High Court strikes down law that postponed ultra-Orthodox draft

Justices say Haredi-backed arrangement perpetuates inequality, set one-year deadline for alternative framework

Illustrative: Soldiers in the IDF's Netzah Yehuda Battalion at the Peles Military Base in the northern Jordan Valley, August 2013. (Yaakov Naumi/Flash90)
Illustrative: Soldiers in the IDF's Netzah Yehuda Battalion at the Peles Military Base in the northern Jordan Valley, August 2013. (Yaakov Naumi/Flash90)

In an eight-to-one decision, the High Court of Justice on Tuesday struck down Knesset legislation from 2015 that was meant to delay efforts to increase the rate at which ultra-Orthodox youth are drafted into the military.

The 2015 amendment to the Equal Service Law cancels a more aggressive 2014 law pushed by the centrist Yesh Atid party that sought to mandate more ultra-Orthodox youth to enter military service. The later amendment was passed under pressure from the Haredi parties Shas and United Torah Judaism, which rejoined the Likud-led coalition after the 2015 elections and demanded the change as a condition for joining.

The dramatic ruling on Tuesday set a one-year deadline to implement a different framework for handling the ultra-Orthodox draft.

The court was responding to four separate appeals — three of which claimed the current arrangement discriminated against non-Haredi Jews, and a fourth that argued it discriminated against Haredi Jews, who are being asked to increase their military draft rate while other minorities, especially Israeli Arabs, are not required to serve at all.

Eight justices, led by Chief Justice Miriam Naor, ruled that the current arrangement was increasing the inequality in the “draft burden,” rather than reducing it, which was the law’s stated purpose and the grounds for its constitutionality. That made it an “unconstitutional law,” the justices ruled.

One dissenter, Justice Noam Solberg, argued that the law had not been in effect long enough to determine its effect on the military draft, and therefore no determination could yet be made about its constitutionality.

The ruling was met with a furious response from ultra-Orthodox MKs.

Deputy Education Minister Meir Porush at the opening of the ministry’s crisis center, in preparation for the opening of the school year, August 31, 2017. (Yonatan Sindel/Flash90)

Deputy Education Minister Meir Porush of the UTJ party said the High Court’s rulings made any legislative effort to reach an agreement on the issue into a “dead letter.”

“The High Court of Justice’s judicial activism completely empties Knesset legislation of importance, turning it into a dead letter. Today’s decision just drives another stake into the coffin. The High Court of Justice is eager for the apocalypse,” he said.

Fellow party member MK Yisrael Eichler claimed the decision was part of an “all-out war on Judaism.”

The judges “proved today that the sole motivation behind its decisions is a dictatorial hunger for power, to oppose the laws of the elected Knesset,” Eichler said in a statement.

“The High Court judges will bear personal responsibility for the all-out war on Judaism,” he warned.

Shas’s leader, Interior Minister Aryeh Deri, vowed that “the yeshiva students will continue to invest themselves in their learning, and to protect with their [spiritual] merit the other residents of the country.”

He said Shas “will act with all our strength to amend the law and protect the existing framework.”

Ultra-Orthodox seminary students have been largely exempt from Israel’s military draft since then-defense minister David Ben-Gurion exempted 400 students from service in 1949 on the grounds that “their studies are their craft.” Exceptional young artists and athletes are often granted exemptions by the Defense Ministry on the grounds that two or three years of military service could hold them back dramatically.

By 1996, the numbers of ultra-Orthodox draft exemptions had soared to some 7.4% of the entire year’s cohort of Israeli 18-year-olds.

That growth sparked a political and legal battle that resulted in a 1998 Supreme Court ruling that the defense minister was not authorized to exempt what had swelled to some tens of thousands of students on an ad-hoc basis without the arrangement being anchored in law.

By 2002, the Knesset passed the “Tal Law,” which gave ultra-Orthodox yeshiva students exemptions from military service but placed strict demands on them that they be engaged in study for several years and could not enter the workforce during the period.

In 2006, the High Court upheld the contentious law, while noting that it compromises the principle of equality for all Israelis by allowing for easy draft exemptions to one subgroup but not others. A year later, the Knesset extended the five-year Tal Law for an additional five years, prompting new appeals to the High Court and a new ruling in 2009 that said the law was unconstitutional on the grounds that it did not appear to be enforceable, as it was not leading in practice to an increase in the ultra-Orthodox draft.

The court nevertheless allowed the law to remain in place until it expired in 2012.

That year, with the expiration of the law and the Knesset’s failure to enact an alternative arrangement, the court saw new appeals that demanded that the IDF forcibly draft all ultra-Orthodox youth in accordance with the laws governing national military service for the rest of Israel’s Jewish population.

While the court debated these petitions, the 2013 elections ushered in a government that included the Yesh Atid party, which had promised in its election campaign to fundamentally reform the ultra-Orthodox draft framework.

In early 2014, after long negotiations in the Knesset led by Yesh Atid and Jewish Home lawmakers, the Knesset amended the Defense Service Law to increase the burden on Haredi youth to demonstrate they were full-time seminary students, while demanding steadily increasing rates of military service from the community as a whole.

Hundreds of Ultra-Orthodox Jews clash with Israeli police during a protest in Jerusalem on April 10, 2014, following the arrest of a haredi draft-dodger and against a bill intended to enforce the haredi enlistment into the IDF (Photo credit: Yonatan Sindel/Flash90)

That arrangement did not last long. The nation went to new elections in March 2015, after which a new government was formed with the Haredi parties Shas and UTJ, with Yesh Atid left in the opposition. Within months, the Knesset passed a new amendment that did away with some of the new demands. It was that amendment that was struck down by the High Court on Tuesday.

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