Are Israelis facing a tightening of religious restrictions?

It’s been a bad week for the liberals in the never ending battle over Israel’s official state religion.

In just two days this week, the ultra-Orthodox parties Shas and United Torah Judaism took dramatic steps to reclaim control of Israel’s state religious institutions.

Two key decisions were passed in the cabinet on Sunday. One erased a 2014 reform of the state conversion system that was intended to devolve the authority to conduct state-recognized Jewish conversions from a handful of rabbinic judges appointed by the Chief Rabbinate to a wider circle of local rabbis. The other moved the power to regulate and supervise the rabbinic courts from the Justice Ministry to the Shas-controlled Religious Services Ministry.

Both cabinet decisions were approved by the Knesset in late-night votes on Monday, and were already in effect by Tuesday.

Sunday also saw the introduction of two bills meant to shore up the Chief Rabbinate’s monopoly over the certification of food as kosher — that is, permissible according to Jewish religious dietary rules.

Prime Minister Benjamin Netanyahu (center) leads the weekly cabinet meeting, on June 21, 2015. (Alex Kolomoisky/Pool)

And that’s not all. On Wednesday, a bill by Yesh Atid Member of Knesset Aliza Lavie to create civil marriage in a country that currently recognizes only the marriages performed by state-sanctioned religious authorities was defeated in a Knesset vote of 39 for, 50 against.

Shas and UTJ also reiterated their plans to advance bills to remove the sanctions on Haredi young men who refuse national service, and to work to restore some of the child allowances for very large families that were cut in recent years.

Freshly returned to the halls of power after the March elections, ultra-Orthodox lawmakers are on the march. And if the media coverage of the past week is any indication, they are winning.

Has the liberal cause stumbled? Do Israelis face a tightening of the religious legal restrictions under which they live?

Status quo

“We’re not crazy,” one aide to a UTJ lawmaker insisted on Monday. “We know the limits of the political system and we’re focusing on reinforcing the existing status quo, not changing it.”

Indeed, the loudest voices insisting the ultra-Orthodox parties are not winning are heard in the ultra-Orthodox parties themselves.

Ultra-Orthodox MKs at the Knesset on July 22, 2013, ahead of a vote on a universal draft bill that would conscript members of the religious community. (Flash90)

The kashrut bills are a case in point. The bills seek to make the Chief Rabbinate the sole authority that can publicly declare any food sold in Israel as kosher — a monopoly, in effect, over the right to make a religious determination. There’s just one problem. It is already illegal under the 1983 Law Forbidding Kashrut Fraud for a business to claim its food is “kosher” without being certified (and at the business’s expense, supervised) by the Chief Rabbinate. The term “kosher” itself is already reserved under law to mean only foods whose ritual status has been approved by the state rabbinate.

The now-overturned conversion reform is a similar story. On paper, it expanded the circle of state rabbis allowed to conduct state-recognized Jewish conversions from half a dozen to perhaps 30. But foot-dragging by the Chief Rabbinate prevented the decision’s implementation in the nine months since it passed the cabinet in November 2014. Its cancellation this week thus changed nothing on the ground.

Why, then, are so many, from the Orthodox chief rabbi of the town of Shoham to the Israeli Reform movement to opposition leader MK Isaac Herzog, convinced these measures marked a dramatic setback for Israeli liberals?

Keeping kosher

The rabbinate’s kashrut certification system is by law a monopoly, but it also faces widespread criticism and disdain, including among religiously observant Israeli Jews. It may be the only major government regulator in which the supervised party — restaurateurs, hotel chefs — pays the regulating officer, in the person of the rabbinate’s supervisor, directly.

Widespread corruption and countless tales of supervisors taking advantage of the clout they wield over business owners by virtue of the rabbinate’s monopoly have led to the founding of dozens of private kashrut certification groups that implicitly and at times explicitly flout the existing law.

Chef Noam Dekkers (in the back), watches workers of the Tel Aviv-Jaffa rabbinate blow-torch the grill stove in one of the kitchens in Tel Aviv’s Liliyot restaurant, making it kosher for the Jewish holiday of Passover, April 2012. (AP)

Since most of these private groups come from the Haredi community, whose leading rabbis hold sway over the rabbinate’s top officials, the rabbinate has adopted a policy over the years of automatically approving their kashrut certifications. Similar private certification initiatives not rooted in the Haredi community, however, have faced the opposite response: harsh enforcement and stiff fines.

