Could a 1924 British Mandate law kill the Western Wall pluralistic pavilion?

A long-awaited High Court hearing will assemble petitioners on both sides of a frozen government decision to stake their claims at Judaism’s holiest site

Deputy Editor Amanda Borschel-Dan is the host of The Times of Israel's Daily Briefing and What Matters Now podcasts and heads up The Times of Israel's Jewish World and Archaeology coverage.

Conservative Jews pray at the temporary egalitarian Robinson's Arch prayer pavilion at the southern end of the Western Wall in Jerusalem's Old City on July 30, 2014.  (Robert Swift/Flash90)
Conservative Jews pray at the temporary egalitarian Robinson's Arch prayer pavilion at the southern end of the Western Wall in Jerusalem's Old City on July 30, 2014. (Robert Swift/Flash90)

If the Israeli chief rabbinate has its way, the Western Wall in Jerusalem will turn into a Vatican-esque independent religious entity after Thursday’s High Court hearing on the recently frozen government decision to create a pluralistic prayer pavilion.

According to a written brief submitted by the rabbinate’s independent council based on the 1924 British Mandate Palestine (Holy Places) Order in Council, the Western Wall (and arguably the rabbinate) is outside the purview of civil law and should not be adjudicated by the High Court at all.

Lawyer Yizhar Hess, the CEO of the Israeli Conservative-affiliated Masorti Movement, wrote in an oped that the rabbinate’s brief “has nothing in common with our system of jurisprudence.”

“The state rabbinate has gone so far as to argue that the Supreme Court of the State of Israel has no authority to adjudicate matters related to the Western Wall. That, the rabbinate claims is extraterritorial, a sort of mini-Vatican, where the chief rabbinate alone may exert authority,” wrote Hess. “I imagine that the court will remind the honorable chief rabbis that their salary is no longer paid by King George V but rather by the State of Israel.”

Prime Minister Benjamin Netanyahu, right, meets with former Cabinet Secretary Avichai Mandelblit; Rabbi Steven Wernick, head of United Synagogue for Conservative Judaism; Yizhar Hess, executive director of the Masorti Movement; and Rabbi Julie Schonfeld, head of the Conservative movement’s Rabbinical Assembly. (courtesy Yizhar Hess)

It is just the latest wrinkle ahead of a long-anticipated High Court hearing on Thursday over the government’s lack of implementation of its promised pluralistic pavilion. One of many court dates over decades of petitions to grant pluralistic Jews the right of free access and free worship at the Western Wall, the petitioners hope it will be the last.

Much of the court’s decision could hinge on two laws: the 1924 law quoted by the chief rabbinate and the 1967 Protection of Holy Places Law, which together form the basis of much of both sides’ arguments. Just how much credence the court will pay each law remains a question.

View of the Western Wall in Jerusalem’s Old City, June 23, 2017 (Mendy Hechtman/Flash90)

Passed in January 2016, the government decision to open the prayer pavilion was hailed as an almost miraculous moment of Jewish unity and tolerance, giving Jews of all denominations their own “separate, but equal” places at the Western Wall, the holiest spot for Jewish worship in the State of Israel.

For many non-Orthodox Jews, the lack of implementation has come to symbolize a lack of freedom of religion in Israel, and increasingly, the divide between Israeli and Diaspora Jewry in general.

All eyes are now on the court in the hopes that it will find a legal thread to unravel the tangled mess of unrealized promises and hopes. For some, the relationship between Israel and the Diaspora could depend on its answer.

Separate, but still unequal?

After its incorporation into Israel in the wake of the 1967 Six Day War, the Western Wall was divided into two sections: one for prayer and the other for archaeological research and preservation. The prayer area, however, slowly evolved into a de facto Orthodox synagogue, complete with division between the genders and a prohibition on female reading from the Torah.

The struggle for gender equality at the Western Wall was spearheaded some 30 years ago by a small group of feminist religious women who went on to call themselves the Women of the Wall, or WOW. The battle was soon backed by the Masorti Movement, and later by Israeli Reform Jews.

Members of Women of the Wall hold up a Torah scroll during a prayer service marking the first day of the Jewish month of Elul, on August 23, 2017, at the Western Wall in Jerusalem’s Old City. (AFP Photo/Menahem Kahana)

After 30 years of grassroots battles and closed-door negotiations, in January 2016, the Israeli government passed a decision that would have seen the building of a permanent and much-enlarged pluralistic prayer pavilion in the archaeological garden of the Robinson’s Arch section of the Western Wall.

