reason for it not to see the couple as it truly is, where the get is clearly serving as a “property weapon”.

 

11.In this case, under the circumstances described – and given that the lower courts, including the Rabbinical Court, were, in fact, under the impression that the marriage had reached its end and that the Applicant was delaying the divorce in order to improve her financial situation – I am of the opinion that the Family Court was correct in its decision, as was the District Court, to award support for a fixed period of time. Therefore, the approach of the District Court, which took further steps to accommodate the Applicant, is acceptable to me.

 

Rehabilitative Support

 

12.My colleague proposes awarding rehabilitative support in cases where the partner is no longer entitled to support under personal status law, and this at two possible points in time: “either before the divorce is granted but when there is a cause for denying support, or after the divorce is granted, thus ending the right to support” (para. 50). I am not certain whether the term “rehabilitative support” is appropriate, and perhaps “bridging support” is preferable where the support is meant to bridge the period remaining until retirement. This mechanism is primarily rooted in the desire to assist the partner (in the majority of cases, the woman) when she lacks independent sources of income, and where there is reliance on the partnered relationship. I agree with my colleague’s holding that “in appropriate cases, where a woman is divorced after years of not working outside of the home, she should be entitled to ‘civil’ support with a rehabilitative objective, that is ‘rehabilitative’ support according to general principles of the civil law.” (para. 47); this on a case by case basis, including examining the partner’s possibility to integrate back into the workforce, and the entire property arrangement between the couple.

 

13.The basis for awarding rehabilitative support where they were not agreed upon in advance is, as my colleague noted, as well, also to be found in the principle of good faith, which attributes to the couple a normative intent as to support (LCA 8256/99 A v. B, IsrSC 58 (2) 213 (2003)). In appropriate cases, I believe that this is even consistent with the spirit of section 8 of the Spouses (Property Relations) Law, which – as noted – seeks to grant the court flexibility in balancing resources and to deviate from the principle of equal distribution prescribed by the law. This can be seen, in my view, as an attempt to achieve “real equality” as opposed to “formal equality.” Indeed, when we are concerned with “rehabilitative support” we are not concerned with a permanent entitlement to support, but rather with an entitlement designed at rehabilitation until another entitlement to income materializes, while considering the factors of good faith and fairness in this regard, as well.

 

14.In addition to the cases referred to by my colleague in regard to partners who are not “regulated” by religious law, the family courts have, on more than one occasion, awarded rehabilitative support to partners married in accordance with Jewish law. For example, in FC (Haifa) 7282-12-09 A v. B (2011), support was awarded after the couples’ divorce (before the issue of the community property and its division was decided) in light of the woman’s financial dependence on her partner after 28 years of marriage, during 16 years of which she managed the household. Also see FC (Krayot) 11495-11-08, mentioned above, where it was held that the right to support would be for a fixed time in light of the principle of good faith and in order not to perpetuate a “marriage on paper”. It was held that should the parties divorce beforehand (thus prima facie extinguishing the obligation for support under personal status law), the woman would be awarded rehabilitative support. In practice, this mechanism facilitates a divorce where the relationship has died, while granting the woman support for an additional period of time. To a certain extent, it could be said that we are concerned with semantics, that is, with a formula designed not to cause friction with the Rabbinical Court, but its goal is to achieve the same material outcome that the lower courts reached in our case, although by a different path.

 

15.I do not rule out this manner of awarding support in appropriate cases, however, in my opinion, it is a tool in the Family Court’s “toolbox” that should be used in accordance with the circumstances, in order to solve the matter of alternative income. However, I fear this method does not always solve the cases of “dragging out” a moribund marriage by artificial means, in order to achieve economic advantages, and I am not certain that it leads to more attempts to integrate into the workforce than before.

 

16.It would not be superfluous to note that support under the personal status law is clearly to be paid when the husband is the recalcitrant spouse, and further discussion of this matter would, indeed, be superfluous.

 

17.And now to the case before us. With all due respect, I disagree with my colleague’s statement in paragraph 63. At the end of the day, once I have not seen fit to bar the way to the civil courts considering the “clinical death” of the marriage, I see no flaw in the position of the lower courts here, including the District Court’s fixing of support for a relatively extended period of time. It is entirely possible that the District Court’s ruling is what prompted reaching a decision as to the property.

 

18.In concluding,  I would note that I will not address the issue of tort claims in cases of recalcitrance, which raise significant questions (FA (Tel Aviv) 46631-05-11 A v. B (2014); FC (Jlem) 1748/06 A v. B (2011); FC (Jlem) 6743/02 K. v. K. (2008)), though I, with all due respect, and with proper concern for the issue of a “coerced get” [get me’useh], which is often at the basis of such disputes (due to the fear that the husband’s consent to the divorce was a result out of concern about tort damages rather than his free will), believe the path to compensation should not be barred. In this context, also see the Professor A. Radzyner’s enlightening article,  “The Essential Thing is not the Study, but the Deed”: Get Procedures after Tort Claims and the Policy Respecting Publication of Rabbinical Court Judgments, 44(1) M  5 (2105). It should be noted that, according to this article, a get can be granted even after compensation is paid. I believe that a decision to revoke support is no more harsh than a decision finding that a  recalcitrant husband is a tortfeasor and a nuisance, and liable for compensation.

 

19.In closing, I think it appropriate to briefly address my colleague Justice Erez-Barak’s response. I fear that I do not agree with presenting the matter as a binary dichotomy between the jurisdiction of the Rabbinical Court in matters of divorce and the jurisdiction of the Family Court in matters of property. The Family Court, in adjudicating matters of property, which are undisputedly within his primary jurisdiction by default, sees the picture before it in the matter within its jurisdiction (that is, matters of property) and must render judgment. It does not consider factors of halakha, and does not end the marriage in the halakhic sense. However, it is not required to grant one of the partners, be it the husband or the wife, a perpetual key. Surely, my colleague has no intention of presenting the Family Court or the District Court as insensitive to distress of the male or female partner who has no source of income, or to the rights of women. And indeed, this is not the case in general, nor is it the case before us. The Family Court, like the District Court, as fair courts, will know how to navigate in the appropriate cases, and properly examine good faith in matters of property before reaching a decision. The Rabbinical Court’s jurisdiction stands and is respected. Finally, as for the comments by my colleague Justice Zylbertal, I believe his concern as to the possibility of filing tort claims for get recalcitrance, which he wishes to put at center stage, should not be taken lightly. His reasons for disputing our colleague Justice Barak-Erez’s distinction between suits for fixing periods of support for recalcitrance and tort suits for recalcitrance are essentially acceptable to me.

 

20.In conclusion, in light of the above, should my opinion be heard, the District Court’s decision would be upheld, and support would be paid until the date set. At the end of that period, it will be possible to reexamine the situation between the parties, and whether there might be any justification for rehabilitative support on the basis of a new request.

 

21.After reviewing the opinion of my colleague Justice Zylbertal, and having been left in the minority as to the operative outcome, I would suggest that, at the end of the day, the gap between my colleagues’ positions as to the outcome and my own is not so wide. My colleague Justice Barak-Erez proposes that the Respondent continue to pay the Applicant’s support as decided by the Family Court, without determining a termination date, whereas, in my opinion, the situation ought to be revisited at the end of such period – this coming December of 2015, when the possibility for extending the period of support may be considered. In any case, as my colleagues are in the majority in this matter, the operative outcome is according to the opinion of my colleague Justice Barak-Erez.

 

 

 

 

Justice Z. Zylbertal:

 

1.I have carefully read the compressive, thorough opinions of my colleagues Justice D. Barak-Erez and Deputy President E. Rubinstein. I will begin by stating that in the disagreement between my colleagues, I concur with the outcome arrived at by Justice Barak-Erez, whereby the appeal should be granted as set out in paragraph 65 of her opinion. Nevertheless, as will be explained below, I cannot concur with all the principled findings that led my colleague to that outcome, and I concur with the opinion of the Deputy President on the main point of dispute between my colleagues.

 

2.The discussion here may be divided into two primary issues: the first, on which my colleagues are divided, is the question of jurisdiction (or, at least, how it is exercised). Is the Family Court permitted to revoke a woman’s support without a prior decision by the Rabbinical Court requiring that she accept a get, and without a positive finding that the couple’s marriage has come to an end? My colleague Justice Barak-Erez’s position is that the principle of comity between courts calls for restraint by the civil court, and therefore, in her opinion, as long as the divorce proceedings are pending in the Rabbinical Court, the civil court cannot base rulings as to the issue of support on “recalcitrance” in regard to the get in the absence of an appropriate finding by the Rabbinical Court on this issue. Justice Barak-Erez added that this conclusion results not only from the principle of comity between courts, but also from the Jewish religious law that applies in our case, according to which revoking a right to support in a case where a get has been ordered must (in the opinion of many) be followed  by supplementary steps that are within the exclusive jurisdiction of the Rabbinical Court, and that require the active involvement of the Rabbinical Court (entrusting the get and the ketubah amount to a third party.)

 

The Deputy President disputes Justice Barak-Erez’s position on the matter of jurisdiction. His position is that the civil courts may revoke a married woman’s support when they are satisfied that the marriage has effectively ended and that the woman refuses to accept her get only for financial reasons, even in the absence of a finding by the Rabbinical Court that the woman is required to accept the get. The Deputy President explained that the civil court often makes incidental findings that are required for determining the issue of support and the property matters under its primary jurisdiction (section 76 of the Courts Law [Consolidated Version], 5744-1984). In the Deputy President’s view, the civil court’s finding that a woman must lose her support because she is a “recalcitrant spouse” does not lead to the end of the marriage in the halakhic sense, and does not deviate from the principle of comity between courts.

 

3.My colleagues’ positions are well reasoned and internally consistent, and each expresses important (sometimes conflicting) principles that are necessary for a functioning legal system. Still, my position is that a broader perspective as to the unfortunate phenomenon of “get recalcitrance” tips the scale in favor of the Deputy President’s position, and thus, on the fundamental issue in question, I join his opinion. I will explain my conclusion below.

 

4.Both the Deputy President and Justice Bark-Erez briefly discussed an issue that is tangential to ours – the possibility of being awarded monetary compensation in cases of get recalcitrance through a tort suit (see paras. 56-59 of Justice Barak-Erez’s opinion, and para. 18 of the Deputy President’s opinion.) Indeed, in recent years, various legal and halakhic means have been explored in order to contend with the harsh phenomenon of get recalcitrance, including the option of filing a tort claim against the recalcitrant party. In this context, Justice Barak-Erez’s position on the jurisdiction issue, as presented above, may – by a possible analogy – lead to the outcome that it will not be possible to award tort damages against a recalcitrant spouse in the absence of a positive finding by the Rabbinical Court  requiring the husband to deliver a get. Justice Barak-Erez considered this possibility in noting:

 

In my opinion, this analogy is not at all obvious and I believe it is misplaced… There are several reasons for distinguishing the two types of suits, as I shall explain below.

In my opinion, the primary reason for distinguishing between the cases is that the right to support ordinarily concerns the ongoing maintenance of the woman entitled to support…A decision to revoke entitlement to support is an extreme act when compared to awarding compensation for get recalcitrance…Another, more formal but not unimportant, reason for the distinction derives from the fact that tort suits for divorce refusal are adjudicated exclusively under civil law, in accordance with the tests of the tort of negligence, and in any event, the matter is given to the exclusive jurisdiction of the civil courts. On the other hand, determining issues of support is contingent on the marital relationship and draws upon religious law.

 

5.With all due respect, in my view, the distinction my colleague proposes is not problem free. I fear that her position may seal the fate of tort claims against recalcitrant spouses in the absence of appropriate findings by the Rabbinical Court, and this despite my colleague’s clarification that such an analogy is misplaced. Below, I will attempt to explain why I believe that such an analogy is possible, as well as the problems posed by the reasons for distinguishing between the two claims that my colleague addressed, and why, in my opinion, such a distinction is inappropriate.

 

At the end of the day, both in regard to tort claims and support claims, the civil court will be called upon to determine whether one of the partners is a “recalcitrant spouse.” This issue, which goes directly to the issue of the state of the couple’s marriage, is subject, as noted in my colleague’s opinion, to the exclusive jurisdiction of the Rabbinical Court. It can be further assumed that when a support suit (as in our case) or a tort claim for get recalcitrance is filed in the civil court, a parallel  divorce proceeding is pending in the Rabbinical Court, such that the principle of comity between courts applies equally to both types of claims. Therefore, it is not impossible that establishing my colleague Justice Barak-Erez’s position as binding precedent whereby the civil court may not determine that the woman is a “recalcitrant spouse” in the absence of a finding to that effect by the Rabbinical Court would, in practice – and without persuasive reasons for distinguishing the two types of claims – lead to an analogous conclusion with regard to tort claims for get recalcitrance. In other words, in the absence of a finding by the Rabbinical Court that the man is required to issue a get, it will be impossible for the civil court to find that the husband is recalcitrant and order that he pay compensation in a tort action. In this context it should be emphasized that rabbinical courts are very cautious, for their own reasons, in regard to ordering a man to deliver a get, and it often takes many years from the beginning of the conflict and the filing of the divorce suit until the Rabbinical Court orders that the issuance of a get is required. It should also be noted that the family courts, which have been hearing tort claims for get recalcitrance in recent years, vacillated on this issue, but it would appear that the prevailing approach allows them to grant such claims (under the tort of negligence) even in the absence of “get obligation” by the Rabbinical Court (see: FC (Jlem) 46459-07-12 Z. G. v. S. G. (August 17, 2014) para. 51). As noted, I fear that accepting my colleague’s approach, and its resulting application to the parallel case of tort claims against “recalcitrant spouses” as well, would lead to a change in the current state of the law regarding such claims, which is, in any event, somewhat vague, and will seriously undermine the possibility of employing one of the central tools for combating this wrongful phenomenon.

 

6.Justice Barak-Erez, who is aware of the possible ramifications of implementing her position in regard to tort claims for get recalcitrance, made it clear that she believes that the analogy above is misplaced, and even provided two reasons for her distinction between the types of claims. In doing so, my colleague attempts to alleviate the concern for the undesirable consequences of her position in the context of the general fight against the phenomenon of get recalcitrance to which I referred. However, as I will explain below, I do not believe that there is any real justification for the distinction proposed by my colleague. Moreover, I believe the proposed distinction may lead to a lack of coherence and legal consistency, and create different laws for recalcitrant husbands and recalcitrant wives. Therefore, I am unable to agree with my colleague’s fundamental position, as well as with the attempt to restrict that position so that it would apply only to limiting the periods for the payment of support in response to get recalcitrance, as opposed to tort claims in which the civil court must consider which of the parties is the recalcitrant spouse. I shall explain my position.

 

As noted, my colleague gave two reasons for a distinction between suits for limiting the period of support due to get recalcitrance and tort suits for get recalcitrance. The first and central reason is that a decision to revoke a woman’s support is a harsher act in comparison to awarding compensation for get recalcitrance. Therefore, as I understand it, her position is that the civil courts must not be granted authority to revoke a woman’s support without “speed bumps” of sorts, or threshold requirements, in the form of the Rabbinical Court’s order requiring the issuance of a get, because of the severe consequences of such a decision. On the other hand, as the argument goes, awarding compensation for get recalcitrance would not render the recalcitrant spouse impoverished or in a state of existential distress, and thus my colleague is willing to permit the civil courts to rule on this matter even without “speed bumps” or other moderating mechanisms. With all due respect, I cannot agree. Indeed, a decision to deny support to a woman who for years relied on her husband’s income may have a dramatic effect on her life and bring her to a state actual poverty. Therefore, my position is that clear rules must be established as to the circumstances under which it may be possible to revoke a “recalcitrant” woman’s support, so that reducing women to poverty will not be possible (see, for example, my position in regard to fixing the support of the Applicant at bar, below.) We must assume that the family courts will act responsibly in regard to the issue of revoking a woman’s support, and will rule in accordance with the guidelines that will be established in the case-law as to the circumstances in which a woman’s support may be revoked for being a “recalcitrant spouse.” I shall further comment that even under my colleague’s approach, revoking support from a “recalcitrant wife” would be possible after the Rabbinical Court orders her to accept a get, so that the harsh outcomes of revoking the support would not be fully prevented, but only delayed until after the Rabbinical Court hands down an appropriate decision. I do not see much point in this. A decision to deny a woman support for “recalcitrance”, whether it is given before the “get obligation” by the Rabbinical Court or after it, must, in any case, be made very carefully, with consideration for the reason for the recalcitrance, the woman’s prospects of supporting herself, and the understandings between the couple throughout the marriage (and on this – in detail – below). Therefore, I do not share my colleague’s position that the harsh consequences of revoking support of the recalcitrant spouse warrant a distinction between such a suit and a tort claim for recalcitrance. In my view, a finding whereby a civil court may revoke a woman’s support only after she is required to divorce by the Rabbinical Court is merely delaying the inevitable, but it does not offer a real solution for concerns about reducing the recalcitrant woman to a state of poverty. Below, as noted, I will discuss the considerations that the civil court must weigh before reaching a decision with such dramatic consequences, and this, I believe, would provide a real response to the concerns my colleague has raised.

 

The second reason my colleague mentioned for distinguishing between suits for denying a woman’s support and tort claims for “get recalcitrance” is based on the fact that tort claims are adjudicated exclusively under civil law, and that jurisdiction over them is granted only to the civil courts. As opposed to this, according to Justice Barak-Erez, ruling on the matter of support depends on the marital relationship and draws upon religious law. Here, too, I am not persuaded that the distinction my colleague proposes will indeed be possible, inasmuch as the tort cause of action – the get recalcitrance – is itself dependent upon religious obligations and norms stemming from the applicable religious law, and it may not be viewed as a classic, “pure” civil tort claim, as my colleague implies.

 

I would further add that the distinction proposed by my colleague between the two claims – that claims to revoke a woman’s right to support would require a positive finding of the Rabbinical Court requiring a get, but that such a finding would not be required in tort claims against a recalcitrant spouse – may be interpreted, and with some justification, as an improper distinction between the law applicable to recalcitrant husbands and the law applicable to recalcitrant wives.

 

7.In conclusion, though it is clear from my colleague’s opinion that, in her view, there is no place for an analogy between her general position on denying support and the tort claim for get recalcitrance, I believe that such an analogy is possible and even warranted, and I do not find it proper or possible to distinguish the two cases. Therefore, although this consideration is beyond the scope of this case, I saw fit to emphasize it and bring it to center stage as a primary consideration for joining the position of the Deputy President on the issue of jurisdiction. As stated, the fundamental positions of my colleagues are possible, in my view, in terms of their logic and the important values that each expresses. Therefore, in determining which of the two is preferable, and with a broad perspective as to their future ramifications, I find that Justice Barak-Erez’s position strikes a hard blow that significantly restricts the powers of the civil courts when dealing with the difficult phenomenon of get recalcitrance. Therefore, and as it is possible in our legal system, as extensively detailed in the Deputy President’s opinion, my position is that the civil courts are authorized, in principle, to revoke the support of a “recalcitrant woman”, even in the absence of an explicit ruling by the Rabbinical Court requiring her to accept a get. Therefore, as stated, my position on the issue of jurisdiction is as that of the Deputy President.

 

8.The second question that should be discussed after determining the matter of jurisdiction, is what considerations the court must contemplate before revoking a woman’s support due to “get recalcitrance”, and whether, under the circumstances of this case, fixing a time period for the Applicant’s support was proper.

 

Indeed, we must assume that leave for appeal on a “third incarnation” would not have been granted were this issue adjudicated on its own and independently from the jurisdiction question, because it seemingly does not raise an issue of public or general importance that goes beyond the matter of the direct parties to the proceedings (LCA 103/82 Haifa Parking Lot Ltd. v. Matzat Or (Hadar Haifa) Ltd., IsrSC 36(3) 123 (1982.)) Leave to appeal was granted in our case because of the public and general importance of the jurisdictional question, discussed above. Having concluded that the Family Court is authorized, in principle, to fix a time period for a woman’s support due to “get recalcitrance” even in the absence of a positive finding by the Rabbinical Court, the fundamental question that was the reason for granting leave to appeal is decided, and it is held that the lower courts’ ruling was within their competence. Therefore, we could have stopped here and upheld the District Court’s ruling without further intervention into the operative, concrete matter before us. This is the path that the Deputy President adopted in reaching the conclusion that support should be paid to the Applicant until the date set by the District Court (that is until December 31, 2015). The Deputy President added that, at the end of that period, it would be possible to reconsider the situation between the parties, and whether there is justification for awarding rehabilitative support on the basis of a new motion. On this point, my position diverges from that of the Deputy President. I believe that once leave for appeal was granted on the fundamental question, and once a comprehensive, in-depth discussion into the case at hand was conducted, the door is now open to consider the additional questions the case raises, including the matter of the actual application in the circumstances before us. Moreover, as will be explained below, this question, too, has fundamental, broad consequences that go beyond the particular matter of the parties (on the broad jurisdiction of appeals courts over family court decisions, see Chemi Ben Nun and Tal Havkin, The Civil Appeal 568-71 (3rd ed., 2012) (Hebrew)).

 

9.What, then, are the considerations the Family Court must consider when it is called upon to fix the period for support or revoke the support of a married woman merely because she is delaying the divorce and refusing to accept her get for financial reasons?

 

I have noted above that the phenomenon of get recalcitrance is wrong and severe. It exploits the get – which is a “ticket” out of a failed marriage – as a bargaining chip for extortion. Often male partners refuse to release their wives from a marriage in which they are no longer interested, and condition their consent on financial demands and compromises in which the women partners forgo their property rights. In my opinion, this wrongful and painful phenomenon requires that we find legal and halakhic tools that would respond to the plight of those who for many years (often – their fertility years) beg for the possibility to end a marital relationship which they do not wish to continue, and for the possibility to move on to a new relationship.

 

10.Though I present this phenomenon in a gender-based manner, clearly when the woman refuses to accept a get and allow the husband to end the marriage and go on with his life in order to compel him to forgo his property rights or for sheer vindictiveness, the matter is just as serious. Parenthetically, I would note that, nevertheless,  the distress of women who are refused a get is more extreme than that of men, primarily because a married woman may not start a new family with another man (that is “move on with her life” without a get) without her new children being considered mamzerim [bastards] in the eyes of Jewish halakha. Married men do not face this problem, and the may go on with their lives and raise new families without the having the cloud of halakhic “bastardy” hanging over the heads of their future children.

 

11.In light of all this, it is clear why, in appropriate cases, the Family Court must be allowed to deny incentives to recalcitrant men and women who act out of a lack of good faith (to put it mildly). However, in my opinion, the matter at hand is not among those cases, at least not obviously. We must distinguish between recalcitrance that is rooted in personal vindictiveness or extortion, and recalcitrance that is rooted in the absence of adequate financial protection for the financially weaker party in a divorce. It seems that when the support guaranteed to a woman who, as in our case, managed the household for decades and never integrated into the workforce or acquired a vocation or profession, is absolutely stopped upon divorce (without simultaneously providing a solution for her financial distress in the division of property), she must not be condemned for refusing to divorce due to her economic dependence on her husband. Surely, this is not analogous to the more difficult case of a “get recalcitrance” which, as noted, involves extortion and vindictiveness (Shahar Lifshitz, Family and Property Relations: Challenges and Tasks subsequent to the 4th Amendment of the Property Relations Law, 1 Hebrew)and see the references there; and also see the end of section 5A(d) of the Spouses (Property Relations) Law which mandates that “the refusal of the applicant [for balancing resources – Z. Z.] to waive rights to which they or their children are entitled by law, shall not be deemed an absence of good faith”).

 

12.Indeed, there are currently many legal tools designed to contend with the financial distress of the “home-based” partner and the inequality in the ability of partners to produce income when the division of labor during the marriage was the “traditional division.” A significant number of these tools were mentioned, in one way or another, in the opinions of my colleagues, as well. These include, for example, “rehabilitative civil-support,” which was discussed at length in the opinion of Justice Barak-Erez, as well as the possibilities for an unequal balancing of resources, for division of human capital and resources, and compensation for career losses. Indeed, as a general rule, the court adjudicating the end of the couple’s marriage has a full “toolbox” that is meant to bring about a just outcome, as well as  the economic protection of the “home-based” partner after the divorce.

 

13.Sadly (and this is regretfully typical of proceedings between partners due to the split jurisdictions in the area), the picture before us at this point is only very partial and limited. The full picture of the couple’s assets and its division has not been presented to us, and the parties did not present arguments on the issue of balancing the assets between them or the division of non-monetary assets such as human capital or career assets. Although the Family Court did decide on the issue of the division of assets between the couple (and denied the woman’s request for an unequal division in her favor), the Applicant informed the Court that she intended to appeal that decision (and we were not informed as to whether any appeal was actually filed). In any event, there is not doubt that in the absence of many relevant details as to the Applicant’s ability to maintain herself after the divorce, it is extremely difficult to reach a just outcome on the matter of support in and of itself. That being the case, and although we are unable to “complete the task”, neither are we free to absolve ourselves of it [ 2:16]. We must, despite our  frustration, determine only the issue before us solely on the basis of the facts and arguments of which we are aware.

 

14.Before us is a couple that, until the dispute between them erupted, were married for about thirty-five years, raised three children, and lived a shared, full life together that included shared vacations and a warm relationship (see para. 31 of the District Court’s decision). Over the course of  the marriage, the Applicant hardly worked outside of the home, and she is currently over fifty years old. In other words, during all of her adult life, the Applicant relied on the income of the Respondent, her husband, and did not acquire a profession or professional experience through gainful employment. It is therefore understandable why, when the dispute between the couple began, the Applicant became concerned about the implications of a future divorce for her financial circumstances and daily survival, and why she filed a suit for support. Similarly, it is understandable that as long as the entirety of the couple’s financial relationship and division of property has not been settled, and lacking any secure, stable source of income, the Applicant refused to divorce and forgo the support to which she is lawfully entitled. Thus, I do not find that the Applicant’s delay of the divorce necessarily proceeds from  extortion or vindictiveness, and it is entirely possible that the refusal to divorce before a final determination as to the division of the property between the couple derives from a concern over coming out of the divorce process having lost everything and without financial support.

 

To all the above we must add the fact that the Respondent is expected to retire relatively shortly (and in any event, in the next few years), and there is no dispute that the Applicant will be entitled to pension rights accumulated until the time of the rift. In other words, effectively the matter of the Applicant’s entitlement to support concerns only a short period of time, which is a “transitional period” of sorts, until the Respondent retires and she receives her share in his pension rights.

 

15.This being the case, my position is that, under the circumstances of the case, in light of the Applicant’s age (which is not very far from retirement age) and her limited prospects of integrating into the workforce, gaining experience and earning a satisfactory income during the short time left until the Respondent’s retirement,  setting a fixed period for her support would not be appropriate. The District Court noted that one of the rationales for fixing the term of support was to allow the Applicant a reasonable amount of time to prepare for her future. However, as my colleague Justice Barak-Erez noted, in applying that principle the lower court did not explain to what extent the term it set (about three years from the date of the Family Court’s decision) is supposed to serve the woman’s ability to produce an income when that term comes to its end.

 

We must bear in mind that requiring the Applicant to go out and attempt to integrate into the workforce may be an excessive burden in view of the short period of time she would be able to work before both parties reach the age of retirement. Above all, and this must be emphasized, after many years of common effort in maximizing the couple’s assets (including, the Respondent’s ability to produce an income), it would be unjust  that the Applicant be the one to bear the primary financial costs of the divorce, and it would be unfair that her quality of life and financial security be compromised while the Respondent continues to enjoy a high salary and the lifestyle to which he has been accustomed. Requiring a woman in her fifties to integrate into the workforce within three years (for any job?  for any pay?) only because her husband decided that he wishes to end the marriage between them is unreasonable. And it should further be emphasized that the Respondent’s decision to divorce the Applicant is a legitimate decision, in and of itself, but it does not allow shirking the responsibility stemming from decades of understandings that led to the current state of affairs. Therefore, my position is that, in the case at hand, the term of the Applicant’s support must not be fixed as long as she does not receive her share in the Respondent’s pension rights.

 

16.As noted, this finding relies upon an incomplete picture of the facts and data related to the division of property between the couple. Therefore we should make it clear that this determination would not permit the Applicant to “double dip”. If it be decided in any of the other proceedings conducted between the partners that she is entitled to any periodic payments that represent her share in the Respondent’s monthly salary (in the form of civil support, an unequal division of resources, career assets, and the like), it will be appropriate to set off the payment of support, which is designed to realize the very same goal.

 

17.In light of the above, we would again make it clear that there may indeed be cases in which the civil court would be authorized to fix a woman’s support for a set period, even in the case of a woman who did not work outside the home for many years. For example, a woman facing a long period of time until the age of retirement may acquire a profession, gain experience and stand on her own two feet financially within a reasonable adjustment period (the length of which would depend on the concrete circumstances). During the adjustment period, the woman would be entitled to her support (or to a similar amount through one of the other legal tools at the court’s disposal), until she realizes her income potential. There is also great significance to the nature of the relationship during the years of marriage, and primarily to the question of whether the man encouraged his wife to manage the household and thus forgo acquiring a profession or higher education, or whether he did all he could to facilitate her personal and professional development, and it was she, contrary to his wishes, who chose to stay at home. These considerations are relevant and must be taken into account by the Family Court when adjudicating a request to fix the period of support for a woman who has no independent sources of income.

 

18.Before concluding I would emphasize that I am not ignoring the concern that a decision not to set a fixed time for the Applicant’s support may become an incentive for her, and for other woman under similar circumstances, to continue to refuse to divorce. Nevertheless, we cannot ignore the fact that negotiations between the parties over a future settlement are not conducted in a vacuum. The parties know that if they do not arrive at an agreement, the compulsory arrangement the court will establish will be in accordance with the relevant legal rules. Therefore, it may be assumed that husbands – like the Respondent in our case – who foresee a high probability of being obligated to pay their wives’ support (or another financial obligation that would reflect the future support of their wives through one of the other possible legal tools) would conduct the negotiations over the division of property accordingly. To the extent that the negotiations for a settlement between the couple would include a proposal for periodic or fixed payment of equivalent value to the woman’s support payments, and the woman would still maintain her refusal to divorce as an  extortionist or vindictive tactic, the court may take this into consideration and fix the period of her support, and thus somewhat mitigate the concern over incentivizing wrongful refusal.

 

19.In conclusion, on the fundamental question at issue in this application for leave to appeal, I concur with the position of the Deputy President: the family courts may fix the term of support for a woman by reason of get recalcitrance, even in the absence of an order by the Rabbinical Court requiring a get.

 

However, my position is that under the circumstances of the case at hand, fixing period of the Applicant’s support would not be appropriate, both because her delay of the get in not necessarily a result of wrongful vindictiveness or extortion, that is, we are not concerned with a lack of good faith that would justify setting a time limit for support, and in light of the understandings that characterized the couple’s marriage, the Applicant’s age and her prospects for integrating into the workforce during the short adjustment period left until the partners reach the age of retirement. Therefore, under the circumstances of this application for leave to appeal, I concur with the operational outcome of my colleague Justice Barak-Erez, as detailed in paragraph 65 of her opinion. The case is remanded to the Family Court to rule on the matter of support in accordance with the Rabbinical Court’s updated decision and in accordance with the considerations outlined above. Until a further decision by the Family Court, the Respondent shall continue to pay the Applicant her support as decided, without fixing a date for the termination of payment.

 

                                                                                   

                                                                                   

 

The Appeal is granted in regard to the operative outcome, as stated in paragraph 65 of the opinion of Justice D. Barak-Erez. The Respondent will bear the Applicant’s costs in the amount of NIS 20,000.

 

Given this 23^rd day of Heshvan 5776 (November 5, 2015)

 

 

 

 

 

 The Supreme Court sitting as Court of Administrative Appeals

AAA 662/11

 

Before:                                                The Honorable Justice E. Hayut

                                                The Honorable Justice N. Hendel

                                                The Honorable Justice U. Vogelman

 

The Appellants:                       1.  Yehudit Sela

                                                2.  Sima Ben Haim

                                                3.  Peri Shahaf

                                                4.  Yinon Sela

                                                5.  Yoav Ben Haim

                                                6.  Katy Shilo Oliver

                                                7.  Michael Ayash

                                                8.  David Cohen

                                                9.  Amnon Ben Ami

                                                10. Zachary Grayson

                                                               v.

