Civil Law vs <em>Halakhah</em> in Israeli Courts: The Case of Gender Equality
JEWS AND LAWYofi Tirosh
Yofi Tirosh is the vice dean and an associate professor at the Tel Aviv University Faculty of Law and a senior fellow of the Kogod Research Center at the Shalom Hartman Institute.
Israel has been a straddling a unique tension between religion and state since its establishment. The state’s Declaration of Independence posits that Israel is the homeland of the Jewish people and a country that guarantees equality before the law, regardless of citizens’ religion, race, or sex. In addition, Israel’s Basic Law: Human Dignity and Liberty, and the Basic Law: Freedom of Occupation, the equivalent of a Bill of Rights, begin by anchoring the rights they protect in “the values of Israel as a Jewish and democratic state.”
Credit: Kurt Hoffman
In some matters, state policy is in accord with religious law or halakhah. For example, there is almost no public transportation on Shabbat; matters of marriage and divorce are handled in strict accord with halakhah; and religious services and religious leadership positions are publicly funded. At times, such religious accommodations can directly conflict with basic civil rights and with fundamental principles of Israeli law, such as gender equality. For example, Israeli law exempts religious leadership roles from equal employment opportunity laws, making it legal to ban women from serving in such roles.1 Additionally, Israeli law recognizes halakhah as a source to use in filling legal lacunae.2
Israel’s courts have been asked many times over the years to preserve and interpret the meaning of the state’s “Jewish and democratic” identity in law and policy. For example, the High Court of Justice (HCJ) ruled in 1997 that Jerusalem drivers should avoid driving through ultra-Orthodox neighborhoods on Shabbat so as not to interfere with residents’ ability to maintain the spirit of the day;3 the HCJ ruled in 2020 that hospitals cannot prevent patients or visitors from bringing hametz (leavened bread) to the hospital during Passover;4 and it decided that a religious cemetery cannot prevent a bereaved family from engraving the deceased’s dates of birth and death according to the Gregorian calendar, rejecting the cemetery’s reasoning that this would connote the birth of Jesus and thus hurt visitors’ feelings.5
Perhaps unsurprisingly, many, if not most, of the clashes between halakhic law and Israeli law break out in the context of gender equality. These moments are particularly contentious due to Israel’s strong ethos—spelled out in elaborate laws and noted with admiration by Simone de Beauvoir and Gloria Steinheim in the state’s early days—of sex equality on the one hand, and the gender roles suggested by traditional interpretations of halakhah on the other.6
In this essay, I will focus on landmark cases in which Israeli laws of gender equality seem to be in direct contradiction to halakhah. I will show how the courts have handled this tension in the past and question the viability of their approach in the changing political, legal, and social climate of Israel today.
Gender Equality, Israeli Law, and Halakhah
Clashes between Jewish law and Israeli civil law on gender equality typically fit one of two paradigms. In the first paradigm, religious leaders argue that it is against halakhah for women to fulfill certain public quasi-religious roles, such as serving on a municipal council that provides religious services. This was the question in the case of Leah Shakdiel, described below. The second typical paradigm is more collective in nature, and it concerns claims of religious autonomy to discriminate against women to accommodate religious communities for whom interaction between men and women is taboo. This was the question, for example, in the case of Radio Kol Barama, in which a new Sephardic ultra-Orthodox public radio station seeking a competitive advantage over the veteran Ashkenazi station instituted a stringent “modesty” policy by which it would absolutely refrain from broadcasting women’s voices.
How should state courts address such clashes between Israeli law’s guarantee of sex equality and the standards of halakhah? If these discriminatory practices against women had not been grounded in religion, they would have been considered a clear violation of Israel’s anti-discrimination laws.
The unique Israeli formulation of the relationship between religion and state, as well as the national ethos of Israel as the homeland of the Jewish people, makes these cases a particularly sensitive challenge for Israeli judges. Their approach to Jewish law and to religious Jewish communities in Israel is closely scrutinized by these communities, whose members are constantly balancing between religious and legal normative commitments. I am not confident that the current weight that Israeli courts give to halakhah is a viable and wise approach to this challenge.
Rulings on Halakhah vs. Israeli Law
In the 1988 case of Leah Shakdiel, the petitioner Shakdiel had been selected to serve on the municipal council for religious services, a local board managing the provision of publicly funded services such as synagogues, kosher slaughter, and mikvehs, and the positions of municipal rabbis, shochets (kosher butchers), and mohels, in Yerucham.7 The Chief Rabbinate, which governs religious services nationally, objected that women should not serve in this role.
