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Entanglement of Religion and State in Israel

Frank H. Hytken
Fall 2012

The damage inflicted by the mixing of politics and religion in Israel is serious and continuing and, many believe, is getting worse. There were good reasons to assume that this would never occur in a predominantly Jewish society. For thousands of years, Jews had suffered discrimination and oppression because of their religion and were not allowed to freely practice their faith. But while freedom and democracy were central to the vision of some Zionists (such as U.S. Supreme Court Justice Louis Brandeis from Kentucky), for others it was not. Some fundamentalists viewed equality and freedom as threats, others considered them luxuries they could not afford.  
There are about 7.5 million Israelis, 76.4 percent of whom the CIA World Factbook describes as ethnically Jewish. Leaving aside the more than 3,750,000 non-Israeli Palestinians living under Israeli occupation in the West Bank and Gaza Strip, about 1 in 5 Israeli citizens is a non-Jewish Arab. Thus, the population is 16.9 percent Muslim, 2 percent Christian, and 1.7 percent Druze, with smaller numbers of other faiths. Eight percent of Israeli Jews define themselves as Reform or Conservative, 7 percent as ultra-Orthodox, and 15 percent as “religious,” according to the 2009 Guttman Center Poll. There are also about 40,000 Karaite Israeli Jews. Many Israelis belong to no religion, most being of Jewish descent.  
The Israeli Declaration of Independence promised that, “The state of Israel ... will ensure complete equality of social and political rights of all its inhabitants irrespective of religion ... It will guarantee freedom of religion and conscience.” This is a far cry from reality. Because Israel opted for temporary Basic Laws and has never had a constitution, there is no equivalent to the American Bill of Rights to protect the liberty of its people. The guarantees have never been enacted into law. Some Orthodox leaders insisted that the Torah was the only constitution Israel needed. In a number of important cases, the Supreme Court has supported freedom, but its decisions can and have been circumvented by the Knesset and the executive.  
Many aspects of life in Israel involve de facto or de jure discrimination based on race, religion, sex or national origin. This includes housing, education, government services, immigration, employment and religious rights.  
Only 3 percent of the land in Israel is owned by Arabs and permits are rarely granted to expand their housing or allow them in most Jewish towns and neighborhoods, according to the New Israel Fund (NIF). The quasi-governmental Jewish National Fund (JNF) owns 13 percent of land in Israel and has openly refused to rent to Arab Israelis. It considers itself operating not on behalf of all Israelis, but of “the Jewish people.”  
To maintain control, the JNF leases, but does not sell the land. Under a 2007 agreement, if land is made available to a non-Jewish Israeli, the land is transferred to the Israel Land Administration (ILA), which pays for it and conveys a similar sized lot to the JNF. Ninety three percent of land in Israel is in the public domain. Even though the ILA is a government agency, the JNF has the right to nominate 10 of its 22 directors. During the 1948 war, most of the Arab civilians in the portion of Palestine partitioned to Israel, fled the fighting or were driven from their homes. They were not allowed back when the fighting stopped. After the 1948 war, the government expropriated about 2,000 square kilometers of land of “absentee” Arab Israelis. Their land was seized and then conveyed to the JNF. Following the 1967 war, the JNF also supported settlements in the occupied territories.  
In addition to land restricted by the JNF, communities have been allowed to keep out those who “do not match the social-cultural fabric” of the community. A legal challenge of the discrimination brought a High Court ruling favoring equality which was overturned by the Knesset with legislation enshrining the right to discriminate in law. The Chief Rabbi of Safed in late 2010 issued a ruling that Jewish law prohibited the sale or rental of a home in Israel to a non-Jew. Rabbis from dozens of towns and settlements approved the decree. Among those opposing discrimination are Rabbis for Human Rights-North America, The Sheikh Jarrah Solidarity Movement, The Association for Civil Rights in Israel and Adalah.  
Orthodox Control  
Marriage and divorce for Jews in Israel are controlled by Orthodox authorities under a system that is a holdover from the Ottoman Empire which ruled Israel and the surrounding area until World War I. While Turkey now has civil marriage as do the countries in which the vast majority of Jews outside Israel live, Israel does not. Reform, Conservative and Reconstructionist rabbis are not permitted to conduct marriages. There is no marriage allowed between a Jew and a Protestant, Catholic, Orthodox Christian or Muslim, There are Muslim courts and Christian religious courts spread among ten recognized denominations and courts for the Druze. There are no courts for citizens who belong to an unrecognized religion or to no religion. No divorced woman is allowed to marry a “cohen” (descendant of the priestly caste). People married abroad can register their marriage in Israel, but their legal status is uncertain.  
Just because someone is Jewish does not mean that Orthodox officials will recognize them as Jews and, thus, eligible to marry a Jew. According to Reform theology, a child of a Jewish parent is Jewish (unless the child later changes religions). For Orthodox Israeli officials — and they are all Orthodox — a child is not Jewish unless the mother is Jewish, even if the child of a Jewish father is raised as a Jew, attends religious school, is Bar Mitzvah — even is ordained as a rabbi. Moreover, the Israeli government will not allow non-Orthodox rabbis to make someone Jewish through conversion, nor do they recognize conversions of the Karaite Jews, a denomination dating to the 8th century.  
