¹ The Court's decisions on women's right to participate in secular bodies which dispense religious services or to equal division of property in divorce proceedings in rabbinical courts, on homosexuals' right to equality in the workplace and on the right of non-Orthodox sects to recognition in various social contexts have been the trigger for the anger of religious factions.

² See Gavison, R., “Public Involvement of Bagatz: A Critical Perspective” in Gavison, Kremnitzer, and Dotan, , Judicial Activism: For and Against (Jerusalem, Yediot Ahronot, 2001) at 104Google Scholar: “It is not clear why Bagatz is the proper body to make judgment on the disputes of values and morals which split Israeli society.”

³ Ibid., at 106: “Are the reasons for alienation and criticism of Bagatz [by Israeli Arabs, the Orthodox establishment and the religious right] justified? … What they all have in common is that they all feel that Bagatz does not treat them and their interests in an impartial manner. If this feeling is well-based it may bring about a justified loss of legitimacy.”

⁴ The Women's Equal Rights Law, 1951, was amended radically in 2000; however, the amendments are not relevant to this research as they took place after the judicial decisions analyzed here had been decided.

⁵ See Aristotle, , Nichomachean Ethics, Ostwald, trans. (Indianapolis, Babbs-Merrill, 1962) p. 118, para. 11311a-bGoogle Scholar.

⁶ Schama, S., Citizens: A Chronicle of the French Revolution (New York, Random House, 1990)Google Scholar.

⁷ See Maine, , Ancient Law (London, John Mulrray, 10th ed., 1984) 172–174Google Scholar.

⁸ William Wilberforce (1759-1833) was a British politician and abolitionist. John Quincy Adams (1767-1848) was the sixth President of the United States from 1825-1829.

⁹ See Mill, , “On the Subjection of Women” (1868) in Fawcett, M., ed., On Liberty, Representative Government, the Subjection of Women (London, Oxford University Press, 1912)Google Scholar.

¹⁰ Socio-dynamic equality does not postulate a final static model of equality as a blueprint for social organization, but rather provides tools for the constant correction of existing inequalities. See Raday, F., “Socio-Dynamic Equality: The Contribution of the Adversarial Process,” in Slonim, S., ed., The Constitutional Bases of Political and Social Change in the United States (New York, Praeger, 1990) 141–163Google Scholar.

¹¹ Shalev, Carmel, “On Equality, Difference and Sex Discrimination” in Sepher Landau (1995) 893Google Scholar.

¹² Jaggar, A., “On Sexual Equality” (1974) 84 Ethics 275, at 276CrossRefGoogle Scholar.

¹³ JudgeAbella, R. Silberman, Equality in Employment: A Royal Commission Report (Canada Gov. Pub. Center, 1984) 8Google Scholar.

¹⁴ Raday, F., “On Affirmative Action” (1995) 3 Mishpat Umimshal 145Google Scholar.

¹⁵ MacKinnon, C., Feminism Unmodified (Massachusetts and London, Harvard Univ. Press, 1982)Google Scholar.

¹⁶ Britten, A. and Maynard, M., Sexism, Racism and Oppression (New York and Oxford, Basil Blackwell, 1987)Google Scholar.

¹⁷ California Federal Savings and Loan Assn. et al. v. Guerra 479 U.S. 272-77 (1987): the issue was whether the Pregnancy Discrimination Act of 1978 preempts requiring employers to provide leave to pregnant employees. Liberal and difference feminist took different views. The Supreme Court held the statute valid, allowing as it did women, like men, to work and raise a family.

¹⁸ Accommodation measures are facilitative rather than mandatory. The only exceptions which should be countenanced are those based on a rationale which would stand as independently convincing in a gender neutral context. Thus, for instance, in systems where there is a policy of mandatory protection for employees' minimum rights in general — to prevent their exposure to pressure to waive their rights from their employer — similar measures with regard to women's accommodatory rights can be justified. Hence, it is quite justified, in such systems, to impose a minimum period of mandatory maternity leave.

¹⁹ Boronovski v. Chief Rabbinate, (1971) 28(1) P.D. 7.

²⁰ Ibid., at 35.