The HCJ ruled in favor of Shakdiel: a panel of three justices declared the Rabbinate’s objection to be illegal sex discrimination. However, two of the justices, Menachem Elon and Aharon Barak, reached the same conclusion in different ways. Justice Elon, a rabbi and a Talmud scholar known for annotating Jewish law to make it accessible for contemporary Israeli readers, spends most of his opinion explaining the relevant halakhah. Because Jewish law has not directly addressed the question of women in municipal religious councils, he argues, analogies can help deduce its stance on the matter. Elon then explains that the closest analogy to women serving on municipal councils for religious services is women’s right to vote, a topic on which there are rich rabbinical debates, going back to the early 1920s in the Yishuv in Palestine, when the Jewish community almost split over the question of whether women should be able to vote in elections. Rabbi Avraham Yitzhak Kook objected to women’s suffrage on religious grounds, warning that if women received the vote, his constituency would leave the Yishuv alliance towards independence. The secular parties objected, and women were permitted to vote.
Elon surveys this historical debate extensively, mapping rabbinical responsa and public statements on both sides. It is a fascinating review, touching on core questions about women’s role in Judaism. Elon concludes that just as it was ultimately determined that halakhah does not forbid women from voting, there is no halakhah banning women from serving on a board that provides religious services. Elon adds, however, that had the role of members of religious municipal councils involved ruling on halakhic matters, it would have been a different story. Such positions can only be held by rabbis, and in accord with Orthodox Judaism, the state only recognizes male rabbis.8
In his concurrence with Justice Elon’s decision, Justice Barak explicitly disagrees with Elon’s use of halakhah as a relevant source for deciding the case. The question at hand, he writes, “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.”9 In other words, state law alone should determine the court’s answer to Shakdiel’s petition.
What should we make of these different approaches? On the one hand, Elon’s approach seems wise: if it is possible to demonstrate that Israeli law does not clash directly with Jewish law, then ruling against the religious defendants and in favor of the female plaintiff may make the judgment more palatable to the losing side and the larger public it represents. For an Israeli judge to ignore religion is to ignore the religious communities he speaks to when he rules in favor of Israeli law. “I see your pain,” communicates the judge, “I, too, care about Jewish law, but there is actually no need to find a compromise between the two, because they are not in conflict.”
But a civil court’s choice to engage with halakhah is not without a price. The most significant price is that although courts engaging with halakhah have historically found that, despite appearances, there is no direct clash between Israeli and Jewish law, their very willingness to discuss halakhah introduces the possibility that should they have an undeniable clash in the future, halakhah might be allowed to prevail.
Elon and Barak’s respective views of the place of halakhah in the Israeli court system reappeared in the 2015 landmark case of Radio Kol Barama.10 In this class action suit against a new Sephardic ultra-Orthodox public radio station, the HCJ held that the station’s policy of not broadcasting any women’s voices was illegally discriminating against its female audience. Writing the leading opinion, Justice Yoram Danziger emphasizes that there is no halakhic ban on hearing women speaking on the radio. Even if some follow this practice, he notes, it is not binding in the same way as halakhah. As he writes,
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.11
Danziger has three reasons for his conclusion that the radio station’s policy is not imperative by Jewish law. First, it simply does not seem reasonable according to common sense or, as he puts it, “I find it difficult to accept.” Second, even in terms of prevailing community norms, that is, in terms of culture and sociology, he doesn’t think that these norms are currently hefty or prevalent enough to harm women’s basic rights. And third, even the radio station itself has admitted, perhaps unintentionally, that its policy is stricter than halakhah requires:
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 [permissible yet not obligatory], 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.12
Justice Daphna Barak-Erez concurs with Danziger, but alerts readers to notice that his conclusion is not ultimately based on the distinction between binding halakhic norms and hidur mitzvah, the concept of enhancing the precept. Because Danziger gives so much attention to the halakhic aspects of the issue, writes Barak-Erez, it is important for her to clarify that although this distinction is significant, it is not wise for the court to base its decision on whether or not a prohibition against hearing women’s voices is a binding norm. First, she writes, “the Court need not be the arbiter of this question.” She then continues:
Second, and more importantly, we must bear in mind the possibility that there may be strict religious approaches that view segregation 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.13
This statement is significant in two ways. First, it goes a step further than Barak did in Shakdiel a quarter-century before. Barak left open the question of which system would prevail if they clash. Barak-Erez, in contrast, says explicitly that in case of a direct clash, contemporary law and the right to sex equality should prevail over religious law. Second, Barak-Erez diverts the focal point of the tension from the normative to the socio-cultural. That is, she presents the issue not as a matter of religious law against Israeli law, but as a question of “religious approaches,” recognizing that many interpretations of halakhah coexist among rabbis and Jewish practitioners. By judging on the basis of Israeli state law, the court will additionally avoid negotiating among conflicting interpretations of halakhah.
What happened after this ruling was issued? Women now serve as anchors and as interviewees at the Kol Barama station, and the sky has not fallen. Neither the radio station nor its listeners have continued to claim that their right to practice Judaism has been infringed upon.
