Think again: nullification hogwash
by Jonathan Rosenblum
June 18, 2004
The Union armies in the US Civil War refuted by force of arms the doctrine of "state nullification" of federal statutes proclaimed by John C. Calhoun of South Carolina. Local nullification may be dead in America, but the Israeli Supreme Court created a bizarre modification, in the name of "neighborhood autonomy," in this week's pork decision.
In the 1950s, the Supreme Court struck down municipal ordinances against the sale of pork on the grounds that the issue must be legislated at the national level. Subsequently, the Knesset authorized municipalities to ban the sale of pork in all or part of their boundaries. Now the Supreme Court decides that municipalities must be broken down into the smallest unit of like-minded citizens, right down to individual streets, in determining where pork can be sold.
Court President Aharon Barak, in his opinion for a unanimous court, acknowledged the repugnance that Jews, both religious and non-religious, have always shown toward the consumption of pork. Yet, as a practical matter, he would permit the ban of the sale of pork only in cities like Efrat or neighborhoods like Har Nof, whose residents, in any event, need no legal protection from pork stores.
Barak thus trivializes the "value" to be accorded to the historical repugnance of Jews for pork: a municipality may - not must - ban pork stores from a neighborhood where the overwhelming majority of citizens will be greatly offended. But he recognizes no legitimate reason for a democratically elected municipal council to ban the sale of pork from the public square, even though it is authorized to do so by the Knesset.
Post-Nazi Germany can outlaw the public display of swastikas or criminalize Holocaust denial, but a "Jewish state," which seeks to instill in its citizens a sense of Jewish national identity, may not ban something which over the centuries Jews in the tens of thousands have given their lives resisting.
THE VERY fact that bans on pork are rooted in Jewish religious and national identity make them inherently suspect in the court's eyes. Legislation based on Jewish tradition inevitably triggers in Barak's eyes a "right" to be free of religion.
In the Meatreal case, which Justice Barak cites favorably in his latest opinion, a 50-year administrative ban on the import of non-kosher meat was struck down on the grounds that Israel is not a theocracy. A ban on the sale of whale or dog meat, on ecological or humanitarian grounds, would be fine; not so similar bans based on traditional Jewish values.
The only positive "right" our Supreme Court recognizes is that of pork eaters to easily fill their bellies with their favorite sandwich meat. In religiously mixed neighborhoods, the court rules, pork stores must be permitted on the outskirts of the neighborhood, or at least within easy access by public transportation. This "right," rules the Court, is anchored in the Basic Laws on Freedom of Occupation and Human Dignity.
That result will certainly surprise the religious Knesset members who voted for these Basic Laws, after being told they created no new rights not already part of the public consensus.
The court continues in its long-standing solicitude toward producers and consumers of pork. Previously it allowed the largest commercial producers of pork to evade a Knesset statute outlawing the raising of pigs in Israel by restyling kibbutz pigsties as livestock research institutes.
Monday's decision is not the first time the court has hinted at its doctrine of local autonomy in matters touching on religion. In the past, the court has taken judicial notice that religious and non-religious Jews cannot live together, and has given secular residents virtual veto power over new religious institutions in their neighborhood.
For instance, the court twice ordered the Rehovot city council to reconsider the allocation of a plot of land for a Lev L'Achim
educational center in light of the objections of some secular residents of the nearby neighborhood. Both times the city council, including Meretz members, voted overwhelmingly in favor of the allocation. Yet the court was not satisfied, and ordered the construction, in which Lev L'Achim
had invested $300,000, stopped.
Unlike the justices of the Supreme Court, the members of the Rehovot city council actually knew the site under discussion. They knew that the nearby neighborhood was religiously mixed and that more residents had signed petitions in favor of the center than against. And they also knew that the center was separated from the nearest residential neighborhood by a four-lane highway. The court simply ran roughshod over the democratically elected city council of Rehovot.
The doctrine of "neighborhood autonomy" being developed by the Supreme Court has far-reaching implications in the sphere of state and religion. Could the court be laying the ground for a local nullification option to laws against public transportation or requiring the closure of commercial enterprises on Shabbat or the sale of hametz on Pessah, according to the religious values of residents of each neighborhood or street?
Related Topics: Israeli Society, Israeli Supreme Court
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