²¹ In the case of non-Jews, the Criminal Law provides a gender-neutral exemption for remarriage and restricts the grounds on which a license to remarry may be given to grounds of insanity or disappearance for more than seven years. On these latter grounds, it would not have been possible to give a license to remarry in the case of the petitioner's husband.

²² Streit v. Chief Rabbi of Israel (1964) 18(1) P.D. 598.

²³ Boronovski, supra n. 19, at 18. On these grounds Haim Cohn interpreted, or it could be said reinterpreted, the exemption from bigamy for Jewish men as being governed by the same restrictive grounds as those imposed by the statute in the case of non-Jews. As regards the distinction between Jews and non-Jews, he held that the difference between the religions was not “relevant so as to legitimize the “‘discrimination.’”

²⁴ Cohen v. Cohen (1971) 25(2) P.D. 327.

²⁵ Ibid., at 335.

²⁶ Lifshitz-Aviram v. Law Society (1976) 31(1) P.D. 250.

²⁷ Ibid., at 252.

²⁸ Plonit v. Ploni (Anonymous v. Anonymous) (1981) 35(3) P.D. 57. The District Court had awarded the plaintiff guardianship in order to allow him to appear before a statutory committee empowered to authorize the abortion.

²⁹ Ibid., at 67.

³⁰ Ibid., at 89.

³¹ Ibid., at 85.

³² Shakdiel v. Minister of Religious Affairs (1988) 42(2) P.D. 221; Poraz v. Mayor of Tel Aviv (1988) 42(2) P.D. 309.

³³ Shakdiel, supra n. 32, at 276.

³⁴ Ibid., at 242.

³⁵ Ibid., at 274.

³⁶ Ibid., at 264.

³⁷ Ibid., at 237.

³⁸ Poraz, supra n. 32, at 309.

³⁹ Ibid., at 333-334.

⁴⁰ Ibid., at 332.

⁴¹ Ibid., at 336.

⁴² Ibid., at 337.

⁴³ Ibid., at 341.

⁴⁴ Ibid., at 342.

⁴⁵ Ibid., at 337.

⁴⁶ Ibid., at 339-340.

⁴⁷ Derech Eretz v. Reshut HaShidur (1981) 35(4) P.D. 1; Elizur Sport Association Nahariya v. Nahariya Municipality et al. (1983) 37(3) P.D. 17. For further analysis, see Raday, F., “On Equality” in Women's Status in Law ad Society (Schocken, 1995) 38–39Google Scholar.

⁴⁸ Eliezer Avitan v. Israel Lands' Authority et al. (1989) 43(4) P.D. 297.

⁴⁹ For further analysis, see F. Raday, supra n. 47, at 39.

⁵⁰ Nevo v. National Labor Court (1990) 44(4) P.D. 749. The author acted as counsel for the petitioner.

⁵¹ Nevo v. The Jewish Agency (1986) 18 P.D.A. 197.

⁵² Equal Retirement Age for Women and Men Law, 1987.

⁵³ Nevo, supra n. 50, at 770.

⁵⁴ Ibid., at 761.

⁵⁵ Ibid., at 760.

⁵⁶ Ibid., at 759.

⁵⁷ Ibid., at 756.

⁵⁸ Justice Bach presents child care as a women's role in spite of the fact that the Equal Employment Opportunities Law had, two years before the judgment, converted the major statutory child care rights from maternal to paternal rights.

⁵⁹ Judgments on issues that raise issues of equality only marginally are not used as a basis for profiling. Thus, for instance, the Nachmani case, in which an equality anaysis was made regarding the right of men and of women to control parenthood decisions, was not included because the determining issue was whether both men and women had a preferred right to be parents or to avoid parenthood.

⁶⁰ Recanat v. National Labor Court, Tak-Al 2000(4) (2000) 587.

⁶¹ Cf. Justice Beinisch who regarded age discrimination as less severe than discrimination on grounds of sex, race, religion and nationality and, re Justice Zamir and Justice Cheshin, see infra. Furthermore, Justice Barak regarded age discrimination as more serious, in the context of legal doctrine, than discrimination on grounds of sexual preference: he considered the former (at para. 35 of the judgment) but not the latter (infra, text at n. 71) contrary to public policy.