Another interesting point of tension between Jewish law and Israeli law occurred in the seminal case of Ragen in 2011, in which the HCJ ruled against the legality of sex-segregated public buses serving ultra-Orthodox passengers, with men required to sit in the front and women in the back. The Court explained that coercion of any kind is forbidden, and that it is a criminal offense and a tort to pressure individuals to sit according to their sex.14 Justice Elyakim Rubinstein wrote the leading opinion. Rubinstein is a religious man who was educated in religious schools, and whose official photo portrays him in his judicial black gown, holding a Bible in his lap. Alongside his analysis of state law, Rubinstein’s opinion in Ragen cites halakhic resources that reinforce his conclusion, such as Talmudic and contemporary interpretations of Genesis 49:12, “his teeth are whiter than milk,” that stress the importance of smiling and practicing love among fellow human beings. This, he writes, should be a lesson to those wishing to coerce or humiliate women.
But the importance of Judaism in Rubinstein’s reasoning extends beyond this rhetorical dimension. Although he reminds readers that for decades, the ultra-Orthodox community used busses without segregation and that this is an indication that religious custom is dynamic rather than fixed and preset, he still holds that it is important to enable believers to sit separately if they want to do so. Rubinstein therefore devises a scheme by which, on the one hand, signs on busses will warn against coercion, and on the other hand, the back door of the bus will remain open to cater to women who want to board the bus there and go directly to the rear seats.
Justice Danziger, also writing in this case, concurs with Rubinstein and adds a few remarks in his short opinion about the significance of sex equality in Israeli law and in its ethos, citing its Declaration of Independence, legislative protections of equality, and court precedents. In his last paragraph, he pauses to cite a previous ruling in which another Justice referred to Genesis 1:27, where the human being is described as being “created both male and female” at once. This creation story stands in contrast to the second Genesis account (2:19-24), in which the woman is created from Adam’s rib as his helper.
We now have a sense of the pattern of how Israeli courts have generally reacted to claims that Israeli law contradicts halakhah. While some judges examine such claims by delving into the halakhic debate, the Court typically concludes that, in fact, there is no actual clash with halakhah, and sometimes they go further to claim that the halakhah actually supports Israeli law, in spirit if not in letter. The question of which normative system would prevail in cases where a clash is undeniable is left largely unacknowledged and unanswered.
As noted earlier, the turn to halakhah is significant both on the substantive level, that is, in determining which norm should be respected, and as a rhetorical matter, that is, as a gesture of the courts to religious individuals and communities who are acutely attentive to the stance of these courts towards religion and its commitments and practices.
This is understandable in light of the centrality of Judaism and of religious communities in Israel. It would be very difficult for an Israeli judge to ignore Judaism and the meaning it ascribes to the matter he or she examines, when Judaism is the central argument of one of the parties in the case.
At the end of the day, however, judges are experts in contemporary law. Even those who are also learned in halakhah—let alone those who are not—are not recognized by religious communities as halakhic authorities. For the religious leaders or lay people who insist in court that halakhah requires that women not speak on the radio or that women sit at the back of the bus, a judicial turn to Jewish resources that suggest otherwise may have little if any persuasive force. Judicial engagement in halakhic analysis may even end up alienating the religious public from the state’s courts.
Moreover, as Barak-Erez argued in Radio Kol Barama, the question of what halakhah says about a particular issue is almost always contested and dynamic. This is an inherent feature of Judaism’s way of developing norms. Recent developments in Israel—that have brought representatives of the Religious Zionist party who hold extreme, messianic, and even religious fundamentalist understandings of Judaism into key government positions, as well as ultra-Orthodox politicians who have successfully made unprecedented demands for religious accommodation in the public sphere and in institutions and budgets—increase the likelihood that extreme claims against equality of the sexes will be made in the name of halakhah in the near future.
Swimming with Dolphins: When Halakhah Is Manipulated in Court
The 2020 case of Shukrun, which concerns the municipality of Kiryat Arba’s refusal to open its public swimming pool for men and women to use simultaneously, illustrates my concerns about the disingenuous use of halakhah to undermine gender equality and other civil rights in the Israeli legal system at this moment.15 In this case, The Court reviewed the Kiryat Arba township’s policy of opening its public swimming pool only for gender-segregated hours, i.e., allowing men to swim only at certain hours of the day and allowing women to swim only at other specified hours. The township reasoned that the majority of its residents are religious and therefore not interested in mixed-gender swimming. In addition, in the past, religious residents had boycotted the pool when it was opened to all, objecting to the “immorality” and “immodesty” involved in mixed swimming, making the operation of the pool economically unsustainable.
The Court declares this practice illegal, finding that it contradicts the civil rights antidiscrimination law that bans discrimination in products and services on the grounds of sex, race, nationality, etc 16 Distinguishing between men and women on the basis of sex when providing a service to the public, writes the Court, is discrimination according to Israeli law. The municipality, in the role of Defendant, argues that most of its residents objected to mixed swimming and that opening the pool for co-ed hours would harm the nature of the community. But the defendants’ main objection to opening the pool for mixed swimming is anchored in halakhah. The very swimming pool water in which there has been co-ed swimming, argues Kiryat Arba’s lawyer, is like gilui arayot, forbidden sexual intercourse. “A mixed pool is self-sacrifice, worse than violating the Shabbat. It is like living in a pigpen…a drop of filth that falls into the pot.”17 Thus, even if religious residents do not swim during the mixed hours, he suggests, they should not enter the pool at any time. The lawyer relies on Rabbi Zvi Tau as the rabbinic authority behind his claim.