Since 2000, among the impressive rubble from the destruction of the Second Temple, a wooden prayer platform has served those seeking an alternative prayer area to the sex-segregated mainstream section on the northern side of the Mughrabi Bridge, which leads to the Temple Mount.

In 2013, under then-religious affairs minister Naftali Bennett, a second, disconnected bleacher-like platform was put up ahead of the fall High Holy Days to serve an influx of pilgrims.

At the same time, at the initiative of Prime Minister Benjamin Netanyahu and under the leadership of Jewish Agency head Natan Sharansky, the Women of the Wall and liberal Jewry entered intensive negotiations to come up with a mutually acceptable compromise that would encompass access to and freedom of worship at the Western Wall.

The January 2016 government decision would have massively enlarged and connected the platforms and given an additional boon to the coalition of liberal Jews: recognition.

Specifically, it would have created one joint entrance to the three prayer pavilions (women, men and pluralistic), and given the non-Orthodox movements “a seat at the table” through a representative council and budget for the Robinson’s Arch worship section.

This undated photo of the egalitarian section shows how the platform was built over stones that toppled from the Second Temple and landed in the street below, where archaeologists discovered them 2,000 years later. (courtesy Eilat Mazar)

In exchange, the movements agreed to “cede” the mainstream Western Wall area, which would be under the continued and uncontested control of the Heritage Foundation and the rabbi of the Western Wall, Shmuel Rabinovitch.

That plan was frozen in June, but the idea of a modified renovation and enlargement of the Robinson’s Arch area has survived. “Access” is being granted. Recognition is not.

What do the laws state, and who is using them for what?

Brought by a coalition of five liberal Jewish organizations, including the Women of the Wall and the Israeli Reform and Conservative movements, the petition pushes for the implementation of the January 2016 government decision — or the creation of a third pluralistic section within the main prayer pavilion.

Attorney Orly Erez-Likhovski, IRAC’s legal department director, who is representing the petitioners, said the piecemeal government renovation and implementation is not good enough.

“The government is asking us to exercise our freedom of religion in a discriminatory, excluding and humiliating manner – far from the current plaza and the public eye, behind fences, with no representation in the governing body. We are asking the court to reject this position, and declare that all Jews are entitled to a respectable and equal treatment at Judaism’s holiest site – such as was envisioned by the Kotel Agreement,” said Erez-Likhovski.

The petitioners are asking for the fulfillment of the government decision, including “a respectable and accessible prayer plaza which will be an integral part of the [Western Wall] legally (as will be stated in the Holy Places regulations), physically (common entry and visibility from the Kotel’s upper plaza) and publicly,” according to Women of the Wall.

An illustration of Natan Sharansky’s proposal, which will expand the Western Wall and create a permanent egalitarian space in the Robinson’s Arch area. (Creative Commons/Graphics by Uri Fintzy/JTA)

“As an alternative to the implementation of the Kotel Agreement, a third prayer plaza in the main (northern) plaza could be allocated, in which WOW worshipers will be able to pray according to their customs, without any harassment and disruption,” Women of the Wall said in a press release.

Opposing is the state, the chief rabbinate, and a few smaller groups, including the WOW splinter group the “Original Women of the Wall,” which is against being relegated to the Robinson’s Arch area of the Western Wall.

After Netanyahu’s dramatic June 2017 freeze of the government decision, the hearing was delayed a month to give the chief rabbinate a chance to present its stance, as it claimed the state’s representative, the attorney general, “could not present a position that was inconsistent with that of the state.”

Attorney Harel Arnon discusses the legal issues of Israeli presence in the West Bank at a conference in New York on August 12, 2014. (Screen capture/YouTube)

In a 200-page summary the rabbinate’s private lawyer, Harel Arnon, provided, the rabbinate’s argument is basically twofold: According to the 1924 law the court does not have jurisdiction over the Western Wall, and according to a 1967 law, if it did, the government should have consulted the rabbinate before making its decision in January 2016.

Written during the British Mandate, the 1924 law states that the principle of freedom of worship is not subject to court jurisdiction: “No cause or matter in connection with the Holy Places or religious buildings or sites in Palestine or the rights or claims relating to the different religious communities in Palestine shall be heard or determined by any Court in Palestine.”

The Old City of Jerusalem was only incorporated into the state some two decades after its founding, after the 1967 War, which brought a plethora of new holy sites under Israeli control. Quickly, the Knesset passed the Protection of Holy Places Law, which states, “The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places.”

