Does a Recent Decision Granting Equal Access to Mikvehs Mark the Chipping Away at Orthodoxy’s Hold on Israel or does it Cement it Further?

A decision in Conservative Movement v. Be’er Sheva Religious Council (AAA 5875/10, handed down by the Court on February 11, 2016) once more highlights the tension between Israel’s split identities – Jewish and democratic. This tension, and the debate around it, seem to have been taking center stage in Israel in recent months, with the advancement of legislation aimed at strengthening Israel’s Jewish identity (for example around closing business on the Jewish Sabbath, and the ongoing calls for public transport on Shabbat) garnering criticism for being anti-democratic.

The decision is the result of an appeal challenging the Be’er Sheva District Court (as Administrative Court) decision upholding the Be’er Sheva Religious Council to prohibit the Conservative and Reform movement from accessing ritual baths (Mikvehs) for the purposes of their conversion processes.

It should be noted here, for context, that Israel has no separation of religion and state, and thus the religious establishment – controlled by Orthodox Judaism (Rabbinate) – may provide public religious services. Yet only Orthodox-provided services are recognized and regulated by the State, resulting in the Rabbinate’s monopoly on Israeli Jewish life. This monopoly implicates access to services and rights such as marriage and divorce, most prominently. This means that conversions must be conducted by the Orthodox Rabbinate in order to be recognized by the State for the purposes of such rights. Immersion in the mikveh is the final step in the conversion process, without which the conversion cannot be complete. Thus, restricting access to a mikveh for purposes of a Conservative or Reform conversion impacts these movements’ ability to perform conversions and is yet another bar to their formal recognition in Israel, thereby cementing the Rabbinate’s hegemony and power over religious Jewish life in Israel.

The Conservative and Reform movements operate private conversion services. A private conversion is not operated or supervised by the State. The State does not recognize such conversions for legal purposes related to marriage and divorce, related family or personal status matters, and other rights and privileges that depend on one’s religious or national standing. Only Orthodox conversions are public conversions that are supervised and operated by the State and carry such legal implications.  The Conservative and Reform movements’ arguments in the appeal challenged their exclusion from using public mikvehs around the country, with the exception of a single mikveh in northern Israel. They maintained that access to a mikveh for conversion purposes is a “religious service” under the Jewish Religious Services Act and that the State must provide it and do so equally. They argued that the Respondents discriminate against Reform and Conservative Jews-by-Choice, whereas Orthodox converts are granted access. Additionally, they claimed the denial of access also violates legislation regarding public accommodations. They rebuff the respondents’ distinction between state and private conversions as artificial because Jews-by-Choice should be allowed to access mikvehs whether the conversion alters their legal status or not. This distinction therefore cannot justify the discrimination. Lastly, they claim that religious freedom and pluralism were not attributed sufficient weight by the District Court.

For their part, the respondents stressed that they do not preclude anyone from mikvehs based on their religious affiliation on an individual basis. They claimed that they are not required to provide services for private conversions and that this is not discriminatory because there is a relevant distinction – state conversions are regulated and supervised, have a public dimension, and bear legal consequences. Even where the distinction does constitute an infringement upon religious rights, this does not justify the court’s intervention. Because one only need travel once to a mikveh for conversion purposes, traveling to the mikveh in northern Israel is not overly burdensome. Lastly, under section 3(d)(1) of the public accommodation legislation, there is no discrimination where the nature of the service or product calls for the discrimination.

The Court, in a majority opinion by Deputy President E. Rubinstein and joined by Justice S. Joubran (following the retirement of President Grunis) with a concurrence by President M. Naor, granted the appeal. The Court held that the public mikvehs must provide access to Reform and Conservative conversion rituals under the principle of equality. The Court rejected the respondents’ argument that the discrimination is justified. That there is general discrimination – as policy regarding which Jewish groups may be regulated and supervised – cannot justify the specific discrimination in access to mikvehs. This is inconsistent with the duty of an administrative authority to serve equally in each of its actions and responsibilities. Once the State elects to provide public mikvehs it may not discriminate between users, as each person may worship according to their preference and conscience. The legal consequences of conversion – or lack thereof – are irrelevant to the religious aspects. Moreover, the distinction between private and public is misguided because Orthodox private conversion services have no trouble accessing mikvehs. More importantly, though, public conversion services exclude the Reform and Conservative options, so the State – following principles of good faith and equality – may not argue that use of mikvehs is reserved only for state conversion services.

As for the public accommodations argument, the Court found the respondents’ claim that they are exempt from providing equal access because the mikvehs are reserved for Jewish people and converts are not Jews until their conversion should not have even been made. Orthodox converts, after all, are not yet Jews at the time of their immersion either, and in any event the purpose of the immersion in the mikveh is to facilitate and finalize conversions. Their nature is not to exclude Jews-by-Choice.

The Court opined that its findings were justified under the free exercise of religion as enshrined in Basic Law: Human Dignity and Liberty, which compels the State to provide adequate resources for religious life. The general exception as to budgetary constraints and state resources does not apply here since the infrastructure – i.e., the mikvehs – already exists.

Finally, the Court commented that Jewish law does not shy away from pluralistic and multiple points of view. Jewish sources have anticipated liberal theory by nearly 2000 years in advocating the need for a free market of ideas as a tool for seeking out the truth.

Though the appeal targeted the mikvehs in Be’er Sheva, the Court applied its ruling to all other mikvehs in Israel that allow immersion for purposes of conversion.

This decision has elicited different reactions, from one writer suggesting that a similar problem of exclusion from mikvehs exists in the United States as well and thus celebrating the decision as one that should be applied around the Jewish world, to another critiquing the decision by questioning why, if the Rabbinate builds the mikvehs, it cannot control who uses them. These types of reactions, though, fail to understand the full meaning and the potential effect of this decision. Because, unlike the United States, Israel has no separation of state and religion, the Rabbinate does not provide mikvehs merely of its own volition. Rather, it does so as a state actor and thus cannot discriminate in operating these mikvehs. Doing so would create a disparate impact problem, which Israeli law recognizes as a form of prohibited discrimination (in other words, Israeli law seeks to protect substantive equality, not just formal equality.)

In light of this it is highly significant that the Court opens mikvehs to Conservative and Reform conversions. The Court has traditionally refrained from making bold and explicit pronouncements on the Jewish-versus-democratic debates (or has opted for subtle, more procedure-based paths to effect social change in this regard; see, for example, the cases on marriages not performed under Jewish law, common law marriages, or same sex marriages). For that reason, this decision is especially noteworthy, and it may, in the very long run, be one that propels the chipping away at the Orthodox Rabbinate hegemony. Passages regarding Jewish law’s welcoming of pluralistic attitudes and allusions to the rabbinical monopoly being discriminatory may very well lay the foundation for such language being used as precedent in future cases extending marriage to couples who have so far been excluded from the institution in Israel. On the other hand, this is probably just the concern leading to a new bill already making its way through the Knesset in an attempt to circumvent the ruling and mandate the exclusive use of mikvehs by the Orthodox Rabbinate. This bill, marking the first step in a backlash against this particular decision but another in a long string of measures attempting to solidify the Rabbinate, may prove to ultimately help cement the Rabbinate’s hold on Israeli religious life, family law, immigration law, and other aspects of Israeli law and society. It therefore remains to be seen, perhaps over the next decades, how the dust will settle on Israel’s split identity.