In response to court, state shuts door on Western Wall deal
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In response to court, state shuts door on Western Wall deal

Asked to rethink freeze on implementing 2016 compromise agreement, and whether it could be forced to implement the plan it agreed to, government answers with a no and a no

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 Thursday, 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 Thursday, February 25, 2016. (Y.R/Reform Movement)

The State of Israel has no plans to “rethink” its freeze of a 2016 government decision to create a permanent pluralistic prayer platform at the Western Wall — and the court can’t compel it to implement the plan, according to an 11-page state response to the court filed Tuesday.

An August 31 High Court decision had directed the state to readdress its refusal to implement the January 2016 government decision, and if not, “whether there is a legal option [for the court] to obligate the state to implement the Western Wall decision.”

The state’s attorneys wrote that they had brought the issue up again to Prime Minister Benjamin Netanyahu, who, “after weighing all the extenuating circumstances,” decided at this time not to bring the issue for discussion in the government. Likewise, said the state after citing pages of legal precedents, there are no legal grounds for the court to force its implementation of the agreement.

Prayer books and other holy objects are kept in these lockers in the Robinson’s Arch area of the Western Wall. (Amanda Borschel-Dan/ToI)

In January 2016, a decision to create a designated permanent plaza for pluralistic prayer — and de facto officially recognize non-Orthodox Jewry through a joint council to oversee the area — was greeted with almost euphoric excitement by many Diaspora Jews and earned international media headlines at its announcement. The issue has since become a symbol of the status of non-Orthodox Jewry in Israel.

However, the decision — swiftly denounced by ultra-Orthodox politicians and religious leaders — was not implemented and in June 2017 was officially put on ice.

The hearing that led to the court’s August 31 directive to the state was one of many held for petitions brought by the Women of the Wall activist group and Reform and Conservative Jewry, who are calling for the plan’s implementation. To streamline the hearings, their petitions have been grouped with organizations who reject the government decision or have other requests regarding Jewish prayer at the Western Wall.

Upon hearing the state’s response Tuesday, attorney Orly Erez-Likhovski, IRAC’s legal department director at the Israel Religious Action Center, who is representing the majority of the petitioners, said that in deciding not to renew governmental discussion over the Western Wall the prime minister is “continuing his unfriendly and contemptuous behavior toward Reform and Conservative Judaism and the Women of the Wall.”

The Robinson’s Arch pluralistic prayer area is currently on several levels, with a small platform which touches the Western Wall. (Amanda Borschel-Dan/ToI)

According to Erez-Likhovski, the prime minister is “denying the state’s duty to allow an egalitarian and respectful prayer for all Jews, their streams and outlooks.”

“We will return to the Supreme Court and demand that the judges obligate the government to respect the right of millions of Jews in Israel and around the world to equality, dignity and freedom of religion on the most sacred site of the Jewish people,” said Erez-Likhovski.

According to attorney Yizhar Hess, the head of Israel’s Masorti (Conservative) Movement, “The government’s answer reflects cowardice. It does not have one element of vision or leadership. It is the answer of a government that knows very well what needs to be done, but prefers its own narrow interests over a message of reconciliation to the Jewish people.”

What exactly has been frozen?

The government decision on the new Western Wall prayer section was passed in January 2016 after over three years of intense negotiations initiated by Netanyahu and led by Jewish Agency head Natan Sharansky that resulted in a long document of “recommendations” that were adopted in the government decision.

In the course of the negotiations, representatives of Israeli and international non-Orthodox denominations, as well as the pluralistic Women of the Wall group 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, as well as a joint council to oversee this new area.

The view from the Western Wall section of the Robinson’s Arch prayer platform to the larger, impermanent area that was established in 2013. (Amanda Borschel-Dan/ToI)

This joint council, as well as a more visible platform and joint entrance to all prayer pavilions in the Western Wall courtyard, are the crux of the conflict in implementing the plan, as they are seen to undermine the Orthodox nature of the holy site.

“There’s a struggle for the recognition of the Reform movement in Israel and to limit the power of the Chief Rabbinate. This struggle we won’t solve,” Netanyahu told reporters in New York this week in response to a question by The Times of Israel. “There is a struggle; I don’t hide it; it’s a fact. This struggle has been going on for many years; no government has changed it.”