Last year, a group of Israeli restaurateurs appealed to the High Court of Justice, asking it to reinterpret the existing kashrut law in a way that would enable them to tell their customers that they observe kashrut rules without being forced to accept the supervision of the rabbinate. One proposal in the petition acknowledges the legal standing of the term “kosher,” but asks to be allowed to use other terms, such as simply telling customers that a business is “supervised” by a particular rabbi.

The appeal has won the support of Attorney General Yehuda Weinstein, who wrote a legal opinion in the government’s name informing the High Court that he believed restaurants should be allowed to inform their customers of their standard of religious observance without requiring a rabbinate certificate — as long as the restaurateurs do not break the letter of the law by using the word “kosher” without rabbinate permission.

Attorney General Yehuda Weinstein attends the weekly cabinet meeting in Jerusalem, November 23, 2014. (Ohad Zwigenberg/Flash90, Pool)

Left unsaid in either the High Court petition or the attorney general’s opinion is the simple fact that huge numbers of restaurants already tell customers that their food is kosher despite not having rabbinate supervision.

The new kashrut bills are an attempt to counter this trend. Each bill subtly changes the language of the existing law to close the semantic loopholes businesses use to indicate kashrut without using the word itself.

Thus, the UTJ version of the bill, spearheaded by MK Moshe Gafni, not only forbids any business from claiming it is kosher “even if it explicitly tells [consumers] that it does not have a kashrut certificate [from the rabbinate],” but in fact forbids any “statement, sign or other signal” on the business’s part that “might cause the consumer to assume that the laws of kashrut are being kept.” By making it illegal to in any way “cause the customer to assume” a business is kosher, it heads off any possible loophole by restaurateurs or the courts.

De jure, de facto

In a sense, the lawmakers are right. The bills merely reiterate the status quo. But they do so in the face of a social reality taking form beyond the scope of the law that implicitly challenges its authority and legitimacy.

As the ultra-Orthodox parties well know, they are engaged in a fight for the interstitial space, the informal, essentially liberal religious and social world that most Israelis inhabit, and which legislation and rabbinate enforcement measures have not managed to penetrate.

This same gap between the formal legal reality and the liberal social one also lies at the heart of the conversion fight.

Rabbi David Stav, cofounder and chairman of the Tzohar rabbinical organization. (Yossi Zeliger/Flash90)

Some municipal rabbis, united under the rubric of the Tzohar organization, have concluded in recent years that the state rabbinate has largely failed Israeli Jewish society. While continuing to draw government salaries — Israelis can hardly imagine how a rabbi might otherwise make a living — they have begun to market themselves as a subversive alternative to the standard rabbinate experience.

For example, Tzohar rabbis have a policy of refusing payment for conducting weddings. Israeli newlyweds are often disgusted when a state-salaried rabbi, required by law at their wedding for the ceremony to be recognized by the state, demands money for the service. Since the couple often doesn’t know the rabbi outside the context of their wedding registration, the rabbi usually asks for the money during the only opportunity available to him — at the wedding itself.

Israel is arguably the most restrictive and coercive state religious system in the free world, yet ordinary Israelis are in important ways actually living in one of the democratic world’s most liberal societies

The Tzohar rabbis’ vow to reject wedding fees thus targets a symbol of disillusionment with the rabbinate, and attempts to speak directly to the widespread perception that every significant encounter many Israelis, whether newlyweds or restaurateurs, actually have with state rabbis centers on coercive legal requirements and demands for payment.

The conversion reform didn’t merely seek to increase the number of conversion courts. It tried to expand the circle enough to bring a handful of Tzohar rabbis into the ranks of the official conversion system, giving prospective converts the option to obtain state-approved conversions from rabbis who are at once deeply ensconced in the official rabbinic hierarchy while also constituting an unofficial rebellion against its practices.

As with the kashrut bills, this isn’t a fight over the legitimacy or existence of state religious institutions, but over the rabbinate’s efforts to reach into the liminal social space in which much of Israeli society actually lives and where official state religious law is in an important sense all but suspended.

No one, and everyone

This is the essential reality of the Israeli experience of religion. Israel is arguably the most restrictive and coercive state religious system in the free world, yet ordinary Israelis are in important ways actually living in one of the democratic world’s most liberal societies.