The defendant’s lawyer also dismisses the petitioners’ request to be allowed to swim with the opposite sex if they are members of their own family. This wish, argues the lawyer for the defense, is unreasonable and exaggerated, no different than claiming that there is a basic right to swim with dolphins.
Justice Yitzhak Amit, writing the first opinion, declares that he finds it hard to understand these claims, without bothering to delve seriously into the questions.
The Court further rejects the claim that halakhah views mixed swimming as contaminating the water, not only because Israel’s law requires opening the pool to all without sex segregation, but also because it feels that the defendants’ representation of halakhah is held only by a marginal few, making it effectively false.
At the time of this ruling, Tau, the rabbi associated with this interpretation of halakhah, was indeed considered a marginal figure in Israeli society. Today, however, Tau has risen in prominence together with the Religious Zionist party. Soon, his views may no longer be considered so extreme or to be held by a negligible minority—if that is not the case already. What will the High Court do then?
This concern makes Justice Anat Baron’s sociological consideration of the halakhah in this case even more important. While Baron concurs with the other two justices, she takes a different path in her consideration of halakhah. As she writes:
The roots of coercion applied by the municipal council about segregated swimming are arguably for halakhic reasons of modesty. Those who object to mixed swimming argue that not only mustn’t one take part in it, but one mustn’t swim separately in a pool where mixed swimming took place at another day and time…It should be emphasized at this point that the halakhic matter itself is not for us to determine in these proceedings, and anyway, it is not this Court’s role to rule on halakhic matters. It should be noted that the answer to the question of whether or not sex segregation has justification in halakhah probably depends on the identity of the responder. The emphasis for our case is that legally, the municipality’s requirement of segregated swimming is an inegalitarian practice that discriminates against the Petitioners on the basis of religion and sex.18
Baron shifts the relevance of halakhah from a religious question to a socio-cultural one. Wherever there are many believers, there are many views about what halakhah says about any given issue. Baron changes the place and relevance of halakhah from a normative system that competes with Israel’s laws to a matter of cultural practices and views. This direction, I want to suggest, is promising for the future.
Exaggerated Halakhah Exposed
What happens after the court ruling sides with contemporary law’s guarantees of sex equality rather than with conservative halakhic interpretations? Interestingly, even when the public debate during a trial is heated and polarized, court rulings mostly prevail. Claims of infringement of religious rights fade away, and the new and more gender-inclusive reality is accepted as normal.
In the days of Shakdiel, the Court was well aware “of the sensitivity of the halachic, social, and public aspects of the matter,” as Justice Elon writes, adding that the Court takes into account that there will be a period of conflict that will make it difficult for the religious council to function, but that there is no other choice, because the law permits Shakdiel to serve on the council.
When Shakdiel was first selected to serve on her town’s religious council, the state rabbinate went so far as to prevent her formal nomination by issuing a halakhic ruling, a psak, stating that having women on these boards would violate halakhah. However, as scholar Aviad Hacohen puts it, after the HCJ’s ruling, women started serving on religious councils, and no one in the Rabbinate said a word. “This case,” writes Hacohen, “only emphasized that there is a need for judicial review of halakhah.”19 According to Hacohen, judges must determine whether or not a claim made in the name of halakhah is in fact nothing but “opinions,” not necessarily based on solid halakhah.
I respectfully disagree. The lesson we must learn from the dynamics by which religious authorities later abandon the bogus claims they made in court in the name of halakhah is that judges should refrain from trying to determine what exactly the halakhah says on a given issue, and simply rule according to Israeli civil law. This is particularly important in cases where the halakhah violates basic rights, such as the right to sex equality. The courts should not engage with the question of whether something is halakhically mandated or optional. This is a losing battle. Judges are not recognized as authorities on such questions, and engaging with these questions will ultimately erode their civil authority as well.
The issue of conflict between civil law and Jewish law, I want to suggest, should be framed as a multicultural dilemma in a liberal state, and then care must be taken to ensure liberal values remain the top priority. The question is whether the liberal state, which is committed to protecting individual rights while maximizing the cultural autonomy of minority communities, should restrain religious community practices when those practices violate basic rights as they are understood by contemporary lawmakers and adjudicators. As stated earlier, this clash between civil rights and religious practices most commonly erupts around issues of sex and gender equality. Multiculturalism, Susan Muller Okin famously observed, is bad for women. In making this claim, Okin provided multiple instances of minority cultures asking liberal democracies to refrain from intervening in practices that infringe on women’s equality and limit gender minorities’ rights.
