By: Jonathan Kaplan

The issue of religion and state in Israel is one of the most burning social issues in the country today. While Jewish ethnic conflict no longer constitutes a source of concern for most social scientists, the tensions generated by conflicting positions on the basic nature of the state pose perhaps the greatest internal threat to Israel's stability. What should be the supreme authority: the will of the people as expressed through laws passed by a democratically elected Knesset and interpreted by the judiciary, or the will of God as passed down through sacred writings and interpreted by orthodox rabbis and religious courts? As a Jewish state, should Israeli culture and society conform with "halacha" (Jewish law) whenever possible or should society be essentially secular but rely on Jewish tradition for its values, symbols and ceremonies, or should Israeli society be as similar as possible to other western countries? The answers to these questions are crucial in determining laws of marriage and divorce, the status of women, the definition of a Jew and hence the major criteria for joining Israeli society, the character and desirability of a constitution, regulations for the operation of businesses and services, the nature of the school system, and many other important aspects of Israeli society.

Reasons for the Connection between Religion and State The problematic nature of religion and state in Israel is a product of pre-state developments, the Israeli political system, basic Zionist premises and contemporary religious activism.

Evolution of Religious Autonomy: 
Under Turkish rule, religious communities or "millets" were given their own jurisdiction over religious affairs and matters of personal status such as marriage, divorce and inheritance. This system was continued under the British Mandate in Palestine after World War I. The British recognized a Chief Rabbinate, Rabbinical Council and Rabbinical Courts, all comprised of orthodox Jews, as the sole authorities on issues of Jewish law, and invested them with exclusive jurisdiction over Jews in matters of marriage and divorce, alimony and confirmation of wills. Thus, in these areas, Jewish law, which was given an orthodox interpretation, became binding on the Jews of Palestine with the exception of those who held foreign nationality and could contract civil marriages before consular officers. Marriages and divorces effected abroad were recognized as valid by the courts of Palestine. In other matters of personal status, rabbinical courts could assume jurisdiction only with the consent of all parties concerned. Similar jurisdiction was accorded to various Christian and Moslem courts.
Israel maintained essentially the same arrangement with a few alterations. The Druze were recognized in 1957 as a separate religious community and they soon gained authorization for their own religious courts. All Jews without exception were put under the jurisdiction of the Jewish religious authorities. At present, all major religious groups in the country are autonomous in matters of marriage and divorce, and in some cases also in matters of child support and inheritance. The Moslem community enjoys more extensive autonomy than the other communities in these areas. Each community celebrates its own Sabbath and holidays which are legally recognized in Israel as business holidays for that particular community. It can therefore be stated that there is no one established religion in Israel, although there is certainly a strong sense of Jewishness within the country. On the other hand, there has definitely been an established interpretation of Judaism.

Israeli Political System: 
The Israeli political system is based on the principle of proportional representation. At election time, votes from the entire country are tallied up, and any party that succeeds in crossing a threshold set at 1.5% of the popular vote, will be represented in the Knesset in direct proportion to the percentage of votes received. This system facilitates the presence of a large number of small parties and makes it virtually impossible for any one party to muster the 61 seats (out of 120) required to pass legislation and to govern. The resulting need to form coalitions comprised of several parties gives disproportionate power to smaller parties that are in a position to make or break a potential coalition. Religious parties, which together usually receive some 15 seats in the Knesset, have been partners in almost every coalition, largely due to the fact that their primary concerns have not centered on crucial foreign or economic policy, but rather on the religious nature of the state. This made the religious parties convenient partners who sought "only" to safeguard religious interests and guarantee that the state would maintain a Jewish character. In return for their support, the religious parties were given control of ministries that play an important role in these areas (usually Religious Affairs, Interior and sometimes Education and Culture) as well as coalition backing for legislation of a religious nature. As a result, the Knesset has passed a number of laws designed to ensure Jewish observance of halacha.