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

                                                2.  Kfar Vradim Local Council

                                                3.  Oriette Amzalag

                                                4.  Shimon Amzalag

                                                5.  Victor Haziza

                                                6.  Tibi Hertz

                                                7.  Jacques Ben Zaken

                                                8.   Nissim Avital

 

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

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

 

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

Attorney for the Respondents: Haim Pitchon, Adv.

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

 

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

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

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

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

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

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

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

 

Judgment

 

Justice U. Vogelman:

 

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

 

Background

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

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

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

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

 

Proceedings in the Lower Court

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

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

 

            Criterion                                                                                              Relative Weight

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

 

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

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

The Judgment of the Lower Court

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

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

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

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

 

Arguments of the Appellants

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

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

 

Arguments of the Respondents

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

 

Proceedings before this Court

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

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

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

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

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

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

 

Deliberation and Decision

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

 

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

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

 

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

 

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

 

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

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

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

 

Review of the Decision of the Local Council

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

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

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

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

 

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

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

 

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

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

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

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

 

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

 

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

 

B.        The “Budgetary” Consideration

 

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

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

 

2.         Preserving the Secular Character of the Town

 

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

 

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

 

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

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

 

Conclusion

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

                                                                                                            Justice

 

Justice E. Hayut:

I concur.

                                                                                                            Justice

 

Justice N. Hendel:

I concur.

                                                                                                            Justice

 

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

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

 

 

 

           

 

 

 

HCJFH 4128/00

 

 

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

                                    2.         Director General of the Ministry of Religion

                                    3.         Director General of the Ministry of the Interior

                                    4.         Director General of the Ministry of Police

                                    5.         Legal Advisor to the Prime Minister’s Office

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

                                    7.         Government of Israel

                                   

                                                                        v.

 

Respondents:              1.         Anat Hoffman

                                    2.         Chaya Beckerman

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

 

           

Attorney for the Petitioners:               Osnat Mendel, Adv.

Attorney for the Respondents:           Francis Raday, Adv.

 

The Supreme Court

[April 6, 2003]

 

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

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

 

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

The Supreme Court held:

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

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

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

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

B. (per J. Turkel J.):

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Judgment

 

Justice M. Cheshin:

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

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

 

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

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

Background

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

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

Protection of Holy Places

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

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

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

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

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

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

 

The Original Events and the First Petition

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

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

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

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

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

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

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

                        Prohibited Conduct

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

                                    (1) …

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

…

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

 

The Judgment on the First Petition

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

            Thus far in the matter of the operative relief.

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The Second Judgment

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The Petition for a Further Hearing

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

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

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

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

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

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

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

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

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

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

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

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

…

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

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

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

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

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

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

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

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

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

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

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

 

Epilogue

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

 

Conclusion

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

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

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

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

 

 

President A. Barak:

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

 

Deputy President (Emeritus) S. Levin:

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

 

Justice T. Orr:

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

 

Justice E. Mazza:

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

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

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

 

Justice T. Strasberg-Cohen:

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

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

 

Justice J. Turkel:

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

 

Non-intervention in Administrative Discretion

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

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

            It was further stated in this regard, inter alia:

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

 

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

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

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

 

The Exercise of Discretion

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

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

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

 

The Conclusion of the Neeman Committee –Additional Reasons for Adoption

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

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

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

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

 

Judgment of Peace

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

 

Conclusion

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

 

 

Justice D. Beinisch:

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

 

Justice I. Englard:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                        Prohibited Conduct

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

            Under the circumstances, we make no order for costs.

 

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

 

 

HCJ 3358/95

 

 

 

Petitioners:                  1.         Anat Hoffman

                                    2.         Chaya Beckerman

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

 

                                                                        v.

 

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

                                    2.         Director General of the Ministry of Religion

                                    3.         Director General of the Ministry of the Interior

                                    4.         Director General of the Ministry of Police

                                    5.         Legal Advisor to the Prime Minister’s Office

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

                                    7.         Government of Israel

 

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

Attorney for the Respondents: Uzi Fogelman, Adv.

 

The Supreme Court as High Court of Justice

[17 Iyar 5760 (May 22, 2000)]

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

Objection to an Order Nisi

 

 

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

The Supreme Court Held:

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

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

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

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

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

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

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

 

 

 

Judgment

 

Justice E. Mazza:

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

 

The Basic Facts

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

 

The First Judgment

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Developments following the First Judgment

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

                        3123. Prayer Arrangements in the Western Wall Plaza

                                    Decided:

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

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

 

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

 

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

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

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

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

 

Developments in the Framework of the Present Petition

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Decided:

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

Recommendation of the Neeman Committee

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

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

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

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

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

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

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

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

 

The Hearing on the Petition

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

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

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

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

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

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

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

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

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

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

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

 

Visit to the Site

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

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

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

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

                                                                                                           

Justice T. Strasberg-Cohen:

I concur.

 

Justice D. Beinisch:

I concur.

 

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

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

 

 

                                                                                                                                    HCJ 257/89

                                                                                                                                    HCJ 2410/90

 

 

1.   Anat Hoffman

2.   Dr. Bonna Haberman

3.   Dr. Judith Green

4.   Rendel Fine Robinson

 

                v.

 

1.   Director of the Western Wall

2.   Ministry of Religious Affairs

3.   Chief Rabbinate of Israel

4.   Minister of Religious Affairs

5.   Minister of Justice

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

7.   Commander of the Jerusalem District, Israel Police

8.   Israel Police

9.   Sephardic Association of Torah Guardians – Shas Movement

10. Rabbi Simcha Miron

11. Agudat HaChareidim – Degel HaTorah

12. Rabbi Avraham Ravitz   HCJ 257/89

 

 

1.   Susan Alter

2.   Professor Susan Aranoff

3.   Professor Phyllis Chesler

4.   Rivka Haut

5.   Professor Norma Baumel Joseph

6.   Professor Shulamit Magnus

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

 

                v.

 

1.   Minister for Religious Affairs

2.   Director of the Western Wall

3.   Commissioner of the Israel Police

5.   Attorney General   HCJ 2410/90

 

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

 

The Supreme Court sitting as High Court of Justice

[January 26, 1994]

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

 

Facts:

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

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

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

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

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

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

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

Held:

The High Court of Justice ruled as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I. (per M. Shamgar P.):

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

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

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

J. (per Elon D.P.):

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

 

 

 

Judgment

 

 

Deputy President M. Elon:

Preface

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

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

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

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

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

 

HCJ 257/89

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

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

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

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

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

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

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

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

 

HCJ 2410/90

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

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

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

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

 

The Facts

HCJ 257/89

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

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

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

3. …

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

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

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

            …

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

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

 

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

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

                        7.         (a) …

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

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

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

 

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

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

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

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

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

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

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

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

 

                                    It is your task today:

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

 

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

 

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

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

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

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

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

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

 

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

 

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

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

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

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

 

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

 

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

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

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

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

 

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

 

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

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

 

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

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

 

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

 

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

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

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

 

HCJ 2410/90

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

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

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

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

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

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

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

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

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

            (a) They wear a tallit during their prayers;

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

 

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

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

…

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

            In addition, the Petitioners emphasize that:

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

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

 

Pleadings

Petitioners’ Pleadings

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

                              Protection of Holy Places

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

Offences

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

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

                              Saving of Laws                                                     

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

Implementation and regulations

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

 

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

 

                                    Definitions

1. In these Regulations:

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

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

                                    Conduct

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

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

                                                   (b) …

                                    Restrictions upon Photography in the Western Wall Plaza

3. …

Powers of the Director

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

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

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

 

                                    Punishment

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

 

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

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

 

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

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

                                    Amendment

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

 

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

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

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

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

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

 

The State’s Pleadings

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

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

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

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

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

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

 

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

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

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

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

 

The Subject before the Court in Halakha

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

           

Social Changes in the Status and Role of Women

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

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

 

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

 

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

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

 

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

 

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

 

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

 

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

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

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

 

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

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

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

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

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

 

Prayer in a “Minyan”

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

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

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

 

Time-Bound Positive Commandments

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

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

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

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

 Rabbi Feinstein goes on to state:

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

 

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

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

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

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

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

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

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

 

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

 

Women’s “Prayer Groups”

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

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

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

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

 

Wearing a Tallit by Women

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

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

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

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

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

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

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

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

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

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

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

 

Reading the Torah by Women

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

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

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

            However, he rejects this proof, as follows:

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

 

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

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

 

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

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

And see Mishna Berura OH 282:12.

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

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

But the Magen Avraham concludes his remarks as follows:

                        And here it is customary for the women to leave.

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

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

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

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

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

 

Custom in the World of Halakha

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

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

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

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

Therefore:

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

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

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

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

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

But he rejects this argument. And why?

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

And also this:

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

            But the Midrash goes on to state:

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

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

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

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

 

Changing Synagogue Custom

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

 

The Synagogue in the Western Wall Plaza

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

                        The Divine Presence never departs from the Western Wall.

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

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

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

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

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

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

 

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

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

            In his letter, Rabbi Avraham Shapira wrote:

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

            Therefore (ibid., p. 122):

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

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

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

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

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

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

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

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

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

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

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

37.       Rabbi Schachter concludes his detailed article as follows:

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

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

            The Gaon provided this answer:

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

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

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

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

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

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

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

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

 

Summary of the Halakha in regard to the Issue at Bar

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

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

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

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

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

 

The Holy Places and the Principle of Preserving the Status Quo

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

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

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

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

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

 

The British Mandate

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

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

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

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

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

 

The Palestine Order-in-Council (Holy Places)

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

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

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

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

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

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

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

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

            The report addresses in great detail the various rights granted to the Christian communities in the Holy Places – the Church of the Holy Sepulchre in Jerusalem, the Sanctuary of the Ascension on the Mount of Olives, the Tomb of the Virgin at Gethsemane, and the Church of the Nativity in Bethlehem. As an example of the great detail in regard to the Holy Places – detail that was a practical necessity due to the many disputes – we will present the Report’s summary of the situation in the Church of the Holy Sepulchre. Rights are claimed in this church by the Orthodox, the Latins, the Armenians, the Copts, the Ethiopians, and the Jacobites:

In the various component parts of the Church the position at the present moment can be summarized as follows:—

(1) The Entrance Doorway and the Facade, the Stone of Unc­tion, the Parvis of the Rotunda, the great Dome and the Edicule are common property. The three rites consent to the partition of the costs of any work of repair between them in equal proportion. The Entrance Courtyard is in common use, but the Orthodox alone have the right to clean it.

(2) The Dome of the Katholikon is claimed by the Orthodox as being under their exclusive jurisdiction.  The other Communities do not recognize this, maintaining that it is part of the general fabric of the Church, and demand a share in any costs of repair. The Orthodox, however, refuse to share payment with any other Community. The same conditions apply mutatis mutandis to the Helena Chapel, claimed by the Armenians, and the Chapel of the Invention of the Cross claimed by the Latins.

(3) The ownership of the Seven Arches of the Virgin is in dispute between the Latins and the Orthodox, of the Chapel of St. Nicodemus between the Armenians and the Syrian Jacobites, and of the Deir al Sultan between the Copts and Abyssinians. In these cases neither party will agree to the other doing any work of repair or to divide the costs.

(4) The Chapel of the Apparition, the Calvary Chapels, and the Commemorative shrines are in the sole possession of one or other of the rites, but the others enjoy certain rights of office therein. Any projected innovation or work of repair is to be notified to the other rites.

(5) The Katholikon, the Galleries and the Chapels in the Court­yard (other than the Orthodox Chapels on the West) are in the exclusive jurisdiction of one or other of the rites, but subject to the main principles of the Status Quo as being within the ensemble of the Holy Sepulchre.

(Cust Report, pp. 14-15. The Cust Report also included reference to the Jewish Holy Places – the Western Wall and Rachel’s Tomb (Cust Report, pp. 43-48)).

 

The Western Wall

45.       In HCJ 4185/90, we discussed the regard of the Jewish people to the Western Wall at length, and we will present a summary of that discussion:

…The Temple Mount is the holiest place, the first in its level of holiness, for the Jewish people for some three-thousand years, ever since Solomon built the First temple on Mount Moriah (II Chronicles 3:1), and Mount Moriah itself was holy for the People of Israel even a thousand years earlier, since the Binding of Isaac by Abraham – Patriarch of the Jewish People – in the “Land of Moriah” (Genesis 22:2). The Temple Mount is Mount Moriah, “and Isaac our forefather was sacrificed in the Temple” (Maimonides, Laws concerning the Chosen House, 2:1-2; 8:1). This primary holiness of the Temple Mount remains to this very day, even following the destruction of the First and Second Temples: “There is no sanctuary for all generations except in Jerusalem and on Mount Moriah … as it says (Psalms 132:14): This is My resting place forever” (Maimonides, ibid., 1:3). And the western wall of the Temple Mount (the Western Wall), which stands to this very day, is the holiest site in Jewish tradition (at p. 244).

            When the Land was conquered by foreigners, each conqueror had a special interest, of varying extent, in the Temple Mount (see in detail, HCJ 4184/90, at pp. 240-243). Even in those situations, Jews maintained their connection with the Temple Mount and conducted prayers there throughout all the years of exile (see ibid., at pp. 245-256). And just as the Temple Mount, and the Temple that stood upon it, was a symbol of the Jewish religious world and of the Jewish nation’s political sovereignty over Israel, so the Western Wall, the remnant of our destroyed temple, was the holiest place for the Jewish People, and symbolized its desire and aspiration for the return of national sovereignty (see HCJ 4185/90, at pp. 228-229, 232, 233-234, 237-239, 270-271).

            In modern times, the disputes around the Western Wall have increased, along with attempts to deny Jewish historical rights to the site:

At that time (the middle of the nineteenth century) there were many attempts by the Jews to improve their standing at the site most holy to them. In the 1850’s, Hakham Abdallah of Bombay [Rabbi Ovadia (Abdallah) Somekh] tried to buy the Wall, but failed. [Moses] Montefiore unsuccessfully tried to obtain a permit to better the lot of the worshippers by placing benches (or large stones) for sitting, and erecting a rain canopy above the area, but the Jews were permitted only to pave the area. There are testimonies that a table for reading the Torah, as well as a canopy, were occasionally installed, but these arrangements were temporary and were regularly rescinded at the demand of the Waqf, which feared that the Jews would obtain rights over the area. In 1887, Baron Rothschild came up with a plan to purchase the Mughrabi Quarter, remove its dismal stones and – with the consent of the Jerusalem rabbis – turn it into a Jewish trust … but the plan was abandoned for reasons that have remained largely unknown to this day … On the eve of the First World War, the Anglo-Palestine Bank attempted to purchase the Western Wall area for the Jews, but the negotiations were interrupted by the outbreak of war. In the meantime, Jews began to write on the Wall, hammer in nails, place notes in it, and erect prayer furnishings and benches, a mehitza to separate between men and women, a glass-enclosed case for candles, a table for reading the Torah, etc. This led the head of the Waqf to lodge a complaint, in 1912, with the Turkish authorities, and they ordered the removal of all the above furnishings – that had, in the meantime, become almost a tradition – in order to prevent Jewish “possession” of the Western Wall.

…

After the Balfour Declaration and the Mandate, Jews were granted recognized national status in Palestine, and they began to emphasize the importance of the Western Wall as a national symbol, in addition to its traditional religious significance. As opposed to this, the Mufti employed … the claim that the Jews were trying to take over the Wall in order to incite his flock against “the Zionists”. Thus, without any religious or historical basis, he declared the Wall to be a holy Moslem site. The Western Wall, to which Moslems had never before ascribed any importance – and which, at times, they even did not refrain from soiling in order to anger the Jews – was now called “Al Buraq”, in honor of Muhammad’s horse, which the Prophet allegedly tethered to the Wall during his legendary visit to Jerusalem. Interreligious friction concerning the Western Wall continued throughout the 1920’s. In order to aggravate the Jews, the Mufti, who looked down at the Wall from his office in the adjacent “Mahqama”, ordered the making of an opening at the southern end of the Wall, at the Mughrabi Gate, such as to turn the prayer plaza from a dead-end into a thoroughfare for pedestrians and animals, in order to emphasize Moslem ownership of the Wall, several layers of stone were added (on the north), and a wall was built on the northern side, such that those who passed through its gate disturbed the worshippers. On the other side of that wall, adjacent to the Temple Mount, long and loud Moslem ceremonies were intentionally conducted. All of this in addition to the complaints which served to intensify the interreligious tensions. The Moslems complained, in particular, about the erection of prayer furnishings in the plaza by the Jews, and their complaints led to the forcible removal – by the British police – of the separation between men and women on Yom Kippur (in 1928). In August 1929, an incited Moslem mob stormed through the opening that the Mufti had opened on the southern end of the plaza, attacked the worshippers and destroyed religious objects. Several days later, the mayhem spread, and the murderous “1929 Arab riots” began …

In response to these events, the British established a commission of enquiry. The report of the commission included an express comment in regard to the Mufti’s use of the Al-Buraq legend to incite against the Jews. In addition, the report recommended the establishment of an international commission to resolve the “Wailing Wall controversy”. Such a commission was appointed by the League of Nations. Its members were Swiss, Swedish and Dutch, and it conducted the “Wall trial” in Jerusalem in the summer of 1930. Its report (of December 1930) established that the Moslems had absolute ownership of the Wall, but the Jews had an uncontestable right to access it for prayer. However, it also established that the Jews did not have a right to place benches in the plaza, nor to blow the shofar. The Arabs rejected the report’s conclusions, while the Jews accepted them. However, the prohibition upon blowing the shofar was not acceptable to the Jewish public, which viewed it as a harsh insult. Every year, young nationalist Jews continued to blow the shofar at the Wall at the end of Yom Kippur, which always led to the intervention of the British police and to arrests (HaEncyclopedia HaIvrit, vol. XX (1971), s.v. “HaKotel HaMa’aravi”, pp. 1122-1124).

            As for the conclusions of the commission:

They were given the force of law in The Palestine (Western or Wailing Wall) Order-in-Council, 1931. It is generally agreed that this Order-in-Council breathed its last breath with the establishment of the State of Israel (the National Circles case, p. 208). (On the Western Wall, also see: M. Ben Dov, M. Naor, & Z. Aner, The Western Wall, 13^th ed. (1989) (Hebrew).

 

The Liberation of the Western Wall in the Six Day War

46.       With the Jordanian occupation, in 1948, access to the Western Wall was denied to the Jewish residents of the State of Israel. During this period – as far as the Israeli legislature was concerned – there was no need for any specific law treating of the Holy Places, inasmuch as they were in foreign hands. This situation changed with the liberation of the Western Wall in the Six Day War. We addressed this in HCJ 4185/90, above, pp. 246-247:

In the Six Day War, when the Kingdom of Jordan initiated a military attack against the State of Israel and the Jewish part of Jerusalem, the Temple Mount and the Western Wall were liberated from the Jordanian occupation. In addition to the religio-cultural connection between the Temple Mount and the Jewish People, which was never severed, Israeli political sovereignty over the Temple Mount was restored, as it was for a long period in the history of the Jewish nation, from the building of the First Temple by King Solomon, some three-thousand years ago. The historical circle was closed. At the time of the liberation of the Temple Mount by the Israel Defense Forces, while the battles were still raging, the commanders of the IDF ordered that the Holy Places of other religions not be harmed, and to scrupulously maintain respect for them (see: George Rivlin, Har HaBayit BeYadeinu (Ma’archot) 322-323; Amanat Yerushalayim, ibid., part IV, and the bibliography there). That is how Israel’s fighters felt and ordered, as the prophet Micah prophesied: “For all the peoples walk each in the name of its god, but we walk in the name of the Lord our God for ever and ever” (Micah, 4:5)…

…

A few days after the liberation of the Temple Mount, the Israeli government decided, for political and security considerations, to order the paratroop company on the Temple Mount to leave the area. A Border Police observation post was erected, and the area was kept under constant surveillance (Schiller, p. 40). The government also decided to allow Moslems to continue to maintain their presence and worship on the Temple Mount. For these very reasons and additional reasons … and in order to prevent friction with the Moslems, the government decided not to permit public worship by Jews on the Temple Mount.

            This reality led the Knesset to adopt the Protection of the Holy Places Law, on 19 Sivan 5727 (June 27, 1967), which we quoted above (para. 12). The provisions of that law were reiterated in sec. 3 of Basic Law: Jerusalem, Capital of Israel, which states as follows:

                        Protection of Holy Places:

3. The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings towards those places.

 

The National Circles Affair

47.       After the liberation of the Temple Mount, Jews sought to pray there, but the police prevented them. When this occurred in 1968, the National Circles Association petitioned the High Court of Justice to order the Israel Police to “provide appropriate security … in order to prevent the disturbance of Jewish prayer on the Temple Mount”, and “to refrain from disturbing Jewish prayer on the Temple Mount”. The petition was assigned to an expanded bench of six judges. The petition was dismissed by a unanimous Court, but the justices’ opinions differed as to the reasons for the dismissal. All of the justices, as well as the State’s attorneys, agreed that the right of Jews to pray on the Temple Mount, per se, was uncontested. In the words of the late President Agranat:

It would be superfluous to point out … that the right of Jews to pray on the Temple Mount is their natural right, rooted deep in the long history of the Jewish People (National Circles, p. 221).

            Nevertheless, the petition was dismissed. The late Silberg D.P. was of the opinion that the petition should be dismissed because the Protection of the Holy Places Law could not be applied without the promulgation of regulations that would provide practical guidelines for exercising the right to pray on the Temple Mount, given that the site is the holy place of worship for two peoples, Jews and Moslems. Inasmuch as the petitioners had not asked that the Minister promulgate such regulations, the petition should be denied (ibid., pp. 153-156). However, he emphasized that, in his opinion, the Court held jurisdiction to consider the petition, even though it concerned a Holy Place, because The Palestine Order-in-Council (Holy Places), which restricted the Court’s jurisdiction, ceased to hold force and was nullified upon the termination of the Mandate (ibid., pp. 156-158).

            Witkon J. was also of the opinion that The Palestine Order-in-Council (Holy Places) was nullified upon the establishment of the State of Israel, or at least upon the enactment of the Protection of the Holy Places Law (ibid., pp. 161-162), but that the right of the petitioners to request the aid of the police for the purpose of conducting prayers on the Temple Mount was limited by the “common-sense test” (ibid., p. 168). As far as the petition was concerned, “the situation is sensitive and dangerous due to the interreligious situation, and the site is ripe for trouble” (ibid.). Therefore, there were no grounds for the intervention of the Court in the discretion exercised by the police in deciding not to extend assistance to the petitioners (ibid., pp. 166-168).

            Berenson J. was of the opinion that The Palestine Order-in-Council (Holy Places) continued to be in force, and therefore, inasmuch as the petition concerned a Holy Place, the Court lacked jurisdiction to hear or determine the issue. The Government was authorized to address the issue, in accordance with sec. 29 of Basic Law: The Government, which establishes: “The Government is competent to do in the name of the State, subject to any law, any act the doing of which is not enjoined by law upon another authority.” (ibid., pp. 170-178). That was, essentially, the view of the late Kister J., as well (ibid., pp. 182-189).

            As opposed to them, the late Agranat P. was of the opinion that the Protection of the Holy Places Law impliedly repealed the Palestine Order-in-Council (Holy Places) pro tanto. The Protection of the Holy Places Law established substantive rights in regard to the prevention of the desecration of a Holy Place, freedom of access to the Holy Place, and in regard to injury to the feelings of the various religious groups towards their Holy Places (see sec. 1 of the Law). But the Law did not say so much as a word in regard to the right of worship at the Holy Places. In the view of Agranat P., the Protection of the Holy Places Law thus repealed the Order-in-Council in regard to anything repugnant to that Law, but the Order-in-Council remained in force in regard to the right of worship, which was not addressed by the Law. Therefore, the Court held jurisdiction to address the prevention of desecration of a Holy Place, but it did not hold jurisdiction to hear claims in regard to freedom of worship in the Holy Places. The treatment of that matter was granted to the Executive branch (National Circles, pp. 218-228).

            Inasmuch as two of the justices – the late Silberg D.P. and the late Witkon J. – were of the opinion that the Order-in-Council was null and void, and two of the justices – Berenson and Kister JJ. – were of the opinion that the Order-in-Council remained in force, the result was that the opinion of Agranat P. – that the Order-in-Council was repealed in part, but remained in force in regard to rights of worship in the Holy Places – prevailed. This is not the place to elaborate further.

 

The Orthodox Coptic Patriarch of Jerusalem v. Minister of. Police Case

48.       A good example of the extreme sensitivity of the Holy Places can be found in the Coptic Patriarch case. In HCJ 109/70 Orthodox Coptic Patriarch of Jerusalem v. Minister of. Police, IsrSC 25(1) 225 (hereinafter: the first Coptic Patriarch case), this Court addressed a dispute between the Coptic religious community and the Ethiopian religious community. The subject of the dispute was two chapels, “The Chapel of the Four Living Creatures” and the “Chapel of Saint Michael” (adjacent to the Church of the Holy Sepulchre, whose “division” among the various Christian communities we addressed above (para. 44) in the Cust Report), and the passage through which they are entered. In practice, control of the passage and the chapels is maintained by affixing locks on the doors to at the ends of the passage and holding the keys used for opening and closing them. Until the event that led to the petition, the passage and the chapels were controlled by the Copts, but the Ethiopians claimed an exclusive right to possession and worship. During the Easter celebrations of 1970, while the Copts were standing in prayer in the Church of the Holy Sepulchre, the Ethiopians changed the locks affixed to the doors at the two ends of the passage. Pursuant to that, the Coptic Patriarch submitted a petition to this Court, asking that the Court order the restoration of the preexisting status (the first Coptic Patriarch case, pp. 229-234).

            In the Court’s judgment (per Agranat P., Landau, Berenson, Witkon and Kister JJ. concurring), Agranat P. emphasized that the Court would not address the conflicting claims of the parties concerning the disputed rights of ownership and possession, inasmuch as the Court lacked jurisdiction, as was held the National Circles case (the first Coptic Patriarch case, pp. 234-235). However, Agranat P. was of the opinion that the petitioner’s prayer for relief was well founded in principle, based upon the prohibition of self-help. Therefore, on 19 Adar 5731 (March 16, 1971, he ordered that the order nisi issued against the Minister of Police be made absolute, but that “… the implementation of the order be postponed until April 6, 1971, in order to allow the Government, if it find appropriate, to exercise its authority – which it always has – to address the substantive dispute at issue in any manner that it may deem fit. Clearly, in a case as this, the Government may, at any time, issue an order to the parties for the purpose of temporarily regulating the possession, which will be in force until a final decision or arrangement as to the dispute” (ibid., p. 252).

49.       That did not bring the matter to a close. The further developments following the first Coptic Patriarch case are set out in HCJ 188/77 Orthodox Coptic Patriarch of Jerusalem v. Government of the State of Israel, IsrSC 33 (1) 225 (hereinafter: the second Coptic Patriarchate case). The Government issued an interim order not to change the possession of the two Chapels, that is, to leave the possession in the hands of the Ethiopian community, while allowing the Coptic community a right of access. The Government appointed a ministerial committee to decide the dispute between the two churches. The ministerial committee held many meetings, heard detailed arguments, and tried – to no avail – to bring the parties to a compromise. Four years passed, the Government changed, and a new Prime Minister was elected in 1977. Then Prime Minister, the late Mr. Menachem Begin, decided to hand the entire matter to the Ministerial Committee for Jerusalem. That committee established a sub-committee of its members to address the Coptic-Ethiopian dispute after the petition was submitted in the second Coptic Patriarchate case, in which the Court was asked to implement the order absolute issued in the first Coptic Patriarch case. The sub-committee held many meetings, and it too heard the arguments of the parties. The Court made an additional attempt to bring the parties to an agreement, but all to no avail. In the end, when the Court was forced to render judgment, the opinions of the justices were divided.

            In his dissenting opinion, Landau D.P. (Witkon J., concurring in principle) took the view that the petition should be granted, and the Government should be ordered to decide the Coptic Patriarchate’s claim within a reasonable period (ibid., at pp. 241, 248-249). The majority of the Court – Asher, Bechor, and S. Levin JJ. – was of the opinion that the petition should be denied because “the time dimension for deciding is a matter regarding which there is almost nothing in common between the approach of the Court and the Government’s approach to it” (ibid., p. 246).

            This is what occurred in one example of a dispute and disagreement in regard to one of the Holy Places. It is an important warning in regard to the issue before us. And with this we conclude our examination of the history of the Holy Places.

50.       An examination of the history of the Holy Places shows the very sensitive nature of these places to which disputes, disagreements and strong emotions are inherent. The treatment of the Holy Places is characterized by extreme care and moderation, attempts to achieve compromise and mediation between the parties, and by refraining from unequivocal rules and definitive solutions. Such an approach is inappropriate to the nature of the Judiciary, which is used to deciding disputes definitively on the basis of clear legal rules. Therefore, in practice, the treatment of the Holy Places was entrusted to the Executive branch. It relied upon the long-established principle of maintaining the status quo. Preserving the existing situation is the only means that ensures that peace and quiet, and public decorum – so necessary for places imbued with holiness – will be maintained.

 

Freedom of Worship and the Near-Certainty Test

51.       The principle of preserving the status quo can be presented in terms of legal rules that we employ in similar matters. Such is the rule by which a person’s freedom of worship is not absolute, but must retreat where there is a probable threat of harm to public order. This legal rule would seem to be nothing other than the status quo principle in different clothing, more appropriate to the Holy Places.

            Freedom of worship and religion is a fundamental right of our legal system. This was held in HCJ 262/62 Peretz v. Kfar Shemaryahu Local Council, IsrSC 16 2101; IsrSJ 4 191, and it is undisputed:

Religion and ritual are not merely matters of legal ruling to be gathered from the books but essentially matters of emotion, faith and reverence, and even of taste and sensitivity, which are not to be measured by any objective scale equal for all (at p. 2105 per Cohn J. [IsrSJ  4 194]).

…the Council in its decision (not to rent a public hall to members of the Progressive Judaism movement for the festival of Sukkot – M.E.) displayed a bias to one religious denomination and denied the right to exist of another, and in a somewhat arrogant tone decided that the form of service hitherto followed in the village is capable of providing for the religious requirements of the local inhabitants. I would have thought that it is a matter for each individual to search his own soul and decide which form of religious service and which form of prayer would give him inner satisfaction and elevation of spirit. If unity in public life and avoidance of division is what the Council strives for, compulsion will not serve to achieve such aims, and not at the expense of freedom of conscience and religion (ibid., p. 2113 per Witkon J. [IsrSJ 4 204]).

And in the words of Sussman P:

…but neither is it up to them (the Council – M.E.) to decide that the local inhabitants should pray in one form and not in another … But the Declaration of Independence guarantees freedom of religion and worship to every citizen of the State, and even if the Declaration itself does not grant the citizen a right enforceable by judicial process, the way of life of the citizens of the State is determined by it and its fundamental nature obliges every authority in the State to be guided by it (ibid., at p. 2116 [IsrSJ 4 207]).

            More recently, Shamgar P. wrote in his decision in HCJ 650/85 Movement for Progressive Judaism v. Minister for Religious Affairs IsrSC 42 (3) 377, 381:

Freedom of religion and worship is one of the fundamental freedoms recognized by our legal system, and constitutes a part of it.  The expressions of this freedom are, of course, primarily found in the freedoms of religious expression and action, but that is not sufficient. That freedom also requires, inter alia, that all believers be treated equally, and that governmental authorities refrain from any act or omission in regard to the believers of all movements, as well as their organizations and institutions, that smacks of discrimination.

Therefore, every general act performed in the course of carrying out the functions of a governmental authority requires an open, fair approach that is not conditional upon identification with the views of any movement, but that expresses the equality to which all movements are entitled.