As we have seen, the Israeli case provides further examples of the tension between liberal law and conservative religious understanding of women’s rights. When religious practices violate the right to sex equality with no legal authorization or in violation of constitutional guarantees, then state law should prevail over whatever halakhah says, or is presented as saying, on the matter. This is the only way that a multicultural framework will not be bad for women.
Up until now, judges have found ways to resolve tensions between halakhah and state law. Today, however, Israel is facing a new reality. The common understanding of halakhah may easily become quite extreme, and religious leaders and communities may begin refusing any limits placed upon them by state law. This development throws doubt on the viability of the judicial approach of engaging with halakhah and finding ways to interpret it as being in line with Israeli law.
Epilogue
This essay was written in the winter of 2023, a few months after the November 2022 elections in Israel, and for this author, amidst intense efforts to stop the government’s plans for an autocratic regime change. The coalitional agreements signed in forming this government contain plans to limit the equality and the basic liberties of women and LGBTQ+ people, reflecting an atmosphere in which the very term “gender equality” has become contested, divisive, and triggering.
The Religious Zionist party, the second largest party in the coalition, advocates an expansive recognition of religious rights, imbued with patriarchal and misogynistic ideologies disguised as religious promotion of family values. Attempts to expand the authority of rabbinical courts beyond family law, to allow business owners to refuse service that contradicts their religious faith, and to expand sex segregation in the public sphere, are all grounded in augmented religious claims.
Growing political polarization in Israeli society, as well as this attack on the courts and the rule of law, greatly complicate the dilemma of whether and how secular courts should consider halakhah.
Israeli courts should consider the best ways to deal with this new challenge. One possibility is to frame the issue as a multicultural dilemma, as I suggested. Perhaps other possibilities should be articulated and compared. What is certain is that the current judicial pattern of insisting that there is no clash between the two legal systems is soon going to stop working.
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But a civil court’s choice to engage with halakhah is not without a price. The most significant price is that although courts engaging with halakhah have historically found that, despite appearances, there is no direct clash between Israeli and Jewish law, their very willingness to discuss halakhah introduces the possibility that should they have an undeniable clash in the future, halakhah might be allowed to prevail.
Elon and Barak’s respective views of the place of halakhah in the Israeli court system reappeared in the 2015 landmark case of Radio Kol Barama.10 In this class action suit against a new Sephardic ultra-Orthodox public radio station, the HCJ held that the station’s policy of not broadcasting any women’s voices was illegally discriminating against its female audience. Writing the leading opinion, Justice Yoram Danziger emphasizes that there is no halakhic ban on hearing women speaking on the radio. Even if some follow this practice, he notes, it is not binding in the same way as halakhah. As he writes,
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.11
Danziger has three reasons for his conclusion that the radio station’s policy is not imperative by Jewish law. First, it simply does not seem reasonable according to common sense or, as he puts it, “I find it difficult to accept.” Second, even in terms of prevailing community norms, that is, in terms of culture and sociology, he doesn’t think that these norms are hefty and important enough to harm women’s basic rights. And third, even the radio station itself has admitted, perhaps unintentionally, that its policy is more strict than halakhah requires:
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 [permissible yet not obligatory], 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.12
Justice Daphna Barak-Erez concurs with Danziger, but alerts readers to notice that his conclusion is not ultimately based on the distinction between binding halakhic norms and hidur mitzvah, the concept of enhancing the precept. Because Danziger gives so much attention to the halakhic aspects of the issue, writes Barak-Erez, it is important for her to clarify that although this distinction is significant, it is not wise for the court to base its decision on whether or not a prohibition against hearing women’s voices is a binding norm. First, she writes, “the Court need not be the arbiter of this question.” She then continues:
Second, and more importantly, we must bear in mind the possibility that there may be strict religious approaches that view segregation 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.13
This statement is significant in two ways. First, it goes a step further than Barak did in Shakdiel a quarter-century before. Barak left open the question of which system would prevail if they clash. Barak-Erez, in contrast, says explicitly that in case of a direct clash, contemporary law and the right to sex equality should prevail over religious law. Second, Barak-Erez diverts the focal point of the tension from the normative to the socio-cultural. That is, she presents the issue not as a matter of religious law against Israeli law, but as a question of “religious approaches,” recognizing that many interpretations of halakhah coexist among rabbis and Jewish practitioners. By judging on the basis of Israeli state law, the court will additionally avoid negotiating among conflicting interpretations of halakhah.
Credit: Kurt Hoffman
What happened after this ruling was issued? Women now serve as anchors and as interviewees at the Kol Barama station, and the sky has not fallen. Neither the radio station nor its listeners have continued to claim that their right to practice Judaism has been infringed upon.
