The following is an excerpt from Sources: A Journal of Jewish Ideas, Spring 2023 issue. To read the full essay and more from Sources, click here.
Israel has been straddling a unique tension between religion and state since its establishment. The state’s Declaration of Independence posits that Israel is the homeland of the Jewish people and a country that guarantees equality before the law, regardless of citizens’ religion, race, or sex. In addition, Israel’s Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation, the equivalent to a Bill of Rights, begin by anchoring the rights they protect in “the values of Israel as a Jewish and democratic state.”
In some matters, state policy is in accord with religious law or halakhah. For example, there is almost no public transportation on Shabbat; matters of marriage and divorce are handled in strict accord with halakhah; and religious services and religious leadership positions are publicly funded. At times, such religious accommodations can directly conflict with basic civil rights and with fundamental principles of Israeli law, such as gender equality. For example, Israeli law exempts religious leadership roles from equal employment opportunity laws, making it legal to ban women from serving in such roles. Additionally, Israeli law recognizes halakhah as a source to use in filling legal lacunae. Israel’s courts have been asked many times over the years to preserve and interpret the meaning of the state’s “Jewish and democratic” identity in law and policy.
For example, the High Court of Justice (HCJ) ruled in 1997 that Jerusalem drivers should avoid driving through an ultra-Orthodox neighborhood on Shabbat so as not to interfere with residents’ ability to maintain the spirit of the day the HCJ ruled in 2020 that hospitals cannot prevent patients or visitors from bringing hametz (leavened bread) to the hospital during Passover; and it decided that a religious cemetery cannot prevent a bereaved family from engraving the deceased’s dates of birth and death according to the Gregorian calendar, rejecting the cemetery’s reasoning that this would connote the birth of Jesus and thus hurt visitors’ feelings. Perhaps unsurprisingly, many, if not most, of the clashes between halakhic law and Israeli law break out in the context of gender equality. These moments are particularly contentious due to Israel’s strong ethos—spelled out in elaborate laws and noted with admiration by Simone de Beauvoir and Gloria Steinheim in the state’s early days of sex equality on the one hand, and the gender roles suggested by traditional interpretations of halakhah on the other.
In this essay, I will focus on landmark cases in which Israeli laws of gender equality seem to be in direct contradiction to halakhah. I will show how the courts have handled this tension in the past and question the viability of their approach.
GENDER EQUALITY, ISRAELI LAW, AND HALAKHAH
Clashes between Jewish law and Israeli civil law on gender equality typically fit one of two paradigms. In the first paradigm, religious leaders argue that it is against halakhah for women to fulfill certain public quasi-religious roles, such as serving on a municipal council that provides religious services. This was the question in the case of Leah Shakdiel, described below. The second typical paradigm is more collective in nature, and it concerns claims of religious autonomy to discriminate against women to accommodate religious communities for whom interaction between men and women is taboo. This was the question, for example, in the case of Radio Kol Barama, in which a new Sephardic ultra-Orthodox public radio station seeking a competitive advantage over the veteran Ashkenazi station instituted a stringent “modesty” policy by which it would absolutely refrain from broadcasting women’s voices.
How should state courts address such clashes between Israeli law’s guarantee of sex equality and the standards of halakhah? If these discriminatory practices against women had not been grounded in religion, they would have been considered a clear violation of Israel’s anti-discrimination laws. The unique Israeli formulation of the relationship between religion and state, as well as the national ethos of Israel as the homeland of the Jewish people, makes these cases a particularly sensitive challenge for Israeli judges. Their approach to Jewish law and to religious Jewish communities in Israel is closely scrutinized by these communities, whose members are constantly balancing between religious and legal normative commitments. I am not confident that the current weight that Israeli courts give to halakhah is a viable and wise approach to this challenge.
RULINGS ON HALAKHAH VS. ISRAELI LAW
In the 1988 case of Leah Shakdiel, the petitioner Shakdiel had been selected to serve on the municipal council for religious services, a local board managing the provision of publicly funded services such as synagogues, kosher slaughter, and mikvehs, and the positions of municipal rabbis, shochets (kosher butchers), and mohels, in Yerucham. The Chief Rabbinate, which governs religious services nationally, objected that women should not serve in this role.
The HCJ ruled in favor of Shakdiel: a panel of three justices declared the Rabbinate’s objection to be illegal sex discrimination. However, two of the justices, Menachem Elon and Aharon Barak, reached the same conclusion in different ways. Justice Elon, a rabbi and a Talmud scholar known for annotating Jewish law to make it accessible for contemporary Israeli readers, spends most of his opinion explaining the relevant halakhah. Because Jewish law has not directly addressed the question of women in municipal religious councils, he argues, analogies can help deduce its stance on the matter. Elon then explains that the closest analogy to women serving on municipal councils for religious services is women’s right to vote, a topic on which there are rich rabbinical debates, going back to the early 1920s in the Yishuv in Palestine, when the Jewish community almost split over the question of whether women should be able to vote in elections. Rabbi Avraham Yitzhak Kook objected to women’s suffrage on religious grounds, warning that if women received the vote, his constituency would leave the Yishuv alliance towards independence. The secular parties objected, and women were permitted to vote.