Desire for a Jewish Society: 
It would be a mistake, however, to conclude that the role of religion in Israel is only a result of a political game with religious parties pressuring the ruling party for concessions. A basic goal for many secular Zionists was the creation of a new Jewish culture. The intention of these Zionists was not to create a society based on religious observance, but rather to develop a new culture based on the interaction with the Land of Israel, the Hebrew language, historical Jewish symbols and ceremonies as well as values and motifs taken from Jewish literature, including sacred literature. Traditional Jewish elements would thus become part of the national culture. Due to the intimate connection between Jewish culture and Jewish religion, it is hard to imagine how any Jewish society could be empty of religious elements.
Even today, it is doubtful whether most non-observant Israelis would prefer a society devoid of Jewish ritual or symbolism. This is especially the case among those who came from traditional religious backgrounds in Asia and North Africa. Many aspects of Israeli life - Saturday as a day of rest without public transportation in most areas of Jewish residence, Jewish wedding rituals, Yom Kippur observance and customs pertaining to burial and mourning - reflect the general population's acceptance of a certain degree of Jewish observance.

National Unity: 
Zionism emphasized the national character of the Jewish people and sought to bring about its reunification. In practice, this has meant that Zionist and Israeli leaders have tried to find a way for Jews to live together by seeking an operative consensus that would reduce to a minimum the extent to which any group is offended or provoked. Although only some 20% of Israelis could be classified as orthodox, a much larger percentage has traditionalist leanings. This in itself might suggest a policy of compromise when it comes to religious questions. With regard to certain issues, national unity is seen to be at stake. If, for example, marriage, divorce and conversion laws are not kept in line with halacha, many people who might consider themselves Jews would not be regarded as such by orthodox Israelis, who would be unable to marry such individuals and would therefore be forced to maintain independent lists of "authentic" Jews. Such a split within the Jewish people would be a terrible blow to national unity.

Religious Activism in the Jewish State: 
It should not be assumed that the religious parties wish only the opportunities and resources necessary to pursue an orthodox life-style. This may be the case in the diaspora, where orthodox Jewry cannot radically affect the surrounding society and has only a limited capability of bringing "wayward" Jews back to the fold. The social and political structures of the state offer a more realistic possibility for creating a religious society. Religious Zionism has also been influenced by messianic ideas associated with Rabbi Abraham Isaac Kook, who contended that the return to Israel was part of the unfolding messianic process. Thus, just as socialist Zionist pioneers saw the Jewish settlement in Palestine as an opportunity to realize their ideological goals, so have religious parties, Zionist and non-Zionist, felt compelled to implement their vision for the Jewish state. This accounts for the desire to pass laws that enforce compliance with religious tradition.

Basic Policy: 
The Executive of the Jewish Agency spelled out its policy on the issue of religion and state on June 19, 1947, in a letter to the ultra-orthodox Agudat Israel, which, it was hoped, would cooperate in supporting the case put before the United Nations for a Jewish state. Four issues were clarified. The official day of rest in the Jewish state would be on Saturday - the Sabbath for other religious groups would be celebrated on the appropriate days. State kitchens for Jews would be kosher. The Jewish Agency would do all in its power to ensure that matters of personal status would be regulated by Jewish law "to prevent the division of the people." Finally, the autonomy of the different educational systems (including the religious one) was to be continued. This policy came to be known as the "status quo" in religious affairs.
Specific laws have since been enacted by the Knesset to implement this policy. In this regard, the Supreme Court has played an important role by upholding the view that when there is no Knesset legislation, local government is not justified in making regulations that would enforce a religious law. The Knesset has thus been the source of legislation designed to ensure compliance with halacha on a number of issues.

Controversial Issues: 
The connection between religion and state has been especially controversial with regard to certain issues such as marriage and divorce, Sabbath observance, dietary laws and the question of "Who is a Jew?"

