"Jewish State": The True Constitutional Meaning
by Professor Harry Reicher
Am Echad Resources
August 9, 1999
Discussion in Israel about the adoption of a written constitution has recently intensified. In some quarters, this has been accompanied by condemnation of what one Israeli party, Shinui, has characterized as "the unbridled attacks of the ultra-orthodox leaders against the judicial system in general and against the Israel Supreme Court, specifically." It is certainly true that significant elements of Israeli society (and not just the Orthodox) have voiced profound disillusionment with the country’s Supreme Court, in particular. Among other things, that disillusionment found expression in a Jerusalem rally earlier this year, which attracted somewhere between a quarter- and a half-million men and women.
When people gather in such numbers for an express purpose, it is noteworthy, to say the least. When they do so in a country the size of Israel, it is particularly striking -- especially when the participants are Orthodox Jews expressing anguish over judicial rulings in the Jewish State.
To understand the air of controversy swirling around Israel’s Supreme Court, and the intense feelings evoked by its decisions in cases raising religious issues, it is important to have regard to basic documents in Israel's constitutional history. This is particularly so on the vexed issue of the status of non-orthodox movements within Judaism--the so-called "pluralism" question.
The Declaration of the Establishment of the State of Israel, which was proclaimed on May 14, 1948, was carefully crafted by the State's founding fathers to describe the fundamental nature of the State they were establishing. The first preambular paragraph begins with the words "Eretz-Israel", the biblical name of the Land of Israel, termed "the birthplace of the Jewish people", and goes on to characterize it as where the Jews’ "spiritual, religious and political identity was shaped." And after recounting the forcible exile of the Jewish people from the Land, the Declaration acknowledges that its members they "never ceased to pray and hope for their return to it." In these and other ways, this seminal document inextricably linked the character of the newly-created nation to its biblical and religious roots. Indeed, these links of the Jewish people with the Land were what underlay, and furnished the strongest legitimacy for, the Jewish claim to the area in which the State in fact arose, as opposed to some other territory. (Thus the suggestion that Britain turn its then-colony Uganda into a Jewish State came to naught.)
So, when the operative paragraph of the Declaration of Independence declared "the establishment of a Jewish State", the context of that proclamation made very clear what was intended; it stamped the character of the nation as profoundly embedded in the biblical and religious history and traditions of the Jewish people.
But the matter does not rest there. While the Chairman of the Jewish Agency for Palestine, David Ben-Gurion, who became Israel's first Prime Minister, was himself not an observant Jew, he had a keen appreciation of Jewish history and its religious roots. For this and other reasons, he sought to ensure that the religious populace participated fully in the establishment of the new State. The discussions on such participation gave rise to another critical document in Israel's constitutional history, colloquially known as the "Status Quo Agreement". Formally, the document was a response to a request from the devoutly Orthodox Agudath Israel World Organization concerning the character of the State then to be established, and it dealt with observance of the Jewish Sabbath as the official day of rest, provision of kosher food in Government kitchens and religious education.
Most significantly, though, the Agreement contained a separate paragraph addressing issues of personal status -- things like marriage, divorce and conversion -- in which the Jewish Agency gave its solemn assurance that "everything possible will be done" to "avoid, Heaven forfend, the splitting of the House of Israel into two." The language is nothing short of extraordinary: here was Ben-Gurion himself, the first signatory to the document, accepting, in strong and unequivocal terms, the absolute need to preserve Jewish unity--meaning, that issues of personal status, beginning with the definition of Jewishness itself, could have only one standard, namely that which had governed the Jewish people for several thousand years.
When the Declaration of Independence was signed, some eleven months after the Status Quo Agreement, it was done against the background, and in full knowledge, of that Agreement. At the general level, the Agreement furnished further evidence of what the Declaration of Independence meant by a "Jewish" State; and at the particular level, it provided specific content to the meaning of that term in the Declaration. That the non-religious parties to the creation of the State accepted this is obvious. For significant elements of the religious population, however, the Status Quo Agreement was the inducement to their participation in that creation, and a condition precedent to signature of the Declaration of Independence by ultra-Orthodox leaders; it was quite fundamental to the character with which the State was stamped at its birth.
It is in light of this history that current events in Israel must be viewed.
In its controversial decisions touching on religious matters, the Supreme Court has proceeded from Israel's Basic Law: Human Dignity and Liberty. Enacted in 1992, this is intended "to anchor...the values of the State of Israel as a Jewish and democratic state" (section 1).
This makes the position perfectly clear: "Jewish" comes first, and the Declaration of Independence and the Status Quo Agreement provide the basis for understanding what that means. It is within that underlying framework as a Jewish State that Israel is democratic; and careful consideration of both the Declaration of Independence and the Status Quo Agreement reveal that this conception of the State is exactly what was contemplated. But the essential thrust of the Court's decisions in recent years has been to slice away at the Status Quo Agreement, and therefore erode the essential character of the State. In doing so, the Court has effectively ignored the "Jewish" dimension to the Basic Law.
All of which explains the sense of betrayal felt by Israel's Orthodox citizens. The Supreme Court is unilaterally undoing a bargain--and an absolutely basic one at that--without the consent of one of the agreement’s parties. The process of undoing the bargain reaches its apogee in cases touching on personal status, most particularly where a role in decision-making is conferred on those who do not adhere to the system of Halacha contemplated by the Status Quo Agreement. The result is extremely serious. When hundreds of thousands of people gather, in a country as small as Israel, to protest decisions of the country's highest court, that suggests a crisis of confidence in that court and its incumbents. That is a profoundly troubling thought.
And it is one that those who are involved in constitutional reform in Israel would do well to keep at the forefront of their thinking.
[Professor Harry Reicher is the Agudath Israel World Organization’s Representative to the United Nations and Adjunct Professor of (International) Law at the University of Pennsylvania Law School]
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