Another interesting point of tension between Jewish law and Israeli law occurred in the seminal case of Ragen in 2011, in which the HCJ ruled against the legality of sex-segregated public buses serving ultra-Orthodox passengers, with men required to sit in the front and women in the back. The Court explained that coercion of any kind is forbidden, and that it is a criminal offense and a tort to pressure individuals to sit according to their sex.14 Justice Elyakim Rubinstein wrote the leading opinion. Rubinstein is a religious man who was educated in religious schools, and whose official photo portrays him in his judicial black gown, holding a Bible in his lap. Alongside his analysis of state law, Rubinstein’s opinion in Ragen cites halakhic resources that reinforce his conclusion, such as Talmudic and contemporary interpretations of Genesis 49:12, “his teeth are whiter than milk,” that stress the importance of smiling and practicing love among fellow human beings. This, he writes, should be a lesson to those wishing to coerce or humiliate women.
But the importance of Judaism in Rubinstein’s reasoning extends beyond this rhetorical dimension. Although he reminds readers that for decades, the ultra-Orthodox community used busses without segregation and that this is an indication that religious custom is dynamic rather than fixed and preset, he still holds that it is important to enable believers to sit separately if they want to do so. Rubinstein therefore devises a scheme by which, on the one hand, signs on busses will warn against coercion, and on the other hand, the back door of the bus will remain open to cater to women who want to board the bus there and go directly to the rear seats.
Justice Danziger, also writing in this case, concurs with Rubinstein and adds a few remarks in his short opinion about the significance of sex equality in Israeli law and in its ethos, citing its Declaration of Independence, legislative protections of equality, and court precedents. In his last paragraph, he pauses to cite a previous ruling in which another Justice referred to Genesis 1:27, where the human being is described as being “created both male and female” at once. This creation story stands in contrast to the second Genesis account (2:19-24), in which the woman is created from Adam’s rib as his helper.
We now have a sense of the pattern of how Israeli courts have generally reacted to claims that Israeli law contradicts halakhah. While some judges examine such claims by delving into the halakhic debate, the court typically concludes that, in fact, there is no actual clash with halakhah, and sometimes they go further to claim that the halakhah actually supports Israeli law, in spirit if not in letter. The question of which normative system would prevail in cases where a clash is undeniable is left largely unacknowledged and unanswered.
As noted earlier, the turn to halakhah is significant both on the substantive level, that is, in determining which norm should be respected, and as a rhetorical matter, that is, as a gesture of the courts to religious individuals and communities who are acutely attentive to the stance of these courts towards religion and its commitments and practices.
This is understandable in light of the centrality of Judaism and of religious communities in Israel. It would be very difficult for an Israeli judge to ignore Judaism and the meaning it ascribes to the matter he or she examines, when Judaism is the central argument of one of the parties in the case.
At the end of the day, however, judges are experts in contemporary law. Even those who are also learned in halakhah—let alone those who are not—are not recognized by religious communities as halakhic authorities. For the religious leaders or lay people who insist in court that halakhah requires that women not speak on the radio or that women sit at the back of the bus, a judicial turn to Jewish resources that suggest otherwise may have little if any persuasive force. Judicial engagement in halakhic analysis may even end up alienating the religious public from the state’s courts.
Moreover, as Barak-Erez argued in Radio Kol Barama, the question of what halakhah says about a particular issue is almost always contested and dynamic. This is an inherent feature of Judaism’s way of developing norms. Recent developments in Israel—that have brought representatives of the Religious Zionist party who hold extreme, messianic, and even religious fundamentalist understandings of Judaism into key government positions, as well as ultra-Orthodox politicians who have successfully made unprecedented demands for religious accommodation in the public sphere and in institutions and budgets—increase the likelihood that extreme claims against equality of the sexes will be made in the name of halakhah in the near future.
Swimming with Dolphins: When Halakhah Is Manipulated in Court
The 2020 case of Shukrun, which concerns the municipality of Kiryat Arba’s refusal to open its public swimming pool for men and women to use simultaneously, illustrates my concerns about the disingenuous use of halakhah to undermine gender equality and other civil rights in the Israeli legal system at this moment.15 In this case, The Court reviewed the Kiryat Arba township’s policy of opening its public swimming pool only for gender-segregated hours, i.e., allowing men to swim only at certain hours of the day and allowing women to swim only at other specified hours. The township reasoned that the majority of its residents are religious and therefore not interested in mixed-gender swimming. In addition, in the past, religious residents had boycotted the pool when it was opened to all, objecting to the “immorality” and “immodesty” involved in mixed swimming, making the operation of the pool economically unsustainable.