52.       Freedom of worship is not an absolute freedom, and it retreats before other rights and interests:

Freedom of conscience, belief, religion and worship, to the extent that it proceeds from potential to practice, is not an absolute freedom … My right to pray does not permit me to trespass upon another’s borders or create a nuisance. Freedom of conscience, belief, religion and worship is a relative freedom. It must be balanced against other rights and interests deserving of protection, such as private and public property rights and freedom of movement. One of the interests that must be considered is that of public order and safety (HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Police Commander, IsrSC 38 (2) 449, 455, per Barak P.).

            As for the “balancing formula” between freedom of worship and public order and safety, this Court has held that it is to be found in the “near-certainty test”:

… Freedom of conscience, belief, religion and worship is limited and restricted in so far as required and necessary for the protection of public safety and public order. Of course, before any action is taken that may violate or limit this freedom by reason of harm to public safety, the police ought to adopt all reasonable means at its disposal in order to prevent the violation of public safety without violating the right to belief, religion and worship. Therefore, if the fear is of violence against the worshippers by a hostile crowd, the police must act against that violence and not against the worshippers. But if, due to its limitations, reasonable action by the police is insufficient to effectively prevent the violation of public safety, there is no alternative but to limit the freedom of conscience and religion as may be required for the protection of public safety.

… The power of the police is not unlimited. It is tasked with many responsibilities. Protecting freedom of conscience, belief, religion and worship is one of the duties of the police, but not its only one. It must also protect other freedoms, including the freedom of conscience and religion of others. In such circumstances, there may be a situation in which, despite the actions of the police, the fear of harm to public safety may remain. Does the existence of that fear, which is not certain, justify the denial or limitation of freedom of conscience, belief, religion and worship?

A fear alone … is not sufficient, but absolute certainty is also not required. Israeli law takes a middle ground of near-certainty … It would therefore appear to me that it would be appropriate that the “near-certainty test” serve for establishing the “balancing equation” between freedom of conscience, belief, religion and worship, on the one hand, and public safety on the other (ibid., pp. 455-456).

            The finding that there is near-certainty that the exercise of freedom of worship will harm public safety must have an evidentiary basis. Such evidence may be found in prior experience:

The requirement is of “substantial” evidence … the assessment must be based upon known facts, including past experience. Conjectures, speculations and apprehensions are not enough (HCJ 153/83 Levi v. Southern District Police Commander, IsrSC 38 (2) 393, 411 [English translation: http://elyon1.court.gov.il/files_eng/83/530/001/Z01/83001530.z01.pdf].

            In the Holy Places there is – in light of past experience that we have reviewed at length – an evidentiary presumption that a deviation from the status quo may lead to a disturbance of public order. This evidentiary presumption, together with additional evidence – and perhaps even on its own – may, in appropriate cases, provide the necessary evidentiary grounds required under the near-certainty test to limit the freedom of worship in the Holy Places, and to delimit it due to the need to preserve public order. In the Holy Places, the principle of maintaining the status quo is often nothing more than a concrete expression of the near-certainty test.

 

Freedom of Worship and the Need for finding the Common Denominator of the Worshippers

53.       In the matter of the petitions at bar, the possible clash is not only between the freedom of worship of the Petitioners and the interest in maintaining public order. There is an additional possible clash between the freedom of worship of the Petitioners and the freedom of worship of other worshippers. The legal principle that must apply to the latter – when it arises in the Holy Places – is one that seeks to find the broadest common denominator of all the worshippers. In the Holy Places, there is no choice – in a case of a clash between the freedom of worship of different worshippers themselves – but to try to find the common denominator of all the worshippers, even if, as a result, the freedom of worship of one may come somewhat at the expense of the freedom of worship of another. The special respect attendant to the Holy Places, and their character, require that worship at the Holy Places be conducted quietly and with decorum, without disputes, and in a manner that allows each person to serve his Maker without infringing the worship of his neighbor. There is no way to accomplish this other than by finding the common denominator of all the worshippers.

It was to this test of finding the broad common denominator that the late Kister J, referred in HCJ Ben Dov v. Minister of Religion IsrSC 22 (1) 440, which concerned a clash – in a particular Holy Place – between the members of one religious denomination and another:

… in the area under the jurisdiction of the State of Israel, there are places that are holy to the members of more than one religion, and the legislature wished to treat all religions equally, and protect the place that are holy to each and every religion. On the one hand, the legislature established the requirement of protection in order not to infringe the freedom of access of the members of the various denominations to their holy places, while on the other hand, it established a requirement of protection against desecration and any other harm, as well as to prevent offense to the feelings of the members of the religious communities in regard to those places. Each religion has its various rules and customs in regard to respect, conduct and even the conditions and restrictions upon entering their holy places, and it is not easy to fulfil them all while ensuring the freedom of access of the members of one religion, on the one hand, and respecting and not offending the feelings of some other religion, on the other hand (ibid., p. 448).

            Kister J. addressed this at greater length in the National Circles case, at pp. 180-181:

The freedom of access to pray does not grant a person the right to act in a manner that injures others or the existing arrangements in the place, and the police may prevent such injury. For example: A person who visits a Catholic church, whether or not he is Catholic, and acts in a manner that offends or angers, such as being dressed in a manner that is not appropriate for church, or covering his head when the accepted practice is to uncover one’s head, or who stands while others bow, and certainly talking during a service, or demonstrating derision, cannot complain if the police remove him from the place, and criminal charges may also be appropriate. This is not limited to a church, but applies to any other place that is holy to Christians, as well as to a procession or other ceremony. By the same token, a Christian may not enter a place reserved for priests, nor may a Moslem man enter a women’s mosque.

            And further on, at pp. 181-182:

It is only natural that when a particular site is deemed holy by the members of different faiths, problems and even disputes may arise in regard to the extent that the members of all those faiths may use the site for their ceremonies. Moreover, it may be that the conducting of a ceremony or the placing of religious symbols by the members of one religious denomination may offend the members of another denomination who may deem it as sacrilege (an extreme example in Jewish history was the erecting of a statue or altar of a pagan god in the Temple by Antiochus Epiphanes). In such a case, it may not be possible for the members of different religions to hold their ceremonies at that holy site, but only that the members of the religion whose ceremonies so offend pray as individuals, without any ceremony and without offending the others, and it is also possible that none of the religious groups will be able to conduct regular ceremonies if what one religion views as worship, another sees as sacrilege. Even if the differences are not so great, it would be hard to order the police to permit the members of each and every religion to conduct prayers or worship in the same place, as each saw fit, inasmuch as the matter might result in clashes and riots.

            In some Holy Places, a common denominator may be found among all the worshippers by maintaining the status quo. In such cases, maintaining the status quo is the appropriate path.

 

“Local Custom” and the Principle of maintaining the Status Quo

54.       Having arrived at this point, we will now employ these principles to examine the regulation promulgated by the Minister, the validity of which is disputed by the parties.

            As earlier stated, subsection (1a) of regulation 2(a) of the Regulations for the Protection of Holy Places to the Jews states as follows:

            Prohibited Conduct

            2.        (a)                     In the area of the Holy Places, and subject to what is set out in sub-regulation (b), the following is prohibited:

            (1) …

(1a) Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place [emphasis added – M.E.].

            This regulation expresses the principle of maintaining the status quo – “local custom” and the status quo are one and the same. In promulgating this regulation, the Minister of Religion did not exceed the authority granted to him by the legislature in the existing Protection of the Holy Places Law, as Shamgar P. explained in HCJ 337/81 Mitrani v. Minister of Transportation, IsrSC 37 (3) 337, 357-358:

The criterion for the validity of secondary legislation is always to be found in the words of the primary legislator. It sets out the boundaries for the actions of the secondary legislator by granting positive authority to carry out secondary acts in defined areas, and in the absence of such a conferral of authority by the primary legislator, the secondary legislator has nothing. The secondary legislator draws its power only from the conferral of authority in the parent law, which defines its permissible operating framework.

            In the matter before us, the secondary legislator acted within the operating framework delineated by the primary legislator. The Protection of the Holy Places Law establishes that the Holy Places – including, of course, the Western Wall – will be protected from desecration and any other violation and from anything likely to violate the feelings of the members of the different religions with regard to the places sacred to them (sec. 1 of the Law). The purpose of the regulation is to realize this law – to prevent the desecration of the Western Wall and violation of the feelings of the worshippers there in regard to the Wall.

55.       There was more than enough evidence before the Minister of Religion that prayer conducted in the manner of the Petitioners – prayer that, as we explained, violates “local custom” – leads to severe, tangible harm to public order, and thereby leads to desecration of the Western Wall. That evidence was presented in great detail at the beginning of our opinion, in the description of the factual background of the petitions (see paras. 4-11).

            The described events create a sufficient evidentiary basis to ground the need for promulgating subsection (1a) of the Regulations in order to prevent desecration of the Western Wall. “… the phrase ‘protected from desecration’ means ‘protection of respect …’” (HCJ 223/67 Ben Dov v. Minister of Religion, at p. 447, per Sussman D.P.). The events that occurred in the Western Wall Plaza when the Petitioners began to pray in accordance with their custom – that is, while wearing tallitot, reading from the Torah, and singing aloud in prayer – demonstrate the severe violation of the respect due to the Wall, and of the desecration. Women sitting and women lying on the Western Wall Plaza, women removed from the Plaza, worshippers throwing mud and dirt, chairs, tables and rocks at one another, and worst of all, the use of tear gas canisters – all intolerable sights at this Holy Place.  And all of this took place in the sight of the media who “happened” to be there. The events that occurred when the Petitioners in HCJ 257/89 attempted to realize their right to pray in the prayer area of the Western Wall Plaza inform us of what may be expected if the Petitioners in HCJ 2410/90 try to pray in that place. It should be noted to the credit of the Petitioners in HCJ 2410/90 that when they were told that their praying at the Wall while wearing tallitot and reading from the Torah would violate local custom and the feelings of the other worshippers, they refrained from conducting their prayers (see para. 11, above), as opposed to the Petitioners in HCJ 257/89 whose conduct precipitated severe, bitter disturbances, while they laid themselves out on the Western Wall Plaza, and so forth, with no thought for the desecration of the Holy Place.

56.       The Petitioners argue that “if the police fear the violence of a hostile crowd against the women worshippers, then it must act against that violence and not against the women worshippers” (sec. 13 (a) of the amended petition in HCJ 257/89). It has already been held in this regard that:

… if, due to its limitations, reasonable action by the police is insufficient to effectively prevent the violation of public safety, there is no alternative but to limit the freedom of conscience and religion as may be required for the protection of public safety (HCJ 292/83, above, p. 455, per Barak J.) [emphasis added – M.E.].

            In the Holy Places, the reasonableness of police action is not evaluated exclusively on the basis of “the means at its [the police] disposal” (ibid., p. 456), but also with regard for the special character of the Holy Place. The sight of dozens of baton-wielding police standing in the city center is not comparable to the sight of dozens of police in a Holy Place. The very presence of those police in a Holy Place can lead to a desecration of the site.  Therefore, when ensuring someone’s freedom of worship may require that the police take such action as dispersing tear gas canisters, we must conclude that such action should not be required of the police in a Holy Place.

57.       Despite the said evidentiary grounds before the Minister of Religion, the Minister did not promulgate the regulation addressed by these petitions immediately following the described events, but first attempted to bring the parties to a peaceful compromise. The Minister was right to adopt that approach, inasmuch as the paths of peace, which are always appropriate, are particularly appropriate in regard to the Holy Places.

            The Minister of Religion was forced to promulgate the regulation to prevent desecration of the Western Wall only when it became clear that the dispute could not be resolved peacefully. An additional virtue of the regulation is that the “local custom” to which it refers is intended not only to prevent desecration of the Wall, but also expresses the broadest common denominator of all the worshippers at the site. As we explained in addressing the halakhic position, prayer in the manner conducted by the Petitioners comprises ceremonial elements that are not acceptable to the overwhelming majority of Jewish communities. The broadest common denominator of all the female worshippers in the Western Wall Plaza is in accordance with the form of worship that has been acceptable in the Western Wall Plaza for generations by the male and female worshippers who visit the site every day, every year, in all seasons, and even by the Petitioners. The common denominator for women praying at the Western Wall is to be found in the manner of prayer that is customary in the overwhelming majority of Jewish communities, which does not include women wearing tallitot and reading the Torah.

58.       In light of all the above, we conclude that the regulation promulgated by the Minister of Religion is valid. Promulgating the regulation was within the Minister’s authority, it was not intended to discriminate among worshippers, but was entirely compelled by the need to preserve the sanctity of the Western Wall. The regulation is a reasonable expression of the principle of preserving the status quo, the principle of preserving public order in a Holy Place, and primarily – in expressing the broadest common denominator of all the worshippers at the site. In this regard, in another context, Shamgar P. wrote in HCJ 156/75 Daka v. Minister of Transportation, IsrSC 30 (2) 94, 103-105:

Not every decision that the Court sees as comprising some measure of unreasonableness is sufficient to invalidate a regulation. For the purpose of the matter before us, the unreasonableness must be extreme and not mere trivial unreasonableness.

                        …

… Here, too, we apply the important principle that the Court will not supplant its own discretion for the discretion of the authority that promulgated the regulation, and the fact that the Court might have established other, more flexible rules had the matter been given to its discretion and authority, does not itself justify invalidating a regulation …

                        ….

The Court will generally exercise great self-restraint in evaluating the validity of secondary legislation.

            And as Olshan P. explained in HCJ 57, 58/53 Tabak Haus v. Haifa Municipality, IsrSC 7 701, 707, the basic tendency of the Court is to validate secondary legislation, to the extent possible, and not to invalidate it.

            Further on in the Daka case (above), Shamgar P. added (at p. 106):

The reasonableness of a regulation cannot be deduced merely from its application in a single concrete case, without also addressing and weighing its general, legitimate purpose. Here, too, reasonableness is not an absolute concept but a relative one. Therefore, a situation may arise in which the weight to be granted to an injury to an individual that derives from the regulation may be reduced when considered in light of the policy that the regulation expresses, which is firmly grounded in the authorizing primary legislation.

            In the case before us, the reasonableness of the subsection of the regulation derives from the policy grounding the regulation, and from the purpose that it seeks to realize – a policy grounded in the Protection of the Holy Places Law – which is the protection of the Holy Place against desecration.

 

Consultation with the Chief Rabbis

59.       As stated, the Petitioners complained of the Minister of Religion’s consultation with the Chief Rabbis prior to promulgating the regulation. This claim is lacks any merit. Section 4 of the Protection of the Holy Places Law expressly states:

                                    The Minister of Religious Affairs is charged with the implementation of this Law, and he may, after consultation with, or upon the proposal of, representatives of the religions concerned and with the consent of the Minister of Justice, make regulations as to any matter relating to such implementation [emphasis added – M.E.].

            In the matter before us, the relevant representatives of the religions concerned are the Chief Rabbis:

Until now, no regulations have been promulgated in regard to the right of prayer on the Temple Mount for the relevant religious communities …

… and when the matter shall reach the Minister of Religion, he will be required to enquire as to the position of the heads of the Moslem religious community and the position of the Chief Rabbinate (the National Circles case, at p. 189) [emphasis added – M.E.].

            The Chief Rabbinate is the “highest halakhic authority in the State” (HCJ 47/82 Foundation of the Israel Movement for Progressive Judaism, above, p. 682). That is all the more so after the enactment of the Chief Rabbinate of Israel Law, 5740-1980, the adoption of which:

Reinforced the status of the Chief Rabbinate as an official religious authority of the entire Jewish public, in accordance with the functions granted to the Council in sec. 2 of the Law (HCJ 47/82, at p. 693).

            The Minister of Religion was therefore required to consult with the Chief Rabbis before promulgating the said regulation.

 

“Local Custom” for Worship at the Western Wall

60.       The Petitioners raised various claims in regard to the differences in the liturgy between the Ashkenazic and Sephardic communities, and so forth, but these claims lack any merit and have nothing in common  with the subject of the petitions regarding a prayer service conducted by women wearing tallitot, reading the Torah, and so forth. Another strange claim raised by the Petitioners is:

Both the International Commission (for the Wailing Wall, 1930 – M.E.), and even the Shaw Commission Report on the Palestine Disturbances of August 1929 … make it clear that at that time there was no mehitza at the Wall, or any other furnishings other than a portable Torah ark that could be brought to the Wall on specified days (para. 64 of the summary pleadings, above).

            In this regard, the Petitioners in HCJ 2410/90 appended photographs from various periods, prior to 1948, from which it appears, as they state it, that: “There was not even a custom of separating Jewish male and female worshippers at the Wall” (para. 65 and appendices P/19-P/23 of the summary pleadings, above).

            It were better that these claims had not been raised at all. As we stated above:

Interreligious friction concerning the Western Wall continued throughout the 1920’s … The Moslems complained, in particular, about the erection of prayer furnishings in the plaza by the Jews, and their complaints led to the forcible removal – by the British police – of the separation between men and women on Yom Kippur (in 1928). In August 1929, an incited Moslem mob stormed through the opening that the Mufti had opened on the southern end of the plaza, attacked the worshippers and destroyed religious objects. Several days later, the mayhem spread, and the murderous “1929 Arab riots” began (HaEncyclopedia HaIvrit, vol. XX, pp. 1123-1124) [emphasis added – M.E.].

            How can one infer the lack of a “local custom” in regard to the separation of women and men from a situation that was forced upon the Jews by the decree of a foreign ruler? I am at a loss.

            The question before the Court is, therefore, whether it accords with the “local custom” at the Wall for women to pray while wrapped in tallitot or reading the Torah, and whether women pray there in the framework of a “minyan” and while raising their voices in song. The answer to this question is clear. It can be found in the affidavit of Rabbi Getz, according to which:

Women’s prayer in the manner requested by the Petitioners has never taken place in the Western Wall Plaza, not during all the years that I have served as Rabbi of the Wall since 1986 (para. 3 of the affidavit of Rabbi Getz of Feb. 7, 1991).

            The Petitioners claimed that there was an event in which people prayed “in an identical or similar way” in a ceremony at the Wall (para. 18 (b) of the petition in HCJ 2410/90. Needless to say, that is insufficient to testify to the “local custom”, as Rabbi Getz testified:

If ever there was such an event in the Western Wall Plaza, as claimed in the petition, it was an exception that is neither evidence or instructive as to the rule (para. 3 of the affidavit of Rabbi Getz of Feb. 7, 1991).

 

Conclusion

61.       It is clear beyond all doubt that granting the petitions before us would lead to particularly harsh, bitter and sharp dispute, as well as to violence that would end in bloodshed. It is an uncontested fact that the overwhelming majority of worshippers who visit the prayer area at the Western Wall every day and every night are of the honest, good-faith opinion and belief that the changes requested in the two petitions before the Court amount to desecration of the prayer area at the Western Wall. Not only will it result it extremely violent and severe dispute, but in terms of halakha, both men and women will be prevented from praying at the Wall. At present, access to the Wall and prayer at the Wall are open and permitted to every Jewish man and women, who pour out their hearts before God as each women and man desires, and as each wishes to speak with his Maker, whether by heart or from a book. It is would be unthinkable that different dates and times for prayer would be instituted at the prayer area at the Western Wall for the prayer services of different groups, and that the fate of this holy site would be its division into times and periods among the members of the Jewish People, their holidays and different movements, as has been the fate of the Holy Places of other religious communities, as we have learned and seen in what we stated above (paras. 44, 48, 49). As stated above (para. 39), the substantive change in the status of women and their place in the current century, to which religiously observant women are full partners, may be eventually show its effects even in this complex, sensitive area of women’s prayer groups, as stated above. But the prayer area at the Western Wall is not the place for a “war” of deeds and opinions in this regard. At present, the reality is that the overwhelming majority of halakhic decisors and the Chief Rabbis of Israel are of the opinion that granting the petitions, even that in HCJ 2410/90, would constitute a desecration of the prayer area at the Western Wall, which is the one and only place in all the Jewish world, divided in opinions and customs, where free access is guaranteed to every Jew, man and women, regardless of who they are. The Western Wall is a spiritual and real, special and unique asset that unites all the Jewish People, and we are obligated to protect it against every challenge. That objective can be achieved by finding the common denominator of all the Jewish People, whoever they may be, who come to pour out their hearts before their Creator in the prayer area at the Western Wall. That objective will be achieved only if we strictly observe what is set out in regulation 2 (a) (1a) that was promulgated by the Minister of Religion, in consultation with the Chief Rabbis, and with the approval of the Minister of Justice, which prohibits “Conducting a religious ceremony that is not in accordance with the local custom, that offends the sensitivities of the praying public in regard to the place”. In light of all the above, this regulation, promulgated by the Minister of Religion under the authority granted him by the legislature, is reasonable and even necessary, and is not tainted by any extraneous consideration that might invalidate it. Granting the petitions before the Court would constitute a substantive change in the local custom, and the conducting of prayer services in the manner requested in the petitions would constitute a grave offense to the feelings of the overwhelming majority of worshippers in regard to the place. An important principle of this Court is that we do not intervene in secondary legislation except when it suffers from extreme unreasonableness or is tainted by extraneous considerations. That is not the case here. The purpose of the regulation is to find the common denominator in order to facilitate the prayers of every Jew, whomever he may be, in the place that is holiest to the Jewish People, while preventing severe, violent dispute in this one unique place that unites the Jewish People. That is a good objective. It is reasonable and desirable in accordance with the facts and circumstances that we presented above.

            Clearly, it goes without saying that the Petitioners are entitled to pray in accordance with their custom in their communities and synagogues, and no one will stand in their way. The freedom of worship of the Petitioners stands. But due to the uniqueness of the Western Wall, and the great sensitivity of Jewry’s holiest site, prayer at that one unique place must be conducted in accordance with the common denominator that makes it possible for every Jew to pray there – the local custom that has been observed there for generations, and that should be strictly adhered to.

62.       Along the way, we addressed the concept of “true judgement that is according to the truth”, which the Sages deemed a proper and desirable objective for which a judge should strive in rendering judgment (paras. 37 and 38; and see my book,  Jewish Law – History, Sources, Principles above, pp. 226-232, 1075, and elsewhere). We addressed two interpretations of this concept, and it would seem fitting to conclude this discussion with an additional interpretation that was given to the task of a judge in making “true judgment that is according to the truth”. This interpretation is that of Rabbi Joshua Falk Katz, one of the greatest and earliest commentators of the Tur and the Shulhan Arukh, in seventeenth-century Poland, who wrote (Drisha, Tur, HM 1(b)):

Their intention in saying “true judgement that is according to the truth” means to say that one judges in accordance with the place and time of the matter so that it be according to the truth, with the exception of not always actually judging in accordance with actual Torah law. Because sometimes the judge must rule beyond the letter of the law in accordance with the time and the matter, and when he does not do so, even though he renders true judgment, it is not according to the truth. As the Sages said: Jerusalem was only destroyed because they based their decisions only upon Torah law and they did not go beyond the letter of the law. And concerning that it is said: You must not deviate from verdict that they announce to you either to the right or to the left, on which the Sages said: Even if they say to you that right is left, etc., and all the more so if they say the right is right, etc.

            When treating of a subject as sensitive and central to the world of halakha, in the place that is holiest in the Jewish world and Israel in the generations following the destruction of the Temple, it is only right and fitting that we act beyond the letter of the law, in accordance with the common denominator of all Jews, whomever they may be, so that all can go to the Western Wall at any time or hour to pour out their hearts before their Maker, for the peace and unity of Jerusalem their capitol. In that, we will have rendered true judgment that is according to the truth.

            I therefore recommend to my colleagues that the petitions be dismissed.

            In order to bring the parties to the observance of the law and what is beyond the letter of the law, I recommend that we do not impose costs.

63.       I have read the opinion of Justice S. Levin, and I see no need to add to my clearly detailed opinion. I will, however, address my colleague’s conclusion, that:

A total ban upon conducting worship services at the site of the Wall should not be imposed merely because there are groups that oppose them, and considerations of certain and proximate danger of disturbance of the peace need not necessarily justify imposing such a ban. Rather, it is the duty of the relevant authorities to see to the appropriate conditions in order to strike a balance among all the relevant interests, in order that all who seek to congregate at the Wall and its plaza can fully exercise their rights without overly offending the sensitivities of others.

            Accordingly, he is of the opinion that the petitions should be granted.

            This is an absolutely new approach in the case law of this Court, and it stands in utter contradiction to a long line of decisions since the National Circles case. This decision concerns the holiest place in the Jewish world on the eastern side of the Wall, that is, the Temple Mount, upon which the First and Second Temples stood, and which housed the Holy of Holies (see in detail: HCJ 4185/90, pp. 228-247), and the holiness of the Western Wall derives from its being “the last remnant of our Temple”. In all of those decisions, without exception, it was held, on the one hand, that the right of members of the Jewish People to pray on the Temple Mount is undisputable and eternal, it exists from time immemorial and will continue for all the future, and other such superlatives. However, on the other hand, in order to preserve public order and prevent a proximate threat of disturbances and rioting, Jews were prevented from praying on the Temple Mount. Freedom of worship thus retreated before the need to preserve public order to the point of denying any Jewish religious worship on the Temple Mount. The extent of this approach can be seen in a decision issued by this Court some eight months ago, on April 4, 1993, in which we addressed, inter alia, the petition of a Jew who wished to enter upon the Temple Mount “while wearing tefillin and a tallit or carrying holy ashes …” (HCJ 67/93 “Kach” Movement v. Minister of Religious Affairs, IsrSC 47 (2) 1, 3). The petition was denied. The reasons for the decision (per Goldberg J., Barak and Mazza JJ. concurring) stated, inter alia (at pp. 5-6):

It would not be superfluous to point out that the position of the State Attorney’s Office in the aforesaid HCJ 99/76 was … that: ‘The Petitioner’s right of access to the Temple Mount is a fundamental right, established by law, and is not and never was disputed. We may even assume that no one will bother to enquire if, in the course of visiting this exalted place, he chooses to speak quietly with his Maker. But if what he desires is a demonstrative display of prayer … the matter is different.

This would appear to be consistent with the claim of the Petitioners. If their right of access to the Temple Mount is a fundamental right that is not infringed even if, while realizing it, the visitor silently speaks with his Maker, then why should silent prayer be prevented simply because the Petitioner has a prayer book or other holy text in his possession, or is wearing tefillin or a tallit? However, in the opinion of the police, there is a real fear that such an act would be interpreted as a provocation, and would lead to a disturbance of public order that might even result in bloodshed …

The question is, do we have the ability to decide that the fear raised by the police is groundless, and that its considerations are unfounded to the point that we will intervene? I believe that the answer is self-evident in view of the exceptional sensitivity of the place, which is unparalleled in any other place in the country. Therefore, even if we understand the desire of a visitor who innocently wishes to pray privately while carrying religious paraphernalia, we cannot, at this time, deem the positon of the police to be flawed in terms of its reasonableness.

            And here one may ask: How is it possible that a single, solitary Jew cannot ascend to the Temple Mount (and we are concerned with those parts of the Temple Mount to which entrance is permissible in the opinion of many great halakhic scholars – see in detail HCJ 4185/90, at pp. 259-268) while wearing a tallit or holding a prayer book in his hand, when such an absolute prohibition of freedom of worship is justified by this Court by reason of the existence of a threat to public order and rioting, while as opposed to this, prohibiting prayer by women wearing tallitot and reading the Torah, which involves only a certain concession in the religious ceremony, and other than that they are free to pray as they wish at the Wall, and while there is no doubt that this has always been the local custom, and where there is a nearly certain danger of riots, disputes and tear gas canisters – as occurred in the past – nevertheless, such a change should be permitted in order to prevent an infringement of freedom of worship! How is the Temple Mount on the east of the Wall different from the prayer plaza on the west of the Wall, both of which are Holy Places? According to the decisions of this Court, any Jew, even one individual, is prohibited from praying on the Temple Mount, and that is consistent with the principle of freedom of worship, but prohibiting the inclusion of a single element in the prayer service, one that was never customary at the Wall and to which the overwhelming majority of worshippers there are extremely opposed, such a prohibition constitutes an infringement of freedom of worship? Therefore, it is fitting and proper that, in order to prevent discrimination, a commission be appointed, as my colleague the President proposes, and that when the Court is called upon to address this subject again, it will consider the subject of freedom of worship in its entirety, on both sides of the Western Wall. As I stated above, the petitions should be dismissed.

 

President M. Shamgar:

1.         These petitions focus, in theory and practice, upon the interpretation and meaning of sec. 3 of Basic Law: Jerusalem, Capital of Israel, and the Protection of the Holy Places Law and its regulations.

            These statutes express the State’s concern in preventing the desecration and any other violation of the Holy Places. At the same time, the said provisions establish that the Holy Places will be protected against anything that might violate the freedom of access of the members of the various religious communities to their Holy Places or their feelings in regard to those places.

            This provides statutory expression to the statements of the Declaration of Independence, which declares that the State of Israel will ensure freedom of religion and conscience, and will protect the Holy Places of all religions.

2.         The Wall – which bounds the Temple Mount on its western side – was sanctified in the religious tradition of the Jewish People as the remnant of our Temple. For thousands of years, it has represented in our national tradition what we lost with the destruction of the Temple, as well as the continuity of our national existence. In the eyes of the religious halakha, it is a mikdash m’at; from a nationalist perspective, it symbolizes generations of suffering   and the aspiration for a return to Zion and the return of our diaspora, and therefore, it expresses the strength and vitality of the nation, its ancient roots and its eternality. Therefore, inter alia, the opening ceremony of Remembrance Day for the Fallen Soldiers of Israel is held there, and soldiers are sworn in while facing it.

            The importance of preserving it – its exalted, esteemed status and the unifying, fortifying power it radiates to all parts of the nation in Israel and in the Diaspora – increased and was reinforced due to the temporary restrictions imposed, in practice, by the governments of Israel upon the freedom of access of Jews to the Temple Mount.

            In light of the status of the Western Wall in the public mind, one can understand the concern and diligence in regard to the following two objectives: maintaining freedom of access to the Wall, and upholding the obligation to preserve respect for the place and all its visitors. Expression was already given to these different objectives in the law enacted in 1967: In speaking of desecration – against which the Holy Place must be protected – the legislature was referring to harmful acts that by their nature or consequences violate the holiness of the site. At the same time, it established that freedom of access must be ensured to anyone who regards the place as sacred, and infringement of that free access must be prevented. The law further instructs that violation of the feelings of the members of the religious community that regard the place as sacred be prevented (and see sec. 2 (b) of the above law[10]). Understandably, these primary objectives are not necessarily compatible in all possible circumstances, and when a conflict arises, an appropriate path must be found to balance these objectives in order to ensure that the fundamental purpose is not infringed.

            It is therefore sad when a Holy Place become a scene of verbal or physical dispute, and when people conduct themselves there in a manner that does not show respect for the place and its visitors. We should be mindful that it is difficult to preserve the honor of a Holy Place if we do not also respect the honor of those who visit it.

            Therefore, we have emphasized on various occasions that the sons and daughters of a free society in which human dignity is a fundamental value, are asked to respect the personal-emotional feelings of the individual and his dignity as a person, while understanding that the personal-emotional priorities and the manner of expressing them differs from person to person. Thus we were of the opinion in CA 294/91 Jerusalem Community Jewish Burial Society v. Kestenbaum, IsrSC 46(2) 464, that a free society is sparing in imposing limits upon the choices of the individual and acts with patience and tolerance, and even tries to understand the other, even when he chooses paths that the majority does not deem acceptable or desirable.

            However, we must bear in mind that tolerance and patience are not unidirectional norms, but rather they are peripheral and multidirectional. An enlightened society also respects the beliefs and opinions of those who fiercely hold them and identify with them in a manner that is not necessarily the manner of the average person. Understanding others is more important than self-understanding. With all due regard for the aphorism “know thyself”, borrowed from another cultural tradition, it cannot replace adopting the principle of tolerance as expressed in the great rule: “what is hateful to you, do not do to your fellow”. Tolerance is not a slogan for acquiring rights, but a standard for granting rights to others. Ultimately, tolerance must be mutual. Belligerent demonstrations that sometimes draw upon the practices of violent societies from the east and west are not appropriate to it.