⁶² Efrat v. Population Registrar (1993) 47(1) P.D. 749.

⁶³ Ibid., at 790.

⁶⁴ Kamir, Orit “Every Woman Has a Name” (1996) 27(ii) Mishpatim 327Google Scholar.

⁶⁵ Morris Azuellos v. State of Israel (1996) 50(2) P.D. 573. The rhetoric is reminiscent of that in Poraz: see above text at note 40.

⁶⁶ Ibid., at 580.

⁶⁷ Browne, Angela, When Battered Women Kill (N.Y., Free Press, 1987)Google Scholar.

⁶⁸ Ibid.

⁶⁹ The decision in Azuellos has been rightly said, by Kamir, to represent “a chauvinist approach, which is expressed in sympathy to the sense of ‘ownership’ and male honor which a jealous man feels towards a woman who is trying to get divorced from him, as also in sympathy to the attempts of a man to win a woman ‘home to raise their children.’” Kamir, Orit, “‘Reason’ Killed the Woman: Provocation, ‘The Reasonable Israeli’ and ‘The Average Israeli Woman’ in Azuellos” (1997) 6 Plilim 137, at 172Google Scholar.

⁷⁰ El Al v. Danilovich (1994) 48(5) P.D. 749. A common law partner here is a “yedua bezibor,” a term also used in the Efrat case, supra n. 62.

⁷¹ Ibid., at 761.

⁷² Ibid., at 764.

⁷³ At 762: “Underlying the granting of an air ticket to an employee for a spouse or a common law partner is the idea that a benefit — in the form of an air ticket — should be given to the employee for the person with whom he lives and with whom he runs a joint household, from whom he departs when he goes on his flights and to whom he returns on completion of his work.”

⁷⁴ Harel, A., “Gay Rights in Israel — a New Era?” (1996) 2 International Journal of Discrimination and the Law 261CrossRefGoogle Scholar.

⁷⁵ Adal Ka'adan v. Israel Lands Authority (2000) 54(1) P.D. 258.

⁷⁶ Ibid., at 276.

⁷⁷ Ibid., at 276.

⁷⁸ Adalla v. P.M. et al. Bagatz 10026/01, H.C.J. 2 April 2003, not yet published.

⁷⁹ Bavli v. Rabbinical Court of Appeals (1994) 48(2) P.D. 221.

⁸⁰ Ibid., at 242.

⁸¹ In his paper “The Application of the Principle of Equality in the Court” in my seminar on The Changing Face of Equality, Ofer Malchai, critiquing this article, presents an interesting alternative analysis of the judgment. He argues that Barak simply replaces one gender neutral arrangement (separate property) with another (shared property), which is more equitable for women. He gives the analogy of two basketball games for different height teams in one of which the basket is placed high up so only the tall team can reach it as compared with the other game in which the positioning of the basket is within reasonable reach of both teams. By this analysis, Barak does not depart from his approach of neutrality.

⁸² Ibid., at 232.

⁸³ Justice Barak indicates that the rabbinical courts have some leeway to develop the Jewish Law regime of matrimonial property in a way that is different from the shared property regime of the civil courts, provided it is consistent with the principle of equality. Ibid., at 241.

⁸⁴ Danilovich, supra n. 70, at 763.

⁸⁵ Ibid.

⁸⁶ Barak, Aharon, Interpretation in Law, Vol. 3 (Jerusalem, Nevo, 1994) 424Google Scholar.

⁸⁷ United Mizrachi Bank plc. v. Migdal Collective Village (1993) 49(4) P.D. 221.

⁸⁸ IWN v. Minister of Transportation (1994) 48(5) P.D. 501.

⁸⁹ Zamir, I. and Sobel, M., “Equality Before the Law” (1999) 5 Mishpat Umimshal 165Google Scholar.

⁹⁰ Recanat v. National Labor Court (1997) 51(3) P.D. 289.

⁹¹ Recanat II, supra n. 60.

⁹² Recanat I, supra n. 90, at 348-349.