The Court declares this practice illegal, finding that it contradicts the civil rights antidiscrimination law that bans discrimination in products and services on the grounds of sex, race, nationality, etc 16 Distinguishing between men and women on the basis of sex when providing a service to the public, writes the Court, is discrimination according to Israeli law. The municipality, in the role of Defendant, argues that most of its residents objected to mixed swimming and that opening the pool for co-ed hours would harm the nature of the community and undermine its values, and that a smaller clientele of only non-religious community members would render the operation of the pool financially unsustainable. But the defendants’ main objection to opening the pool for mixed swimming is anchored in halakhah. The very swimming pool water in which there has been co-ed swimming, argues Kiryat Arba’s lawyer, is like gilui arayot, forbidden sexual intercourse. “A mixed pool is self-sacrifice, worse than violating the Shabbat. It is like living in a pigpen…a drop of filth that falls into the pot.”17 Thus, even if religious residents do not swim during the mixed hours, he suggests, they should not enter the pool at any time. The lawyer cites Rabbi Zvi Tau as the rabbinic authority behind his claim.
The defendant’s lawyer also dismisses the petitioners’ request to be allowed to swim with the opposite sex if they are members of their own family. This wish, argues the lawyer for the defense, is unreasonable and exaggerated, no different than claiming that there is a basic right to swim with dolphins.
Justice Yitzhak Amit, writing the first opinion, declares that he finds it hard to understand these claims, without bothering to delve seriously into the questions.
The Court further rejects the claim that halakhah views mixed swimming as contaminating the water, not only because Israel’s law requires opening the pool to all without sex segregation, but also because it feels that the defendants’ representation of halakhah is held only by a marginal few, making it effectively false.
At the time of this ruling, Tau, the rabbi associated with this interpretation of halakhah, was indeed considered a marginal figure in Israeli society. Today, however, Tau has risen in prominence together with the Religious Zionist party. Soon, his views may no longer be considered so extreme or to be held by a negligible minority—if that is not the case already. What will the High Court do then?
This concern makes Justice Anat Baron’s sociological consideration of the halakhah in this case even more important. While Baron concurs with the other two justices, she takes a different path in her consideration of halakhah. As she writes:
The roots of coercion applied by the municipal council about segregated swimming are arguably for halakhic reasons of modesty. Those who object to mixed swimming argue that not only mustn’t one take part in it, but one mustn’t swim separately in a pool where mixed swimming took place at another day and time…It should be emphasized at this point that the halakhic matter itself is not for us to determine in these proceedings, and anyway, it is not this Court’s role to rule on halakhic matters. It should be noted that the answer to the question of whether or not sex segregation has justification in halakhah probably depends on the identity of the responder. The emphasis for our case is that legally, the municipality’s requirement of segregated swimming is an inegalitarian practice that discriminates against the Petitioners on the basis of religion and sex.18
Baron shifts the relevance of halakhah from a religious question to a socio-cultural one. Wherever there are many believers, there are many views about what halakhah says about any given issue. Baron changes the place and relevance of halakhah from a normative system that competes with Israel’s laws to a matter of cultural practices and views. This direction, I want to suggest, is promising for the future.
Exaggerated Halakhah Exposed
What happens after the court ruling sides with contemporary law’s guarantees of sex equality rather than with conservative halakhic interpretations? Interestingly, even when the public debate during a trial is heated and polarized, court rulings mostly prevail. Claims of infringement of religious rights fade away, and the new and more gender-inclusive reality is accepted as normal.
In the days of Shakdiel, the Court was well aware “of the sensitivity of the halachic, social, and public aspects of the matter,” as Justice Elon writes, adding that the Court takes into account that there will be a period of conflict that will make it difficult for the religious council to function, but that there is no other choice, because the law permits Shakdiel to serve on the council.
When Shakdiel was first selected to serve on her town’s religious council, the state rabbinate went so far as to prevent her formal nomination by issuing a halakhic ruling, a psak, stating that having women on these boards would violate halakhah. However, as scholar Aviad Hacohen puts it, after the HCJ’s ruling, women started serving on religious councils, and no one in the Rabbinate said a word. “This case,” writes Hacohen, “only emphasized that there is a need for judicial review of halakhah.” According to Hacohen, judges must determine whether or not a claim made in the name of halakhah is in fact nothing but “opinions,” not necessarily based on solid halakhah.
I respectfully disagree. The lesson we must learn from the dynamics by which religious authorities later abandon the bogus claims they made in court in the name of halakhah is that judges should refrain from trying to determine what exactly the halakhah says on a given issue, and simply rule according to Israeli civil law. This is particularly important in cases where the halakhah violates basic rights, such as the right to sex equality. The courts should not engage with the question of whether something is halakhically mandated or optional. This is a losing battle. Judges are not recognized as authorities on such questions, and engaging with these questions will ultimately erode their civil authority as well.
The issue of conflict between civil law and Jewish law, I want to suggest, should be framed as a multicultural dilemma in a liberal state, and then care must be taken to ensure liberal values remain the top priority. The question is whether the liberal state, which is committed to protecting individual rights while maximizing the cultural autonomy of minority communities, should restrain religious community practices when those practices violate basic rights as they are understood by contemporary lawmakers and adjudicators. As stated earlier, this clash between civil rights and religious practices most commonly erupts around issues of sex and gender equality. Multiculturalism, Susan Muller Okin famously observed, is bad for women. In making this claim, Okin provided multiple instances of minority cultures asking liberal democracies to refrain from intervening in practices that infringe on women’s equality and limit gender minorities’ rights.