            All of this leads us to the bumpy road of trying to balance between approaches and beliefs that are incompatible. In this regard, it is worth remembering that exclusive focus upon presenting questions and problems before the Court – the “wonder drug” of our generation – is not necessarily the appropriate solution or the desirable remedy for all that ails us. At times it comprises the desire for an imposed solution, grounded in a judicial order, when an attempt at reaching agreement and discussion between the various approaches seems more difficult. However, a solution achieved through agreement and understanding has the advantage of deriving from the parties, and the spirit that led to the agreement will imbue its results.

3.         The halakhic and historical analysis in the opinion of my colleague Deputy President (Emeritus) Elon is impressive and tremendously informative.

            My honorable colleague’s call to find a common denominator for all Jews, whomever they may be, is also worthy of respect. But in my view, the common denominator means sufficing with the basic arrangements that would ensure freedom of access and freedom of worship to everyone, without imposing special conduct upon those who do not want it, and without violating the sensitivities of the believers. It does not mean imposing the strictest approach. Incidentally, if we were to adopt the strictest approach, then no Jew would be permitted to visit the Temple Mount.

            I also concur with my colleague’s conclusion that, in light of the unusual sensitivity of the issue at bar, it cannot be resolved at a stroke, while ignoring its deep roots. On the other hand, I am not convinced that the Respondents are not exaggerating the conflicts and differences. Thus, for example, anger was expressed in regard to the Petitioners’ singing, despite the fact that they were singing prayers. Besides, is there any prohibition upon singing at the Wall? After all, people often sing and dance there, and it is unthinkable to prevent the singing of visitors, Israelis or foreigners, soldiers or citizens that is conducted with decorum. Therefore, it is possible, and I emphasize the term “possible”, that the objectors’ opposition to the identity of the singers has led to an opposition to singing itself, which is inappropriate.

            In my opinion, practical solutions should continue to be sought, according to which anyone who wishes to approach his Creator in prayer will be able to do so in his own style and manner, as long as it will not constitute a substantial interference with the prayers of others. The legal starting point is, indeed, the prevailing situation. But we must not bar the way before the good-faith right of anyone who wishes to pray in his own manner, as is clear from the provisions of the said laws.

            I have already noted that this Court may not be the most effective medium – and certainly not the only one – that, through meeting with the various parties, can try to find practical ways for realizing the legislative purpose of the two aforementioned laws, which continues and realizes the principle declared in the Declaration of Independence.

            If the relevant parties are willing, it would be appropriate to make at least an attempt to reach a solution that would be suitable to all those who wish to visit the Western Wall.

            It is, therefore, my opinion that, at this stage, we should not decide the matter before us in the manner that a normal legal dispute is decided. I would recommend to the Government that it consider the appointing of a committee that would continue to examine the issue in depth in order to find a solution that will ensure freedom of access to the Wall and limit the harm to the feelings of the worshippers.

            Therefore, I would, at present, dismiss the petitions, subject to my above recommendation. The gates of this Court are always open, but as stated, the other available options should first be exhausted.

 

Justice S. Levin:

            I concur in the opinion of my colleague the Deputy President with regard to the jurisdiction of this Court to address the subject of the petition, but I do not see eye-to-eye with him with regard to most of his reasoning or with the operative result for the petitions. I will briefly explain my view of the subject:

A.        In my opinion, the subject of the petition should not be decided on the basis of halakhic considerations. After all, it is clear that the Protection of the Holy Places Law (hereinafter: the Law) is a secular law. It takes account of considerations of the relevant religious communities, including the considerations of the Chief Rabbis (see sec. 4), but not only those considerations, and the terms it employs should be interpreted in accordance with the common denominator acceptable to the Israeli population in its entirety. Therefore, the terms “desecrate”, “other violation”, and “anything likely to violate … their feelings (of the members of the religious communities – S.L.) towards those places” in sec. 1 of the Law should be given an interpretation that, on the one hand, expresses the right to freedom of worship and religion, as accepted in a democratic society and as “tolerated in it”, and on the other hand, the protection of the interests of public safety and “intolerable” violation of the feelings of others as acceptable in that society.

B.        Unquestionably, the Western Wall (and its plaza) has been a holy site for the Jewish People for generations, as a religious site and a prayer site, but at the same time, it also bears national symbolic significance as a unique historical remnant of the walls of the Temple, a symbol of the Jewish kingdom that the masses of Israel yearned for throughout the generations. In these circumstances, the fact that the Wall serves as a site for prayer is not necessarily decisive in establishing the scope of activity permitted at the site. In this sense, I am unwilling to accept a priori and as a foregone conclusion that for the purposes of the Law, the Western Wall should be viewed as a “synagogue” in every way, and that the activity conducted there is subject to the rules of halakha that apply to a synagogue and none other.

C.        The above leads to two primary results. One in regard to the right to freedom of worship at the Western Wall site, and the other in regard to the right to conduct other activities of an appropriate nature at the site. As for these two types of matters, we should establish permission in principle for conduct, as long as that conduct does not constitute “desecration”, an “other violation”, or a “violation of feelings” of the nature that I have already mentioned above. In this regard, in my opinion, the adoption of the broadest common denominator as a standard – in the manner presented by my honorable colleague -- is of no help. Consider, for example, even if there are those who believe that a particular manner of prayer is absolutely forbidden by a severe halakhic prohibition, or that activities of a national character at the Wall are objectionable in their eyes, that alone should not justify prohibiting such activity. In my view, the common denominator that must be taken into account in the matter before us – and I agree that it is possible to employ this test – is the common denominator of all the groups and people who visit the Western Wall site and the plaza in good faith, whether for prayer or for other legitimate purposes. If we do not say this, then we hand an exclusive monopoly to a particular point of view, in preference to any other, in regard to freedom of expression, and as a result, the right to freedom of worship and freedom of expression will be found lacking.

D.        What I have said up to now does not mean that limitations cannot be placed upon certain types of conduct at the Western Wall site. Without exhausting the subject, it may be justifiable to restrict religious ritual or other conduct at the site when the common denominator of the public that legitimately cares about the Wall, and not merely one sector, sees the conduct as an “intolerable” violation that “desecrates” the site, or where the conduct is not carried out in good faith but simply to anger and provoke, or where circumstances justify establishing that certain concrete conduct will, by reason of its extent or timing, lead to a breach of public order in circumstances in which preventing the conduct (in those concrete circumstances) overrides the right to worship or the conduct of the relevant party, while ensuring appropriate alternatives for the conduct in order to limit the danger to public order that would result from it.

E.         The result of all the above is that no absolute prohibition should be placed upon conducting prayer services at the Western Wall site simply because there are groups that oppose them, and considerations of certain and proximate danger of a breach of the peace need not necessarily justify imposing such a prohibition. Rather, it is the duty of the relevant authority to ensure the appropriate conditions in order to balance all the relevant interests so that all those who seek to assemble at the Wall and its plaza may fully realize their rights without unnecessarily violating the feelings of others.

F.         I concur with my honorable colleague President Shamgar that regulation 2 (a) (1a) of the Regulations for the Protection of Holy Places to the Jews is not repugnant to the Law, but in my opinion, the term “local custom” need not be interpreted specifically in accordance with the halakha or the existing situation. It is the nature of custom to change over time, and in its framework expression should be given to a pluralistic, tolerant approach to the views and customs of others, subject to the limitations that I have noted above.

            Four years have passed since the events that led to the filing of the petitions before us, and that period is long enough for the Petitioners and the Respondents to reexamine their concrete positions in accordance with the guidelines set out above. In light of the long period that has passed since the above events, it is no longer appropriate to decide at present whether or not the conduct of any of the Petitioners was in good faith at the time.

            Under these circumstances, I am satisfied that, at this point, it is sufficient to issue a decision that recognizes in principle the good-faith right of the Petitioners to pray at the Western Wall Plaza while wearing tallitot and while carrying Torah scrolls, subject to the provisos that I have already noted above. That is what I would decide. In light of the sensitivity of the subject, and the need to prepare for the execution of this decision, and perhaps also to enact legislation to arrange the matter, I would recommend to my colleagues that this judgment be issued subject to the interim order remaining in force for one year from today.

            Like the Deputy President, I too would not make an order for costs.

 

            Decided by majority to dismiss the petitions, subject to the recommendation in the opinion of presiding judge.

 

Given this 14^th day of Shevat 5754 (Jan. 26, 1994).

            HCJ 153/87

         

LEAH SHAKDIEL

v.

MINISTER OF RELIGIOUS AFFAIRS ET AL

 

 

 

 

The Supreme Court sitting as the High Court of Justice

[May 19, 1988]

Before Ben-Porat D.P., Elon J. and Barak J.

 

 

 

Editor's synopsis -

          The Jewish Religious Services Law provides for the establishment of local religious councils throughout the country, charged with the duty to provide Jewish religious services and to allocate public funds in support of such religious services, as are needed in the area. By Law, the membership of such councils is to reflect the general public desire and need for the distribution of such religious services in the locality and the range of interest in such services. In determining the Council's make-up, attention must be given to the different groups represented in the Local or Municipal Council and to their respective strength, but this factor is not conclusive. The members of the religious council are appointed by the Minister of Religious Affairs, the local Chief Rabbis and the Local Council, following a procedure whereby each of the above voices his opinion of the others' candidates. Disagreements between the parties concerning proposed members of the religious council are resolved by a ministerial committee comprised of representatives of the Prime Minister, the Minister of Religious Affairs and the Minister of the Interior.

         

          This case concerns the makeup of the religious council in Yerucham. The Petitioner is a religiously observant woman, who teaches Judaic subjects in the local school. She is a member of the Local Council, representing the National Religious Party, and was proposed by the Local Council to be a member of the Yerucham religious council. The local Rabbi opposed her inclusion on the religious council on the ground that she is a woman, that women have not hitherto served on religious councils and that her presence would impair the council's functioning.

         

          The Petitioner was not included among the members of the religious council. Her exclusion was explained by the ministerial committee as not based upon any principled objection to a woman serving on such a council but rather as grounded in a tradition that has developed since the establishment of the State, adhered to by all the concerned parties, that women would not be proposed as members of religious councils due to the close working relationship existing between such councils and the Rabbinate. It was also feared that the Petitioner's membership on the religious council in Yerucham would obstruct its proper functioning. The Petitioner contends that her disqualification is based on irrelevant grounds. Since the religious council is an administrative body, concerned with providing and funding religious services to the local community, and does not decide questions of religious Law, there is no reason to disqualify a woman from serving on it.

         

            The court issued an order nisi, directing the Respondents to show cause why the court should not direct that the Petitioner be included as a member of the Yerucham religious council. The Respondents appeared in opposition to the order nisi. In a decision rendered by Justice Elon, the court ordered that the rule be made absolute, holding:

           

1.      The ministerial committee, being a body that fulfills a public function under the Law, is subject to judicial review. As with all such public administrative bodies, it must exercise its discretion in good faith, honestly, rationally and without unlawful discrimination, and must make its decisions on the basis of relevant considerations.

 

2.      The Jewish religious services provided by the religious council are an integral part of the municipal services furnished in the locality and must be provided to all who request them, without regard to sex, ideology, education or any other distinction. Although such services are religious in character, the religious council is responsible only for their provision and is not concerned with the resolution of any questions concerning matters of religious Law. The qualifications for membership on the council are determined by the general legal system. Candidates for membership on the council need not meet such qualifications as are required by religious Law.

 

3.      The exclusion of the Petitioner from membership on the religious council because she is a woman is contrary to the fundamental principle of the Israeli legal system that forbids discrimination on grounds of gender. This principle finds expression in the Declaration of Independence and is one of the principles which has found its expression in the Women's Equal Rights Law, 5711-1951.

 

Justice Barak concurred in the result in a separate opinion.

 

Note - An especially interesting aspect of this case is Justice Elon's exhaustive review of Jewish religious legal literature (halakha) concerning women's qualifications to participate in public communal activities and to hold public office. Justice Elon points out that, even in earlier times, most Rabbinic scholars did not agree with Maimonides' opinion that disqualified women. In any event, he concludes, nowadays, it is the view of the overwhelming majority of Rabbinic authorities that women may so participate and may hold such public office.

 

Israel cases referred to:

[1] H. C. 44, 61/68, Rosh Ha'ayin Local Council v. Minister of interior; Sharf v. Minister of Religions 22P.D. (2)150.

[2] H.C. 191/64, Elbaz v. Minister of Religions 18P.D.(4)603.

[3] H.C. 680/81, Chairman of the Municipal Department of the Confederation of Agudat Yisrael in Israel v. Minister of Religious Affairs 37P.D. (1)709.

[4] H.C. 590/75, Barsimantov v. Minister of Religions 30P.D.(2)636.

[5] H.C. 287/76- unpublished.

[6] H.C. 223/76-unpublished.

[7] H.C. 568/76, Rabbi Harlap v. Ministerial Committee under the Jewish Religious Services Law 31P.D.(1)678.

[8] H.C. 516/75 Hupert v. Minister of Religions 30P.D.(2)490.

 

[9] H.C. 121/86 "Shas" Party Faction v. Minister of Religious Affairs 40P.D.(3)462.

[10] H.C. 392/72 Berger v. Haifa District Planning and Building Committee 27P.D.(2)764.

[11] C.A. 337/61, Lubinsky v. Tel-Aviv Tax Assessment Officer 16P.D.403.

[12] H.C. 202/57, Sidis v. President and Members of the Great Rabbinical Court 12P.D.1528.

[13] F.H. 10/69, Boronovsky v. Chief Rabbis of  lsrael 25P.D.(1)7.

[14] H.C. 148/79, Sa'ar v. Minister of interior and Police 34P.D.(2)169.

[15] P.P.A. 4/82 (M.A. 904/82), State of Israel v. Tamir  37P.D.(3)201.

[16] H.C. 114/86, Weil v. State of lsrael 41P.D.(3)477.

[17] S.T. 1/81 Nagar v. Nagar 38P.D.(1)365.

[18] E.A. 1/65 Yeredor v. Chairman of the Central Elections Committee for the Sixth Knesset 19P.D.(3)365.

[19] H.C. 258, 282/64, Zilonilas Ya'ari v. Minister of Religions; Agudat Yisrael v. Minister of Religions 19P.D. (1)517.

[20] H.C. 241/60, Kardosh v. Registrar of Companies 15P.D.1151; S.J. vol. IV, 7.

[21] F.H. 16/61, Registrar of Companies v. Kardosh 16P.D.1209, S.J. vol. IV, 32.

[22] H.C. 73, 87/53, "Kol Ha'am" Company Ltd.; "EI Ittihad" Newspaper v. Minister of Interior, 7P.D.871; S.J. vol. I, 90.

[23] H.C. 262/62, Peretz v. Kfar Shmaryahu Local Council 16P.D.2101.

[24] H.C. 163/57, Lubin v. Tel-Aviv-Jaffa Municipality 12P.D.1041.

[25] H.C. 44/86, Butchers Branch of Jerusalem District v. Jerusalem Chief Rabbinate Council  40P.D.(4)1.

[26] H.C. 195/64, Southern Company Ltd. v. Chief Rabbinate Council 18P.D.(2)324.

[27] H.C. 282/51, National Labour Federation v. Minister of Labour 6P.D.237.

[28] H.C. 507/79, Roundnaff (Koren) v. Hakim 36P.D.(2)757.

[29] H.C. 114/78 (Motion 451, 510/78), Burkan v. Minister of Finance 32P.D.(2)800.

[30] H.C. 98/69, Bergman v. Minister of Finance 23P.D.(1)693 S.J. vol. VIII, supra, p. 13.

[31] H.C. 507/81, M.K. Abu Hatzeira v. Attorney General 35P.D.(4)561.

 

Jewish law sources referred to:

            These references are not listed here, since they are given their full citation in the body of the case. On the Jewish law sources in general, see note under Abbreviations, supra, p. viii.

           

Y. Shofman for the Petitioner.

M. Mazoz, Deputy State Attorney, for Respondents Nos. 1-2.

 

JUDGMENT

 

            ELON J.: 1. Once again we are asked to scrutinize the composition of a religious council under the Jewish Religious Services Law (Consolidated Version), 5731-1971, this time the religious council of Yerucham. This court has already commented that "the ways of establishing a religious council ... are clearly very intricate and protracted ..." (H.C. 44, 61/88[1], at 154), as is evident from the numerous judgments delivered by us on the subject. In the instant case, the formation of the religious council was not only complicated and drawn out beyond the "ordinary" or "customary" measure, due to various reasons, but the matter also raises a question never before considered in the judgments of this court. The Petitioner challenges her disqualification as a member of the religious council, for the sole reason, she contends, that she is a woman. That is the heart of the petition, but before considering it we shall briefly examine the sequence of events in this matter, starting with two preliminary comments:

           

            a. The original petition was filed against the Minister of Religious Affairs (Respondent No. 1) and the Committee of Ministers under section 5 of the above-mentioned Law (Respondent No. 2), and in the course of its hearing two additional respondents were joined - the Yerucham Local Council (Respondent No. 3) and the Rabbi of Yerucham (Respondent No. 4);

           

            b. In the original petition, the Petitioner also questioned the delay of the first two Respondents in concluding the task of forming the religious council. In the course of hearing the petition the composition of the religious council was concluded, but the Petitioner was not included among its members. This left us only the first question to deal with, i. e. why the Petitioner was not included as a member of the religious council. We issued an order nisi as well as an interim interdict restraining the first two Respondents from giving notice in Reshumot* concerning the new composition of the Yerucham religious council (without inclusion of the Petitioner), until otherwise ruled by this court. We now propose so to rule .

           

            2. The Petitioner is a resident of Yerucham, an Orthodox Jewess, and a trained, experienced teacher of Judaic studies. She is a member of the Yerucham Local Council representing the Labour Party, and on January 26, 1986, the Local Council proposed her as one of the four candidates nominated on its behalf to the religious council.

           

            3. That election was preceded by several events which are relevant to our discussion here.

           

            The religious council of Yerucham is composed of nine members, like the number of the members of the Local Council (section 2 of the above-mentioned Law). It was first appointed in 1975. Notice of a newly composed religious council was published in Reshumot in 1981, which was invalidated, however, by judgment of this court (H.C. 513/81). The council appointed in 1975 thus resumed its functioning, but with only five remaining members out of nine; one had died, two had resigned and one had left Yerucham. The Minister of Religious Affairs approached the Local Council and the Yerucham rabbinate three times (once before the municipal elections on October 25, 1983, and twice thereafter) requesting them to propose their candidates for the religious council, as prescribed by section 3 of the Law, but to no avail, for reasons that were not entirely clarified. The Minister repeated his request for the fourth time in March 1985, and it was only on September 18, 1985 that he received a response from the secretary of the Local Council, who named four candidates on behalf of the Council, with the Petitioner excluded. It transpired that the list of candidates had apparently been compiled by the head of the Council, but was not confirmed by the Council itself. This need was indicated to the head of the Council, and he submitted the matter to the Local Council for resolution. On January 26, 1986 the Council discussed the matter and elected its candidates for the religious council, among them the Petitioner.

 

            Meanwhile, and before the said decision of the Local Council on January 26, 1986, the Shas party faction petitioned this court (H.C. 344/85) with respect to the reconstitution of 40 religious councils, including that in Yerucham. On November 10, 1985, judgment was given, by consent of the parties, to the effect that the case of each of these religious councils which the Minister of Religious Affairs failed to reconstitute within 90 days, should be referred to the Committee of Ministers under section 5 of the Law. On February 8, 1986, pursuant to that decision, the matter of the formation of 21 religious councils which the Minister of Religious Affairs was unable to reconstitute - including the religious council in Yerucham - was referred to the Ministerial Committee for determination.

           

            The Petitioner contends that the resolution of the Local Council of January 26, 1986, concerning its choice of candidates, was conveyed to the Minister on February 6, 1986 (that is, before the matter of the formation of the religious council was referred for determination to the Ministerial Committee). It is not clear from the evidence before us precisely when that resolution of the Local Council reached the attention of the Minister, but the point is not material since it is not disputed that the Petitioner was included in the list of candidates made known on January 26, 1986, as aforesaid. On March 23, 1986, the Petitioner, as one of the candidates nominated to represent the local authority on the religious council, wrote to the Minister inquiring as to the reason for the delay in the formation of the religious council in Yerucham. In a letter dated May 6, 1986, Mr. Marmorstein, head of the department for religious councils in the Ministry of Religious Affairs, informed the Petitioner that no notice whatever had yet been received by the Minister respecting any change in the Local Council's nominees for the religious council in relation to the list previously submitted. Mr. Marmorstein added the following comment:

 

            If we understand your letter correctly, it appears that you are one of the candidates. In this regard I can already inform you that the matter is not at all feasible; there are no female members on the religious council, only male members can serve on it, and I assume that you would not even want to create such a precedent.

           

            As to the substance of the matter, the letter continued, the formation of the religious council had been referred to the Committee of Ministers, pursuant to the above-mentioned decision of this court in the petition brought by the Shas party faction, and it was to be hoped that the Committee would conclude its task within a reasonable period of time.

           

            This hope was not fulfilled. In response to the above letter, the Petitioner wrote to the Prime Minister, who serves as chairman of the Committee of Ministers (section 5 of the Law), complaining strongly about the suggestion in Mr. Marmorstein's letter that she was unable to serve as a member of the religious council, and asking to speed up the formation of the religious council, with herself included as one of its members, representing the local authority. She also approached other persons, and the matter was even raised for discussion in the Knesset.

           

            In a letter written by Mr. Marmorstein to counsel for the Petitioner, dated October 28, 1986, he described the sequence of events in the composition of the Yerucham religious council. It was stated, among others, that since the decision of the Yerucham Local Council (concerning its candidates for the religious council) had been sent to the Minister on February 6, 1986, neither the formation of the religious council nor the joint opinion (required under section 4 of the Law) could have been prepared by February 8, 1986 (the date on which the matter of constituting the religious council was referred to the Committee of Ministers), "and unconnected with the petition of the Shas faction, the Committee of Ministers dealing with the composition of the religious councils was asked to handle Mrs. Leah Shakdiel's complaint following her approach to the Prime Minister".

           

            The Committee of Ministers did not consider the matter of the religious council in Yerucham. Meanwhile a new Minister of Religious Affairs was appointed and thereafter the composition of the Yerucham religious council was taken up by the various competent bodies. The new Minister asked for time to consider the matter, it was raised again in the Knesset plenum and Internal Affairs Committee, and resolutions were passed. The Minister of Religious Affairs met with the Petitioner, and assurances were given on his behalf that the matter would be arranged and settled (as to which more will be said below), but no solution was forthcoming. In these circumstances, the Petitioner filed her petition before this court, and on March 12, 1987, we issued an order nisi as mentioned at the outset of our judgment.

 

            4. Approximately one month after the order nisi was issued, the Committee of Ministers - composed of representatives of the Prime Minister, the Minister of Religious Affairs and the Minister of the Interior - began its discussions on the formation of the religious council in Yerucham. On April 21, 1987 the chairman of the Committee requested the three authorities whose nominees compose the religious council - that is, the Minister of Religious Affairs, the local authority and the local rabbinate (section 3 of the Law) - to propose their candidates. The Minister of Religious Affairs submitted his list of candidates in anticipation of a meeting scheduled for May 8, 1987. The meeting was postponed because the local rabbinate had not yet nominated its candidate, and this was done on May 29, 1987. On June 9, 1987 the Committee of Ministers held another meeting, and in view of changes in the list of candidates submitted by the Minister of Religious Affairs, another meeting was scheduled "to allow further consultation between all the parties". This meeting was set for August 5, 1987, but was postponed at the request of the head of the Local Council because, among other reasons, the Council was to discuss again its list of candidates on that same day. In mid-August a letter was received from the Local Council, in which it submitted its final list of candidates, this list including two changes, but the candidacy of the Petitioner remained unaffected. The Local Council also advised that it confirmed the candidates of the Minister of Religious Affairs and the candidate of the local rabbinate. The Committee of Ministers decided, at its meeting on August 28, 1987, to request the opinion of the Minister of Religious Affairs and that of the local rabbinate respecting the candidates of the local authority, as well as the opinion of the local rabbinate respecting the candidates of the Minister of Religious Affairs. On September 20, 1987 the Committee of Ministers received the opinion of the local rabbi, in which he expressed his opposition to the candidacy of the Petitioner (a matter I shall discuss further below). Thereafter the Committee of Ministers held three meetings - on September 30, 1987, October 26, 1987, and November 29, 1987 - at the conclusion of which it determined the composition of the religious council in Yerucham, excluding the Petitioner. The Committee's reasons were set forth in a decision given on November 29, 1987, to which we shall presently refer.

           

            5. We were asked to hold over the hearing of the petition until the Committee of Ministers completed its deliberations, which we agreed to do. In the meantime we decided to join the local authority and the local rabbinate as additional respondents to the petition, as already mentioned. We heard the petition on December 21, 1987, with counsel for all the parties present. On December 22, 1987 we decided to serve a copy of the material filed with the court on the representatives of the local authority who had been appointed members of the religious council by the decision of the Committee of Ministers, since it appeared that if we were to admit the petition and hold the exclusion of the Petitioner from the religious council to be unlawful, one of these four appointees to the religious council might be affected by having to vacate his seat in favour of the Petitioner. We also notified them that if they so wished they could submit their written reply to the petition and the material filed with the court within two weeks. All four representatives submitted their written replies, and the response of one of them is of particular interest here, as will be elaborated below.

 

            6. In the original petition, as already mentioned, the Petitioner complained of the delay in forming the religious council in Yerucham. Mr. Mazoz, learned counsel for Respondents nos. 1 and 2, concedes that the delay was unreasonable, but contends that it was largely attributable to the other two Respondents because they were dilatory in complying with the Minister's request to submit their candidates for the religious council. We have already described the sequence of events and there is indeed no doubt that the inaction of the local authority and the local rabbinate contributed significantly to dragging out the matter. It also appears, however, that both the Minister and the Committee of Ministers were tardy, beyond any substantive justification, in forming the religious council, even after the list of the candidates of the local authority had been submitted, and especially after the beginning of February 1986, when the Committee of Ministers was charged with the task by this court. There can be no justification for the lapse of almost two years until the formation of the Yerucham religious council, even if we take into consideration the workload of the Committee of Ministers in forming religious councils elsewhere too. For fourteen months, from February 1986 until April 1987, the Committee did nothing towards forming the Yerucham religious council, until the lodging of the instant petition. We have listed these details so as to bring the matter to the attention of the competent bodies. Now that the task of composing the Yerucham religious council has been concluded, there is no further need for us to deal with the Petitioner's complaint about the delay.

           

            7. In his summary of arguments, Mr. Mazoz raised a preliminary plea as to the Petitioner's lack of standing before this court, contending thus: Since the period within which the local authority and the local rabbinate were required to propose their candidates for the religious council had expired (according to section 3 of the Law), their right to appoint representatives to the religious council had lapsed and that right passed to the Minister; however, as a result of the Minister's delay in forming the religious council, this court ruled (in H.C. 344/85) that the composition of the Yerucham religious council was to be effected within ninety days, or the matter would be referred to the Committee of Ministers under section 5. The effect of all this, according to Mr. Mazoz, is that because the lists of candidates were not submitted in time by the authorities mentioned in section 3 of the Law, and the entire matter was referred to the Committee of Ministers, there wasn't before the Committee any duly proposed list of candidates whatever, so that it was free to determine the composition of the religious council without being bound by any proposed list of candidates. Indeed, this was expressly stated in paragraphs A and B of the decision of the Committee of Ministers given on November 29, 1987, with respect to the local authority's nominated candidates. Hence, continues Mr. Mazoz, "in these circumstances the Petitioner lacks legal standing, procedural and substantive alike, as regards both the proceedings and the decision of the Committee of Ministers"; and in any event, according to section 5 of the Law, only the three authorities that compose the religious council have standing before the Committee of Ministers -"and the Petitioner does not have any preferred right or standing in relation to any other resident of Yerucham seeking appointment as a member of the religious council". It follows that "the Committee of Ministers did not disqualify the candidacy of someone (the Petitioner) who had been lawfully proposed by the competent body, but decided not to appoint someone whose candidacy was put forward by a body (the local authority) which lacked the legal competence to make appointments at that stage, when that candidacy was also opposed by another body (the local rabbinate) of equal standing (to the local authority)".

 

            8. This argument, for all its subtlety, has no foundation whatever, either in fact or in logic, and Mr. Mazoz wisely did not press it before us.

           

            The religious council is composed of representatives of three bodies - the local authority (45%), the Minister of Religious Affairs (45%) and the local rabbinate (10%), each body proposing its own candidates (section 3 of the Law). The legislature considered this to be the desirable balance for the religious council, which provides local Jewish religious services and which is not elected by the residents in general elections. The three authorities express their opinion concerning all the proposed candidates - "with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and the communities interested in the maintenance of Jewish religious services ... in the locality" (section 4 of the Law). We shall refer below to the qualifications required of the candidates. Where the local authority or the local rabbinate fail to respond to the Minister's request to list their candidates, the Minister may propose those candidates in their stead (section 3(b)), and in the event of any disagreement between the three authorities, the matter is referred to the Committee of Ministers for determination, against which decision the Minister may appeal to the Government (section 5 of the Law). The function of reconstituting the religious council and giving notice of its new composition is imposed on the Minister, as specified in section 6 of the Law.

           

            The Committee of Ministers accordingly does not act in a "vacuum", and it too is bound to adhere to the structure and balance statutorily prescribed for constitution of the religious council, including the role of the three authorities. The function of the Committee of Ministers is to consider differences disclosed between the three authorities and to settle them. In other words, it must receive and study the lists of candidates proposed by each of the three authorities, hear their respective opinions on them, all as specified in the Law, and settle the disagreements that arise among them. The Committee of Ministers so acted, precisely and rightly, in the instant case. At its first meeting, on May 8, 1987, there were present, in addition to the members of the Committee representing the Prime Minister, the Minister of the Interior and the Minister of Religious Affairs, that is, the directors-general of their respective ministries, also the rabbi of Yerucham, the head of the Local Council and a senior adviser to the Minister of Religious Affairs on matters of religious councils (as well as the legal adviser to the Office of the Prime Minister). The chairman of the Committee asked the representatives of the three authorities to submit their nominees for the religious council. The head of the Local Council named the four representatives chosen by that body - including the Petitioner. The representative of the Minister of Religious Affairs also named four candidates, and added that there might be changes after consultation with all the proposed candidates, so as to give proper representation to all the bodies and communities. The local rabbi said that he would submit the name of his candidate within two weeks, after considering the names of the candidates on behalf of the local authority and the Minister of Religious Affairs. At the end of the meeting the chairman of the Committee asked the parties to consult among themselves so as to reach agreement on all the candidates. At the meeting of the Committee on June 9, 1987, the representative of the local rabbinate was named, and the representation of the Shas faction on the religious council was discussed, whilst the representatives of the Minister of Religious Affairs and the Local Council asked for another opportunity to study their lists of candidates. On August 6, 1987 the Local Council announced its final list of candidates, which again included the Petitioner, and the local rabbi was again asked his opinion concerning the list of the representatives proposed by the Local Council and by the Minister of Religious Affairs, respectively. The Committee of Ministers thus acted correctly and in accordance with the provisions of the statute and its purpose, when it called upon the three authorities for their lists of candidates and for their opinions respecting all the candidates listed as proposed members of the religious council. In this context the Petitioner's candidacy was repeatedly put forward by the Local Council to the Committee, and despite changes from list to list of the candidates proposed by the Local Council at different times, the Petitioner's candidacy remained unaffected. The Committee of Ministers decided to reject her candidacy and she was excluded from membership of the religious council for reasons that we shall refer to below. How then can it be argued that the Petitioner has no locus standi before us to complain about the wrong done to her, about the violation of her right to be numbered among the members of the religious council? One of the authorities appointed under the Law to propose candidates for the religious council, indeed the most important of the three, in fact proposed the Petitioner's candidacy, while she now claims that she was unlawfully disqualified. How can it be said that "the Petitioner does not have any preferred standing in relation to any other resident of Yerucham seeking appointment as a member of the religious council"?