Marriage and Divorce: 
The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law of 1953 placed matters of marriage and divorce involving Jewish residents or nationals in Israel under the exclusive jurisdiction of rabbinical courts which act in accordance with Jewish law. In other words, Jews in Israel can only marry or divorce according to Jewish religious law as interpreted by orthodox rabbinical courts: civil marriage and divorce do not exist. The marriage ceremony must be according to Jewish law and religious intermarriage cannot take place. A cohen (member of the priestly class in Judaism) is prohibited from marrying a divorcee or a woman who has converted to Judaism. If a husband dies leaving his wife childless, and he is survived by a brother who has not yet married, the widow may not remarry until released by the surviving relative, an act that can be carried out only after his thirteenth birthday. Divorce proceedings take place in a rabbinical court, but the court cannot dissolve a marriage. It can only supervise a procedure in which the husband delivers a "get" or bill of divorce to the wife who agrees to accept it. If one of the parties persistently refuses a divorce considered to be warranted by the court, the latter may order the unwilling spouse to carry out the procedure. However, if the order is not obeyed, the divorce does not take effect. In this instance, the situation for men is radically different than that for women. A husband whose wife refuses or is mentally unable to accept the "get", can be simply allowed to remarry without the termination of his prior marriage, since a Jewish man may have more than one wife. The wife of a husband who refuses to deliver the "get" is in a more difficult situation: though the courts may employ severe measures such as imprisonment to compel the husband to comply with the order, until he does so, his wife is regarded as being married and cannot remarry. A woman who is deserted by her husband cannot remarry as long as he is presumed to be alive, unless of course she receives a divorce from him. One of the most painful situations has to do with "mamzerim," the offspring of incestuous or adulterous unions (ie. extra-marital relations involving a married woman). A divorce which is not in accord with Jewish law is not recognized by the rabbinate as a divorce at all, and hence the woman in such a situation would be considered to be still married and any children she had from another man, including her second husband, would also be considered "mamzerim." By the same token, women who are denied a divorce or who have been deserted by their husbands are deterred from having children from other men. Men have less concerns in this regard because a child resulting from relations between a married man and a single woman would not be a "mamzer" due to the fact that in Jewish law, a man can be polygamous. As "Mamzerim" are permitted to marry only other "mamzerim" or converts to Judaism, their chances of getting married in Israel are very slim.

Day of Rest: 
The Provisional Council of State (the predecessor of the Knesset) enacted the Days of Rest Ordinance, 1948, which defined the Sabbath, the High Holidays and the Pilgrimage Festivals (Sukkot, Pesach and Shavuot) as days of rest. Non-Jews were to have the right to observe their own Sabbaths and festivals as days of rest. In 1951, the Knesset passed the Hours of Work and Rest Law which gave workers at least 36 consecutive hours of rest a week. For Jews, Saturday was to be the weekly day of rest and for non-Jews the respective Sabbath day was recognized. Special provisions were made for the supply of essential services on Shabbat. The provisions of this law were extended to self-employed individuals and members of cooperatives in 1969. The power to regulate the opening and closing of shops, restaurants and places of entertainment was left up to the local authorities by the Municipalities Ordinance of 1964, and municipalities pursued different policies in this regard. In 1987, the municipality of Jerusalem pressed charges against the owners of certain local cinemas for operating places of entertainment on Friday nights in contravention of a city bylaw. The presiding judge invalidated the bylaw and dismissed the charges on the grounds that (1) the municipality lacked the authority to enact bylaws limiting the citizen's freedom of recreation on Shabbat for religious reasons: such power rested solely with the Knesset; and (2) the municipal bylaw was "extremely unreasonable" as it constituted "an unwarranted interference in the civil rights and a violation of the basic rights of the secular population without appropriate weight being given to the respective interests of the various sections of the population and to the necessity of properly balancing among them." As a result, the Minister of Religion initiated in the Knesset an amendment to the Municipalities Ordinance, which became known as the "Law of Empowerment" according to which municipalities were empowered to close businesses on rest days "in consideration of the claims of religious tradition." In other cases, the effort to enforce Shabbat laws met with greater success, for example the Likud government decision in 1981-82 to shut down El Al, the national airline, on Saturdays and certain Jewish holidays.