Ahead of the release of the state response to the court, Netanyahu in New York defended his controversial freeze of the deal and stressed that he “didn’t cancel the agreement, but merely froze one paragraph.” The existing pluralistic Western Wall plaza, south of the main plaza, will still be renovated and expanded, he told Israeli reporters.

Prime Minister Netanyahu (second from right) meets with senior leaders of the US Jewish community in New York, September 17, 2017 (Avi Ohayun/GPO)

Netanyahu’s foreign policy advisor Jonathan Schachter reiterated to reporters that the government was continuing with “the practical steps” of the agreement.

“The Western Wall agreement states, black on white, that it is limited to prayer arrangements only,” Schachter said. “There is not a single word about the status of [religious] streams in Israel.”

Some nuts and bolts of the decision

The question of whether the court has the right to force the state to implement the 2016 government decision took up the bulk of the state’s response. It broke the question down into four elements, each of which it answered separately.

The first revolved around the idea of the validity of the 1924 British Mandate Palestine (Holy Places) Order in Council, which holds that the state court doesn’t have jurisdiction over religious matters. The state attorneys rejected this claim (which was made by the Israeli chief rabbinate in its own separate statement).

The second issue addressed by the state discusses the idea of conducting negotiations and at the same time creating regulations on the same issues. The third section addresses the “binding legal nature” of the points included in the government decision.

An elevator which leads to the section of the Robinson’s Arch prayer platform which touches the Western Wall. (Amanda Borschel-Dan/ToI)

The fourth and largest section of the response defends the state’s actions in implementing a 2003 High Court ruling in the case of Director General of the Prime Minister’s Office v. Hoffman. That case, heard before an impressive nine-member plenum, concluded with a decision that was meant to solve the issue of Women of the Wall, led by Anat Hoffman, and its right to worship at the Western Wall.

“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.

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.

In Tuesday’s response, the state averred that it had indeed fulfilled the letter of the ruling in making unlimited pluralistic prayer possible at the Robinson’s Arch area. Additionally, claimed the state, it is taking further steps to implement the principles of the government decision by continuing the renovation, increased safety features and enlargement of the area.

View of fallen Second Temple building blocks from the Robinson’s Arch pluralistic prayer platform next to the Western Wall. (Amanda Borschel-Dan/ToI)

Disgruntled responses and a way to think out of the box

According to the Masorti Movement’s Hess, most cabinet ministers support the 2016 government decision and are hoping the court will save it — especially just prior to the High Holy Days.

“The government of Israel could have given a gift to the Jewish people today for the holiday, but it chose, once again, to spit in our faces,” said Hess.

Another group of disappointed Jews is looking for a different solution, however. Instead of having a joint council which would only regulate the pluralistic prayer pavilion, the Modern Orthodox Ne’emanei Torah Va’Avodah movement is holding a social media campaign pushing for new management for the Western Wall Heritage Foundation, headed by the rabbi of the Western Wall, which regulates the “mainstream” area.

The site should be administrated by a council that reflects the entire Jewish world, according to the proposal. “The Western Wall is not only a place of prayer, it is not a synagogue. It is a regular site for national ceremonies such as on Memorial Day for Fallen Soldiers, and swearing-in of new IDF recruits. Family celebrations and public events are also held at the Western Wall,” according to a YouTube promotional video.

Israeli soldiers stand at attention during a Memorial Day ceremony at the Western Wall, in the Old City of Jerusalem, April 30, 2017. (Hadas Parush/Flash90)

“We propose setting up by law a Public Council to run the affairs of the Western Wall. The Council members, men and women, would come from the relevant government ministries, from the Israeli public and from representatives of the Jewish people in the Diaspora. The Council would be headed by the Chairman of the Jewish Agency, itself supported by the Government of Israel and Diaspora Jewry,” states the Ne’emanei Torah Va’Avodah group.

When asked, the group said it is still searching for pluralistic backing to its proposal.

— Raphael Ahren contributed to this report

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