 

            No less unfounded is Mr. Mazoz's argument that the Committee of Ministers did not disqualify the candidacy of the Petitioner, but merely decided not to appoint a person whose candidacy was proposed by a body (i.e. the local authority) that had no legal competence to make appointments at the time. As already mentioned, the local authority is a body that seeks to propose its candidates for the religious council (also in relation to the Committee of Ministers), and the rejection of any of its proposed candidates amounts to disqualification of that candidate. If that candidate considers the disqualification to be unlawful, as does the Petitioner here, the doors of this court are open to her and we are ready to hear and consider her petition, like any other petition brought against a governmental body that is claimed to have based its decision on unlawful or extraneous considerations. It is true that the parties to the formation of the religious council are the three authorities specified under section 3 of the Law, and not the proposed candidates. Likewise, the party to an appeal before the Government against a decision of the Committee of Ministers, is a Minister and not the person disqualified by the Committee of Ministers. But any person who has a legitimate interest in the composition of the religious council may petition this court, even if not representing one of the three aforementioned authorities (see H.C. 191/64[2] at 610; H.C. 680/81[3] at 713). Certainly this applies to a person who was a candidate to represent one of the authorities that constitute the religious council and whose candidacy was disqualified.

           

            9. We thus arrive at the essence of the petition: the complaint against the decision of the Committee of Ministers of November 29, 1987 to fix the composition of the religious council in Yerucham without including the Petitioner among its members, despite her nomination as a candidate on behalf of the local authority. Mr. Shofman, learned counsel for the Petitioner, claims that the decision of the Committee of Ministers is invalid, because it disqualified the Petitioner from serving on the religious council on the basis of the unlawful consideration that the Petitioner is a woman; that this amounted to discrimination on grounds of sex which is contrary to law and neither permitted nor justified, also not for purposes of membership of a religious council. All the considerations mentioned in the decision of the Committee of Ministers, the Petitioner contends, are incorrect, unlawful or irrelevant. Mr. Mazoz, on behalf of the Respondents, replies that the exclusion of the Petitioner from membership of the religious council did not stem from any principled objection because she was a woman, but was rooted in the special circumstances of the formation of the religious council in Yerucham, namely: the objection of the local rabbi and the Minister of Religious Affairs to the candidacy of the Petitioner because she was unfit for the office, and the fear that the Yerucham religious council would not function properly, and its regular activity would be stymied, if the Petitioner served as one of its members. Mr. Mazoz argued further that the Committee also took into account the nature of the activity of a religious council, which deals with matters of clear religious-halakhic concern, and the tradition in Israel is that women do not serve as members of religious councils. These are material considerations, according to Mr. Mazoz, and the court should not intervene in a decision based on them.

 

            10. The main points of the argument presented by Mr. Mazoz are detailed in the above-mentioned decision of the Committee of Ministers, and we shall now examine them. It is not disputed that the Committee of Ministers, as a statutory body carrying out public functions, is subject to judicial review by the High Court of Justice (section 15 of Basic Law : Judicature), and like any other public administrative body it must exercise its discretion in good faith, with integrity, without arbitrariness or unjust discrimination, and it must reach its decision on the basis of material considerations. As regards the extent of the intervention by this court, it has already ruled that the discretion is the Minister's, and so long as it is not shown that his considerations lacked foundation or that he exercised his powers unreasonably, the court will not intervene in his actions (H.C. 590/75[4] at 640; H.C. 287/76[5]). So too it has been held (per Landau J., in H.C. 223/76[6]) that

           

            the discretion is vested in the Minister of Religions and where there are no clear and persuasive grounds to contradict the opinion of the person entrusted with the discretion, this court will not intervene in the matter.

           

            These statements are as pertinent to the discretion of the Committee of Ministers in settling the composition of the religious council under section 5 of the Law, as they are pertinent to the discretion of the Minister of Religious Affairs in discharging his own function. Thus it was held in H.C. 568/76[7] at 679-680:

           

            ...The matter of the fitness of the candidates lies initially within the discretion of the three bodies that compose the religious council, and if there are any reservations about the fitness of a given candidate, the matter is entrusted to the discretion of the above mentioned Committee of Ministers. This court does not usually interfere with administrative discretion, even in relation to the election of candidates to a representative body, unless it appears that the act was lacking in good faith or done out of improper motives, or on similar grounds for disqualifying an administrative act.

 

            With these rules in mind we shall now examine the decision of the Committee of Ministers (R/15). After noting that this court (in H.C. 344/85) had referred to it the matter of composing the religious council in Yerucham, the Committee goes on to state (in paragraph B) -

           

...the local authority and the local rabbinate did not propose their candidates for the religious council within the statutory period of time; when the local authority first presented its list of candidates, more than two years late, it did not include Mrs. Shakdiel among them. After that the list of candidates of the local authority was changed twice. In light thereof, the Committee considers, from both the legal and the public interest aspects, that it is not bound to accept the recommendations of the local authority, but must rather consider each proposed candidate individually after consulting with the bodies concerned.

 

            We do not accept this determination. The function of the Committee is to settle disagreements that arise between the different authorities, and the fact that these were late in presenting their candidates, or that one of them changed its list of candidates does not allow the Committee of Ministers to ignore the existence of a particular candidate or to reject his candidacy, unless there is a disagreement with respect to that candidate. In that case the Committee must resolve the matter (as indeed it did with respect to the candidacy of the Petitioner), but it may not refuse to accept a candidate agreed upon by all the bodies that compose the religious council, or rest content with mere consultation between them.

           

            11. The Committee further clarified that it had asked each of the three authorities to propose its candidates as well as give its opinion on the candidates in general. In doing so, the Committee acted correctly. The Committee notes that differences of opinion arose in relation to two matters: the absence of representation for the Bnei Torah community, and the inclusion of the Petitioner in the local authority's list. With regard to the first matter the Committee decided by a majority opinion that this community was adequately represented in the overall appointments to the religious council. As to the nomination of the Petitioner, the Committee gave its decision in these terms:

           

            E. The local rabbi, who was asked by the Committee of Ministers for his opinion of the candidates, objected to the candidacy of Mrs. Shakdiel, for reasons of her unsuitability and the proper functioning of the religious council. It became clear to the Committee that the attitude of the local rabbinate, and in fact also that of the chief rabbinate, is that even if the religious council is in theory an administrative body, it acts in practice as a body that ministers to matters of religious principle touching upon classic halakhic issues, and as such serves as a meeting place for the rabbis of the town and the neighbourhood as well as the scholars of the region. The religious council deals with both the administrative aspect of marriage registration and the halakhic aspect of the fitness of the registration; it deals with the building of ritual baths, but also with the determination of their fitness; it supervises the kashrut or fitness of foods, including the slaughter of animals, the setting aside of contributions and tithes and the problems of the shemitta [sabbatical] year with its related laws; it also deals with burial services and a long list of religious matters, among them the local rabbinate and other religious-halakhic concerns.

 

F. The representative of the Minister of Religious Affairs pointed out that in the forty years of the State's existence it became an accepted tradition among all the agencies concerned that the religious council should be a body with strong ties to the rabbinate and the halakha that guides it; hence an understanding evolved that women would not be nominated for membership in this body. He advised that the matter had meanwhile become the subject of public debate, amidst calls for change, various proposals being raised and examined from a broad perspective with a view to appropriate arrangements for promoting understanding and dialogue, along with respect for the view of the Israeli rabbinate. In the circumstances, the representative of the Minister of Religious Affairs asked us not to consider him to have taken any principled position on the issue, and to confine the issue to the case in Yerucham alone.

 

G. Having regard to the objection of the local rabbi to Mrs. Shakdiel's candidacy, and his reasons, and considering her views and position on the subject of religion and state, as publicized by her in the communications media, the Minister's representative was convinced that her appointment would disrupt and impair the functioning of the religious council in Yerucham. There is a reasonable fear that her appointment will lead to a complete break in relations between the religious council and the local rabbi, stir sharp dispute within the religious leadership in Yerucham, and thus prejudice the proper, orderly and regular functioning of the religious council.

 

H. The Committee agrees that this matter should not be decided on grounds of general principle and that it should address only the specific problem of the Yerucham religious council. From this point of view, the Committee is of the opinion that the arguments of the representative of the Minister of Religious Affairs should be accepted, in the hope that the question of principle will be decided in the near future from a broad and general perspective.

 

I. For the above reasons, and having considered the need for the appropriate representation of all sectors of the local population, the Committee has decided to determine the composition of the religious council of Yerucham as follows: [Here the Committee lists the names of the nine appointees, with the Petitioner's name omitted - Ed.]

 

We shall examine these reasons seriatim:

 

            12. The objection of the local rabbi, R. David Malul, is found in a letter written by him to the Committee (R/14), in which he expressed his opinion of the nominees for the religious council in these terms:

           

I have received the list of candidates for the Yerucham religious council. As a rabbi who has known the entire community in all its diversity for many years, candidate Mrs. Leah Shakdiel also being known to me, I have reached the conclusion that she is unsuited to serve as a member of the Yerucham religious council. It is feared that her membership will disrupt the orderly course of activity of the religious council. Furthermore, she is not properly representative of the public which is interested in the maintenance of religous services in Yerucham. I therefore ask the local council to appoint another representative in her stead, in accordance with section 4 of the Jewish Religious Services Law.

 

            Section 4 of the Law, under which Rabbi Malul's opinion was given, provides that

           

the three authorities referred to in section 3 shall express their opinion of the candidates with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and communities interested in the maintenance of the Jewish religious services (hereinafter referred to as "religious services") in the locality.

 

            The opinion follows the terminology of section 4, and the section is expressly mentioned in its conclusion. The opinion is not, therefore, a halakhic ruling (even were there place for such a ruling with regard to the composition of a religious council), and Rabbi Malul did not purport to act in discharge of a halakhic function. The opinion was given within the frame and under the provisions of the Jewish Religious Services (Consolidated Version) Law, and it is, therefore, subject to scrutiny and review by this court. All the more so once the Committee of Ministers adopted that opinion as one of its reasons for deciding to exclude the Petitioner from membership in the Yerucham religious council .

 

            13. Rabbi Malul did not specify why the Petitioner is not fit to serve as a member of the Yerucham religious council. In fact, his opinion merely reproduces the text of section 4 of the Law. Nor does the decision of the Committee of Ministers offer any explanation of the alleged unfitness.

           

            The functions of the religious council and the qualifications required of its members have been discussed several times in the judgments of this court. Section 7 of the Law, concerning the powers of the religious council, provides:

           

A council is competent to deal with the provision of religious services and for that purpose it may enter into contracts, hold property on hire or lease and acquire immovable property, all in accordance with the items of its approved budget.

 

            The functions of the council accordingly embrace the provision of Jewish religious services. Thus in H.C. 516/75[8], Shamgar P. said as follows:

           

The powers of the council are prescribed in section 7 of the Law, under which it is competent to deal with "the provision of religious services". The Law does not clarify the meaning of "religious services", but the current nature of these services may be deduced, among others, from the regulations concerning submission and approval of the religious council's budget. The schedule to the Jewish Religious Services Budget Regulations, 5728-1968 (K.T. 2177, 1968, 760) lists the religious council's main fields of activity covered by the budget, namely: rabbinate and marriage, kashrut and ritual slaughter, family purity [ritual], burial services, the Sabbath and eruvin and religious cultural activities.

 

And further on, per Shershevsky J., at page 503:

 

...The Law does not speak about religious services in general but about Jewish religious services, that is, about the religious services that are known to be specially and specifically for Jews. What these religious services are, can be learned, inter alia - as my esteemed colleague Shamgar J. has shown - from those listed in the schedule to the Jewish Religious Services Budget Regulations, 5728-1968. These religious services are not a matter of personal outlook, so that their substance can change from time to time according to the subjective view of whoever considers himself competent to express his own so called Jewish outlook, but are matters objectively governed by Jewish law and custom from time immemorial, as such known to be specifically Jewish and distinct from any other religion.

 

            We are thus dealing with known and customary religious services. The religious council is charged with making appropriate budgetary provision for these services (see section 14 of the Law), and is accordingly vested with the requisite powers to discharge its legal functions (section 7 of the Law). The religious services provided by the religious council constitute a substantial part of the municipal facilities in the locality (H.C. 121/86[9], at 466), and it must provide them on call, regardless of sex, worldview, education or any other distinction. The religious council is, therefore, an administrative body created by statute, whose function it is to maintain Jewish religious services and to have an interest in their maintenance, and to assist the local residents in receiving the religious services that they require and wish to have.

           

            To sum up, the services provided by the religious council are of a religious character, but the council is responsible only for their provision and not for making any kind of halakhic decision with respect to them. The latter decisions are entrusted to a body that enjoys the requisite halakhic authority and competence (see the Chief Rabbinate of Israel Law, 5740-1980, section 2, subsections 1, 3, 5, 6, section 5, etc.).

           

            14. The character and functional purpose of a religious council, as outlined in section 4 of the Law, determine also the qualifications required of its aspirant members:

           

Every candidate must have two attributes: personal, that he is a religious person or at least not anti-religious; and public, that he represents a body or community with a religious interest.

(H.C. 191/64[2], at 610.)

 

It is likewise the rule that the interested bodies and communities

 

...be not merely indifferent in the sense they do not care if they [the religious services - M.E.] are provided or not, but must in fact show a positive interest in their existence and that they would be disturbed by the absence of such services.

(H.C. 516/75[8], at 503-504.)

 

            These statements are pertinent both to the bodies represented by the candidates and to the candidates themselves. Candidates for membership of the religious council are not required to have recognized qualifications set by the halakha (see H.C. 568/76[7], at 679-680), as might have been justified were the religious council vested with the power or function of halakhic determination or decision. So indeed has it been contended by the Petitioner (section 36(b) of the petition). Mr. Shofman added in his oral argument before us that if a religious council decided matters of halakha, the Petitioner would not have pressed her petition .

           

            15. We must now examine the Petitioner's alleged unfitness to serve as a member of the religious council in Yerucham, and for what reason she is not properly representative of the public interested in the maintenance of local religious services. It appears from the material before us, and the point is not contested, that the Petitioner is religiously observant, a trained and experienced teacher of Judaic subjects, and that she dedicates her time - in addition to managing her home and raising her four children - to educational affairs in her place of residence. Do these excellent and special qualities not qualify the Petitioner to serve as a member of the Yerucham religious council? The Petitioner states in her petition as follows (paragraph 47):

           

One of the new institutions in the state is the religious council, an institution of great importance in fashioning religious life at the local level. The Petitioner did not confine her candidacy to representing only the women of Yerucham on the religious council. She can certainly bring to bear a new and formerly unrepresented perspective to the council meetings. But as a resident of the locality who is interested in the maintenance of religious services, and as an elected representative of the public, she considers herself a full participant in public activity, and wishes to serve on the religious council as a full partner to decisions in all matters falling within the competence of the council.

 

            These statements are true and sincere, unchallenged by any of the litigants and acceptable to us. Male members of the religious council have never been required to show knowledge of the Torah, scholarship, or strict observance of all the commandments, and never have we heard that the lack of any of these - or even all of them together - should disqualify a man from serving on a religious council. Is it because the Petitioner is blessed with all these virtues that her competence shall be diminished, and she be deprived of her right to serve on the Yerucham religious council? It is clear beyond doubt that the Petitioner is interested in the availability of religious services as defined in the Law, and in the regulations and case law, as already outlined; moreover, that she wishes to devote her time, energy and talent to that end. How can she be regarded as unfit to serve in this capacity and to represent the residents of Yerucham?

 

            Hardly surprising, therefore, is the Petitioner's grave suspicion that the only possible explanation for her "unfitness" to serve as a member of the religious council is the fact that she is a woman, and nothing else. This suspicion is well-founded, since that very explanation was expressly proferred by the competent parties concerned (see the above-mentioned letter of the head of the department for religious councils, of May 6, 1986), and we shall further elaborate the point below.

           

            16. It was also explained, in paragraph E. of the decision of the Committee of Ministers, that even if the religious council is an administrative body in theory, it is in actual practice a body that deals with matters of religious principle, affecting classic halakhic issues. This explanation is unclear and hard to comprehend. The religious council indeed deals with matters of religious principle affecting classic halakhic issues; but does this preclude the Petitioner from contributing to this great and important task her own experience and wisdom? The elaboration of this explanation (ibid, par. E) - that the religious council also deals with the halakhic aspect of kashrut, marriage registration, ritual baths and similar basic questions of halakha - is most perplexing. These are, after all, clearly matters for religious scholars and halakhic decision. Given the usual composition of many of the religious councils throughout the country, are their members, though male, competent and qualified to decide such matters? We have never heard that expertise in the laws of ritual baths and kashrut is a condition for membership of a religious council. Likewise as regards the competence and qualifications of most members of the religious councils to make decisions concerning the setting aside of tithes, the problems of the shemitta [sabbatical] year, and other matters of the kind referred to in the decision of the Committee of Ministers. Mr. Mazoz did not know, understandably so, how to defend this reasoning of the Committee of Ministers, and, with all due respect, better it had been left unuttered. If that reasoning holds good, and that were indeed the situation, then the incumbent members of most of the religious councils in the country should immediately be unseated to make way for religious scholars, knowledgeable in law and rite and familiar with the Talmudic sources.

           

            17. The decision of the Committee of Ministers further states that it accepted the apprehension of the representative of the Minister of Religious Affairs, who was convinced that the Petitioner's appointment "would disrupt and impair the functioning of the religious council in Yerucham", and that there was reasonable ground to fear "a complete break in relations between the religious council and the local rabbi and this would stir sharp dispute within the religious leadership in Yerucham". The reason for this grim forecast was the objection of the local rabbi to the Petitioner's appointment "in light of her views and position on the subject of religion and state, as publicized by her in the media". The representative of the Minister explained that it has been the tradition for forty years, ever since the establishment of the State - because of the strong ties between the rabbinate and the religious council - that women do not serve on this body. Also that for some time now calls have been made for reform and that the matter is under consideration, hence - so it is stated in the decision of the Committee of Ministers - the present decision in the matter of the Petitioner's exclusion from the religious council, should not address general principle but confine itself specifically to the composition of the Yerucham religious council.

 

            18. These apprehensions, some of them convincing to the Minister's representative and the Committee and some of them seemingly reasonable, must be seriously considered and carefully examined. Before doing so we must comment that we find one of the disqualificatory grounds mentioned in the above extract from the decision of the Committee of Ministers, very strange, to say the least. What are those views and perspectives of the Petitioner on matters of religion and state, said to have been publicized by her in the media, which generated the fear of all the anticipated mishaps? In all the abundant material before us we found no mention of these views, no one bothered to explain to the Petitioner and her counsel what was at stake, and certainly no one asked the Petitioner any question about the matter. Even counsel for the state was unable to enlighten the court in this regard. Since we do not know the particulars, it is unnecessary to ask since when do one's views and attitudes on the relationship between state and religion disqualify him from membership of a religious council. We take a grave view of the inclusion of this passage in the decision of the Committee of Ministers, without even bothering to explain the matter. This not only does injustice to the subject, but also injury to the Petitioner, and the controversial statement should never have been made. We return to discuss the fear that the proper functioning of the religious council might be impaired, along with the relations within the local religious leadership.

           

            19. It accordingly seems clear that the above-mentioned fears stemmed from the proposal to include a woman among the members of the religious council. We find no other factor to justify these fears, considering the Petitioner's personality, her way of life and the many virtues with which she has been endowed. One may assume that the Petitioner's gender was the underlying reason for the local rabbi's objection, even if he refrained from so intimating. On the other hand, this ground is perhaps more than hinted at in the reasons given by the representative of the Minister of Religious Affairs, and by the Committee of Ministers, for accepting the contentions of the local rabbi. These reasons refer to a tradition that would exclude women from religious councils, and it is added that the matter is being studied following various calls for reform; also that meanwhile the Petitioner's case was not decided on "principle", the decision affecting only the Yerucham religious council. This is mere semantics without real substance. Since we have found no justification for the Petitioner's disqualification from service on the religious council of Yerucham other than the solitary contention concerning her gender, the decision of the Committee of Ministers to disqualify the Petitioner was necessarily one of principle. In matters such as these it is not the phraseology that counts, nor is the nomenclature assigned by the Committee of Ministers decisive, only the substantive content-which here is clear from the circumstances (see H.C. 392/72[10], at 773). Several events that preceded the decision of the Committee of Ministers further support the conclusion that the Petitioner's gender was the reason for her exclusion from the religious council, as we shall presently see.

 

            20. We have said that a religious council established in accordance with the Jewish Religious Services (Consolidated Version) Law is an administrative body, the composition of which is subject to the pertinent statute and case law (see, in particular, H.C. 568/76[7]). Hence the exclusion of a female candidate from appointment to a religious council, because she is a woman, clearly contradicts a fundamental principle of Israeli law which prohibits discrimination on grounds of gender. This fundamental principle was laid down in the Declaration of Independence, and is among those that have gone beyond recognition in the case law to become enshrined in legislation. I am referring to the Women's Equal Rights Law, 5711-1951, section 1 of which reads as follows:

           

            The law shall apply equally to man and woman with regard to any legal act; any provision of law which discriminates, with regard to any legal act. against a woman as woman, shall be of no effect. *

           

            The Law provides further that it shall not "affect any legal prohibition or permission relating to marriage or divorce" (section 5). Also that it "shall not derogate from any provision of law protecting women as women" (section 6, to which we shall presently refer).

           

            It has been ruled that the Women's Equal Rights Law has the same status as an ordinary statute, with no special standing in the technical sense, so that it can be repealed or amended by an ordinary legislative act of the Knesset (C.A. 337/ 61[11], at 408-409). Nevertheless, by substance and character -

 

            ...This Law is not like any other ordinary Law! We are looking at an ideological, revolutionary Law that changes the social order; its name and its first "programmatic" section indicate that - except for the reservation in section 5 - the Law sought to uproot any matter in which women suffer a legal disadvantage under existing law...

(Per Silberg J., H.C. 202/57[12], at 1537.)

 

            The Women's Equal Rights Law has been given a broad interpretation, in light of its substance, and the words "legal act" in its first section are intended to refer to any legal act affecting a woman, whether she is the subject of the act or its object. The Law guarantees women

           

... equal status before the law not only in terms of competence with regard to an "act", in the narrow sense of the word, but in all legal respects.

(C.A. 337/61[11], at 406, per Witkon J.)

 

            As aforesaid, there may be situations where the principle of equality between the sexes will not apply, for instance, in matters of prohibition and permission relating to marriage and divorce, or where the purpose of the statute is to protect women as women. In the words of Witkon J. (ibid. [11], at 407):

           

            When we seek to examine the meaning of this provision in light of the provision of section 1 of the Women's Equal Rights Law, we must emphasise the word discriminate. Discrimination - as this court has often stated - does not mean every difference or distinction in the law or in its application to different persons, but only a difference that is based on irrelevant distinctions. "The essence of discrimination is that it distinguishes between different people just because they are different, even though the difference between them is immaterial and does not justify the distinction" - so it was held in The Committee for the Protection of Nazareth Lands v. Minister of Finance, H.C. 30/55. And consider further Weiss v. The Legal Council, H.C. 92/56, as well as other sources.

 

And in the words of Agranat P. (F.H. 10/69[13], at 35):

 

This court has held more than once that one must always distinguish - both for the purpose of statutory interpretation and as a standard for the reasonableness of the administrative action of a public authority vested with discretionary power - between wrongful discrimination (hereinafter "discrimination") and permissible distinction. The principle of equality, which is none other than the converse side of the coin of discrimination, and which the law of every democratic country aspires to realise for reasons of justice and fairness, means equal treatment of persons between whom there is no substantial difference that is relevant for purposes of the matter in issue. If they are not treated equally there is discrimination. On the other hand, if the difference or differences between different people are relevant to the purpose under discussion, then it will be a permissible distinction if they are treated differently for that purpose, so long as the differences justify this. The concept of equality in this context thus means relevant equality, and for the purpose concerned, requires an equality of treatment for those characterised by the situation mentioned above. On the other hand, there will be a permissible distinction if the difference in the treatment of different persons stems from their being in a situation of relevant inequality, having regard to the purpose of the treatment, just as there would be discrimination if it stemmed from their being in a situation of inequality that is not relevant to the purpose of the treatment.

 

            Classic examples, in legislation and in the case law, of such distinctions stemming from real differences between men and women, are those relating to pregnancy, giving birth and nursing (see the recent Equal Employment Opportunities Law, 5748-1988, section 3).

           

            One may note the gap in some areas between the declaration as to women's equal rights and the actual implementation of this principle. Opinions are also divided as regards a limitation upon privileges for women, between advocates of special treatment and those advocating greater equality. The matter has been extensively discussed and researched (see, for example, R. Ben-Israel, "Equal Employment Opportunities for Women", 4 Tel Aviv University Studies in Law (1978-79) 142; F. Raday, "Equality of Women and Israeli Law", 27 The Jerusalem Quarterly (1983) 81; H. Shahor-Landau, "Equality for Working Women in the EEC Law and Lessons for Israel", 13 Mishpatim (5743-44) 457 (in Hebrew)). Some of these matters have been regulated by recent legislation of the Knesset - among others, the Equal Retirement Age for Male and Female Workers Law, 5747-1987, and the Equal Employment Opportunities Law.

           

            21. Can one justify the disqualification of the Petitioner from membership of the religious council of Yerucham, despite her lawful nomination by the local authority, on one of the above mentioned grounds for disregarding the principle of women's equal rights? The answer is negative. Discrimination on the basis of religious-halakhic considerations is allowed in matters of marriage and divorce, but such considerations do not operate here. Counsel for the Petitioner agrees that if the religious council were a halakhic body with the function of deciding halakhic questions, the candidates nominated for such a body should meet the requirements of the halakha and the qualifications for halakhic decision-making. However, the religious council is not such a body, but rather an administrative body charged with satisfying religious needs. It follows that even if a woman could not serve on such a body from the halakhic point of view (which is not so according to the opinions of many great scholars, as we shall presently see), this consideration does not pertain to the composition of an administrative body, where the qualifications of its members must be determined solely according to the relevant legislation and case law of the general legal system.

 

            Needless to say, the Petitioner was not disqualified from membership of the religious council in order to protect her as a woman, and her disqualification accordingly constitutes a distinction that is irrelevant to her being a woman, amounting to wrongful discrimination.

 

            22. We must still consider whether those grave fears expressed by the representative of the Minister of Religious Affairs, and in the decision of the Committee of Ministers, serve to outweigh the interest in the fundamental right of women's equality. For we adhere to the rule that fundamental rights are not absolute but relative, that their existence and preservation call for a proper balance between the different legitimate interests of two individuals or of the individual and the public, given that all the interests are founded in and protected by the law (H.C. 148/79[14], at 172; P.P.A. 4/82 (M.A.) 904/82) [15], at 210; H.C. 114/86[16], at 490-491).

 

            After due consideration and deliberation I conclude that given the issues and the facts in the present case, the scale does not tip in favour of those grave fears pleaded by the Respondents. Non-discrimination against a woman, because she is a woman, is a fundamental principle of the legal system in Israel. To warrant the subjection of this fundamental principle to such a balancing process, it should have been contended, at least, that a woman's membership of a religious council is forbidden from a halakhic point of view, with the result that such an appointment would bring the work of the religious council to a standstill. Had this argument been made, there would have been room to seek a balance and compromise between the two poles. For we are concerned here with a religious council which, although a statutory, administrative body and therefore subject to the statutory principles, is also a body whose functions, and its functionaries, are closely associated with the world of the halakha, and it would have been proper to try and bridge the two opposites. None of the Respondents, however, contended that it is forbidden for women to serve on the religious council, nor was this mentioned in the decision of the Committee of Ministers. Even the local rabbi, the only person to object to the inclusion of the Petitioner in the religious council, does not explain his objection on grounds of a halakhic prohibition, but in terms of unsuitability and non-representation of the bodies interested in the maintenance of the religious services. The Minister of Religious Affairs and his representative on the Committee of Ministers spoke of a "tradition", evolved from an understanding over a period of forty years, "not to propose women as candidates for membership in this body", hence - so it was said in the decision of the Committee of Ministers - the objection of the Minister, and the objection

 

of the Committee which adopted his position, do not constitute a principled decision not to include women in the religious councils. It is true that at an early stage, on May 6, 1986, the head of the department of religious councils wrote to the Petitioner that "it is not possible" for a woman to be a member of a religious council, but this style of speech changed afterwards. Following the appointment of a new Minister of Religious Affairs, the Petitioner was invited to the Minister, and was informed by his adviser on women's affairs, Mrs. Lichtenstein (paragraph 27 of the petition) -

 

... that the Minister had decided to agree to the appointment of the Petitioner, but the Petitioner was asked to refrain from making the decision public for two weeks. Mrs. Lichtenstein asked the Petitioner to delay the filing of her petition [before the High Court of Justice - M.E.] until March 11, 1987, saying that by this date the matter would be taken care of. The Petitioner agreed to Mrs. Lichtenstein's requests.

 

            The Petitioner attested to the truth of these facts and they were not refuted by the Respondents. Why was the promise made to the Petitioner by the Minister of Religious Affairs, through Mrs. Lichtenstein, not kept? The Petitioner answers this question in another affidavit, submitted in M.A. 279/87, on July 21, 1987, as follows:

           

2. On March 9, 1987 there was a meeting of the Chief Rabbinate Council, and the question of the service of women on religious councils was raised at this meeting. The Chief Rabbinate Council adopted a resolution that women are not allowed to serve on religious councils.

 

3. This decision was reached a short while before the date on which the Minister of Religious Affairs (Respondent No. 1) was supposed to announce his consent to my appointment to the religious council (paragraph 27 of the Petition). Respondent No. 1 did not announce his consent to the appointment as promised, and the petition was filed on March 11, 1987.

 

4. On a date unknown to me, Respondent No. 1 [the Minister of Religious Affairs - M.E.] asked the Chief Rabbinate for clarification of the matter. The answer of the director of the Chief Rabbinate Council, dated April 9, 1987 - attached as Appendix P/1- was as follows:

 

In response to the question posed by the respected Minister in the matter of Mrs. Shakdiel as a member of the Yerucham religious council, I hereby notify you that the Chief Rabbinate Council rejected this notion and decided that women are not allowed to be permanent members of the religious council.

 

This opinion of the Chief Rabbinate of Israel is an opinion of Torah [religious learning] like all the religious laws prescribed by our rabbis over the generations, and fall within the halakhic rule of compliance with "all that they instruct you".

 

5. It was the decision of the Chief Rabbinate Council, apparently, that prevented Respondent No. 1 from realizing his intention and expressing his consent to my membership of the religious council. This appears from an interview given by Respondent No. 1 on the I.D.F. radio station, on July 9, 1987. The interview followed upon the decision of Respondent No. 1 to appoint the Tel-Aviv Municipal Council's representatives to the electoral assembly for the Tel-Aviv Chief Rabbi, and to include only men on that list. The full interview, as recorded by the I.D.F. radio station, is attached as Appendix P/2, and excerpts from it follow:

 

Z. Hammer [Minister of Religious Affairs]: ...I firmly believe that a woman can and should contribute to the patterns of religious life except in matters in which the halakha does not so permit.

 

Y. Roeh [Interviewer]: ... Such as this electoral body?

 

Z. Hammer: ... No, no, no! The halakha - I do not think it prohibits [a woman's] service on the electoral body or membership of a religious council. But the point is that for many years it has not been so, and when it is necessary to break through in a new direction, there are difficulties ... And I would say that whoever really wants women to enter the sphere of religious life and its administration - that is, within the limits of the halakha, of course - must be patient and help us do it in a way that will be acceptable to the rabbis as well as the chief rabbinate.

 

            The opinion of the Chief Rabbinate was not included by the Respondents in the material before us, nor did they rely upon it in their arguments, perhaps for the reason that even the Respondents do not believe there is any halakhic prohibition against women serving on a religious council, as was clearly acknowledged by the Minister of Religious Affairs in the above-mentioned interview excerpts (and which he did not deny). In fact, as we shall see below, there is much support for the view that there is no such halakhic prohibition. Given this state of affairs, we regret to say that there is no need to exercise further patience and meanwhile deny the Petitioner her fundamental right not to suffer discrimination, all contrary to the provisions of the Women's Equal Rights Law.