Dietary Laws: 
The Provisional Council of State enacted the Kosher Food for Soldiers Ordinance in 1948 which ensured ritually acceptable food for all Jewish soldiers in the Israel Defense Forces. In 1962, the Knesset passed the Pig-Raising Prohibition Law which stated that "a person shall not raise, keep or slaughter pigs" although exception was made for Christian communities. A recent attempt to prohibit the sale of pork altogether was blocked in Knesset after the 1992 elections. A 1986 law, The Festival of Matzot Law (Prohibition of Leaven), prohibited the display of all leavened products (bread for example) for sale or consumption, in localities with a Jewish majority during the holiday of Passover although since then, the law has fallen into general disuse.

Who is a Jew? 
The issue of "who is a Jew?" arises in cases of marriage, citizenship and registration with the Ministry of Interior. As marriage is under the authority of orthodox rabbinical authorities, the definition of a Jew for the purposes of marriage is strictly in accord with Jewish law: a Jew is someone born of a Jewish mother or someone who has converted to Judaism according to an orthodox interpretation of Jewish law.

The most common way for Jews to acquire Israeli citizenship is by virtue of the Law of Return (1950) which allows Jews, irrespective of their age or material status, to settle in Israel. According to the Nationality Law of 1952, Jews who enter Israel under the Law of Return are automatically eligible for Israeli citizenship. Over the years there has been considerable debate over how the Law of Return should define who is a Jew: in 1962 the Supreme Court ruled that a Jew born of a Jewish mother who had converted to another religion was not to be considered a Jew for the purposes of this law. The law does not stipulate a particular form of conversion with the result that at present, any type of conversion to Judaism is recognized.

The Registration of Inhabitance Ordinance of 1949, replaced by the Population Registry Law of 1965, enjoined all residents age 16 and above to provide the Registry Office of the Ministry of Interior with personal information, including religion and national-ethnic group ("leom"). From the beginning of 1960, the government's policy was to register as Jews (in both the religious and national-ethnic categories) only those born to a Jewish mother. This was challenged in 1968 by a Jewish naval officer, who insisted on registering his two children from his non-Jewish wife as having no religion at all but as Jewish in terms of "leom." In its ruling, the Supreme Court disallowed the 1960 policy as not having the sanction of law, and ordered the Registry Office to register the children as demanded by the plaintiff. This led the Knesset in 1970 to amend the Population Registry Law so as to link its definition of a Jew to that of the Law of Return. The latter was also amended and the section defining a Jew was made to read: "For the purposes of this law, "Jew" means a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion." Efforts in the Knesset to amend the wording to "converted to Judaism according to Halacha" have not succeeded so far, and more recent attempts by the religious parties to prevent Jews converted by Conservative or Reform rabbis from being registered as Jews have been prevented by the courts.

Other Issues: 
Other questions continue to be matters of religious contention. The demand for Shabbat closure of major thoroughfares used by non-observant or even non-Jewish individuals, the ultra-orthodox opposition to archaeological excavations in ancient grave sites, the pressure for more stringent abortion laws and the opposition to any recognition of non-orthodox streams in Judaism will no doubt continue to attract considerable attention.

Questions for Discussion:

  • Should there be a separation between religion and state in Israel?
  • In what way should Israel be a "Jewish" state if at all?

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You can also find some background information on Israel and the status of Reform conversions by visiting the Current Issues page of the Pedagogic Center at http://www.haaretzdaily.com/htmls/1_1.asp

 

 

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27 Apr 2015 / 8 Iyar 5775 0