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Published online by Cambridge University Press: 11 March 2015
The article discusses the question of how Israel ought to treat its minority religions and whether its actual policies towards them accord with her moral and constitutional obligations. The first part of the paper offers three arguments purporting to show that Israel is justified in granting privileged status to the Jewish religion over other religions, and rejects each of them in turn. In particular, it rejects the view that Israel is allowed to privilege Judaism over other religions as far as the funding of religious services and needs is concerned. Nonetheless, the possibility that, on the symbolic level, weak privileging of Judaism may be permissible is left open. The second part of the paper questions whether the State of Israel guarantees equal treatment to all religions, and the answer is in the negative. Finally, the paper discusses the religious freedom of non-Jews in Israel and the way it has been interpreted by the courts. It is contended that both in terms of the freedom of religion and in terms of the freedom from religion, the protection of non-Jews is somewhat weaker than that granted to Jews, a state of affairs that ought to be remedied.
This is a revised version of a paper that was originally published in Hebrew in volume 28 of Bar-Ilan Law Studies at page 185.
1 Rubinstein, Ammon & Medina, Barak, The Constitutional Law of the State of Israel 533 (2005) [Hebrew]Google Scholar. This example is taken from an article by Karayanni, Michael M., Living in a Group of One's Own: Normative Implications Related to the Private Nature of the Religious Accommodations for the Palestinian-Arab Minority in Israel, 6 UCLA Journal of Islamic & Near Eastern Law 1, 3 (2007)Google Scholar. The article contains some further convincing examples of the tendency to restrict the state-religion discourse in Israel to the internal-Jewish context alone.
This article contains many Hebrew language sources, such as the Rubinstein and Medina book cited above. In most cases, the titles have been translated into English for the convenience of the reader. Unless otherwise noted, translations are those of the authors.
2 Compare the research conducted by Jonathan Fox, according to which 75 percent of the Christian democracies studied gave preference to a specific religion over other religions. Fox, Separation of Religion and State in Stable Christian Democracies: Fact or Myth?, 1 Journal of Law, Religion and State, 60, 74 (2012)Google Scholar. See also the extensive data that Fox has collected at http://www.religionandstate.org.
3 On the differences between the status of religion in Europe and in the United States, see, for example Peter Berger, Grace Davie & Effie Fokas, Religious America, Secular Europe? A Theme and Variations (2008).
4 See Thomas Hurka, Perfectionism (1993); George Sher, Beyond Neutrality (1997).
5 The Jewish identity of the state of Israel was determined by the United Nations Partition Plan, UN General Assembly Resolution 181 (Partition Plan), November 29, 1947, Knesset (Oct. 5, 2014), http://www.knesset.gov.il/process/docs/un181_eng.htm, as well as by the Declaration of the Establishment of the State of Israel, 1 LSI 3, 4 (1948), and by two Basic Laws dealing with human rights, Section 1A of Hok Yesod: Kevod Ha-Adam Ve-Heruto [Basic Law: Human Dignity and Liberty], 5752-1992, SH No. 150; Section 2 of Hok Yesod: Hofesh Ha-Issuk [Basic Law: Freedom of Occupation], 5752-1992, SH No. 114. For an English translation of Israel's Basic Laws see http://www.knesset.gov.il/description/eng/eng_mimshal_yesod1.htm (last visited Oct. 5, 2014).
6 The precise numbers differ somewhat. According to the Statistical Abstract for 2011, the population of Israel at the end of 2010 totaled 7,695,100 residents. Of these, 5,802,000 were Jews, constituting 75.4 percent of the population; 1,321,000 Muslims, constituting 17.1 percent; 153,000 Christians (including Arab Christians), constituting almost 2 percent; and about 127,600 Druze, constituting 1.6 percent. Central Bureau of Statistics, Statistical Abstract of Israel 2011 (2011), available at http://www.cbs.gov.il/reader/shnatonenew_site.htm (under previous abstracts, choose 2011 (year) and population (topic)).
7 For a description of the various services (provided by the government) that attend to Jewish religious needs, see Medina, Barak, Enhancing Freedom of Religion through Public Provision of Religious Services: The Israeli Experience, 39 Israel Law Review 127 (2006)CrossRefGoogle Scholar.