 

            23. We hope and trust that the orderly functioning of the religious council in Yerucham will not be impaired by the inclusion of the Petitioner in this body, and that this will not lead to a "complete break" between the religious council and the local rabbi, nor create a dispute within the Yerucham religious leadership. The local rabbi apprehended that the Petitioner might not be fit to serve as a member of the religious council. I am sure that once the respected rabbi comprehends the laudatory intention and acts of the Petitioner to promote the religious services in Yerucham, he will have only praise for her activity - as the wisest of all men said: "many daughters have done valiantly, but you excel them all" (Proverbs, 31: 29). In our times, when Jewish women are educated and knowledgeable, and most of our children's education - even in the religious schools - is entrusted to female teachers, it is an accepted daily occurrence that men and women discuss together matters of schooling and education around the same table. And there is no reason, whether on ground of halakha, tradition or custom, for the Petitioner not to sit at the table of the discussions of the religious council. Is there anyone more interested than she in the religious fitness of food products and the ritual baths, in the maintenance of synagogues and the dissemination of religious culture?

           

            24. I find confirmation for this expectation-assumption in the letter written by Rabbi David Milgrom in response to our query raised at the end of the hearing. Having regard to the possibility that the petition might be admitted and the order nisi made absolute, we approached the four representatives of the local authority who had been named as members of the religious council in the decision of the Committee of Ministers, asking for their reply, if any, to the petition and material submitted to the court. We did so since one of the four representatives of the Local Council would be prejudiced by having to give up his place on the religious council in favour of the Petitioner, should we hold her to have been unlawfully disqualified. We are especially interested in the detailed response of Rabbi David Milgrom, who wrote, inter alia, as follows:

           

            2. If the order nisi is made absolute in the sense that the Petitioner is included in the composition of the Yerucham religious council, this will be achieved at the expense of excluding one of the members named by the Committee of Ministers.

 

            3. I submit that in such case it would be right to exclude one of the representatives of the Minister or, alternatively, a member of the Labour party proposed by the local authority.

            …

 

            5. I wish to emphasise that in addition to my representing the Shas party on the religious council I also represent the Bnei Hatorah community in Yerucham, in all about one hundred orthodox families who live in Yerucham and I am their sole representative. Naturally, the orthodox community has an especially strong interest in the local religious services.

           

            For this reason Rabbi Milgrom submitted it would be proper for him to continue serving on the religious council, even if the court decided that the Petitioner be reinstated, and that some other representative of the Local Council on the religious council should give up his place on this body, the number of whose members cannot be more than nine. The substance of this submission must be considered by the Committee of Ministers, and we express no opinion on the matter. But we do learn, indirectly, that Rabbi Milgrom, who represents Shas and the ultra-orthodox community in the locality, sees nothing wrong in serving on the religious council together with the Petitioner, if it be so decided; moreover, he wants us to determine that he shall remain a member of the religious council, together with the Petitioner. Rabbi Milgrom is not afraid of disruption or paralysis of the religious council on account of the Petitioner's membership, nor is he apprehensive of any prohibition against serving on a religious council which has a female member. And if this is the view of the representative of Shas and the orthodox community of Bnei Hatorah in Yerucham - and he appears to be the only person bearing the title of rabbi on the proposed religious council - why should we fear that the other members of the council, or the public, might disrupt and paralyse the orderly functioning of the religious council should the Petitioner be elected to serve on it?

           

            25. In summary, it is clear without doubt, from the reasoning in the decision of the Committee of Ministers and from the opinions of the local rabbi and the Minister of Religious Affairs, that their objection (principled or otherwise) to the inclusion of the Petitioner in the composition of the Yerucham religious council, stems from the view of the Respondents that women should not serve as members of this body. That is the underlying view, though some of the Respondents believe that this situation should prevail as a matter of principle in the future too, while some of them hold that it ought to be so for the time being, until it becomes possible to change this state of affairs. Either way, this disqualification and such considerations are improper, and they invalidate the decision of the Committee of Ministers to disqualify the Petitioner from membership of the religious council. The initial refusal to include the Petitioner as a member of the religious council because of her gender was stated clearly and bluntly in the letter written to her by the head of the department for religious councils on May 6, 1986. The refusal was later repeated in somewhat more restrained language by the Minister of Religious Affairs then in office, until finally the incumbent Minister of Religious Affairs has stated that there is no principled halakhic obstacle to women serving on a religious council, though he requests patience until agreement is reached upon the matter by all the parties. It appears that the Committee of Ministers also adopted this position of the Minister of Religious Affairs. This denial of the Petitioner's fundamental right, in anticipation of a process of "maturation" over an unknown and indeterminate period of time (see Minister Hammer's speeches in the Knesset on December 2, 1986 and October 28, 1987) is unjustified, and there is no foundation for disqualification of the Petitioner from service on the religious council.

 

            26. We intimated above that there is strong support within the halakhic framework itself, for the view that the Petitioner, as a woman, should not be barred from membership of a religious council. We shall now elaborate (cf. Me'iri, Sanhedrin 33a). The issue merits inquiry, richly coloured as it is by values that determine the character of the family and the image of society, and it impinges on an area in which the law and the halakha meet. We shall accordingly seek to elucidate the matter as it is reflected in the writings and rulings of the halakhic scholars and thinkers.

           

            The question whether, and to what extent, a woman may serve in public office has been sparsely addressed as such in the talmudic halakha (see e.g. B.T. Berakhot 49a, in relation to women not bearing the crown; and see our discussion below on Sifre, Deutoronomy, Parashat Shoftim, para.157, and Pesikta Zutarta, Pareshat Shoftim). In the Bible, the Talmud and later, there is mention of distinguished female figures - prophets, judges, queens, wise and scholarly (see S. Ashkenazi, Women in Jewish Perspective (2nd ed., 1979/80), especially Part I, pp 115-142; "Women in Jewish Sources", in Hagut - Anthology of Jewish Thought (Religious Culture Department, 1982/3) 25-26). These were isolated phenomena, while the guiding rule - one of great significance in the edifice of the Jewish family over the generations - was: "All glorious is the king's daughter within (the palace)" (Psalms, 45:14), that is, a woman finds respect in educating her children and managing her home, and it is not her way to be involved in public affairs. We find a first, clear and concise expression of this theme in Maimonides' comment on Deutoronomy 17:15 "You shall set a king over you" (Yad, Kings 1:5):

           

            One does not place a woman on the throne, as it was said: "a king over you"- and not a queen, and likewise all offices in Israel - only a man may be appointed.

           

            Maimonides' generalisation with respect to "all offices in Israel" (which might derive from the Sifre commentary on the above verse in Deuteronomy, according to the version before Maimonides - see infra), was disputed among many of the Rishonim* (see infra), but his opinion was accepted in practice.

 

            27. An interesting and wide-ranging debate on the subject took place at the beginning of the present century, in connection with granting women the right of franchise. In our present context the question arose primarily in relation to elections to the institutions of self-government of the Jewish community in Palestine just after the end of the first world war, as well as in different communities in the Jewish Dispersion. It might be recalled that until then women had been denied the right to vote under most world regimes, and only during the latter half of the second decade of this century were women awarded full rights, to elect and be elected, in most of the states and provinces of the United States and Canada, in Russia, England and Germany. In some countries, such as France, this right was awarded only in 1944, and in Switzerland in 1971 (See: L.H Tribe, American Constitutional Law (Mineola, 2nd ed., 1988) 1599; O Hood Phillips and P Jackson, Constitutional and Administrative Law (London, 7th ed. by P. Jackson, 1987) 187; P.W.H. Hogg, Constitutional Law of Canada (Toronto, 2nd ed., 1985) 723; J.F. Aubert, "The Swiss Federal Constitution" Introduction to Swiss Law (Deventer, ed. by F. Sessemontet and T. Ansay, 1983) 1518; Encyclopedia Britannica (vol. 23, 1971) "Women, Legal Position of", at 623-627). We shall refer to this aspect again below. As to the views of the rabbinical scholars in Palestine and in the Jewish Dispersion, these fall into three camps. The majority opinion was that women should not be granted election rights, whether active - that is, the right to vote, or passive - that is, the right to be elected. This was the view of most of the halakhic scholars in the Palestine community (see M. Friedman, Society and Religion (Ben Zvi Publications, 1977/ 8) 146-184) and of the outstanding scholars in the Diaspora; some of the scholars opined that women have active election rights but not passive ones; and a third camp was of the opinion that there was no halakhic impediment to women exercising both active and passive election rights, that is, they are permitted both to vote for and to be elected to public and governmental office.

           

            28. It may be noted that on this matter Rabbi Avraham Yitzhak Hacohen Kook, at the time chief rabbi of Jerusalem and later chief rabbi of Palestine and founder of the chief rabbinate, belonged to the camp that denied women both active and passive election rights. He expressed his view on three occasions in the context of the great debate waged at the time. (See Collection of Essays by Rabbi Avraham Yitzhak Kook (Goldhartz Fund Publications, Jerusalem, 1983/4) 189-194: responsum to the Mizrahi Confederation Committee of 11 Tishrei 5680-1920; also "general response to the many persons who have asked me" of 10 Nissan 5680-1921; and the third time, in "Decision of the Conference of Rabbis of Eretz Israel" of 26 Nissan 5680-1920, which was signed by Rabbi Kook alone. As to variant versions of this decision, see Friedman, op. cit., at 165-167)). Rabbi Kook discussed the matter from three perspectives (Essays, ibid., at 189):

           

a. in terms of the law; whether the matter is permitted or prohibited;

 

b. in terms of the public welfare; whether the people stand to benefit from affirmation of the matter, or from its negation;

 

c. in terms of the ideal; whether our moral cognition negates the matter or affirms it.

 

We must clarify our attitude to these three standards, since I wish this inquiry to encompass people in all walks of life: those wholehearted believers for whom the halakhic ruling is decisive; those for whom the welfare of the nation is decisive, and those who are concerned mainly with the moral ideal per se.

 

            From the legal perspective, Rabbi Kook saw two reasons for opposing feminine participation in public office:

           

Legally speaking I have nothing to add to the statements of the rabbis who preceded me:

 

a. In the Pentateuch, the Prophets and the Writings, in the halakha and the aggada, we hear a single voice, that the duty of the regular public service is imposed on the men because "it is the nature of man to subdue but it is not the nature of woman to subdue" (Yevamot 65b) ... and "all her glory is within (the palace)".

 

b. The endeavour to avoid a mingling of the sexes in public gatherings passes as a beaded thread through the entire Torah, so that the law is certainly against any innovation of public leadership that necessarily leads to a mingling of the sexes in public, in a group or conference, in the regular course of public life.

 

            As to the public welfare, Rabbi Kook advocated maintenance of the connection with the sources of Judaism and the Bible, in the name of which the nations of the world recognized at that time the rights of the people of Israel to the Land of Israel (ibid., at 189-190). And as regards the ideal status of women - that was a vision for the future "of women and mothers, in life in general and in particular ... but this future vision is still entirely unreflected in contemporary cultural life which is rotten from within, though seemingly smooth on the outside" (ibid., at 190).

 

            The above response is characteristic of this great spiritual leader, who integrated in his decisions, along with the halakhic sources, a philosophy on the rebirth of the nation and its return to the Land of Israel, together with a vision for the future, according to his perspective and understanding. He was convinced that it was for the good of women not to be dragged into the whirlpool of public life, and likewise for the good of the nation returning to its homeland. In this manner he sought to persuade also those for whom the welfare of the nation or the moral ideal, rather than the strict halakha, was decisive.

 

            In the two other sources mentioned Rabbi Kook expands the discussion, adducing further reasons for the position he takes. He intimates that even the nations of the world were only then beginning to accept "this modern innovation" of women's suffrage, which was incompatible with the world of Judaism and the special character of the Jewish family. Rabbi Kook perceived the matter thus: (ibid., at 192):

           

The psychological reason for this demand, the call for public elections in the name of women's rights, derives mainly from the miserable status of the masses of women in these nations. If their family situation was as serene and dignified as it generally is among the Jews, neither the women themselves nor the men of science, morality and lofty ideals would demand what they call election "rights" for women, according to the usual formula, which is likely to disrupt matrimonial harmony and eventually must necessarily lead to serious deterioration in national and political life in general. And so, out of the despair and bitterness resulting from the crudeness of men in spoiling family life, it is thought to find succour in some kind of public power of proxy, so to try and mend their faltering domestic situation with little concern for the further stresses thus added, since the whole edifice is already so breached. We have not and shall not stoop to this level, and would not want to see our sisters in such an inferior status. The Jewish home is still a hallowed institution, and we should not dim the radiance of our sisters' lives and allow them to become troubled by the clamour of opinions and controversies in matters of elections and politics.

 

The Jewish woman bases her rights on the delicate content of her special spiritual character, rather than on cut and dried laws formulated in ready moulds, which to her are like iron constraints quite unsuited to her delicate constitution, and which, by her nature, she is generally not strong enough to use, when they cannot even compensate for the damage wrought at the recesses of the spirit that encompass and govern all areas of life.

 

The family is the foundation of our nation, the House of Jacob will build the people of Israel. We are preparing the edifice of the nation - according to our spiritual nature. We are always ready to propound a moral duty to hear the opinion of the woman in every Jewish home, also in relation to general, social and political questions. But the agreed view must necessarily issue from the home, the family as a whole, and the man, the head of the family, is charged with the duty to transmit and make public the family view.

 

            Here too Rabbi Kook notes that there are "great kingdoms that have not yet progressed in this area" and have not granted voting rights to women (ibid., at 193). In his eyes, the meaning of women's suffrage is "to dim the radiance of our sister's lives" with the bitterness and clamour of political life, and this "clamour" and its attendant "obsequies" will lead to "the ruination of domestic harmony".

           

            It is interesting to note the comment made years later by Rabbi Kook's son and spiritual heir - Rabbi Zevi Yehudah Kook, head of the Merkaz Harav Yeshiva - on his father's views concerning women's voting rights (Talks of Rabbi Zevii Yehuda Kook, edited by S.H. Avineri (Ateret Kohanim Yeshiva Publication)):

           

Father, of blessed memory, objected to including women in the election process. The writer Azar complained about this in a small monograph, claiming it was not democratic and respectfully asking my late father to reconsider. The Gaon, Rabbi Haim Ozer [Grodzinski - M.E.] wrote a long paper objecting strongly to women's suffrage, but the word "forbidden" did not appear in it. It is true that those who printed the notice put that word in the heading, but it does not appear in the text itself, because "forbidden" is a responsible term. My late father likewise objected, but did not use the word "forbidden".

 

(See also Friedman, op. cit., at 166.)

 

            29. Rabbi Kook's first above-mentioned letter was addressed to the Mizrahi Confederation, among whose spiritual leaders there were at that time indeed many who advocated giving women election rights, both active and passive. We shall mention here several of these leaders. Rabbi Y.L. Maimon (Fishman), writer and research scholar, later to become the first Minister of Religious Affairs in the State of Israel, wrote:

           

The Mizrahi Confederation in Eretz Yisrael acknowledges the value of the participation of Jewish women in the rebirth of our nation and does not object at all to giving Jewish women the right to vote, neither as a matter of principle, nor on religious grounds.

(Do'ar Ha'yom, 5 Shevat 5680, 25/1/1920; Friedman, op. cit., at 151; note 14; and also at 166.)

 

            Rabbi Y. Nissenbaum defended this position enthusiastically at the second Mizrahi Conference, held in Warsaw in April 1919 (see Hagut, supra., at 77-81). After discussing the political motives affecting the wide controversy over women's suffrage at the time, he stated (at 77-78):

           

For us this question has only national and moral content. The Hebrew people is now in such a situation that it needs to muster all its forces, and it cannot forgo at this time one half of its forces, its women and daughters, leaving them out of all public and national endeavour. All the more so, since this half, consigned as it is to such idleness, is attracted to alien work which only impedes all our Hebrew work! This is the national aspect of our women's issue. And it also has a moral aspect. Now that many Hebrew women have roused themselves to the national resurgence, and seek to participate in all the efforts of our community and our nation, our moral sensibility requires that they be given their sacred wish: to dedicate their powers and talents to their nation. Do men need a national life and women not? Thus we would seem not to have any question about granting women the right to vote. If during all the years of our exile the lives of men and women were equated for the purpose of all penalties, all laws and all deaths, why should not their lives be equal in this period of revival for the purpose of all rewards, all rights and all the nation's work of redemption? ...But among us, followers of Mizrahi, as among orthodox Jews in general, this vital need raises two other questions. The first is religious - whether giving women the right to vote does not violate some religious law that cannot be disregarded; and the second is moral - whether this does not violate some other moral sensibility that should not be taken lightly. This would seem to be the women's issue that is on our agenda and requires a clear and decisive solution.

 

            After reviewing the role of women in Jewish history, Rabbi Nissenbaum went on to say (at 80-81):

           

            It is true that the Sifre comments: "set a king on you, a king and not a queen", and that Maimonides adopts this Sifre as the halakha, even expanding it to say: "likewise all offices in Israel, only a man may be appointed" (Yad, Melakhim chapter 1). But this ruling of Maimonides was not clear to our scholars in France, and they did not decide categorically that "a woman is disqualified from judging" (see Tosafot to Baba Kama 15, Niddah 50, and elsewhere). And from these scholars we may also learn that a woman may competently be chosen to participate in the deliberations of the learned men who clarify the laws, and perhaps even the deliberations of the law makers. Thus they say with respect to Deborah the Judge, that "she used to teach them, the people of Israel, the laws", and accordingly, ipso facto she is competent, by all opinions. Or they say, "perhaps the sons of Israel accepted her over themselves". If so, is "acceptance" greater than "election"? And if a woman is elected as a judge or legislator, perhaps her "acceptance" pertains not only to those who voted for her, but also to the others, for even Deborah was not accepted by all the people of Israel, and she nevertheless judged in her song all those who did not heed her call to fight for the Lord...

 

But I have inadvertently been drawn into the portals of the hsalakha, which I did not think to enter this time but to leave the matter to our esteemed rabbis. If in terms of the halakha the rabbis find no impediment to giving Hebrew women not only the active right to vote - which has already been permitted by the Hassidic rabbis who called upon their followers, and their wives and daughters to take part in the elections to the Polish Sejm (and "should the priest's wife be revered less than the innkeeper's?") - but also the passive right to be elected, then neither, in my opinion, is there any impediment to granting this right on account of our inherent sense of modesty. True modesty will not be affected in any way by the fact that women too participate in meetings and express their views in the governing bodies at the communal, municipal, regional or central levels, or in a Hebrew parliament.

 

            A blunt opinion was expressed at the same time and in the same spirit by Rabbi Y.L Zlotnik (Avida), distinguished research scholar (see A. Rubinstein, Movement in Times of Change (Bar Ilan Publications, 1980/1), at 159-161):

           

I shall now relate to one question that is facing the Mizrahi both inside and outside Eretz Yisrael. This is the question of the right of women to elect and be elected to community and public office.

 

According to the view and opinion of the leaders of official Judaism, it is altogether impossible to agree from the ultra-orthodox perspective to treat men and women equally in relation to these rights, but many people and many rabbis hold a completely different view.

 

This question is now a very actual one. The matter was deliberated in Eretz Yisrael when they wanted to hold a constituent assembly of the local Jews, and they were compelled to accept the position that women could only vote and not be elected. The question is now on the agenda in our country in relation also to elections for the community institutions. It would certainly be easy and convenient for those who wish to show that tradition and the old order are precious in their eyes, to decide dispassionately that women should not be given the right to vote. But anyone who gives the matter serious thought will not rush to make such a decision .

 

It is understandable that a man who lives according to tradition and the ancient customs, accepted and sanctified by the nation with the passage of time, will find it difficult to agree immediately to such a fundamental change in the social order. Nevertheless, a responsible (Mizrahi) Confederation cannot treat these burning questions lightly and solve them superficially without considering all the relevant material.

 

If we look at the matter closely we will find that there is no moral ground to deny women their right to express an opinion on public and community affairs. Factions of the ultra-orthodox community are also known to understand this, hence their eventual agreement to give women active election rights. On the other hand, they do not think it possible for women to have passive election rights, that is, to be elected, because it is not possible for an ultra-orthodox Jew to sit at one table with a woman, this being contrary to the Hebrew modesty.

 

But let us look at things as they really are: even most ultra-orthodox Jews find it impossible in their private and social lives to avoid completely the society of women. There are only a chosen few who are truly capable of averting their eyes from seeing evil; and I can indeed understand and wholeheartedly respect the righteous man who states that because he cannot sit at one table with a woman, he waives his passive election right and does not seek to be elected ... But I cannot understand at all the moral logic of one who declares: "Because I do not want to sit together with a woman, therefore the woman shall not be elected, only myself alone'. Where is the moral content of such a view and statement? And if we cannot rob the individual woman of her right to vote for whoever she wishes, how can we deprive thousands of their right if they find that some woman is the fittest of all for a particular position?

 

And the Mizrahi should make a special effort to enlist the assistance of all sectors of the nation in its struggle for revival. How shall the Mizrahi allow the exclusion of all girls and women from the task of the nation's renascence and from public and community activity? If the Mizrahi were only a small self-contained and self-sufficient group, without outside links and interests, it could restrict its work to its own circle of members alone. But if the Mizrahi wishes to influence other segments of the people, how can it exclude girls and women from public work? After all we can see that the time has long passed since "All glorious is the King's daughter within (the palace)". The Hebrew woman no longer wants to leave all the matters of life and the nation in the hands of the men alone, and if the Mizrahi wants to fight against her, she too will join the struggle to overcome the Mizrahi. We cannot turn back the march of life, so who will gain from this vain and pointless war - the Torah? Judaism?

 

Even in my imagination I cannot picture a Jewish state with laws that limit the rights or constrain the activities of any person.

 

            30. At that time many halakhic scholars in the Diaspora believed that women should not be granted suffrage, among them Rabbi Haim Ozer Grodzinski, of Vilna, Lithuania, a leading responsa writer of his generation, and Rabbi Israel Meir Hacohen of Radin, near Vilna, known as the Hafetz Hayyim, foremost halakhic decider of his generation (see the comment of Rabbi Zvi Yehudah Kook, supra, and of Rabbi Yehiel Weinberg, infra).

           

            Another interesting contemporary debate took place between Rabbi Professor D.Z. Hoffman, head of the Berlin Rabbinical Seminary, an important responsa writer and Judaic research scholar, and Rabbi Dr. Ritter, chief rabbi of Rotterdam. (The debate is quoted in Jeschurun, vol. 6 (a German-language journal, edited by Rabbi Yosef Wohlgemut, 1919) - Hoffman's article at 262-266, and Ritter's at 445-448. Hoffman's article was translated into Hebrew, in The Kibbutz in the Halakha (collection of essays, Sha'alvim Publications) 286-290, but the extracts below are my own translation). As already mentioned, the question of women's suffrage arose at the time also in relation to the leadership of the Jewish communities in the Diaspora (see Friedman, op. cit., at 150; Rubinstein, op. cit., at 159, note 3, and the bibliography cited), and the above debate apparently took place in that context. Rabbi Hoffman's view was (Jeschurun, loc. cit., at 262) -

                

   According to the Talmudic halakha and the later scholarly statements, women should not be granted passive election rights. Active election rights can be given to women once the community so decides.

 

            Rabbi Hoffman based his negation of passive election rights on Maimonides' above-mentioned statement (Yad, Melakhim, supra), which he believed founded on Sifre, Deutoronomy, Shofetim, para. 157, according to a version that was possibly before Maimonides, considering the version found in Pesikta Zutarta (see Jeschurun, loc. cit., note no. 3; and see also the above passage from Sifre, Deutoronomy, in ed. Rabbi Meir Ish Shalom, and notes thereto, as well as in ed. Finkelstein-Horovitz, and notes). Rabbi Hoffman considered this view founded also on other laws, among them that a woman cannot serve as a dayyan [a religious court judge] (shulhan Arukh, Hoshen Mishpat, 7:4). The latter rule is subject to a difference of opinion, the matter depending on the circumstances (see also the commentaries to the Shulhan Arukh on this rule, and specifically in Halakha Pesuka (Harry Fischel Institute Publications, 1961/2) 47-48; Responsa Mishpetei Uziel, Vol. 3, Hoshen Mishpat, 5).

           

            Rabbi Hoffman deals with the question discussed by the commentators - how was it that Deborah served as a prophet and judge? - and with the answer suggested by the Tosafists (Tosafot to Shavuot, 29b; and see below on the responsum of Rabbi Uziel). Interesting are his views on the fact that Shlomzion [Salome] sister of Shimon Ben Shetah, head of the Sanhedrin served as a queen, and was considered by the scholars as righteous (see B.T. Berakhot 48a; Leviticus Rabba, 35:10; and see also B.T. Ta'anit 23:1). Hoffman explains that Shlomzion reigned after the death of her husband, King Yannai a Saduccee who persecuted the Pharisee scholars of the law and abolished their cherished tradition; that she restored the former glory, bringing the Pharisees back into the community and reinstating the tradition of the halakha (see Josephus, Antiquities of the Jews, 13,16, 1-2). Thus he writes (Jeschurun, loc. cit., at 263-264):

           

and it is not surprising, therefore, that a woman was permitted to serve as queen, as an exception to the rule, especially since she thus served according to the will of her husband King Yannai.

 

On the other hand (ibid., at 264) -

 

one cannot find any argument in the traditional sources against permitting women active election rights. It is indeed possible that this is contrary to ancient custom, so that one must take care to obtain the consent of the community as is customary in relation to communal enactments.

 

            Rabbi Ritter took a different view, holding it was true that until then there had been no explicit halakhic discussion of the matter, but -

           

            it is clear that according to custom only men were given the right to vote, and women were never given the right to vote throughout the thousands of years of existence of the Jewish communities.

           

            Hence, he held we cannot change the custom (Jeschurun loc. cit., at 445). Rabbit Ritter went on to cite testimony which, in his opinion, supported this position indirectly (see also the comments of Rabbi Uziel, infra).

           

            31. A completely different approach is found in an instructive responsum written by Rabbi Ben Zion Uziel, to the effect that women have both active and passive election rights. Rabbi Uziel served as the chief rabbi of Palestine and then Israel, during the years 1939-1953, and at the time of the halakhic and public controversy over women's suffrage in the early 1920s, he was the chief rabbi of Tel Aviv and Jaffa. His responsum, published in 1940 (Mishpetei Uziel, vol. 3, Hoshen Mishpat, 6) opens with this comment:

           

I wrote this responsum at the time so as to clarify the halakha for myself, and I did not want to publish it and rule on the question in practice. But now, after the question has become resolved of itself, I decided to publish it to aggrandize the Torah.

 

            The comment, "the question has become resolved of itself", is noteworthy, also in the world of halakhic decision, and we shall discuss it below. The responsum is very detailed and we shall refer to several passages which are generally instructive and illustrative of the paths of decision in the halakha. (The responsum was reprinted in Piske Uziel (selected responsa of R. Uziel on contemporary issues, Rabbi Kook Institute Publications, 1976/7, 44); the following extracts are cited according to the pagination in both the original and the later edition.)

           

            R. Uziel opens as follows (ibid., at 32; at 228):

           

This question became a controversial issue in Eretz Yisrael and it rocked the entire community. Manifestos, adjurations, pamphlets and newspaper articles were published daily calling for the entire preclusion of women from participation in elections. Some rested their argument on religious law and some on preserving the bounds of morality and modesty, and others on domestic harmony, and they all rested upon the same maxim "the new is forbidden by the Torah" [see Responsa Hatam Sofer, Orah Haim, 28, 181; idem., Yoreh De'ah, 19-M.E.]. Unfortunately I do not have at my disposal now all the accumulated material on this question, but we are indebted to that distinguished "receptacle" of the Torah [Rabbi Hayyim Hirschenson], who collected the essence of all that material in volume 2 of his book Malki BaKodesh, and this makes it possible to consider all the prohibitory views within my reach.

 

            The author of Malki BaKodesh, Rabbi H. Hirshenson, was born in Safed in 1857 and was educated in the yeshivot of Jerusalem. He was an eminent halakhist and corresponded with the outstanding rabbis and halakhic authorities of his generation on questions of the halakha. In the second part of his book (Minister Publications, 1921, 12-15, 171-209), he discusses at length the question of women's election rights, reaching the conclusion that they have both active and passive such rights. He thus takes a diametrically opposite position to Rabbi Kook (supra). The correspondence between the two reflects the great respect Rabbi Kook had for him (see Letters of Rabbi Kook, Vol. 4 (Rabbi Kook Institute Publications, 1984/5) 23-25 and at 102-103; Hagut - Anthology of Jewish Thought, supra, at 92-93).

           

            In his responsum, Rabbi Uziel deals first with the question of women's active right to vote, in the following terms (Mishpetei Uziel, supra, at 32-33; Piskei Uziel, supra, at 229:

           

With respect to the first [i.e. the active election right-M.E.], we have not found any clear ground for a prohibition, and it is unthinkable to deny women this personal right. For in these elections we appoint our leaders and empower those we have chosen to speak for us, to manage the affairs of our community and impose taxes on our property, and the women either directly or indirectly accept the governance of these elected representatives, and heed their instructions and their public and national enactments. How then shall we hold the rope at both its ends: to impose on them the duty of obedience towards the nation's representatives and yet deny them the right to elect them? And if we are told to exclude them from the electoral body because they are light-minded and do not know how to choose worthy leaders of the community, we will also say: if so, we should exclude from the electoral body all those men who are lightminded, the like of whom can always be found among the people. But reality shows that in past as well as present times, women are as educated and knowledgeable as men to conduct negotiations, to sell and buy, to manage their affairs in the best fashion. And whoever heard of appointing a guardian for an adult woman without her consent? As for the dictum of our rabbis:

 

            "women are light-minded", (B.T. Shabbat 33b, Kiddushin 80b) it has a completely different meaning; and the statement "a woman's wisdom is only in her spinning wheel" (B.T. Yoma 66b) was merely a nice phrase to evade answering the question a woman had posed, the Talmud itself testifying that this same woman was wise: "a wise woman asked Rabbi Eliezer". And our rabbis stated expressly, "and God made the rib" (Genesis 2:22), teaches us that the Holy One ... endowed the woman with greater understanding (T.B.Niddah 45b). As regards licentiousness, what licentiousness can there be in an individual going to the voting booth and casting a ballot? If we have come to fear this - we will have suppressed all of life, and it will be forbidden to walk in the street or enter any shop, men and women together, or it will be forbidden to do business with a woman because this will lead to familiarity and then to licentiousness, whereas no one has ever said this before.

 

For the sake of domestic harmony? As the distinguished rabbi wrote: "if so, we should also deny sons and daughters who are dependent upon their father the right to vote; whenever the scholars feared antagonism, they compared women to grown sons who are dependent on their father (T.B. Baba Metzia 12a). Still a disputant might say: two wrongs do not make a right. But, in truth, the notion of antagonism is inappropriate here, for difference of opinion will find expression in one form or another, and one cannot suppress his outlook and opinions. In any event, family love that is based on a joint effort is strong enough not to be affected in any way by such differences of outlook.

 

            Rabbi Uziel then analyses the "indirect" reasons given by Rabbi Ritter for denying women also active election rights:

           

The illustrious Dr. Ritter makes an innovation, to deny women the right to vote because they are not a community or a congregation and were not counted in the census of the children of Israel, and were not named as progeny of their families (the text of the article is not before me, but I deduce this from what he writes). Let us suppose that they are not a community or a congregation or a family or part of the census or anything else. But are they not creatures formed in His image and with the faculty of reason? And do they not have common affairs that are pertinent to the assembly of representatives, or the committee that it elects, and the directives of which bodies they heed with respect to their property and the education of their sons and daughters?

 

       Rabbi Uziel sums up this part of his responsum thus (op. cit., at 33; at 229-230):

           

If so, having failed to find any hint of such prohibition, I find no positive reason to object to or to say no to the answer sought by a part of the public. And perhaps it was with reference to such cases that it was said "even if ninety nine urge distribution and one only favours individual snatching, this one is listened to since he spoke the halakha" (Mishna, Pe'ah 4:1). [That is, if ninety nine say that the landowner should reap the grain that he left as pe'ah* and distribute it to the poor, and one says that the poor should take the pe'ah themselves while it is attached to the soil, we heed the one, because that is the law - M.E.] But it is also said: "and the women laid their hands on it"**, to gratify the women (T.B. Hagiga 16), even though it appears to be prohibited [see infra - M.E.]. In any event, in the instant matter, where there is no prohibition and the barring of their participation would seem to them insulting and oppressive, certainly in a matter such as this we should give them their right.

