Analysis'This complicates things a bit'

With muddled decision on Western Wall freeze, court appears wary to intervene

Bizarre High Court stance with no teeth asks the state whether the court can legally enforce the pluralistic pavilion plan; leaves petitioners ‘with a lot of questions’

Amanda Borschel-Dan

Amanda Borschel-Dan is The Times of Israel's Jewish World and Archaeology editor.

Reform female and male rabbis pray together at Robinson's Arch, the Western Wall site slated for future egalitarian services, on February 25, 2016. (Y.R/Reform Movement)
Reform female and male rabbis pray together at Robinson's Arch, the Western Wall site slated for future egalitarian services, on February 25, 2016. (Y.R/Reform Movement)

As Israel’s children prepared to go back to school September 1, a Thursday High Court hearing over the Western Wall pluralistic pavilion gave the state some homework.

In the decision handed down Thursday night, the state was told it must “inform the court by September 14, 2017 whether it is willing to reconsider the implementation of the Western Wall framework decision, which was ‘frozen’ in a government decision on June 25, 2017.”

The government decision on the new Western Wall prayer section was passed in January 2016 after over three years of intense negotiations initiated by Prime Minister Benjamin Netanyahu and led by Jewish Agency head Natan Sharansky. Representatives of Israeli and international non-Orthodox denominations, as well as the pluralistic Women of the Wall and the ultra-Orthodox Western Wall Heritage Foundation, sat with a government team and hammered out a deal which would have given pluralistic Jewry a much enlarged and visible prayer section in the Davidson Archaeological park abutting the southern end of the Western Wall.

Quickly denounced by ultra-Orthodox politicians and religious leaders, the January  2016 government decision was not implemented. In June, it was officially put on ice, though a renovation and modest expansion is, according to the state, still in the works.

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)

Petitioning on Thursday for the implementation of the plan was a coalition of five liberal Jewish organizations, including the Women of the Wall and the Israeli Reform and Conservatives movements.

Thursday’s hearing was a grouping of several petitions regarding the Western Wall filed through the years. On the opposite side of the liberal Jewish coalition pushing for the plan there were an even greater number of organizations, headed by the state and Israel’s chief rabbinate, which believes the court doesn’t have jurisdiction in this case.

Other smaller groups, such as a splinter WOW group represented by the Center for Women’s Justice (which calls itself the “Original” Women of the Wall) and several far-right Jewish groups, also requested the pluralistic pavilion plan be dissolved.

Who’s the boss?

In a bizarre twist in Thursday’s short decision, the state was told that if it decides not to reconsider the Western Wall plan’s freeze, it must also answer by September 14 “whether there is a legal option [for the court] to obligate the state to implement the Western Wall decision.”

Whether the High Court was asking the state to do its own homework — research the laws pertaining to this contentious case — or broadly hinting that the court doesn’t want to have to be the one to solve this quagmire of a problem, is unclear.

At the center of Thursday’s hearing was a discussion surrounding a previous 2003 High Court case, “Director General of the Prime Minister’s Office v. Hoffman.” Heard before an impressive nine-member plenum, that decision was meant to essentially solve the issue of Women of the Wall, led by Anat Hoffman, and its right to worship at the Western Wall.

In that landmark 2003 case, the state was given 12 months to properly prepare the Robinson’s Arch area, or the Women of the Wall could continue to pray in the main plaza, as is its custom.

“The Women of the Wall have a right to pray at the Wall in their manner. However, like every right, that right is not unlimited. It must be evaluated and weighed against other rights that are also worthy of protection,” reads the 2003 decision.

The section prepared for prayer for the Women of the Wall by Robinson’s Arch in Jerusalem’s Old City is open for Jews, both men and women, to pray together as seen here, on July 17, 2014. (Gershon Elinson/Flash90)

One of the 2003 steps to “minimize the affront that other religiously observant people sense due to the manner of prayer of the Women of the Wall” is the government’s demarcation and preparation of the Robinson’s Arch site.

The government was directed to “make it into a proper prayer space so that the Women of the Wall will be able to pray at the site in their manner, inasmuch as the site, in its current physical state, cannot serve as an appropriate place for prayer” — or make other arrangements.

Interestingly, one dissenting opinion by now retired justice Itzhak Englard agrees with the chief rabbinate’s approach that the court does not have jurisdiction according to a 1924 British Mandate law.

Did the state fulfill its obligations?

On Thursday, the petitioners and respondents were asked by the court: Has the government fulfilled the 2003 decision’s directive to make a “proper prayer space” at Robinson’s Arch. And, if not, whether the Western Wall framework was the solution.

The fact that this hearing was necessary clearly frustrated the justices.

“You conducted negotiations, you reached an agreement for an outline — but then during the legal proceedings, you made a fuss and said ‘it’s being frozen,'” Chief Justice Miriam Naor told state attorneys.

“You must explain why you have backtracked on the approved agreement,” Justice Hanan Meltzer said.

The plan would create a unified, 9,700-square-foot prayer space that touches the Western Wall at a narrow point in the southwest corner and broadens as it extends backward. The prayer space would touch a 31-foot segment (9.5 meters) of the wall. This picture also shows what the section’s entrance will look like: a wide staircase and flat walkway leading to the prayer space. (JTA)

That being said, the final paragraph of Thursday’s decision makes clear the nuanced approach taken by the High Court at this time.

“Without making any determination on this matter, we are aware that the implementation of the Western Wall framework did not make all petitions unnecessary. It is quite possible that during the proceedings, interim decisions will be given and not a final ruling which deals with all the claims that were raised,” reads the decision.

Assuming the state does not request a continuance, the other petitioners and respondents will have the right to respond to the state’s September 14 answer until September 28.

An order? A recommendation? A decision?

After the hearing, the lawyers were unsatisfied — and not a little confused — by the decision.

Head of the Center for Women’s Justice Dr. Susan Weiss said on Friday, “I think we can call it, at best, a recommendation. It’s an attempt to strong-arm the government into living up to their promises to the denominations, while, at the same time, ignoring the rights of individual citizens of this country (which, as usual, are women).”

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

Attorney Orly Erez-Likhovski, IRAC’s legal department director, who represents the coalition of liberal Jewry’s petitioners, said on Friday that her team came out of Thursday’s hearing, “with a lot of questions.” And it’s clear “the justices have questions, too.”

The judges, said Erez-Likhovski, “do understand that the state is basically continuing the discrimination and humiliation for every Jew who is not Haredi Orthodox” at the Western Wall. “The court understands that it [the current status of Robinson’s Arch] is a violation of the rights of non-Orthodox Jews and Women of the Wall, and they [the government] has not addressed it.”

According to Erez-Likhovski, the court seems to think that the status quo — and the planned modest renovation — is not enough to guard the petitioners’ rights.

On the other hand, in its Thursday written decision, it appears the court is questioning itself as to whether it has the purview the enforce the implementation of the detail of the mutually agreed upon government decision.

“This complicates things a bit,” said Erez-Likhovski.

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