As we have seen, the Israeli case provides further examples of the tension between liberal law and conservative religious understanding of women’s rights. When religious practices violate the right to sex equality with no legal authorization or in violation of constitutional guarantees, then state law should prevail over whatever halakhah says, or is presented as saying, on the matter. This is the only way that a multicultural framework will not be bad for women.
Up until now, judges have found ways to resolve tensions between halakhah and state law. Today, however, Israel is facing a new reality. The common understanding of halakhah may easily become quite extreme, and religious leaders and communities may begin refusing any limits placed upon them by state law. This development throws doubt on the viability of the judicial approach of engaging with halakhah and finding ways to interpret it as being in line with Israeli law.
Epilogue
This essay was written in the winter of 2023, a few months after the November 2022 elections in Israel, and for this author, amidst intense efforts to stop the government’s plans for an autocratic regime change. The coalitional agreements signed in forming this government contain plans to limit the equality and the basic liberties of women and LGBTQ+ people, reflecting an atmosphere in which the very term “gender equality” has become contested, divisive, and triggering.
The Religious Zionist party, the second largest party in the coalition, advocates an expansive recognition of religious rights, imbued with patriarchal and misogynistic ideologies disguised as religious promotion of family values. Attempts to expand the authority of rabbinical courts beyond family law, to allow business owners to refuse service that contradicts their religious faith, and to expand sex segregation in the public sphere, are all grounded in augmented religious claims.
Growing political polarization in Israeli society, as well as this attack on the courts and the rule of law, greatly complicate the dilemma of whether and how secular courts should consider halakhah.
Israeli courts should consider the best ways to deal with this new challenge. One possibility is to frame the issue as a multicultural dilemma, as I suggested. Perhaps other possibilities should be articulated and compared. What is certain is that the current judicial pattern of insisting that there is no clash between the two legal systems is soon going to stop working.
This article appears in Sources, Spring 2023.
Endnotes
1 “Equal Rights for Women” Law 5711–1951, article 7(c).
2 Foundations of Law Act, 5780-1980.
3 HCJ 5016/96 Horev v. Minister of Transportation (1997). English translation available at https://versa.cardozo.yu.edu/opinions/horev-v-minister-transportation.
4 HCJ 1550/18, The Secular Forum v. The Minister of Health (2020). English summary of ruling available at https://versa.cardozo.yu.edu/viewpoints/summary-cases-israeli-supreme-court-2019-2020.
5 Civil Appeal 6024/97 Shavit v. Rishon Lezion Burial Society (1999). English translation at https://versa.cardozo.yu.edu/opinions/shavit-v-rishon-lezion-jewish-burial-society.
6 Simone de Beauvoir, “On Israeli Women,” New Outlook – Middle East Monthly 27 (1967); Gloria Steinem,“What It Would Be Like If Women Win,” Time (August 31, 1970).
7 HCJ 153/87 Shakdiel v. Minister of Religious Affairs, 42(2) PD 221 (1988), English translation at https://versa.cardozo.yu.edu/opinions/shakdiel-v-minister-religious-affairs.
8 Elon, paragraph 21.
9 Barak, paragraph 9.
10 LCA 6897/14 Radio Kol BaRama v. Kolech—Religious Women’s Forum (2015) English translation at https://versa.cardozo.yu.edu/opinions/radio-kol-baramah-v-kolech-%E2%80%93-religious-women%E2%80%99s-forum.
11 Danziger, paragraph 54.
12 ibid.
13 Barak-Erez, paragraph 10.
14 HCJ 746/07 Ragen v Ministry of Transport, 64(2) PD 530 (2011), English translation at https://versa.cardozo.yu.edu/opinions/ragen-v-ministry-transport.
15 HCJ 3865/20 Shukrun v. Kiryat Arba Municipal Council (2020). English translation is mine.
16 “Prohibition of Discrimination with Products, Services, and Entry to Places of Entertainment and Public Places” Law, 5761–2000. Translation by Israel’s Finance Ministry at http://www.financeisrael.mof.gov.il/FinanceIsrael/Docs/En/ legislation/LaborSocialPolicy/5761-2000_Prohibition_of_Discrimination_with_Products_Ser.pdf.
17 Amit, paragraph 2.
18 Baron, paragraph 3.
19 Aviad Hacohen, “High Religious Tribunal or High Court of Justice, Judicial Involvement in Halachic Outcomes – Its limits, Scope, and Consequences,” Law and Business 14 (2012), 395-429. My translation. See also Gideon Sapir and Daniel Statman, "Religious Arguments in the Public Sphere: A View from Israel," Journal of Law, Religion & State 242 (2012), arguing that Israeli courts should delve into halakhic questions as part of liberal legal deliberations.