 

            In summary, Rabbi Uziel is of the opinion that there is no halakhic rule, express or implicit, that denies women active election rights. Expressions such as "women are lightminded" and "a woman's wisdom is only in her spinning wheel" should not be interpreted literally. The fear of women mingling in gatherings of men has no validity in the contemporary reality, and the concern about domestic harmony following possible differences of opinion among spouses as to whom to vote for, is unconvincing, because the same situation pertains to differences of opinion among other members of the family. Particularly instructive is Rabbi Uziel's reasoning that the duty to obey and comply with the leadership should not be imposed on a person who lacks the right to vote for the leadership that will direct him: "whoever heard of appointing a guardian for an adult woman without her consent?"

           

            Noteworthy too is Rabbi Uziel's method of adducing "indirect" testimony from the spirit of the halakha, to indicate the desirable decisory policy. According to the halakha a person bringing a sacrifice lays his hands on the head of the animal. On this matter it is said in Sifra, Vayikra, par. 2 "and he shall lay his hands on the head of the burnt offering" (Leviticus 1:4) -"the sons of Israel lay their hands and the daughters do not lay their hands", that is, the rule of laying one's hands on the animal sacrifice does not apply to women. And the commentary continues:

           

            Rabbi Jose said, Abba Elazar told me: we had a calf for a peace offering and we took it out to the women's court (in the Temple) and the women laid their hands on it. Not because the laying on of the hands is their function, but to gratify the women.

 

            And if it is proper so to act with respect to a matter prohibited by law - laying one's hands on the head of the animal sacrifice - all the more so, says Rabbi Uziel, is this proper with respect to giving women voting rights, which is not legally prohibited, whereas "precluding their participation [in the elections - M.E.] would seem to them insulting and oppressive".

 

            Rabbi Uziel then proceeds to discuss the second aspect of the issue-passive election rights, a woman's eligibility for public office. On the face of it, says Rabbi Uziel, an express prohibition is reflected in the statement of the Sifre and of Maimonides (Yad, Melakhim, supra), that "likewise all offices in Israel - only a man may be appointed", and he cites additional authorities to the same effect (ibid., at 33-34; at 230). At first he suggests that since this rule is not mentioned either in the Mishna or the Talmud, and since it is implicit in the works of other scholars of that time (Rishonim) that they did not hold the same opinion, one should not rule according to it. But this did not satisfy him, and he arrived at an interesting distinction between Maimonides' ruling and the issue of passive election rights concerning a woman's eligibility for public office. He holds (ibid., at 34; at 231-232):

           

And if the heart still hesitates on the matter, which is only right since one should not dismiss the Sifre and the ruling of Maimonides on the basis of evidence and nice points not expressly contrary to their opinions, yet one may qualify women for election on a different ground, which is: that this halakhic rule applies only to appointments by the Sanhedrin, whereas here there is no question of appointment only an acceptance, since by way of the elections a majority of the community expresses its opinion, consent and trust as regards the elected persons, empowering them to supervise all public affairs, and even Maimonides admits that there is no tinge of a prohibition in this respect.

 

So too we find that Rabbi Nissim Gerondi wrote (Commentary to tractate Shevuot, at the beginning of chapter 3):

 

and the verse about Deborah, that she was a judge of Israel, does not mean literally a judge but a leader, and despite what is said in Sifre: "You shall set a king over yourselves, not a queen", there they did not appoint her but obeyed her decree; and even if she was a judge, they accepted her in the manner that a person accepts a relative [who is otherwise not qualified to judge the case - Ed].

 

And thus Rabbi Solomon b. Adret wrote: "one should say (that Deborah) was not really a judge but a leader like the judges that judged Israel [that is, led Israel, which is the simple meaning of the term judge in the Book of Judges - M.E.], and even though it is said in Sifre, you shall set a king over yourselves, not a queen, there they did not appoint her but treated her like a queen and obeyed her instructions" (Commentary to tractate Shevuot, at the beginning of the chapter on the oath of testimony). And Rabbi Hayyim David Azulai quotes from the Zikhron Devarim of Rabbi Hacohen Perahyah: "and Deborah was a leader just like a queen", which is what Rabbi Solomon b. Adret said (Birkhe Yosef, Hoshen Mishpat 7:11). From which one learns that the entire prohibition against appointing women to public rule applies only to appointments by the Sanhedrin.

 

For it is clear that even according to the Sifre it is permitted to accept her as a judge, that is, as a leader and she judges in the same way that it is permitted to accept a relative. And therefore, where appointments are made by elections, which is acceptance of the elected persons as leaders, one may by law elect women too, even according to the view of the Sifre and Maimonides. And we have not found anything to the contrary in the statements of the Rishonim.

 

            Rabbi Uziel proceeds to discuss the view, much emphasized in the comments of Rabbi Kook and other scholars on the present issue, that a woman's involvement in public functions violates her modesty, since she becomes embroiled in the turmoil of the public and political debate. He writes (ibid., at 34; at 232) :

           

There is still, however, room for questioning, because even if in terms of the halakha the acceptance is effective and she can be elected under the rule "they accepted her governance", yet in terms of morality and the bounds of modesty, perhaps the matter is forbidden?

 

            The answer Rabbi Uziel gives to his own question is a lucid illustration of halakhic policy in decision-making:

           

Reason would have it that there is no licentiousness in any serious conference or useful discussion, and every day men meet with women on commercial business, and negotiate with each other, and none of this produces any alarm or outcry. And even those given to sexual abandon do not contemplate forbidden acts while they are seriously bent on their business affairs. And the admonition of our rabbis "do not converse too much with a woman" (Mishna, Avot 1:5) refers to unnecessary idle talk, it being this kind of conversation that leads to sin. Not so, however, as regards a conversation or debate about important public affairs; and sitting together for the purpose of public work, which is divine service, does not engender sinful habits or lead to levity, and all Israel, men and women are holy and are not suspected of breaching the bounds of modesty and morality. In answer, do not quote this statement of the scholars: "at first women sat within and the men were without, and were led to levity, so they instituted that women should sit in the gallery and men below" (Sukkah 50a). This was said with reference to a mass gathering of both worthy and licentious people together, in which case we are apprehensive of the licentious minority, especially when they are immersed in the festivity and ruled by the evil inclination. But this was not said in reference to a gathering of elected representatives, whom it would be wrong to portray as sexually licentious, and the like of which Israel shall not know.

 

Rabbi Uziel ends his responsum thus: (ibid., at 35; at 234:

 

Conclusion: A. A woman has a full right in elections so as to come under the disciplinary duty owed the elected persons who lead the people. B. A woman can also be elected if so consented to and enacted by the public.

 

            32. Rabbi Uziel's responsum was apparently written during the 1920's, but was published only in 1940, at which time - so it was stated at the beginning of the responsum -"the question had resolved itself". That statement was largely true, but not entirely so. In this respect it is illuminating to look at two brief responsa written by Rabbi Yehiel Weinberg, a prominent responsa writer of his generation, who served with the Hildesheimer Rabbinical Seminary in Berlin and later resided in Montreux, Switzerland. The first responsum, written in 1932, reads as follows (Responsa Seridei Esh, vol. 2, 52):

           

And in the matter of women's election right - in the Halakhic Commission of the Association of Rabbis in Germany I showed that in terms of religious law there are no grounds to prohibit suffrage, and I refuted the evidence brought by the great teacher, the late Rabbi Hoffman. In any event we all agreed that the election of women is against the custom in Israel as well as the Israelite morality in public life, which always tried to preserve "all glorious is the king's daughter within (the palace)", since the Jewish woman should guard her home and the education of her children, and should not be vociferous or a gadabout to squander her strength, destroy her modesty, and lose her charm and appeal through political and public disputes and quarrels.

 

It is, therefore, certainly appropriate to do all that is possible to prevent the participation of women in the leadership of the communities as well as in the elections. However, the peace and unity of the community should not be broken, if its powerful and persuasive members prevail to introduce suffrage. But in principle one should not depart from the ruling of the late Rabbi David Hoffman, who was a great teacher, and the only one to write words of reason founded on the rabbinical sources.

 

            According to Rabbi Weinberg, Jewish religious law accords women both active and passive election rights. But he considers the election of a woman to an office of community leadership as "against the custom in Israel", so as not to lead her into political and public disputes and quarrels, and it is therefore appropriate, in his view, to abide by the decision of Rabbi Hoffman, who supported giving active but not passive election rights. He adds, however, that if those in favour of giving women also the passive election right prevail, it should not be opposed so as not to disturb the peace and unity of the community.

           

            Nineteen years later, in 1951, Rabbi Yehiel Weinberg wrote his second responsum on the same subject (ibid., vol. 3, at 105):

           

With respect to his question on women's election right, Rabbi D.Z. Hoffman allowed them to vote but not to be elected; but the rabbis in Eretz Israel, as well as the Hafetz Hayyim and Rabbi Hayim Ozer Grodzinski and others, barred the active election right too. And Chief Rabbi Uziel, in his Mishpetei Uziel, permits women both to vote and to be elected. And why should I thrust myself into the controversy between those who permit and others who prohibit; let time take its course and resolve the matter. Those who prohibit have a moral ground, that it violates modesty for a woman to deal with affairs of the public and the community. And they also bring suporting testimony ... and it is sought to reject and dispute. But there is no benefit in the disputation, for the matter has deeper implications.

 

            This passage is instructive. The writer acknowledges the difference of opinion on the matter, yet does not wish to enter the controversy, nor considers it necessary. In this responsum he no longer supports Rabbi Hoffman's view that in terms of the religious law women do not enjoy the passive election right. His decision is - "let time take its course and resolve the matter".

           

            That expression should not be regarded as an evasion of the decisory duty; rather it embodies one of the methods employed in the world of halakhic decision-making. As is known, custom is one of the halakha's legal sources (in this regard see my book Jewish Law (2nd ed. at 212 ff., 219, ff.; 3rd ed., at 203 ff., 210 ff.). Sometimes custom serves to decide the law where there are different opinions among the halakhic scholars; sometimes it decides the law on a question that has arisen in practice and to which there is no known answer in the existing halakha (a lacuna), and sometimes custom does not merely add to the existing halakha but even alters one of its rules. This latter function of custom is limited to civil or monetary law (dinei mammonot) only, and, with certain exceptions, does not apply to matters of ritual permission and prohibition. Elsewhere I have elaborated further on this subject (see Jewish Law, 2nd ed. at 726 ff.). As for the role of custom in deciding the religious law where there are differences of opinion among the halakhic scholars, it is said in the Babylonian Talmud - in response to the question how to decide the law where the scholars are divided: "go out and see what is the usage of the people" (B.T. Berakhot 45a; Eruvin 14b; see also the Jerusalem Talmud Pe'ah, chapter 5; and see my book, op. cit. (2nd ed.), at 728-730, and the footnotes there). "Let time take its course and resolve the matter", in the words of Rabbi Weinberg, is thus an accepted method of decision according to the custom followed by the public.

           

            33. Another interesting responsum on this issue was given by Rabbi Moshe Feinstein, a leading responsa writer of our generation. He does not discuss the general question of women's election rights, only that of the appointment of a woman to a specific public office, that is, her appointment as a kashruth (dietary laws) supervisor. He relates the facts thus (Responsa Iggerot Moshe, Yoreh De'ah, vol. 2, 44):

           

            In the matter of the widow, the wife of a scholar who was a kashrut supervisor, who has been left penniless and lacking means of sustenance for her orphan sons.

           

            And her being a modest woman and truly godfearing, and also wise, understanding and responsible, whether one may rely upon her to take the place of her husband as a supervisor, in this manner to provide for herself and her sons.

           

            May it please the esteemed scholar to advise me on the matter.

           

            Rabbi Feinstein first discusses the question whether a woman can be trusted to fill the position of a kashrut supervisor, and after a detailed discussion concludes -

           

            that as regards her trustworthiness there is no reason for apprehension, for if she is regarded as a worthy woman, who knows and understands how and what to supervise, she may be relied upon.

 

            Rabbi Feinstein then considers an additional question that arises, i.e. according to Maimonides (as we have already noted) only men can be appointed to public office and "it appears that kashruth supervision is such an appointment". Rabbi Feinstein finds support for this in the Talmudic statement that the task of supervising weights and measures among the merchants is an appointment, "and that is exactly like supervision of kashrut, because what distinction is there between the fitness of weights and measures and the fitness of food under the dietary laws". Rabbi Feinstein makes an interesting distinction between a position to perform a task that is not an appointment to "office", that is, to a position of authority, and a position that is an appointment to office or authority. This is an important distinction because Maimonides' prohibition relates to an appointment to a position of authority and not to a labour in general, which a woman is permitted to do. He writes:

           

And the reason is that the difference between considering one a labourer or as appointed to a position of authority has nothing to do with the importance of the task. But if one was hired to do the will of his workgiver he is a worker even if the work is important, and if he was hired to act also contrary to the wishes of the proprietor, as in the supervision of weights and measures where the proprietor might want him to approve imperfect weights and measures whereas he is appointed to condemn and confiscate them from the proprietor, then he is in a position of authority over the proprietor, since the proprietor is bound to do what the supervisor tells him.

 

And the very same applies to an appointment as kashrut supervisor, for his task is to act even against the will of the proprietor and not to allow him to procure forbidden items. And if so, according to Maimonides, one should not appoint a woman for this task.

 

            Though he concludes that the office of kashrut supervisor is an appointment to a position of authority, Rabbi Feinstein rules that a woman may be appointed to this office. In his opinion, Maimonides' view that only men may be appointed to "office" does not originate from a Talmudic source, but from "his own reasoning", and he shows that the author of the Hinnukh (R. Aaron Halevy, 13th century Spanish halakhist), and the Tosafists, as well as Rashi and Rabenu Nissim all disagree with him, holding it is permitted to appoint a woman to an office of authority. The conclusion is -

           

            therefore, for reason of a great need, for the sustenance of a widow and her orphan sons, one may rely on those who disagree with Maimonides and appoint her as a supervisor in her husband's stead .

 

            In other words, in a situation of "great need", such as the livelihood of a widow and orphans, one may rely on the opinion of those who disagree with Maimonides and appoint her a kashrut supervisor. I might add that Rabbi Feinstein subsequently finds a way to reconcile the appointment also with the view of Maimonides, by making the rabbi himself the formal supervisor even if in fact it is the woman who discharges the function.

           

            A later responsum of Rabbi Feinstein (Responsa, ibid., 45) throws light on the contemporary communal background and the controversy surrounding the issue here discussed. It appears that Rabbi Feinstein's above-mentioned ruling on the woman's appointment encountered opposition from other rabbis, one of whom complained about it in a letter written to Rabbi Feinstein, apparently in strong language. Rabbi Feinstein responds:

           

I do not know why the esteemed scholar needs to apologise for differing from my opinion. Certainly every one must seek the truth according to his own understanding, whether it be lenient or stringent, even if he is a pupil who opposes his teacher's reasoning, all the more so when the disagreement is not between the teacher and his pupil.

 

And if he meant to apologise for the critical language he used against me, it is well known, mercifully, that I am not, Heaven forbid, demanding with anyone, and certainly not with a learned scholar. So I shall confine myself to the substance of the matter.

 

Comments worthy indeed of their author!

 

            34. The question of women's election right also occupied the religious kibbutz movement in connection with the election of female members to fill various "offices" on the kibbutz (see The Kibbutz in the Halakha, supra., at 277 ff.). Kibbutz Hafetz Hayyim, an affiliate of the Poalei Agudat Yisrael movement, posed that question to Rabbi M. Auerbach, whose responsum, given in 1934, was the basis for the directives which were set as a "middle course" between the divergent views, for instance, by distinguishing between the different organs of the kibbutz (ibid., at 285 ff.; and cf. the essay of Rabbi Y. Efrati, at 277 ff., who endorsed this course). A slightly different and more lenient tone was sounded in the essay by Rabbi Yonah Dovrat (ibid., at 291 ff.) and amidst some of the kibbutzim belonging to this movement (see Amudim, Religious Kibbutz Journal, 1955/6, at 16-17). On the other hand, the religious kibbutzim affiliated with the National Religious Movement - which form a clear majority of the religious kibbutzim - give female members the full election right, both active and passive, with reference to all the bodies and institutions of the kibbutz and the movement (see Amudim 1987/8 (month of Iyar) containing the resolutions of the 20th Council of the Religious Kibbutz on the status of women, inter alia "calling upon the Minister of Religions to confirm the election of women as members of religious councils").

 

            Finally we shall mention the opinion of Rabbi M. Steinberg, rabbi of Kiryat Yam, that "women have the right not only to vote but also to be elected to public institutions, because election is not the same as appointment" (Hilkhot Nashim (1983/4)). As authority he cites the ruling of Rabbi Uziel (supra) and explains his reasoning thus (ibid., footnote 5):

           

            Therefore this is not appointment but acceptance, for by virtue of the elections the majority of the congregation voices its consent to the elected representatives acting on its behalf in supervising the public affairs.

           

            (And he also cites the above-mentioned ruling of Rabbi Feinstein that a woman may be accepted as a kashrut supervisor.)

           

            35. The differences of opinion encountered in the course of our inquiry are characteristic of the world of the halakha and, moreover, should be seen as integral processes of thought and decision-making, and reflective of the primary rule and guiding principle long ago determined in the Talmudic disputation between the academies of Hillel and Shammai: "both these and those are the words of the living God" (Eruvin 13b). I have discussed elsewhere the origin of this phenomenon and its import in the world of the halakha (see M. Elon, Jewish Law (2nd ed.) at 870 ff.) and shall not elaborate here. One of the characteristics of the ancient halakha, as it has come down to us, is its anonymity and uniformity; the halakha as decided in the Sanhedrin by majority vote, became the general ruling of the entire Sanhedrin. Towards the close of the period of the Zugot* (at the beginning of the first century) there was increasing difference of opinion in all branches and fields of the halakha, with not only theoretical but also practical implications, each school acting according to its own ruling. External political forces, and internal factors (the dispute between the Pharisees and the Saduccees, and the differences of opinion among the Pharisees themselves - between the Houses of Shammai and Hillel) divested the halakha of its directive and regulatory authority, as well as its decision making capacity:

 

 

            When the disciples of Shamai and Hillel who had not studied diligently, increased, disputes multiplied in Israel and one Torah became as two.

(T.B. Sanhedrin 88b; a slightly different version appears in the Jerusalem Talmud, Sanhedrin 1:4 and 8:2.)

 

            These disputes introduced the phenomenon of a practical pluralism in halakhic decision. At first, during a certain period, this was a tolerable situation (Tosefta, Yevamot 1:111; Mishna, Yevamot 1:4; Mishna Eduyot 4:8), but this pluralism could not endure, and differences of opinion in various areas of family law and the laws of purity and impurity led to bitter dispute, threatening to divide the nation (See Jewish Law, supra, at 872-874). One generation after the destruction of the Second Temple (at the beginning of the second century), with the consolidation of the new center of study at Yavneh, headed by Rabban Gamliel the Younger, the unity of the halakha was restored in practice -

           

            and at Yavneh a heavenly voice was heard, saying: both these and those are the words of the living God - but the halakha is according to the House of Hillel.

           

            And with this decisive determination, that the system of the "halakha cannot tolerate pluralism in actual practice, the principle of a pluralism of views in the halakha, was recognized. Though conceptually, "these and those are the words of the living God", yet for practical purposes -

           

            what was it that entitled the House of Hillel to determine the halakha? because they were kindly and modest... [tolerant - according to Rashi; see Jewish Law, supra, at 874-875, ff.]

           

            36. I am not a halakhic decider, nor the scion of such, and I know all too well that that title does not befit me. But there is the Torah, and I must study it. And I wrote as I did on the halakhic discourse for no other reason than to study, and to draw from the springs of our scholars, whose wisdom we imbibe and by whose mouths we live. And I too, if it were at all possible, would follow the example of the late Chief Rabbi Uziel, keeping what I have written to myself, to be published at some other time. But what choice have I, when the decision on the sensitive and complex issue before us entails deliberation of the halakhic discourse and clarification of the opinions of our rabbis on the subject, one that continues to stir public debate. This is not, therefore, the time for a "hidden scroll".

 

            Consider the wisdom of Rabbi Weinberg's perspective on this controversy, to "let time take its course and resolve the matter", for time has indeed brought resolution. Thus, the three luminaries of the previous generation, all considered and held that women were not even entitled to the active election right, namely: the former Chief Rabbi of Eretz Israel, Rabbi Kook; the most prominent of the responsa writers in the lands of the Dispersion, Rabbi Hayyim Ozer Grodzinsky; and the greatest halakhic authority of his generation, the author of the Mishnah Berurah, Rabbi Yisrael Meir Hacohen of Radin (known as the Hafetz Hayyim). Many other rabbis and scholars also held the same view. But time has wrought changes to resolve the issue otherwise. In all the observant communities, without exception, among Hassidim and Mitnagdim, ultra-orthodox and national-religious, in all their camps and factions, women participate in all the elections for the state institutions and organs. And we have not heard, for many years now, of any halakhic authority warning religiously observant Jewish women against voting on the ballot day. That is the custom, and no one sees need any longer to ascertain what the practice of the public is.

 

            Rabbi Weinberg's above-mentioned statement pertained also to the passive aspect of women's election right, that is, their eligibility for public office. Here, too, it seems that time has resolved the matter for the majority of the observant community: religiously observant women have served as members of the Knesset; they have served and continue to serve as members of local authorities and discharge a variety of public functions, thus conducting themselves consistently with the view of great halakhic scholars, as explained above. It is true that in some sectors of the religious public, women do not serve as members of local authorities and in similar public offices. But how can one deny a religious woman this right, if she wishes to follow the opinion of leading scholars who permit the election of women to public office, as well as the practice of many hundreds of Jewish women who keep the Torah and its commandments yet serve in a variety of public offices? And is it possible to say in this day and age that a woman who sits in the Knesset, or on a local council or a kibbutz secretariat, is lacking in the modesty that befits a daughter of Israel? Thus we see all the matters and premises stated in the instructive and detailed responsum of late Chief Rabbi Uziel realized in practice.

 

            The Petitioner seeks to take her place among the members of the religious council in Yerucham, and the Local Council, i.e. the public, chose her and proposed her candidacy for that office. The religious council, as we have seen, exercises no halakhic authority whatever, it makes no halakhic decisions and - having regard to the male component of its membership - it is incapable of making halakhic decisions. For the first requisite for ruling on the law is to study and know the Talmud and the halakhic codes, and to have the appropriate qualifications for so doing. All that the religious council does is to provide religious services, construct and maintain ritual baths, facilitate study of the Torah and Judaism by the public, and also see to proper arrangements for observing the dietary laws. And if it is permissible for a woman who is known to be observant to act as a kashrut supervisor - as we saw in the responsum of Rabbi Feinstein - shall it be forbidden to the petitioner to see to the budget and other requirements for maintaining proper kashrut arrangements in Yerucham?

 

            37. I have not overlooked the opinion of the esteemed Chief Rabbinate Council, that women may not be permanent members of a religious council. We all hold dear the dignity and standing of this supreme state halakhic institution, which is headed by the two chief rabbis of the State of Israel and whose members are learned halakhic scholars. And I reiterate that all I have written is for no other purpose than to elucidate and deliberate concerning the halakhic discourse. To this end, I have cited the opinion of authoritative halakhists, the Chief Rabbi of Eretz Yisrael and other rabbinical scholars, all of whom hold that a woman may serve in public office if elected thereto by the public - with which view the Chief Rabbinate would seem to disagree. With great respect, however, I venture to suggest that perhaps the Chief Rabbinate Council does not really differ from those who believe that a woman may serve in public office, but believes that it is the function of the religious council to deal also with halakhic aspects of the provision of religious services. I find support for this suggestion in the fact that the Committee of Ministers likewise erred in this respect, which was one of the reasons for it deciding as it did, as I explained in detail above. And if that is indeed the case, and there is ground for my supposition, it is possible that the Chief Rabbinate Council may want to reconsider the matter of the Petitioner's seat on the Yerucham religious council.

           

            38. Before concluding I might profitably mention a comparable phenomenon of halakhic controversy and debate on a related issue coming to the fore in recent generations. I refer to the matter of women studying the Torah. I have already had occasion to discuss the issue in this court (S.T. 1/81, Nagar v. Nagar [17]), in relation to the duty to teach and educate sons, which is imposed equally on the father and the mother, and I shall retrieve from that decision some of its main points of interest in the instant context.

           

            According to the halakha in the Mishnah and Talmud, the father must teach his son Torah, and the woman is exempted from this obligation. The explanation for this rule is that the father, who is himself obligated to study the Torah, must likewise teach his son; but the woman, who is not herself obligated to study Torah is accordingly not obligated to teach her son. And women are not themselves obligated to study Torah, because others are not enjoined to teach them Torah, as we learn from the verse, "And you shall teach them to your sons" (Deutoronomy 11:19), which the rabbis interpreted - "not to your daughters" (Kiddushin 29a, Mishna and Talmud). And Maimonides summarizes the rule thus (Yad, Hilkhot Talmud Torah 1:1):

           

            Women... are exempt from studying the Torah; but the small son, his father must teach him Torah, for it is said: "and you shall teach them to your sons and speak of them". And the woman is not obligated to teach her son, for whoever is obligated to study is obligated to teach.

           

            As regards the substance of women's exemption from study of Torah, and the farreaching change of attitude that has occurred in latter generations, we stated in Nagar v. Nagar ([17], at 404-406):

           

This "threefold" exemption of the woman - who is exempted from teaching her son and from teaching herself, while the father is exempted from teaching his daughter - has prompted differences of opinion ever since the time of the Tannaim*. According to Ben Azzai -"a man is under an obligation to teach his daughter Torah", whereas Rabbi Eliezer ben Hyrcanus thought otherwise - "whoever teaches his daughter Torah teaches her frivolity" (Mishnah, Sotah 3:4). The reasons for this dispute and for Rabbi Eliezer's harsh comment have been variously interpreted, but we shall not elaborate here ... Various talmudic and post-talmudic sources do indeed speak in praise of wise, scholarly and learned women... but the halakha was decided according to the view of Rabbi Eliezer (see Maimonides, Talmud Torah 1:13; Shulhan Arukh, Yoreh De'ah, 246:6 ...). With the passage of time the prohibition on study by women underwent various and relaxations, whether relating to the nature and scope of the material studied - the written Torah and practical commandments - or to the depth of their study, and so on.

 

A material change of perspective on this socio-halakhic matter has occurred in recent generations, concurrently with the profound socio-ideological changes. The halakhic scholars have justified this change of perspective on various grounds, the extent and nature of the change in approach varying according to the character of the reasoning. Thus a generation or two ago Rabbi Yisrael Meir Hacohen of Radin, author of the Hafetz Hayyim, related to Rabbi Eliezer's statement about the prohibition of teaching Torah to his daughter, as follows:

 

         It appears that all this applies to past times ...

          when the tradition of the fathers was very strong and every one acted according to the way of our ancestors ... we could say that the daughter should not study Torah, but should rely on the guidance of her righteous fathers. But now, when, sinfully, tradition has weakened greatly with the fathers... especially among those whose practice it is to study the writings and language of the nations, it is certainly very meritorious to teach them the Five Books of Moses, as well as the Prophets and the Writings and rabbinical ethics...

(Collection of Halakhot of the Hafetz Hayyim, Sotah, 21.. .)

 

This ruling gained wide acceptance in Israel, both prior to the establishment of the State and thereafter. Rabbi Zalman Sorotzkin, a leading yeshiva figure wrote (Moznayyim La-Mishpat, 1955/6, par. 42):

 

It is only in relation to the study and disputation of the Oral Law that it was said "whoever teaches his daughter Torah...". But even with respect to the Oral Law a woman is permitted to study the final conclusion, without questions and analysis ... It is not the same today as in former times: in former times Jewish households conducted themselves according to the Shulhan Arukh and it was possible to learn all the Torah from experience... But now ... in this generation not only is it permitted to teach Torah and piety to young girls, but it is also an absolute obligation and, as we explained, it is a very meritorious act to found schools for girls and to implant genuine faith in their hearts as well as knowledge of the Torah and the commandments.

 

It is the nature of halakhic decision - as is the case with all adjudication - that it does not detach itself from the existing law but narrows it or distinguishes it from the new law in the making. Hence the restrictive interpretation of the prohibition against teaching one's daughter Torah as applying only to the study and disputation of the Oral Law. A significant proportion of the contemporary halakhic scholars have shed even this reservation. Thus Benzion Firer, rabbi of Nir Galim, was asked whether the heads of the religious education system were correct in teaching the Written and the Oral Law to girls. He responded unequivocally, distinguishing between former and contemporary generations -

 

When the headlong chase after the tree of knowledge has gripped all human beings, men and women alike, who will stand up and stop this mighty current ... For it is inconceivable to prevent girls from studying precisely the Torah and Judaism, every part of it.

 

Rabbi Firer outlines the existing reality:

 

Like it or not, the fact is that the place of the melamed [male tutor] has been taken by the [female] teacher, and this teacher hands down the Torah to the boys and girls in the primary schools ... And, since it is she who imparts knowledge of the Torah in the primary school, and to boys also, it follows that the observance of the commandments by the boys depends on her knowledge. And since, in any event, they regard all the religious laws equally today - those that pertain to her as a woman and those that pertain to her as the teacher of boys... I would wish for all the daughters of Israel to study the Torah ...

(No'am (halakhic publication, Jerusalem), vol. 3, 134.)

 

Also in point is a responsum of Rabbi Moshe Malka, a former leader of the Moroccan Jewish community and present head of the Petah Tikva rabbinical court (Responsa Mikveh Ha-Mayyim, vol. 3, Yoreh De'ah, 21):

 

The dispute between Ben Azzai and Rabbi Eliezer had reference to their times, when the norm was "all glorious is the king's daughter within the palace", and a woman never went outside the home, nor participated in worldly affairs, when her entire enterprise and wisdom were confined to managing her home and educating and raising her sons ... Not so in current times, when women play a large role in all walks of life, penetrate the depths of the secular sciences and occupy the benches of the universities, run offices and own businesses, and have a hand and a voice in the leadership of the state and in political affairs ... Rabbi Eliezer would certainly admit that there is no prohibition against teaching her the Oral Law too, so that she may know how to take care and observe all the laws of the Torah that are pertinent to her affairs and work. Moreover, we are actually obligated to teach and impart to her as much as possible...

 

Rabbi Aaron Lichtenstein, head of the Har Etzion Yeshiva at Alon Shvut, writes in like vein ("Fundamental Problems in Women's Education", in The Woman and Her Education" (Kfar Sava 1980/1) 158-159; a question and answer transcript):

 

In my view it is desirable and necessary, and not only possible, to give girls intensive education, even from the sources of the Oral Law, be it because women engage in all occupations, leaving no reason to withhold the Torah from them, or be it because of the statement of the Hafetz Hayyim...

 

...In my opinion what girls need in order to receive a practical religious training far beyond their instruction today, is an intensification of girls' studies, in quantity and in quality and with instruction in all spheres of the Torah...

 

...One should strengthen study of the Oral Law. In practical terms, it would be beneficial to teach them the [Mishnaic] orders of Zeraim, Mo'ed and Nezikin, as well as the relevant minimum of Nashim, Kodoshim and Tohorot. And when we teach, we should do so in depth... I have no objection to teaching girls Gemara [Talmud]... and it should even be institutionalised as an integral part of school studies, in the form of a proper lesson ... and this seems to me to be the recommended course for the daughters of our generation...".