⁹³ Ibid., at 364.

⁹⁴ Ibid., at 347.

⁹⁵ This restrictive interpretation is rejected by Justice Beinisch, who although she concurs with Zamir as to the outcome, regards as discriminatory forced retirement beneath the commonly accepted age for mandatory retirement in Israel, which is generally 65. Both Zamir and Beinisch hold that the setting of a generally accepted mandatory retirement age as such is not discrimination under the Law.

⁹⁶ Ibid., at 370.

⁹⁷ Ibid., at 343.

⁹⁸ Ibid., at 375.

⁹⁹ ACRI v. State of Israel, (2001) 55(5) P.D. 15, at 26-27; I. Zamir and M. Sobel, supra n. 89, at 200.

¹⁰⁰ The State of Israel v. Ben Asher (1998) 52(1) P.D. 650.

¹⁰¹ Ibid., at 654.

¹⁰² The Masorti Movement v. Minister of Religion (1999) 99(3) Tak-Al 1698.

¹⁰³ Adalla Legal Center v. Ministry of Religion (2000) 54(2) P.D. 164.

¹⁰⁴ The Masorti Movement, supra n. 102, at 1699.

¹⁰⁵ In the case of The Masorti Movement, with Justice Cheshin and Beinisch concurring, Justice Zamir applied the principle of equality — administrative equality between sub-sects of Judaism — to invalidate an inegalitarian budgetary distribution in the Budget Law. This judgment was not based on the human rights power of the Court but on a statutory construction of hierarchy between individual Budget Laws and the Foundations of the Budget Law, which expressly incorporates a principle of equality in distibution of financing as between public institutions which belong to the same category.

¹⁰⁶ Adalla II, supra n. 103, at 165.

¹⁰⁷ I. Zamir and M. Sobel, supra n. 89, at 199-200, 206-207.

¹⁰⁸ Ibid., at 200.

¹⁰⁹ IWN I, supra n. 88, at 535-536.

¹¹⁰ Adalla II, supra n. 103, at 165.

¹¹¹ I. Zamir and M. Sobel, supra n. 89, at 211-212.

¹¹² Zemach v. Minister of Defense, 99(3) Tak Al (1999), 1400.

¹¹³ IWN I, supra n. 88, at 516.

¹¹⁴ Ibid., at 502.

¹¹⁵ Miller v. Minister of Defense (1995) 49(4) P.D. 94.

¹¹⁶ Ibid., at 114.

¹¹⁷ A. Barak, supra n. 86, at 528.

¹¹⁸ Ibid, at 114; Justice Dorner concurs at 143.

¹¹⁹ Ibid., at 166.

¹²⁰ Akiva Nof v. Minister of Defense (1997) 50(5) P.D. 449.

¹²¹ IWN I, supra n. 88, at 526-527.

¹²² Ibid., at 562.

¹²³ Yaakobi v. Yaakobi (1995) 49(3) P.D. 529, at 637. The equality implications of this case are discussed fully below in the text at n. 129.

¹²⁴ Ibid., at 637.

¹²⁵ Miller, supra n. 115, at 142.

¹²⁶ Ibid., at 108.

¹²⁷ Ibid., at 118.

¹²⁸ The Defense Service Law has since been amended: Amendment 11, 2000, S.H. 1723. It is not clear whether this provision would override the express exemptions in the Defense Service Law for women, following on pregnancy or motherhood.

¹²⁹ Yaakobi, supra n. 123, at 626-627 (cf. Strasberg-Cohen).

¹³⁰ Ibid., at 603 (cf. Dorner).

¹³¹ Ibid., at 779.

¹³² Ben Ami v. Government's Legal Counsellor (1964) 18(3) P.D. 225, at 238.

¹³³ A. Harel, supra n. 74, at 266.

¹³⁴ This kind of difference feminism is the different voice feminism of Carol Gilligan, according to which females function in a more cooperative and contextualized way than males: Gilligan, C., In a Different Voice (Cambridge, Mass., Harvard Uni. Press, 1982)Google Scholar.

¹³⁵ Vixelbaum v. Minister of Defense et al. (1995) 49(2) P.D. 195.