8 See Margalit, Avishai & Halbertal, Moshe, Liberalism and the Right to Culture, 71 Social Research 529 (2004)CrossRefGoogle Scholar.
9 For comprehensive discussions on this subject, see Will Kymlicka, Multicultural Citizenship (1995); Charles Taylor, The Politics of Recognition, in Multiculturalism 25 (Amy Gutmann ed., 1994).
10 See also Saban, Ilan, The Collective Rights of the Arab-Palestinian Minority: Do They or Do They Not Exist and the Extent of the Taboo, 26 Tel-Aviv University Law Review 241 (2002)Google Scholar [Hebrew]; Saban, Minority Rights in Deeply Divided Societies: A Framework for Analysis and the Case of the Arab-Palestinian Minority in Israel, 36 NYU Journal of International Law and Politics 885 (2004)Google Scholar.
11 For the debate in the Knesset Education and Culture Committee on this matter, see Protocol no. 9 of the Education and Culture Committee, the 16th Knesset (March 6, 2003), www.knesset.gov.il/protocols/data/html/chinuch/2003-06-03.html (last visited Oct. 5, 2014).
12 On the “symbolic exclusivity” of the Jewish national community, see Saban, Collective Rights of the Arab-Palestinian Minority, supra note 10, at 293–95.
13 For further discussion, see Gavison, Ruth & Perez, Nahshon, Days of Rest in Multicultural Societies: Private, Public, Separate?, in Law and Religion in Theoretical and Historical Context (Cane, Peter, Evans, Carolyn & Robinson, Zoe eds., 2008)Google Scholar, 186 (emphasizing the significance of choosing days of rest in multicultural societies).
14 The full text of the proposed bill is available at Basic Law: Israel as the Nation-State of the Jewish People, Israeli Ministry of Justice, http://index.justice.gov.il/StateIdentity/InformationInEnglish/Documents/Basic%20Law%20110911%20(1).pdf (last visited Oct. 5, 2014). For the debate about it, see Amir Fuchs & Mordechain Kremnitzer, Basic Law: Israel as the Nation State of the Jewish People—A Danger to the Zionist Enterprise, Makor Rishon, May 12, 2014, reprinted and translated at The Israel Democracy Institute, http://en.idi.org.il/analysis/articles/basic-law-israel-as-the-nation-state-of-the-jewish-people; Aviad Bakshi, Basic Law Proposal: Israel as the Nation State of the Jewish People—Legal Justification, The Institute of Zionist Strategies, http://www.izs.org.il/eng/?father_id=205&catid=448 (last visited Oct. 5, 2014).
15 See Christopher Hitchens, God is Not Great: How Religion Poisons Everything (2007); Sam Harris, The End of Faith: Religion, Terror, and the Future of Reason (2004); Richard Dawkins, The God Delusion (2006).
16 Gideon Sapir & Daniel Statman,Chapter 3, in Religion and State – Legal and Philosophical Inquiry 53 (2014) [Hebrew].
17 See also Omri Efraim, Jerusalem March against Exclusion of Women: “Not Modesty—Humiliation,” Yediot Ahronot (Dec. 23, 2011), www.ynet.co.il/articles/0,7340,L-4165890,00.html [Hebrew].
18 See Leviticus 20:13, “If a man lies with a male as with a woman, the two of them have done an abominable thing; they shall be put to death—their blood is upon them.”
19 For a detailed analysis of the problematic approach of most contemporary Zionist rabbis in relation to the Jewish-Arab conflict, see Ronen Lubitz, The Israeli-Arab Confrontation in the Theological Literature of the Religious Zionist Movement (2012) (unpublished dissertation, Haifa University) (on file with Haifa University Library) [Hebrew].
20 Sammy Smooha, Still Playing by the Rules: Index of Arab-Jewish Relations in Israel 2012, at 17 (2012).
21 See the recent detailed analysis by Dan Shiftan, Palestinians in Israel: The Struggle of the Arab Minority in the Jewish State (2011) [Hebrew].
22 This assumption is reinforced by the fact that in a parallel survey by Smooha conducted in 2003 among Israeli Arabs a much higher proportion identified with the state—81.1 percent felt that Israel has a right to exist as an independent state, while 75.5 percent agreed that the Jews constitute a nation that has a right to a state. See Smooha, supra note 20, at 17.