 

            Now the above reasoning in relation to study of the Torah by women, applies a fortiori to the matter here in issue. With respect to the former issue, there is an express rule in the Talmud, generally upheld in the halakhic codes, that a woman is not only exempt from studying the Torah but even forbidden to do so, this rule being derived from the Biblical verse "and you shall teach them to your sons", and not your daughters. But the profound socio-ideological changes experienced in latter generations, has radically altered also the outlook on the issue of women studying Torah, and it has been determined that not only is there no longer any prohibition, but women are even obligated to study Torah; and not only do they study it for themselves, but they even teach it to the sons of others. And if this is the outcome of the controversy concerning women studying the Torah, then the issue of the election of women to public office should have the like outcome, a fortiori, since most rabbinical scholars are of the opinion that the matter is not expressly prohibited in the Talmudic halakha, and some of the codifiers and Rishonim differed from Maimonides' opinion that only a man may be appointed to all public office. And if so radical a departure as abrogation of the grave prohibition against women studying the Torah could result from social and ideological changes, why not a much less radical departure that permits a woman to serve on a religious council? Should we not see Rabbi Malka's assessment of the contemporary situation (supra) -

           

...in current times, when women play a large part in all walks of life, penetrate the depths of the secular sciences and fill the benches of the universities, run offices and own businesses, and have a hand and a voice in the leadership of the state and in political affairs

 

            - as constituting decisive reason to permit modern women to take part in developing and maintaining religious services in their place of residence, by serving on the council charged with implementation of the task? At a time when women actively take part in diverse educational, cultural, social and political pursuits, is not a woman's preclusion from serving on a religious council, in particular, a harsh insult to her dignity and standing, precisely as a religious woman? She may discharge a public function in all areas of social, cultural and political life, but not in a public body that caters to her religious way of life? Is the native-born to be on the earth and the foreign-born in the highest heavens? (T. B. Baba Kama, 42a).

 

            It need scarcely be said that in the world of the halakha we do not discuss purely legal-halakhic questions, in the sense of juridical rights and duties. Rather the ideological and normative values of Jewish religious life are inherent in and inseparable from the subject of the discourse. For we are taught "do not read ways of behaviour [halikhot], but legal rules [halakhot] (cf. T.B. Megilla 28b) and by way of paraphrase we could equally well say, "do not read legal rules [halakhot] but ways of behaviour [halikhot], since legal rules and ways of behaviour come inextricably linked. We have seen clearly reflected - throughout the scholarly passages here cited-in addition to the legal exposition of our subject, also lengthy and detailed discussion of the conceptual implications of Jewish family life; the roles of the father and the mother, of the woman and the man, domestic harmony, the concept of modesty, and so on. All this because examination of these concepts is essential to the juridical-halakhic ruling on our subject. However, these important concepts must be addressed according to both their original significance and their contemporary setting, as we have learned from the passages quoted. Take, for example, this last concept [of modesty - Ed.] and its deep significance in Jewish life, for all persons, as stated by the prophet Micah:

           

            You have been told, man, what is good and what the Lord requires of you - only to do justice, and to love mercy, and to walk modestly* with your God. (Micah 6:8; and see B.T. Makkot 24a.)

           

            It is fitting to cite a passage on the subject written by Rabbi A. Lichtenstein

(see The Woman and Her Education, supra, at p. 158):

 

            The question is, to what extent do we want to perpetuate the original position we find in the halakha or to modify it by legitimate halakhic means, having regard to historical developments. This is a question of outlook affecting not only our present problem but also many others, such as the sabbatical year, the transactions permit**, and so on. When we circumvent the halakha, by halakhic means of course, should we say that the halakha wanted one thing then and now wants another? Or does the halakha still require the same today, except that we cannot meet its standard? To discuss this problem we must consider not only the specific question on the agenda but also the normative ramifications of the problem. When we seek to circumvent the halakha today, by legitimate means, we must ask whether or not it is for attaining a meaningful purpose, religiously and normatively speaking. There is a difference between using a circumvention in order to feed a number of poor women, as in the example of Rabbi Tarfon given in the Jerusalem Talmud (Yevamot, 4:12), or so that someone can gain a few extra pounds.

 

As for the problem of changing or reforming the status of women, if it is feasible to build a sounder and more perfect society, one that is mindful of the values of the Torah and the halakha, then it must be contended that what once was, was suited to those times, but today there is reason to relate to contemporary reality detached from the past. It is impossible to bring back the past-that is not realistic. It is not possible to revive the simplistic naivete of women that was then. Hence it is needed to replace the Ze'ena Ure'ena*, with a tractate of the Mishna, such as Hullin, to teach women more and lend their lives a content closer to that of men, so that women can derive benefit from the existing reality. But to have neither the one nor the other, that certainly is inconceivable. If there is to be neither innocent belief as in past times, nor serious study of the Torah, women will fall between two stools, and that clearly will not be good.

 

            Such is the way of the halakha from ancient times. On this score we wrote elsewhere (see Jewish Law, supra, p. 9; also p. 38):

           

...The history of the Jewish nation is reflected in the history of Jewish law, its institutions and subject matter. For the development of Jewish law was intertwined with the problems that arose in reality, the law and reality reciprocally influencing each other. The halakhic scholars and the community leaders faced a twofold task: on the one hand, a continuing concern to create and develop the Jewish law, and on the other hand, a great responsibility to preserve the spirit, purpose and continuity of the ideas that were central to each legal institution. The performance of this twofold task - to find and determine legal solutions that were founded in the past and also served the many needs of the current generation - is clearly evident to anyone who studies the history of Jewish law in its different periods...

           

            To the above end, the system of Jewish law has drawn upon its own legal sources - those very sources recognized by the halakha as means to create and develop the rules of the system (ibid.). Thus the statements of the responders and codifiers cited above show that they invoke all of the five creative halakhic sources - midrash [exegesis or interpretation], takkanah [regulation or enactment], minhag [custom], ma'aseh [(an act of) precedent], and sevara [logical reasoning].

           

            The status of women in the halakha serves as a classic example of the development of a central subject in the world of Jewish law, the subject being rooted in and intimately tied to daily life and its exigencies, guiding that reality at the same time as it is guided by it. We see, on the one hand, a constant concern for the continued development and creativity of the halakha, and on the other hand, the great responsibility of preserving its spirit, purpose and continuity, along with its central, fundamental values.

           

            39. From the above survey we also discern, incidentally, another facet of the concept of "Israel's heritage", relevant to the interpretation of this concept as used in section 1 of the Foundations of Law, 5740-1980, forming part of the modern Israeli legal system. This is the facet of Israel's heritage-as found in the halakhic sources and as consolidated under contemporary realities.

           

            40. We must now turn to the adjudication of the issue before this court. The decision of the Committee of Ministers to exclude the Petitioner from the composition of the religious council in Yerucham, was founded on erroneous factual premises and on extraneous considerations, and it is therefore null. The Petitioner, having been lawfully elected by the Yerucham local authority as a candidate on its behalf for membership on the religious council, is entitled to inclusion as a member of that council, and we have not found any ground to disqualify her.

           

            We are aware of the sensitivity of the halakhic, social and public aspects of the matter, and are aware of the grave reservations accompanying the matter and which are entertained by those entrusted by law with its determination, who have sought-and justly so-to avoid any ideological or quasi-halakhic confrontation with the halakhic authorities in Israel today. We are also mindful of the possible mishaps, for a certain period, in the orderly and uninterrupted functioning of the religious council. But none of this is sufficient to free us from the decree of the law in Israel, which prohibits discrimination against the Petitioner so as to exclude her from membership of the Yerucham religious council. It is regrettable that notwithstanding the protracted period of discussion of this matter, or the fact that the course for its proper resolution was marked out from both the legal and the public perspectives, there was lacking the courage to make the necessary and inevitable decision. In particular it pains us that no decision was taken in favour of the Petitioner, a result sanctioned by the halakha in the opinion of prominent authorities.

 

          41. We therefore decide that the Petitioner shall be included in the composition of the religious council in Yerucham, as a nominee on behalf of the local authority. As a result, one of the four representatives of the local authority nominated by the Committee of Ministers to serve on the religious council will be required to vacate his seat in favour of the Petitioner. For this purpose, and for this purpose alone, we remit the matter of the composition of the religious council in Yerucham back to the Committee of Ministers, for it to decide - after hearing all the interested parties and considering the balance required in the representation of the different bodies on the religious council - which of the four representatives of the local authority on the religious council shall vacate his seat in favour of the Petitioner. The Committee is called upon to make such decision within thirty days of the delivery of this judgment.

         

          Respondents shall pay the costs of the Petitioner in the amount of NIS 7,500, with linkage and interest increments from this day until the day of actual payment .

         

          BARAK J. I have read the judgment of my colleague, Elon J. I concur in his opinion, of which I would say, as Agranat P. once said (see E.A. 1/65, at 384) "I have read with great interest the instructive, and I might add, courageous, judgment of my learned colleague...". Yet I wish to denote the essentials of my own perspective on the present matter, since we have a difference of "emphasis" in several respects.

         

          1. The decision in the matter of the Petitioner was made by a ministerial committee, acting by virtue of section 5 of the Jewish Religious Services Law (Consolidated Version) - (hereinafter "the Religious Services Law"). Under this Law, the Minister of Religious Affairs nominates 45 percent of the members of the religious council, the local authority 45 percent, and the local rabbinate 10 percent (section 3(a)). Each of the three authorities must express its opinion concerning the candidates proposed by the other two authorities "with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and communities [edot] interested in the maintenance of Jewish religious services (hereinafter referred to as "religious services') in the locality" (section 4). If there is any disagreement between the three authorities, it is referred to a committee of ministers for determination (the Prime Minister, the Minister of Religious Affairs, the Minister of the Interior or their representatives - section 5). In the present case there were differences of opinion, and for this reason the determination of the Committee of Ministers was sought. Under review here, is the validity of the decision of the Committee of Ministers, although we could equally have examined the validity of the list of candidates proposed by the Minister of Religions and that of the local rabbinate.

 

          2. The Committee of Ministers is a statutory body acting by virtue of a Law of the Knesset. The rules of administrative law that apply to all administrative discretion, apply also to the discretion of the Committee of Ministers. Therefore, if it transpires that the act was done in bad faith or from improper motives or other such factors that may disqualify an administrative act, the decision of the Committee of Ministers will be invalidated (per Berinson J. in H. C. 568/76[7], at 679-680). This court's judicial review of the decisions of the Committee of Ministers is the ordinary judicial review which it exercises. The question before us is the legality of the decision. We do not assume the function of a ministerial committee. We examine whether such a committee, acting reasonably, could have reached the decision actually made (cf. H.C. 258, 282/84[19], at 520).

         

          3. It appears from the decision of the Committee of Ministers, that it adopted the considerations urged by the representative of the Minister of Religions (paragraph H of the Ministers' decision, cited in paragraph 11 of the judgment of my colleague, Elon J.). The Minister of Religions on his part took into consideration the objection of the local rabbi and his reasons, noting that he was convinced that "her appointment would disrupt and impair the functioning of the religious council". As for the local rabbi - whose view persuaded the representative of the Minister of Religions and the Committee of Ministers-his objection was based on the fact that the Petitioner is a woman, for which reason the orderly functioning of the council's activities would be disrupted. It was indicated that the chief rabbinate also opposed the appointment. It follows that the decision of the Committee of Ministers to reject the Petitioner's candidacy was founded on the conviction that, being a woman, her service on the council would disrupt its activities. It is true that the Committee of Ministers noted, and this was also the attitude of the Minister of Religions, that the issue was not necessarily to be decided "as a matter of principle". Yet such a principled decision was in fact made, to the effect that if the local rabbi or the chief rabbinate object to the election of a woman to the religious council, in any particular locality, her election should not be confirmed. The question before us is whether that consideration is a valid consideration, one that a reasonable ministerial committee may take into account. The answer is dependent upon the purpose and objective of the Religious Services Law. It is impossible to determine the legality of a particular consideration unless one examines the question within the context of the statute that establishes the body exercising that discretion. A particular consideration may be illegal within the frame of one statute and legal within the frame of another. Every statute sets its own bounds and considerations (see H.C. 241/60[20]; F.H. 16/61[21]). Sometimes it is difficult to cull from a statute's legislative background any identifiable legislative purpose that is relevant to the solution of the problem in hand. In such a case one may assume that the legislature favoured recourse to the customary values of the legal system (see H.C. 73, 87/53[22]; H.C. 262/62[23], at 2113). Thus,

 

...in the absence of an express provision one should not assume that the legislature intended to depart restrictively from principles that are axiomatic...

 (Per Olshan P. in H.C. 163/57[24], at 1050.)

 

            4. The purpose of the Religious Services Law is to fix a framework for the provision of religious services to Jews. For this purpose a religious council is established, which sets a budget and organizes activities for the provision of religious services. All Jews, men and women, religious and secular, avail themselves of these services. It is sufficient to note that the council organizes burial services, which everyone needs, and marriage registration, which every Jew needs if he wishes to marry. Against the background of these activities we have ruled more than once that the qualifications for serving on a religious council are "secular" and not necessarily "religious". Thus, Berinson J. has held (in H.C. 568/76[7], at 679):

           

            The religious council is appointed not by the Torah law but under a statute enacted by the Knesset. This statute does not determine special personal qualifications for members of the religious council, except that they must be "fit" for the position both personally and in terms of their being representative of the bodies and the communities interested in the provision of Jewish religious services in the locality. This being so, I think that it is not this court's function to examine the minute details of the candidates' fitness in terms of the halakha and to impose upon them qualification standards that are not written in the statute.

 

Cohn J. rephrased the same idea as follows (ibid at 680):

 

...The Petitioner and his learned counsel assume as self-evident that a person who is unfit to hold a public office by religious law, should also be disqualified from serving as a member of a religious council under the Jewish Religious Services (Consolidated Version) Law, 5731-1971, which is, as we know, a secular law. It seems to me that the qualifications and competence under the above Law should be determined according to secular criteria, and are in fact a matter for the discretion of the authorities who make the appointments.

 

            Indeed, there is nothing in the Religious Services Law to indicate that only persons learned in matters of the faith and its law may serve on the religious council, and even a person who is not religious is competent, in principle, to serve on the council (see H.C. 191/64[2], at 610). There is nothing in the Law or in its purpose from which to deduce that the halakhic rules of competency are also the legislative standards, and, therefore, even if a woman is not competent to serve as a member of the council according to the halakha, this does not mean that a woman is not competent to serve on the religious council under the Religious Services Law. The two competencies are entirely separate matters. For all that, I am not contending that a religious consideration is extraneous to the Religious Services Law. It is only natural for religious considerations to be relevant to a statute dealing with the provision of religious services. Thus, for example, the religious council provides services in matters of dietary rules and ritual slaughter. It is only natural for these concepts to be interpreted, in the broad sense, according to the halakha, since there is no secular law concerning dietary rules and ritual slaughter. Furthermore, the "religious consideration" is itself subject to judicial review, both as to the very existence of a halakhic consideration and to its content (H.C. 44/86[25]; H.C. 195/64[26]). But that question does not arise in the instant case. The question here is whether the religious laws that determine one's competency to serve as a member of the religious council are the laws that apply within the frame of the statute. To this my response is in the negative, because the statute is secular, it deals with religious services for all Jews - religious and secular alike - and the council itself is an administrative body, which must provide religious services in the most efficient way. In these circumstances - and in the absence of any contradictory provision in the Religious Services Law - there are no grounds to assume that the religious criteria, whatever they may be, are criteria sine qua non. To the contrary: the assumption ought to be that all persons whose personal traits would enable them to perform the task in the optimal way, are competent to serve on the religious council. This test does not negate the competency of any man or woman a priori. All are fit to discharge the function; from among the fit one must choose the most suitable. Therefore, and assuming that all other factors are equal, I would not necessarily find it wrong to prefer a religiously observant candidate over a secular candidate, because one may assume that the former would perform his function better. But it may possibly be otherwise. There may be a secular candidate who, despite his secularity, would perform his function better. It all depends on the circumstances of the matter. Therefore, a woman is competent to serve as a member of the council, and her selection is dependent on her personal qualifications.

           

            5. We have seen that there is nothing in the Religious Services Law to prevent a woman from serving as a member of the religious council. One might contend that it does not follow that to bar the membership of a woman, as such, is unlawful. Hence, what is the source of the rule that disqualification of a female candidate, merely because of her gender, contravenes the Religious Services Law? This conclusion stems, in my opinion, from the general principles of our legal system, in the light of which every law must be interpreted (per Cheshin J. in H.C. 282/51[27]). One of these general principles is that of equality. Every statute must be interpreted in a manner ensuring equality for citizens of the state (see C.A. 507/79[28], at 794; H.C. 114/78, Motion 451,510/78[29], at 806). Landau J. said in this connection (H.C. 95/69[30], at 698):

 

            ... This unenacted concept is of the essence of our entire constitutional order. It is therefore only just - precisely in the borderline cases, where a statutory provision can be construed in two ways-that we prefer the construction that supports and does not undermine the equality of all persons before the law.

           

            And I took the same approach elsewhere (H. C. 507/81[31], at 585), holding:

           

            The fundamental principle that serves as a legislative objective for all actions of the legislative body, is the principle of the equality of all persons before the law ... We must therefore assume that legislative enactments are designed to attain this objective and not to contradict it, and so we must construe them.

           

            Accordingly, we must construe the Religious Services Law in such manner as to guarantee the equality of all persons before the law. Between two possible interpretations, we must choose that which guarantees equality in the optimal manner, and reject the interpretation that contradicts equality. It follows that we must interpret the Religious Services Law in a manner that guarantees equality of the sexes. Indeed, it is a fundamental principle of our constitutional regime that equality between men and women be ensured, and that the male should not be discriminated against because he is male, nor the female because she is female. This principle is found already in the Declaration of Independence, which states that the State of Israel "will maintain complete equality of social and political rights for all its citizens, regardless of religion, race and sex". The importance of the Declaration of Independence is that it embodies fundamental principles of the regime. It is true that it is not a constitution and it does not have any entrenched force. But it does not follow that it lacks all legal efficacy. To the contrary: it constitutes the charter of the nation's values, since it embraces, among others, several principles that underlie the foundations of the regime as well as a number of basic premises to which legislation must conform. The charter of values has legal effect, since rights are derived therefrom and every law is interpreted in its light. Thus (per Sussman J., H.C. 262/62[23], at 2116)

           

            It determines the way of life of the citizens of the state, and every state authority must guide itself according to its principles.

           

            Indeed, the attainment of equality is the "umbrella-purpose" of each and every statute, and every statute must be interpreted accordingly, so long as there is no particular purpose that is clearly intended to negate this "umbrella-purpose".

           

            6. The principle of equality between women and men found explicit expression in the Women's Equal Rights Law. This statute provides (section 1) -

           

the same law shall apply to man and woman with regard to any legal act; any provision of law which discriminates, with regard to any legal act, against a woman as woman, shall be of no effect.

 

            This provision not merely reiterates and emphasizes the principle of equality that was laid down in the Declaration of Independence - in which respect it is not very innovative - but gives it "teeth", in the sense that any legal directive which serves to discriminate against a woman as such with regard to any legal act, is not to be followed. In this respect one must regard it as "an ideological, revolutionary law that changes the social order ..." (per Silberg J. in H.C. 202/ 57[12], at 1537). It is true that in the absence of a rigid constitution the Knesset may amend and repeal - whether expressly or by implication, wholly or partly - the provisions of the Women's Equal Rights Law, and may enact a discriminatory provision (see C.A. 336/61[11], at 408). Such a provision will of course be given effect, so long as it is understood that it was intended to depart from the fundamental principles of the system, on the one hand, and from the Women's Equal Rights Law, on the other. Such departure may be gathered from the language of the statute and its purpose. In other words, we would be dealing with the interpretation of the new Law. The interpretative process would entail overcoming the presumption in favour of the principle of equality, and the presumption against repeal by implication (full or partial) of statutes. It follows that the discriminatory provision must be phrased in "potent" language, and its legislative history must be clear, in a manner that is powerful enough to overcome the various contrary presumptions that guarantee equality.

 

            7. The assumption as to equality, on the one hand, and the Women's Equal Rights Law, on the other, create a normative "umbrella" under which every statute must be so interpreted that the principle of equality in general, and equality of the sexes in particular, shall be realized. Of course, the language of a statute and its specific purpose might lead to the conclusion that the particular statute was indeed intended to realize special objectives that are not consistent with the principle of equality. The judge, as a faithful interpreter, will give full effect to such a statute and will construe it in the light of such objectives. In order to arrive at this conclusion, however, one must point to "potent" language in the statute itself and a "clear" legislative history, from which one may deduce a rebuttal of the presumption of equality and the presumption against repeal by implication (wholly or partly) of the directive of the Women's Equal Rights Law. In the absence of such indicators, the general assumptions regarding equality and nonrepeal by implication of a statute will stand. Now I am not suggesting that in order to negate the presumption of equality there must be express language to that effect. In my view, even in the absence of such express language the presumption of equality may be negated, so long as this is founded on "potent" linguistic ground and an "unequivocal" legislative purpose. Thus, for example, it seems to me that it would be legitimate discrimination - and perhaps not discrimination but rather distinction - if there were a principled position to appoint only Jews to the religious council. Even though the Religious Services Law does not state expressly that only Jews may serve on the religious council, it seems to me that the "potent" language of the Jewish Religious Services Law allied to its legislative purpose (to provide religious services to Jews), suffice to negate the presumption of equality in this matter with regard to any person who is not Jewish.

 

            8. The Religious Services Law does not contain any "potent" language oriented towards discrimination against women as regards appointments to the religious council, and its legislative history discloses no "clear" basis for a discriminatory approach. It may be assumed that this matter was not even considered. In these circumstances it is to be presumed that the Religious Services Law, too, was intended to realize the principle of equality between the sexes, thus excluding the assumption that this statute was designed to repeal by implication the Women's Equal Rights Law. Each of these premises taken separately, and the cumulative weight of both, lead to the conclusion that appointments to the religious council must be made in observance of the principle of equality. Therefore, each of the three authorities that nominate candidates to the religious council must propose its candidates without violating the principle of equality. Likewise, the Committee of Ministers, which resolves any disagreement between the three authorities, must make its decision in observance of the principle of equality. It follows that the candidacy of a woman should not be disqualified for the sole reason that she is a woman. Each and every candidate must be appraised "on the merits", that is, according to the degree of his or her fitness to serve as a member of the council, on the one hand, and in accord with the representation of the bodies interested in religious services, on the other (section 4). Of course, there is no obligation to appoint a woman to every religious council. If there are no women suitable for the position, there is no obligation to appoint one that is unsuitable. The appointment of an unsuitable woman, for the sole reason that she is a woman, would be an improper consideration. Thus, just as it is wrong to refrain from appointing a woman for the sole reason that she is a woman, so by the same token is it wrong to appoint a woman for the sole reason that she is a woman. The appointment must be on its merits. The decision of the Committee of Ministers did not meet this requirement. It refrained from deciding in favour of appointing the Petitioner for the sole reason that she is a woman. There is no substantial argument that the Petitioner is unfit for the position for any reason, other than her being a woman. Thus, the dominant consideration of the Committee of Ministers was an extraneous consideration, the effect of which, in the existing circumstances is to nullify the Committee's decision.

 

            9. My colleague, Elon J., examines the question (in paragraph 21 of his opinion) whether the Petitioner's disqualification from service on the religious council can be justified on grounds specified in the Women's Equal Rights Law for exclusion of the provision concerning equality. As for myself, I would prefer to leave this matter for further consideration. As I indicated, the instant case involves the interpretation of a statute concerning appointments to a religious council, and to that end, it suffices to rely on the principle of equality that is an element of the "credo" of our state. The reference to the Women's Equal Rights Law furnishes additional grounds for an approach that may be employed independently. It is a nice question, what the law would be were one conclusion reached under the one heading (the fundamental principles) and a different one under the other (the Women's Equal Rights Law). As aforesaid, there is no need to resolve this question, and I wish to leave it for another occasion. Likewise I wish to leave open for further consideration the distinction suggested by my colleague between an administrative body and a halakhic body, since such a distinction creates many difficulties with respect to an administrative body that is also a halakhic body. A person's competence to serve on such a "hybrid" body will also be determined - in the absence of an express statutory provision - by way of construing the pertinent statute in light of its purpose. The halakhic character of the body will be one of the elements, though not the only one, taken into account in interpreting the legislative act. But, as I have said, we do not need to address this question here, and it should be left for another occasion.

           

            10. My colleague, Elon J., examined the position of the Committee of Ministers that there are grave fears concerning the efficient functioning of the religious council if a woman serves on it. He proceeds on the assumption (paragraph 22 of his opinion) that the fundamental right of women's equality is a relative and not an absolute right, and it should be balanced against legitimate interests of the individual and the public. He concludes that the grave fears of the Respondents should not act to tip the balance, since a woman's membership on a religious council is not prohibited by the halakha, and there is therefore no fear that her appointment would paralyse the religious council's work. He goes on to state that had it been contended that a halakhic prohibition bars women from serving on a religious council -

           

            ... there would have been room to seek a balance and compromise between the two poles. For we are concerned here with a religious council which, although a statutory, administrative body and therefore subject to the statutory principles, is also a body whose functions, and its functionaries, are closely associated with the world of the halakha, and it would have been proper to try and bridge the two opposites.

           

            In this respect I wish to note that whatever the nature of such balancing, it cannot be based on negation of the equality principle, and the balance must always be based on the premise of equality. Furthermore, the act of balancing can be done only if there is evidence that the public interest in the maintenance of religious services will be actually affected if full effect is given to the principle of equality. Mere apprehension is not sufficient. It must be shown that insistence on the principle of equality alone will affect the functioning of the religious services. Only if there is actual proof of this, will there be room to consider whether such consideration should be weighed along with the principle of equality. Finally, it will be possible to take such consideration into account only after having exhausted all the legal processes that would ensure the proper functioning of the religous council in full observance of the principle of equality. Striking a balance with the principle of equality is a means of last, not first, resort. Therefore one must first inquire whether all legal measures have been exhausted to ensure that the chief rabbinate (from whom the rule issued that women should not be included in religious councils) shall also act within the frame of the law. One should not forget that the chief rabbis also act within the frame of the law, and the principle of equality which applies to everyone, applies to them too. There is equality even in applying the principle of equality.

           

            M. BEN-PORAT, D.P.: I agree that the petition should be admitted, which is the conclusion reached by my esteemed colleagues, albeit with some differences of "emphasis".

           

          Order nisi made absolute and petition granted as stated in the decision of Elon J.

      

          Judgment given on May 19, 1988.

 

 

 

 

 

 

Justice Y. Danziger

I concur in the comprehensive and scholarly opinion of my colleague, Justice E. Rubinstein, and in the operative result proposed by him.

1.    At the outset I will emphasize that in my opinion, our willingness to allow an additional trial period, in which the effect of the “door-opening” arrangement on the coercive application of separation and dress codes will be examined, cannot legitimize coercion as stated; and if it transpires that such coercion persists, this will obviously constitute a very weighty consideration that may lead to the conclusion that this arrangement should be terminated because, in effect, it promotes patently illegal coercion, as stated. I also find it appropriate to emphasize the importance of maintaining a broad, efficient and effective control mechanism to check for the existence of coercion during the trial period. At the end of the day, the respondent’s decision at the conclusion of the trial period will be based on the results of this control mechanism and on reports that will be provided by male and female inspectors on behalf of the respondent (and, hopefully, also on the direct impression of the general public which makes use of the relevant lines). If the trial period is not properly utilized for the compilation of a well-established factual base as aforesaid, it will be truly difficult for the respondent to make a reasonable and proper decision in the matter.

In addition, I believe that the role of respondent 2, together with its managers and its employees, in ensuring the implementation of the arrangement recommended by the Committee should be emphasized. Respondent 2 must not contribute, indirectly or tacitly, to the forcible application of separation or dress codes, and it is subject to the duty — as a company providing a public service — of maintaining absolute compliance with the guidelines laid down by the Committee, to which we have added in this ruling.

I welcome the fact that ultimately, the respondent accepted the conception that structured and enforced separation in the public arena in which public transportation is provided is illegal. This restricted the scope of the dispute to the question of how to implement this conception and to ensure that there are no arrangements that force separation or a certain type of attire on women. Nonetheless, I cannot stop at this point, and I would like once again to briefly emphasize some basic concepts regarding dignity and equality.

2.    Israel’s Declaration of Independence states that the State of Israel “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.” Separation of people on the basis of gender (as on the basis of race or religion) violates the principle of equality and constitutes discrimination. In HCJ 4541/94 Miller v. Minister of Defense [1995] IsrSC 49(4) 94, Justice D. Dorner emphasized in her ruling — which some believe is perhaps the most important ruling she ever handed down (see: Mordechai Kremnitzer, Khaled Ghanayim and Alon Harel, “Portrait of Dalia Dorner,” in The Dalia Dorner Volume (Shulamit Almog, Dorit Beinisch and Yaad Rotem, eds., 2009) 418 (Hebrew)) — the humiliation that accompanies gender-based discrimination as a basis for her position that discrimination against that background constitutes a violation of the right to dignity which is anchored in Orsdin. In that ruling, she referred to the ruling of the United States Supreme Court in Brown v. Board of Education 347 U.S. 483 (1954), which rejected the “separate but equal” approach to education that had been generally accepted up to that time. In that context, Justice Dorner stated, inter alia:

‘Such discrimination is based on attributing an inferior status to the victim of discrimination, a status that is a consequence of his supposedly inferior nature. This, of course, entails profound humiliation for the victim of the discrimination’ (ibid., at 132).

The humiliation that accompanies gender-based discrimination was also pointed out by (then) Justice M. Cheshin in HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Welfare [1998] IsrSC 52(3) 630 , who stated as follows:

‘Discrimination against a woman — for being a woman — is generic discrimination... Generic discrimination, as  already stated, is discrimination that mortally wounds human dignity’ (pp. 658-659).

3.    This humiliation becomes gross humiliation when violence — verbal or physical — is used to enforce it, or when the state authorities legitimize it, even indirectly and certainly directly. As a man, I suggest that every man ask himself if he would want one of the means of coercion which my colleague described in his opinion (see para. 20 of the opinion) to be used against a woman in his family, and if he would want a woman in his family to be forced to dress in a way that is not in line with her beliefs whenever she seeks to use a public service. Even more importantly, I would suggest that all the men in question ask themselves how they would feel if, merely because they belonged to a certain group, people were to fence off the public area in which they are entitled to be present and to require them to wear a certain type of attire. I would ask those women who support coercive separation to ask themselves the same questions — for example, whether forcing them to dress in a way that is not in line with their beliefs as a prerequisite for using public transportation, would not humiliate them and violate their dignity. In fact, there were periods — dark ages — in which norms such as those that constitute the object of the petition before us were applied throughout the entire world (and, unfortunately, there are places in which they are still applied). Nonetheless, such norms cannot apply to, and cannot be binding upon a public area within the State of Israel, merely because that public area also serves, inter alia, the religious and ultra-Orthodox population.

4.    I cannot refrain from commenting that many generations of Jews lived in societies in which separation of the type that some people are now seeking to enforce was not practiced. Were they less devout in their belief than those who now seek to enforce such separation? Did they have the audacity to enforce separation in the public space that they shared with all those people who did not desire such separation? Are the solutions that were found by the great sages of those generations inferior to the solution of coercive separation? In my view, the answers to these questions are obvious, and the fact that some people are seeking to exploit their power, including their consumer and political power, in order to apply and even to establish the said coercion, gives rise to real discomfort, especially against the background of these circumstances. 

Even without relating to the situation from a historical perspective, in the Jewish and democratic State of Israel, the state authorities cannot support the establishment of the said coercion, and the state must take action — positive action — to uproot it. The coercion in question reflects a violation of human dignity and individual autonomy; it is nothing but the oppression and humiliation of women, for which there is no place in our society, either in the name of multiculturalism or under any other banner. On this matter, the message that must be voiced by the state authorities, in all areas in which the state has influence, must be unequivocal and insistent: there shall be no such coercion. 

5.    I feel bound to conclude by citing a statement of (then) Justice M. Cheshin in Israel Women’s Network v. Minister of Labor and Social Welfare [23]. His words should be recalled by all those who seek to enforce separation and certain types of attire on any man or woman who does not want them:

‘Both the male and the female were created — created together — in the image of God. Woman and man are one: she is a human being; he is a human being; both are human beings.

Thus it was — and was rightly; thus it is — and is rightly; thus it shall be — and shall be rightly. We shall remember and we shall be on guard’ (at p. 663).

 

 

Held as per the opinion of Justice E. Rubinstein.

29 Tevet 5771.

5 January 2011.