¹³⁶ Buchbut v. The State of Israel (1995) 49(3) P.D. 647.

¹³⁷ Ibid., at 649.

¹³⁸ Buda, M. and Butler, T., “The Battered Wife Syndrome: A Backdoor Assault on Domestic Violence” (1984–1985) 23 J. Fam. L.Google Scholar

¹³⁹ C. MacKinnon, supra n. 15.

¹⁴⁰ Miller, supra n. 115, at 132, 135.

¹⁴¹ Ibid., at 132.

¹⁴² Ibid., at 119.

¹⁴³ Ibid., at 121.

¹⁴⁴ Raday, F., The Concept of Gender Equality in a Jewish State (Tel Aviv, Schocken, 1995) 64Google Scholar.

¹⁴⁵ Miller, supra n. 115, at 125.

¹⁴⁶ Yaakobi, supra n. 123, at 618.

¹⁴⁷ Ibid., at 626.

¹⁴⁸ Klass et al. v. Tel Aviv Assessment Officer, CA 900/01 Supreme Court, 12 May 2003, not yet published.

¹⁴⁹ Ibid, para. 16.

¹⁵⁰ Plonit v. Chief of the General Staff (1999) 53(2) P.D. 62.

¹⁵¹ Livnat, Yuval, “What Kind of Feminism? Reflections on the ‘Galili Affair’” (2000) 16 Mehkari Mishpat 471Google Scholar.

¹⁵² The army had itself frozen Galili's eligibility for promotion for two years but the High Court held this was not sufficient in view of the unacceptability of his conduct.

¹⁵³ Plonit (Galili), supra n. 150, at 70.

¹⁵⁴ Ibid., at 76.

¹⁵⁵ Yuval Livnat, supra n. 151, at 476.

¹⁵⁶ Justice Strasberg-Cohen was also criticized by Livnat for voicing an objection to the fact that the petitioner had hired a public relations consultant. I agree with his criticism. However, I am not convinced that this issue is specific to the group equality issue. The High Court of Justice is renowned for its objection to self-exposure by litigating parties in the media and this presents a problem for all private petitioners in high profile cases.

¹⁵⁷ The State of Israel v. Be'eri et al. (1993) 48(1) P.D. 302; for discussion see Hauftman, Z., “Rape — The Basis of Consent and the Laws of Evidence” in Raday, et al. , eds., Woman's Status in Israeli Law and Society (Tel Aviv, Schocken Publishing House, 1995, in Hebrew) 58-59, 233–234Google Scholar.

¹⁵⁸ Justice Shamgar proposed that, in cases of group rape when the victim is a minor, the burden of proof should shift to the accused (at 326). Furthermore, he accepted psychological evidence of the concept of rape trauma syndrome. He regards it as requiring the courts to modify their attitude to victims who do not immediately report the rape and not to interprete the victim's silence as indicating consent (at 364). Justice Shamgar referred to the hostile atmosphere in which rape victims have found themselves in the legal process and rejected the use of evidence regarding the victim's sexual history, emphasizing that such evidence has in the past been used to turn the victim into the accused (at 330). He demonstrated the importance of eliminating this approach by asserting that a wife has the right to refuse to have intercourse with her husband and a prostitute has a right to refuse to have sexual relations with any man with whom she does not want such relations (at 324). See also: Livnat, Yuval, “Rape and Gender” (1997) 6 Plilim 187, at 232–233Google Scholar.

¹⁵⁹ Ibid., at 377.

¹⁶⁰ See Be'eri, supra n. 157, at 377-378.

¹⁶¹ Ibid., at 378.

¹⁶² Ibid., at 379-380.

¹⁶³ Ibid., at 323.

¹⁶⁴ Plonit v. Ploni (1997) 51(1) P.D. 198.

¹⁶⁵ Justice Or and Justice Beinisch were the other judges on the panel.

¹⁶⁶ IWN v. Minister of Labor (1998) 52(3) P.D. 630.

¹⁶⁷ Ibid, at 650-658.

¹⁶⁸ Ibid, at 662.

¹⁶⁹ Recanat, supra n. 90.