In this June 8, 1967 file photo an orthodox Jew lends prayer shawls and phylacteries to Israeli soldiers praying at the Wailing Wall in the Old City of Jerusalem, Israel, one day after its capture from the Jordanians during the Six Day War. (AP Photo, File)

Additionally, according to the 1967 law, the rabbinate should have been consulted before the pluralistic pavilion compromise — but it wasn’t — which means the government decision is illegal and cannot be implemented, according to the rabbinate’s lawyer. “The Minister of Religious Affairs is charged with the implementation of this Law, and he may, after consultation with, or upon the proposal of, representatives of the religions concerned and with the consent of the Minister of Justice make regulations as to any matter relating to such implementation,” the law states.

Can a 1924 law really make a difference?

While the use of a pre-state 1924 law may sound ridiculous to some — and it does — the head of Hiddush: For Religious Freedom and Equality, Rabbi Uri Regev said the rabbinate’s position is “a fine theoretic point which, if the court wants to, it can hang a decision not to intervene on.” He added, “but looking at the history of the recent years’ conduct I don’t think it will.”

Hiddush is a petitioner on Thursday’s High Court case and works in cooperation with international partners and donors for matters of freedom of religion in Israel, such as freedom of marriage, which consistently polls as a foremost concern among Israelis.

Other petitioners are also basing their arguments on these laws. According to lawyer Dr. Susan Weiss, the head of the Center for Women’s Justice, “The main thing CWJ will ask the court Thursday to do is to direct all arms of the state — including the police, the rabbinate, and the Commissioner of the Wall — to defend and ensure the civil and basic rights of women to freedom of movement, to freedom of religion and conscience, and to equal access to national sites and to religious services.”

Dr. Susan Weiss (center), head of the Center for Women’s Justice, sits with staff in its Jerusalem offices. (courtesy)

To serve CWJ’s argument, Weiss claims that the court has the jurisdiction over the Western Wall to ensure equal access to women under the 1967 Law of Holy Places.

“In general, the Law of Holy Places has to be interpreted in accordance with Basic Law: Human Dignity and Liberty and not in a way that violates it,” said Weiss, who rejects the rabbinate’s claim that the courts does not have jurisdiction due to the 1924 law.

We claim that the British law is basically a dead letter’

“We claim that the British law is basically a dead letter, and that much has transpired since 1924, including the Holocaust, the declaration of the establishment of the State of Israel in accordance with the Universal Declaration of Human Rights, and the enactment of the Basic Law of Human Dignity and Freedom in 1992,” said Weiss.

“What’s more, the court has already made a decision about jurisdiction,” she said. “In short, the rabbinate and the commissioner are not free by law to trample on our human rights without restraint or limitation,” said Weiss.

Hebrew University Prof. Barak Medina, the Justice Haim Cohn professor of human rights, agreed with Weiss’s assessment about jurisdiction and laughed out loud at the idea that the 1924 law would carry weight in court.

“It is not coincidental that the person who brought it is a private lawyer, because the attorney general wouldn’t take this unfounded stance,” said Medina. Calling the 1924 law a “recycled position,” Medina said that the 1967 law superseded it.

Supreme Court Chief Justice Miriam Naor speaks during a swearing in ceremony for newly appointed judges at the President’s residence in Jerusalem, on February 4, 2016. (Hadas Parush/Flash90)

At the same time, Medina said that while in previous hearings it was clear that the justices thought there was a human rights violation that needed to be rectified, “How it will shake out really depends on the make-up of the justices… The question is whether the pluralistic pavilion would be inside the mainstream pavilion or the separate side,” said Medina.

Justices Miriam Naor, Hanan Melcer and Yoram Danziger will be presiding.

The Masorti movement’s Hess hopes that Thursday’s hearing will be the last on the status of pluralistic prayer at the Western Wall, saying, “We gave in on things we never dreamt that we would forgo.”

‘We gave in on things we never dreamt that we would forgo’

“In order to settle the dispute once and for all, we even convinced ourselves to accept the discredited, perhaps anti-democratic principle of ‘separate but equal.’ OK, you take the old familiar Western Wall, we said, and we will take the less well-known section, which is nonetheless not ‘the Kotel,’ and we will lovingly tend to its development. We gave in on the matter of recognition, too, accepting only a certain amount of representation on the management council of the mixed-gender site,” said Hess.

Hess wrote he is embarrassed about some of the compromises made during the negotiations.

“We gave in on not having explicit reference to those ‘abhorrent’ terms, Reform and Conservative, in the bylaws for that sacred place in order to placate the [ultra-Orthodox] ministers,” he said. “And the list goes on from there… But we never imagined that the government of Israel would treat us this way. We never thought we would be taken for a ride like this.”

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