Perhaps the most dramatic example of this paradox lies in Israeli family law. Israel has no civil marriage, and as the failure of the Yesh Atid bill on Wednesday showed, is unlikely to get it in the near future.

For Israelis, marriage and divorce can only be conducted through state religious courts: Jews in state-funded rabbinic courts, Muslims in parallel state-funded Sharia courts, Catholics in canon law courts, etc.

Worse, any Israeli who is not accepted by one of these state-recognized religions as a member — such as Reform converts to Judaism, Protestants and the hundreds of thousands of non-Jewish family members of Russian-speaking Jews — simply cannot marry at all, not even each other.

It was to protect this state-religious system that the ultra-Orthodox parties successfully fought in the early 1990s to keep the promise of “equality,” celebrated in Israel’s Declaration of Independence, out of the 1992 Basic Law: Human Dignity and Liberty, fearing a “right to equality” would empower the courts to dismantle these barriers.

With so many excluded by law from an institution as basic as marriage, Israel’s system is, to put it mildly, an aberration in the democratic world, particularly in an age in which official recognition for gay marriage is making dramatic inroads. The only comparable system among democracies is India’s, which also employs and enforces religious family and personal-status law in its otherwise liberal legal order.

But for all that, this survey of Israeli marriage law leaves out the most important fact about the whole system: the extent to which it is ignored by, and ignores, Israel’s social reality.

A Reform wedding in Tel Aviv, not recognized by the rabbinate. (Serge Attal/Flash90)

Many Israelis who wish to marry outside the state-recognized religions simply go abroad, usually to nearby Cyprus, for a quick wedding recognized by the Israeli state under international agreements. (There they sometimes run into Lebanese couples making the same journey in order to sidestep a similar Ottoman-rooted official religious framework in their own country.)

But there is another solution Israeli society has produced, one that neatly encapsulates the bifurcated reality of the relationship between Israeli society and its coercive state religion.

In legal rulings over the years, Israel’s secular courts, keenly aware of the lack of marriage options for large swaths of the population, have increasingly recognized other forms of relationships as conferring protections usually associated with marriage.

Wielding the ancient halachic term yedu’im betzibur, “known to the public,” in a way not unlike the English concept of common-law marriage, this glacial judicial reform, taking place in piecemeal rulings over several decades, has quietly transformed Israeli society. Where formal law has left hundreds of thousands of Israelis literally without access to marriage, courts have responded by extending the most important and intimate protections of marriage to nearly every cohabiting couple, including gays.

Perhaps the strangest aspect of this culture war is the absence of any serious intellectual contest between the sides

“Yedu’im betzibur,” defined by the courts as a couple that shares a home and a sexual relationship, have the right to make end-of-life decisions for their dying partner and to sue for equal division of property and some forms of alimony if they separate.

This powerful but informal institution only gains official sanction when it is recognized by a court — that is, it only comes into being retroactively, when a partner is actually dying or the relationship has actually ended. It is only in those dramatic moments that the couple actually has reason to go before a court for the first time, and it is only then that they find out for certain if they were “common-law” married. The irony is stark: A system that denies marriage to so many has produced an ad-hoc judicial reality in which marital protections are extended so easily and generously that a great many Israelis stand a real risk of discovering — by definition when it is too late to decide otherwise — that they were unintentionally married.

‘Where is Netanyahu?’

Some activists, observing in dismay the Haredi victories of the past week, wondered aloud where the rest of the coalition’s parties had gone. “Where are [Prime Minister Benjamin] Netanyahu, [Education Minister Naftali] Bennett, [Finance Minister Moshe] Kahlon? The Haredim are trampling over us, and no one in the coalition lifts a finger,” said one.

Bennett, who heads the nationalist-religious Jewish Home party opposed to Haredi control of the rabbinate, voted against the cabinet proposals, but did not publicly challenge them.

Netanyahu took some steps to restrain the Haredi efforts this week, including appointing his Likud confidant Energy Minister Yuval Steinitz on Monday as the new chairman of the Rabbinic Judges Appointments Committee; moving the state’s Conversion Authority from the Shas-run Religious Services Ministry to the Prime Minister’s Office; and placing the army’s conversion system — Russian-speakers who seek to convert to Judaism often do so as young adults of army age — under Jewish Home’s Deputy Defense Minister Eli Ben Dahan.

