by Jonathan Rosenblum
July 7, 2010
The most effective approach in any debate is to demonstrate that one's opponents arguments fail l'ta'amam (according to their premises). It that vein, it is worth noting how problematic in purely legal terms were both the Israeli Supreme Court's recent decisions relating to the Torah world.
First, the Court struck down income supplements to kollel students on the grounds that the supplements violate the principal of equality because they do not apply to university students who meet the same criteria.
Traditional equal protection analysis requires that similarly situated people be treated equally. Israeli legislators may disagree about who provides greater benefit to society – university students or kolleleit – but about one thing they surely agree: They are not the same and do not benefit society in the same way. Thus offering different benefits to the two groups raises no problem of unequal treatment.
Let us say that the Knesset voted to provide scholarships to all discharged IDF soldiers. Would the Supreme Court entertain a suit by kolleleit that they should be entitled to the same scholarships on the grounds that their learning also protects the country? (University students are, in fact, eligible for many subsidies not available to kolleleit.) The prerogative of what forms of learning the state wishes to encourage rests exclusively with the Knesset.
Equally puzzling was the Court's remedy for the alleged discrimination between kolleleit and university students. The petitioners claimed they were entitled to the same income supplements as kollel students. The obvious remedy, then, was to make the supplements available to university students who met the relevant criteria (estimated to be a very small number), rather than getting rid of the supplements altogether. (Had chareidi MKs passed such an amendment to the law during the ten years the Supreme Court sat on the case, there would have been no Court ruling.)
Even more troubling was Justice Ayala Proccacio's concurring opinion, in which she argued that kolleleit ought not to receive income supplements because they contribute little to the state: "[There is] a general, much wider question that touches on the principle of obligating all citizens to accept the basic values of the government and share the burden of the responsibilities of each citizen." Had Proccacio expressed such sentiments as a legislator, she would have been within her rights, no matter how odious her views. But to strike down legislation on the grounds that she considers it bad public policy is the mark of a justice run amok.
THE COURT'S HANDLING of the Emmanuel litigation was even more incompetent. Justice Levy's 2009 finding that the division of the Emmanuel Bais Yaakov into two separate tracks was inherently discriminatory lacked any analytical content. The opinion is filled with abstract propositions about "equality" being an element of human dignity, to circumvent the uncomfortable fact that the Basic Law on Human Dignity deliberately left out any reference to "equality." (Justice Melczer's concurring opinion wanders off into a disquisition on comparative definitions of human dignity in Aristotle and contemporary feminist legal theory.)
But when it comes to relating those abstractions to the facts of the case, the Court went silent. Justice Levy simply assumed, without explanation or citation of precedent, that discriminatory intent is established by the fact that only 27% of the girls in the chassidic track are Sephardi. By that standard, the Supreme Court, with only one Sephardi justice out of 14, is far more discriminatory. He also gave credit to the petitioners' claim that certain bureaucratic obstacles were placed in front of Sephardi parents applying to the chassidic track, without any evidentiary hearing on that point. The Court has no authority to resolve such factual questions.
The Court's contempt ruling against the parents who sent their children to a chassidic school in Bnei Brak, after the Court put an end to the two-track system, was highly problematic. The parents were not parties to the suit. The suit was brought against Chinuch Atzmai, and Chinuch Atzmai fully complied with the Court's orders.
By finding the parents in contempt, the Court acted as if it had the right to draft the girls in the chassidic track in social engineering an optimal school, according to the justices' lights. The Court thereby deprived the girls' parents of the right enjoyed by all parents in Israel to choose the appropriate school for their children. Equally ridiculous was the Court's imposition of a fine on Chinuch Atzmai for the parents' actions, after Chinuch Atzmai had complied with the Court's orders. The Court might as well have fined itself for its own inability to force the parents to return their children to the Bais Yaakov.
THE COURT'S LEGAL FAILINGS in the Emmanuel case pale, however, next to its tactical stupidity in engaging the chareidi community in a head-on confrontation and turning the issue into one of the authority of the Court versus that of the rabbinical leadership. Ultimately, the Court acknowledged the power of the mass prayer gatherings in Jerusalem and Bnei Brak in response to the calls of the gedolei hador and sought a way to climb down from the tree.
Yet our celebration of the outcome of the Emmanuel case remains tinged with a degree of sadness. First, because communal institutions proved unable to resolve the dispute in the more than a year before the Court ruled. Second, because Jewish daughters, both Sephardi and Ashkenazi, many of them children of ba'alei teshuva, in the general track of the Bais Yaakov, were hurt in the process
True, there was no discrimination against any Sephardi girl willing to accept the requirements for the chassidic track, and certainly no intention to hurt anyone. Nevertheless, a barrier built through the middle of the school dividing two tracks or the refusal of a Bais Yaakov to accept girls from English-speaking families – these things convey an implicit message: There is something so wrong with you that any exposure to you might contaminate our daughters.
There always exists a potential tension between the quest to protect the purity of our Torah chinuch, on the one hand, and one of the fundaments of that education, ahavas Yisroel, on the other. The Three Weeks is an ideal time to contemplate ways to reduce that tension.
Related Topics: Chareidim and Their Critics, Israeli Supreme Court, Jewish Ethics
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