Hundreds of thousands of Jews in Israel (including many from the former Soviet Union) are caught up in this strange system which can prevent a rabbi from marrying them to another Jew. In order to marry in Israel, some Jews and others are forced to undergo a conversion to Orthodox Judaism, even if their views are opposed. Jews with no intention of abandoning their faith have complained of the indignity of being compelled to endure days of humiliating preaching by Orthodox rabbis attacking their religious beliefs in order to marry. Then they must appear before three rabbis and promise to give up their Jewish customs which are not approved by the Orthodox officials. In a dramatic departure from Jewish law and tradition, Orthodox government authorities have begun revoking conversions if the converts, in their view, do not live an Orthodox enough life after conversion.  
Rules for Divorce  
Israeli Orthodox authorities require that it be a man’s decision as to whether a marriage will come to an end through divorce. Men in Israel use this power over their spouse to obtain lower support obligations, better property settlements and better child custody provisions, or simply to punish a wife. The wife can become a “chained woman,” unable to remarry, for years or forever, depending on how determined her husband is. Jews who are not Orthodox must go to the Orthodox religious courts and abide by their decisions. In the 18th century, the French philosopher Montesquieu condemned the practice of leaving control of divorce to the husband as “cruel.”  
Discrimination against non-Orthodox Jews is not limited to marriage. Jews who have fought and died in the armed forces of Israel have been denied burial in a Jewish cemetery because they don’t pass the Orthodox test for being Jewish. Women, including widows, mothers and daughters of the deceased can be prevented from giving eulogies.  
When Israel occupied the Old Jewish Quarter of Jerusalem after the 1967 war, Jews throughout the world celebrated their access to the Western Wall (Kotel) of the ancient 2nd Temple. Israel has now turned over control of the area to Orthodox authorities who have imposed restrictions. In recent years, women have been arrested by Israeli police at the Western Wall and face felony charges for such things as possession of a Torah with intent to read it. One medical student was told she would have a felony conviction and would not be allowed to practice medicine when she was arrested for participating in Jewish worship at the wall. Men and women are segregated at the wall. There are regular ceremonies conducted by the IDF at the wall, which at first involved men and women singing. Women are now prohibited from singing at the wall because the authorities insist that men are not allowed to hear women sing because it may cause men to have impure thoughts. This includes singing of religious hymns or chanting by rabbis, cantors and laypeople who are Reform, Reconstructionist or Conservative women. Men and women are forced to adhere to Orthodox dress requirements rather than that of their own stream if Judaism in order just to go to the wall.  
Tax Support for Religious Schools  
The government taxes the people in Israel and allocates tax revenue to support religious and other schools and institutions. That money is not evenly disbursed. Orthodox synagogues are built at government expense, but until 2008 not Conservative synagogues or Reform temples. There are now six non-Orthodox synagogues in the country which were built with government assistance. Those which I visited had to raise private funds for their construction and operation while their members had to pay taxes to build and operate Orthodox shuls. The Hebrew Union College (where Reform rabbis, including those from the U.S., spend their first year of seminary study) and The Jewish Theological Seminary in Jerusalem are not even recognized as Jewish institutions. There is money for Orthodox schools and for four thousands of Orthodox, government rabbis who perform a variety of functions including working in religious courts, inspecting restaurants, teaching and preaching. These positions are not available for non-Orthodox rabbis.  
Instead of adopting American style public schools, Israel established a school system based on the wishes of its various political parties. Today, an estimated one in four first grade students attend Orthodox schools funded by the government. In the ultra-Orthodox community, about 80 percent of the men opt to be permanent religious students, subsidized by the government. Many of their wives work as teachers in religious schools. Ultra-Orthodox authorities fear non-religious education, including the study of science, history, geography and the English language. They oppose use of the Internet and have resisted even minimal non-religious education, perhaps 45 minutes a day in elementary school. The lack of modern education is making large segments of the Israeli population totally unqualified for work in the high tech sector or modern business. It has been said that they are prepared for work only in the world to come.  
Bedouin Israelis  
Bedouin Israelis have a population of 150,000 in the Negev and is the fastest growing group with numerous ownership claims to land and buildings which the government disputes. Many live in villages in or near the Negev desert without electricity, running water, or sewers because, although their families have lived there for generations, they are not recognized by the state of Israel and are therefore subject to being bulldozed. They are generally poor and complain that their schools are badly neglected with lack of funds to buy paper and supplies, fix broken windows, air conditioners or toilets. The New Israel Fund is working to improve living and educational conditions for this minority group. The government recently pledged to expend hundreds of millions of dollars to improve their living conditions.  
Druze and Circassian men are subject to the draft, and until the 1980s were in segregated units. Bedouins are draft exempt, but encouraged to serve. The Tal Law, which exempts ultra-Orthodox from the otherwise compulsory military service to which all other Jews are subject (2 years for women, 3 for men) was ruled illegal by the Supreme Court in February 2012. A Hiddush poll in 2011 found that 93 percent of the non-ultra-Orthodox wanted to end the Yeshiva student exemption.  