23 Statman, Daniel & Sapir, Gideon, Why Freedom of Religion Does Not Include Freedom from Religion, 24 Law and Philosophy 467 (2005)Google Scholar.
24 See Margalit & Halbertal, supra note 8.
25 See HCJ 200/83 Watad v. Minister of Finance 38(3) IsrSC 113 (1984) [Hebrew].
26 Id. at 122.
27 Id. at 123.
28 Saban, Collective Rights of the Arab-Palestinian Minority, supra note 10, at 272.
29 HCJ 240/98 Adalah – The Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs 52(5) IsrSC 167, para. 17 at 178 [1998] (Heshin, J.) [Hebrew].
30 HCJ 1113/99 Adalah – The Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs 54(2) IsrSC 164, para. 14 at 180 [2000] (Zamir, J.) [Hebrew].
31 See HCJ 2422/98 Adalah – The Legal Center for Arab Minority Rights in Israel v. Minister of Labor and Social Affairs 98(2) Tak-El 531 [1998] [Hebrew]. Recently, a similar petition was submitted to the High Court of Justice against the “Afikoman” program sponsored by the Ministry of Culture and Sport, whereby the state undertook to fund children's tickets to plays and performances during the Passover period. Yet, not one Arab location was included among the 110 locations specified in the program. See HCJ 2728/12 Adalah – The Legal Center for Arab Minority Rights in Israel v. Ministry of Culture and Sport, available at: http://elyon1.court.gov.il/files/12/280/027/o02/12027280.o02.pdf (last visited Nov. 2, 2014) [Hebrew]. The petition is available at: http://adalah.org/upfiles/petition(1).pdf (lasted visited Nov. 2, 2014) [Hebrew].
32 See Ruth Halperin-Kaddari, Women in Israel: A State of Their Own (2004) (A comprehensive description of the legal situation in Israel in regard to family law.).
33 For the arrangement pertaining to the Muslim community, see Sharia Courts Law (Approval of Appointments), 5714-1953, 8 LSI 43 (1953–1954); Qadis (Moslem Religious Judges) Law, 5721-1961, 15 LSI 123 (1960–1961); Reiter, Yitzhak, Judge Reform: Facilitating Divorce by Sharia Courts in Israel, 11 Journal of Islamic Law and Culture 13 (2009)CrossRefGoogle Scholar (describing the manner in which the Sharia courts conduct their affairs, as an expression of the way a Muslim community copes with its being a minority in a non-Muslim country). For the Druze community arrangement, see Druze Religious Courts Law, 5723-1962, 17 LSI 27 (1962–1963).
34 For example, the Religious Courts Law (Enforcement of Compliance and Procedural Methods), 5716-1956, 10 LSI 40 (1955–1956) sets out the procedures to be adopted by the various religious courts, including the courts of the Christian community.
35 Palestine Order in Council articles 51–54, League of Nations (August 10, 1922), available at http://unispal.un.org/UNISPAL.NSF/0/C7AAE196F41AA055052565F50054E656. Para. 53 of Law and Administration Ordinance, 5708-1948, 2 LSI 1 (1947–1948), which dealt with the Jewish community, was annulled for the most part and the issue found legislative expression in the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, 7 LSI 139 (1952–1953).
36 For more on the trend towards restriction of the scope of the jurisdiction of the Sharia courts, see a review in HCJ 2621/11 Plonit v. Sharia Court of Appeals, Jerusalem (4)11 Tak-El 4061, para. 13 [2011] (Joubran, J.) [Hebrew]. For a restrictive interpretation concerning the jurisdiction of the Druze courts, see HCJ 9611/00 Bader (Mer'i) v. Mer'i 58(4) IsrSC 256, 259 (2004) (Dorner, J.) [Hebrew].
37 For a survey of the extensive scope of the special jurisdictional authority of the Sharia Courts, see Menashe Shava, Personal Law in Israel 69–73 (4th enlarged edition, 2001) [Hebrew].