Elon surveys this historical debate extensively, mapping rabbinical responsa and public statements on both sides. It is a fascinating review, touching on core questions about women’s role in Judaism. Elon concludes that just as it was ultimately determined that halakhah does not forbid women from voting, there is no halakhah banning women from serving on a board that provides religious services. Elon adds, however, that had the role of members of religious municipal councils involved ruling on halakhic matters, it would have been a different story. Such positions can only be held by rabbis, and in accord with Orthodox Judaism, the state only recognizes male rabbis.
In his concurrence with Justice Elon’s decision, Justice Barak explicitly disagrees with Elon’s use of halakhah as a relevant source for deciding the case. The question at hand, he writes, “involves the interpretation of a statute concerning appointments to a religious council, and to that end, it suffices to rely on the principle of equality that is an element of the ‘credo’ of our state.” In other words, state law alone should determine the court’s answer to Shakdiel’s petition.
with halakhah have
historically found that,
there is no direct
clash between Israeli
and Jewish law.
What should we make of these different approaches? On the one hand, Elon’s approach seems wise: if it is possible to demonstrate that Israeli law does not clash directly with Jewish law, then ruling against the religious defendants and in favor of the female plaintiff may make the judgment more palatable to the losing side and the larger public it represents. For an Israeli judge to ignore religion is to ignore the religious communities he speaks to when he rules in favor of Israeli law. “I see your pain,” communicates the judge, “I, too, care about Jewish law, but there is actually no need to find a compromise between the two, because they are not in conflict.”
But a civil court’s choice to engage with halakhah is not without a price. The most significant price is that although courts engaging with halakhah have historically found that, despite appearances, there is no direct clash between Israeli and Jewish law, their very willingness to discuss halakhah introduces the possibility that should they have an undeniable clash in the future, halakhah might be allowed to prevail.
Elon and Barak’s respective views of the place of halakhah in the Israeli court system reappeared in the 2015 landmark case of Radio Kol Barama. In this class action suit against a new Sephardic ultra-Orthodox public radio station, the HCJ held that the station’s policy of not broadcasting any women’s voices was illegally discriminating against its female audience. Writing the leading opinion, Justice Yoram Danziger emphasizes that there is no halakhic ban on hearing women speaking on the radio. Even if some follow this practice, he notes, it is not binding in the same way as halakhah. As he writes,
“In the present case, it cannot be said that religious practice mandates or justifies the application of the exceptions in the Prohibition against Discrimination Law. I find it difficult to accept the position of the radio station whereby its policy is justified by virtue of halakhic norms and the instructions it received, and I certainly do not think that the weight of this norm in the ultra-Orthodox community justifies the apparently severe harm to the basic rights of women.”
Danziger has three reasons for his conclusion that the radio station’s policy is not imperative by Jewish law. First, it simply does not seem reasonable according to common sense or, as he puts it, “I find it difficult to accept.” Second, even in terms of prevailing community norms, that is, in terms of culture and sociology, he doesn’t think that these norms are currently hefty or prevalent enough to harm women’s basic rights. And third, even the radio station itself has admitted, perhaps unintentionally, that its policy is more strict than halakhah requires:
“It should be emphasized that even according to the approach of the radio station, the religious norm that underlies the gender distinction in the broadcasts is not a binding norm; rather it is an enabling norm [permissible yet not obligatory], and the halakhic opinion upon which the station relies— that of the late Rabbi Ovadia Yosef—stated explicitly that the prohibition on women being heard does not constitute a halakhic prohibition but rather, it is in the category of enhancing the precept.”
Justice Daphna Barak-Erez concurs with Danziger, but alerts readers to notice that his conclusion is not ultimately based on the distinction between binding halakhic norms and hidur mitzvah, the concept of enhancing the precept. Because Danziger gives so much attention to the halakhic aspects of the issue, writes Barak-Erez, it is important for her to clarify that although this distinction is significant, it is not wise for the court to base its decision on whether or not a prohibition against hearing women’s voices is a binding norm. First, she writes, “the Court need not be the arbiter of this question.” She then continues:
“Second, and more importantly, we must bear in mind the possibility that there may be strict religious approaches that view segregation or total exclusion of women from the public sphere as a real obligation. In my view, even if this were the case, it would not be right to accord this consideration precedence in those cases in which the violation touches the core of the right to equality.”
This statement is significant in two ways. First, it goes a step further than Barak did in Shakdiel a quarter-century before. Barak left open the question of which system would prevail if they clash. Barak-Erez, in contrast, says explicitly that in case of a direct clash, contemporary law and the right to sex equality should prevail over religious law. Second, Barak-Erez diverts the focal point of the tension from the normative to the socio-cultural. That is, she presents the issue not as a matter of religious law against Israeli law, but as a question of “religious approaches,” recognizing that many interpretations of halakhah coexist among rabbis and Jewish practitioners. By judging on the basis of Israeli state law, the court will additionally avoid negotiating among conflicting interpretations of halakhah.
YOFI TIROSH is the vice dean and an associate professor at the Tel Aviv University Faculty of Law and a senior fellow of the Kogod Research Center at the Shalom Hartman Institute.