Segregated Buses  
The Orthodox effort to segregate buses (women were forced to sit in the rear on some 2,500 bus lines), was fought in court by groups including the (Reform) Israel Religious Action Center and other civil rights organizations which challenged the segregation in court, in the Knesset and by sending freedom riders on the buses. Some in the Orthodox community have also sought to segregate streets and public offices. The New Israel Fund (a leading Israeli group advancing democracy, equality and pluralism for all Israelis) is fighting Orthodox efforts to exclude women from advertisements, including women who are candidates for public office in Jerusalem. The NIF has launched its own campaign, with the slogan, “Women should be seen and heard.”  
Discrimination on the basis of race has been a problem for the Ethiopian Jews in housing and employment. To its credit, Israel has included over 100,000 from the Ethiopian Jewish community among those made citizens.  
Madison and Religious Freedom  
In the earliest days of our nation, a proposal was made for the government funding of approved churches in Virginia. James Madison (later our 4th president) led the faction which defeated government support. Madison was prouder of his role in support of freedom of religion than he was of any other of his many great accomplishments. In his Memorial and Remonstrance Against Religious Assessments, Madison wrote: “Because we hold it for a fundamental and undeniable truth ‘that religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.’ The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.”  
Madison continued: “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever?”  
This was followed by the Virginia Act for Establishing Religious Freedom drafted by Thomas Jefferson in 1779 during the Revolutionary War. This was one of three achievements of which Jefferson was proudest and chose to have recorded on his tombstone. Jefferson wrote: “Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness ... No man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities.”  
First Amendment  
That led to the First Amendment to the Constitution prohibiting the establishment of any religion and protecting the free exercise thereof. Our constitution was an unprecedented, revolutionary document when it was enacted over two centuries ago and it has served to create the greatest freedom, security and opportunity for Jews in history. When Israel was established with American and British help a century and a half later, one might have expected that following the American example of protection of the free exercise of religion and avoiding establishment of religion would have been an obvious priority. I think most Jews in America expected exactly that. Surely members of a religion which for thousands of years had been denied freedom of conscience in religious matters, systematically discriminated against, subjected to pogroms and threatened with extermination would make sure that their country (if they were given the opportunity to control one) would be a model of tolerance and friendship toward people of all faiths with the fundamental human rights to the free exercise of religion and no religion being imposed by the government.  
America’s founding fathers like Jefferson, Madison, Franklin and Washington were learned and God fearing men steeped in the ideas of the Enlightenment and intent on expanding liberty and protecting the freedom of the individual from government intrusion. So were Isaac Harby, Penina Moise and the other founders of the Jewish Reformation almost two centuries ago in the United States. The Protestant preacher Roger Williams founded the colony of Rhode Island in the early 1600s as a place with separation of church and state for settlers of all religious persuasions, not because he didn’t care about his religion, but rather because he cared so deeply. He characterized the attempts throughout history to compel belief as a rape of the soul, and lamented the oceans of blood shed by civil and religious authority to command conformity. Williams has been credited with the concept (later famously promoted by Jefferson) of a “wall of separation” between church and state.  
Rejection of the Enlightenment  
Some of the leaders of Israel were enlightened while others, especially Orthodox and Hasidic Jews from Eastern and Central Europe, continued their rejection of the Enlightenment and Western education as dangerous to their ability to maintain their strict religious control of their followers. Israel had a third and larger group of people who were either members of the Jewish faith or atheists of Jewish background and others who had no use for religion. It is this latter group who were willing to make political deals that favored some religious groups over others or simply did not care when some Orthodox and ultra-Orthodox groups made deals for special privileged.  
The Knesset has a number of parties, with none winning enough seats to govern by itself. In forming the coalition to govern, the relatively small Orthodox religious parties have disproportional influence and are able to extract valuable privileges for their denomination because they are the swing vote needed for a majority, or in the case of a national unity government, the non-Orthodox parties see them as partners they may need to woo for the next government. There are Arab parties, but they are never included in the government. Prime Minister Rabin governed with the support of Arab members of the Knesset, but they were not allowed to share in cabinet positions. No government since his assassination in 1995 by an Orthodox extremist student has gone that far.  
The Jewish version of entanglement of religion and state has proven to be a bad idea, just as the Christian and Muslim versions were. The only good solution is to follow the advice of Madison and Jefferson and erect a wall separating religion and state. Today, an organization called Hiddush led by Reform Rabbi Uri Regev and whose supporters include Alan Dershowitz, Charles Bronfman, Norman Lear and Amos Oz, is working to establish religious freedom and equality in Israel and separate religion and state (see hiddush.org). Regev, formerly head of the World Union of Progressive Judaism, is a powerful advocate of the principles of equality and freedom announced in Israel’s Declaration of Independence. Hopefully, this effort will succeed. •  
Frank H. Hytken received a BA with honors from Northwestern University and a JD from Northwestern University School of Law. He was a Captain in the U.S. Marine Corps and a Military Judge. He is a member of the State Bar of Texas.

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