Deputy Defense Minister Eli Ben Dahan, February 3, 2014 (Yonatan Sindel/Flash90)

But these steps did not meaningfully buck the trend, or reduce the determination of Haredi lawmakers to use their restored influence to strengthen the power and reach of state religious institutions.

The acquiescence of mainstream parties to ultra-Orthodox demands is not simply, as activists often charge, rooted in the necessary compromises of political coalition-building. Each party has its red lines over which it would willingly go to elections — Kahlon on economic and housing reforms, Bennett on territorial withdrawals, Netanyahu on Iran and other geopolitical issues. State religious coercion does not qualify among these make-or-break issues for the simple reason that these leaders understand the limits of this coercion, the gap between the formal structures and the social realities. Relatively few Israelis are actually actively harmed by these religious institutions because their real influence over Israeli society is so flimsy.

‘A heavy burden’

Perhaps the strangest aspect of this culture war is the absence of any serious intellectual contest between the sides. It is hard to find systematic ideologies on any side. The liberals bring no American-style arguments against the corrupting power of an established state synagogue, while the ultra-Orthodox arguments extol state sovereignty and celebrate “consumer protection,” but never actually engage in social or religious debates.

Thus, in its explanatory preface, Gafni’s kashrut bill equates the rabbinate’s monopoly with the state monopoly over the regulation of pharmaceuticals. The Shas bill, proposed by a handful of MKs led by Shas’s Yoav Ben-Tzur, speaks in a similar vein: “Just as it is inconceivable that a doctor present himself as such without the certification required by law, so too we cannot allow any [ordinary] citizen to rule on the kashrut of a product and its presentation as such except via an agency authorized by law.”

This isn’t at all a fight over religious coercion, observance or free expression, argue the ultra-Orthodox lawmakers. Kashrut standards are essentially a public safety concern, and must be regulated just as the state regulates medicine. With their belief in an objective, definable standard of religious practice, these lawmakers view the state’s failure to coercively regulate claims to kashrut as, by definition, the enabling of massive society-wide fraud.

MK Moshe Gafni, October 27, 2014 (Yonatan Sindel/ Flash90)

To be sure, the most powerful opponents of the bills also sidestep the ideological questions.

In a letter sent to the ministerial committee ahead of Sunday’s meeting, Israel’s Hotels Union, Restaurants Association and the Union of Owners of Event Halls and Catering Services warned that “the granting of a monopoly to the Chief Rabbinate and/or local [rabbinate-appointed] rabbis has dramatic consequences for the rising cost of food.”

“Even now, before the proposed worsening of restrictions, the cost of kashrut [certification] is a heavy burden on the hotel industry, reaching up to three percent of overhead,” the letter complains.

The industry groups point to a Tourism Ministry committee that concluded that lowering the cost of the rabbinate certification would make Israel’s tourism industry more competitive with Europe’s, and the testimony of Antitrust Authority officials in the Knesset’s Economy Committee last October according to which the rabbinate’s monopoly, an inefficient and often corrupt bottleneck in several food-related industries, is one significant cause for the country’s high cost of living.

Yariv Levin (Uri Lenz/Flash90)

The opposition to the bills from within Likud, led by the likes of Tourism Minister Yariv Levin, has focused on the problems the new laws would pose for importers of foreign kosher foods, which are necessarily certified by rabbis or rabbinic groups outside the scope of the state rabbinate.

That these narrow economic arguments dominate the discussion at the highest echelons of government hints at the extent to which Israeli society lacks even the vocabulary to seriously debate what may be its most profound cultural divide.

As with Israel’s democratic political culture, which thrives despite lacking a clear-cut founding ideology, long-standing constitutional tradition or even any discernible moment in which it was decisively established, Israel’s liberal social order exists despite, not because of, the nation’s legal and political realities.

And that may be good news for the liberals. Israeli attitudes toward individualism, gay rights and religious diversity are by and large not the product of a self-conscious educational or cultural project, but of the aggregate collective sensibilities of millions of individuals who, through sheer numbers, cannot really be restrained by the formal state bodies that claim that power. Israeli liberalism is, in short, more permanent and robust than our stilted national debate is really equipped to imagine.