38 On the Druze community (the Qadi-Madhab), see Druze Religious Courts Law, 5723-1962, 17 LSI 27, 30, para. 20 (1962–1963). On the judges in the Sharia courts (the Qadis), see Qadis (Moslem Religious Judges) Law, 5721-1961, 15 LSI 123.
39 See Statman, Daniel & Sapir, Gideon, Religious Marriage in a Liberal State, 30 Cardozo Law Review 2855 (2009)Google Scholar.
40 See Lifshitz, Shachar, The External Rights of Cohabiting Couples in Israel, 37 Israel Law Review 346 (2003–2004)CrossRefGoogle Scholar (describing the current tendency in Israel to narrow the legal gap between common law couples and married couples).
41 For a description and evaluation of various models around the western world, see Marriage and Divorce in a Multicultural Context (Joel A. Nichols ed. 2012).
42 See Maoz, Asher, Religious Education in Israel, 83 University of Detroit Mercy School of Law Review 679 (2005–2006)Google Scholar (describing the “chaos” which in the writer's opinion characterizes the Israeli educational system, especially the religious educational system); Elyia, Moshe Cohen and Hamer, Yoav, An Argument from Democracy against School Choice: A Critique of Zelman v. Simmons-Harris, 49 Loyola Law Review 859–916 (2003)Google Scholar (discussing the ultra-Orthodox educational system in Israel as a basis for a critique of Zelman); Gila Stopler, The Ultra-Orthodox Community in Israel and the Right to an Exclusively Religious Education, in Constitutional Secularism in an Age of Religious Revival (Susanna Mancini, Michel Rosenfeld, and Hélène Ruiz-Fabri eds., 2014).
43 See Saban, Collective Rights of the Arab-Palestinian Minority, supra note 10, at 278–80.
44 Karayanni, supra note 1; see also Englard, Izhak, Law and Religion in Israel, 35 American Journal of Comparative Law 185, 189 (1987)CrossRefGoogle Scholar.
45 See HCJ 153/87 Shakdiel v. Minister for Religious Affairs 42(2) IsrSC 221 [1988] [Hebrew].
46 See HCJ 4298/93 Jabareen v. Minister of Education 48(5) IsrSC 199 [1994] [Hebrew].
47 Id. at 204 (Barak, J.).
48 Karayanni, supra note 1, at 15; Karayanni, The Separate Nature of the Religious Accommodations for the Palestinian-Arab Minority in Israel, 5 Northwestern University Journal of International Human Rights 41 (2006–2007)Google Scholar.
49 Englard, supra note 44.
50 Karayanni, supra note 1, at 1.
51 See para. 29(b) of the Absentees’ Property Law, 5710-1950, 4 LSI 68 (1949–1950). It is also claimed that the state refuses to reveal to the members of the Muslim community how exactly the properties of the Waqf are managed and where the income from these properties is transferred. See AdminC (TA) 1201-07 Jaffa Association for Human Right v. Custodian of Absentees’ Properties 10(2) Tak-Mech 16796 (2010) [Hebrew].
52 The imams in the mosques are chosen by a tender conducted by the Ministry of the Interior, followed by examinations. Thereafter they are interviewed by a Ministry of the Interior committee. In many instances, the General Security Service investigates the candidates’ backgrounds. For a description of the selection process for imams, see CA 4695-05-11 Ahmed Abu Ajwa v. State of Israel 11(4) Tak-Ar 896 (2011) [Hebrew].
53 The Qadis (Moslem Religious Judges) Law, 5721-1961, 15 LSI 123 (1960–1961) instituted an Appointments Committee authorized to propose to the President of the State of Israel appropriate candidates to serve as qadis. The decision as to whether a candidate's qualifications meet the criteria for the office and whether he is in fact a suitable candidate is entirely in hands of the Appointments Committee, and the scope of judicial review over its decisions is very limited. See HCJ 7193/97 Abed v. Minister for Religious Affairs and the Chairman of the Appointments Committee for Kadis 52(5) IsrSC 365, 379–80 [1998] [Hebrew].
54 See, for example, CrimC (Nazareth Magistrates Court) 12629-11-10 State of Israel v. Abu Salim (Detainee) 12(3) Tak-Shel 40202, in which an imam from Nazareth named Abu-Salim was convicted of inciting violence and terror and giving support to a terrorist organization.