¹⁷⁰ Ibid., at 316.

¹⁷¹ Wolf, N., The Beauty Myth: How Images of Beauty are Used Against Women (New York, Doubleday, 1992)Google Scholar.

¹⁷² Recanat, supra n. 90, at 337.

¹⁷³ Adalla Legal Center v. Ministry of Religion (1998) 52(5) P.D. 167.

¹⁷⁴ Raday, F., “Equality and Religion in the Light of the Case Law,” in Barak, A. and Berenson, C., eds., Berenson Book, Volume II (White Publishing House, Jerusalem, 2000, in Hebrew), 341–388Google Scholar.

¹⁷⁵ Adalla II, supra n. 103.

¹⁷⁶ Niv et al. v. National Labor Court et al., (2002) 56 (3) P.D. 663.

¹⁷⁷ Ibid., at 705-706.

¹⁷⁸ Mizrachi, supra n. 87, at 568.

¹⁷⁹ IWN II, supra n. 166, at 658.

¹⁸⁰ IWN I, supra n. 88.

¹⁸¹ Ibid., at 540-541.

¹⁸² Ibid., at 539.

¹⁸³ Ibid., at 542.

¹⁸⁴ Miller, supra n. 115.

¹⁸⁵ Ka'adan, supra n. 75.

¹⁸⁶ Miller, supra n. 115, at 127.

¹⁸⁷ Ibid., at 117.

¹⁸⁸ Buchbut, supra n. 136.

¹⁸⁹ Ibid., at 648.

¹⁹⁰ Ibid.

¹⁹¹ Danilovich, supra n. 70.

¹⁹² Ibid., at 768. He uses biblical sources to substantiate this differentiation but his etymological justification has run into Harel's convincing criticism that the word “couple' does not actually appear in the biblical sources to which the learned judge refers. See A. Harel, supra n. 74, at 268.

¹⁹³ The Association of Gay Men, Lesbians, Bisexuals and Transgender v. Minstry of Education (1997) 51(5) P.D. 822.

¹⁹⁴ Ibid., at 825.

¹⁹⁵ Ibid., at 826.

¹⁹⁶ Ibid., at 825.

¹⁹⁷ The quest to discover whether judges have identifiable personal differences in their substantive or procedural approach to adjudication, which is based on their social background or group identity, is an anathema to classical legal thinking. It goes against the legal grain not to regard a judge solely as objective and impartial agent of “The Law.” This classical view has, nevertheless, been criticized by academics. Swedish and American realists originally highlighted the importance of the attitudes of individual judges. More recently, Griffith talked about “the myth of neutrality” and pointed out that in order for a judge to be completely impartial, s/he would have to be “a political, economic and social eunuch”: Griffith, J.A.G., The Politics of the Judiciary (Manchester, Manchester University Press, 1977) 209Google Scholar. The idea of disembodied neutrality has also been questioned by at least one outstanding female judge. Madame Justice Bertha Wilson of the Canadian Supreme Court expresses the issue eloquently: “ … the universalist doctrine of human rights must include a realistic concept of masculine and feminine humanity regarded as a whole, that human kind is dual and must be represented in its dual form if the trap of asexual abstraction in which human being is always declined in the masculine is to be avoided. If women lawyers and women judges through their differing perspectives on life can bring a new humanity to bear on the decision-making process, perhaps they will make a difference. Perhaps they will succeed in infusing the law with an understanding of what it means to be fully human.” Wilson, Justice B., “Will Women Judges Really Make a Difference?” (1990) 28 Osgoode Hall L.J. 521Google Scholar.

¹⁹⁸ This observation can be contrasted with the research findings of Bogoch and Don-Yechiya, who did a study on gender bias in the Israeli courts on the basis of analysis of sentencing of violent offenses: “Our results indicate that if women have a different voice, it is muted in the role of judge. … Women judges do not appear to react to feminist concerns about the patriarchy of the law in sexual offenses …”: Bogoch, B., “Judging in a ‘Different Voice’: Gender and the Sentencing of Violent Offenses in Israel” (1999) 27 International Journal of the Sociology of Law 51, at 71CrossRefGoogle Scholar.