Standing for whom
by Jonathan Rosenblum
December 1, 2000
The rules of standing in the Israeli Supreme Court are, according to McGill University law professor Irwin Kotler, the most liberal "of any parliamentary democracy in the world." Anyone who feels aggrieved by any government action can secure a hearing in the Israeli Supreme Court.
In particular, the Court has had no trouble finding standing for parties concerned with protecting the ``sensitivities" of others. The Court, for instance, once entered a preliminary injunction against building an Israeli army headquarters on land where Iraqi soldiers slain in 1948 were buried. The petitioners argued that the building would heighten international Arab animosity to Israel. The Court found no problem with petitioner’s standing to raise the issue of inchoate Arab sensitivities around the world.
More than a few eyebrows were thus raised Sunday, November 19 when the Court denied the petition of Kolot HaKotel (Voices of the Wall), a women’s group committed to preserving traditional prayer at the Wall, to file an amicus brief in the ongoing litigation over the Women of the Wall’s request to read from the Torah while wearing tallitot (prayer shawls) at the Wall. (Am Echad, an American-based Orthodox umbrella organization, whose Israel office I head, was also a party to the brief.)
The Court questioned how many members Voices of the Wall has. But certainly the Court had no doubt that there are thousands of women who pray regularly at the Wall and who are deeply opposed to any changes in the forms of public prayer at the Wall, whether or not they happen to be card-carrying members of Voices of the Wall. These women will be the ones most deeply affected by the Court’s decision.
Though few of the justices may be found pouring their hearts out on a regular basis at the Wall, surely they know that every morning 150 to 300 women gather there by sunrise, that hundreds more can be found there (particularly in the summer) between Minchah and Maariv, and that the women’s side is often filled on Saturday night. This past Monday, the women’s side overflowed from the area in front of the Wall into the plaza behind, with women who had come to recite the penitential prayers for Erev Rosh Hodesh. (Compare those numbers to the forty or so women who attend the Women of the Wall’s once-a-month gatherings.)
By their very presence at the Wall, these women demonstrate their rejection of the claim of Anat Hoffman, who has emerged as the leading spokeswoman for Women of the Wall, that women have been ``silenced" at the Wall. As Sharon Galkin, one of the founders of Voices of the Wall, comments on a video produced by the group, ``Who is she talking about? Certainly not about me. Certainly not about the women who have been gathering there every Saturday night to pray for a friend of theirs who is dying of cancer. They don’t feel silenced. . .
``I think [Anat Hoffman] really misses the point. Prayer is not directed at the person next to you. Prayer is not directed at The New York Times. Prayer is about talking to G-d and He hears the quietest whisper."
In rejecting the brief of Voices of the Wall, the Court once again creates suspicion that some groups are more equal than others in front of the Court. On the one hand, the Court has virtually done away with traditional limitations on standing and justiciability in order to hear the kinds of claims it wishes and to assert its oversight authority over the other branches of government. On the other hand, it continues to manipulate these and related doctrines to avoid hearing from disfavored parties.
Thus the Court refused to hear a suit against the Antiquities Authority to prevent digging at an ancient gravesite in which petitioner presented proof that the Antiquities Authority had deliberately misrepresented the nature of the site. Petitioners had failed to exhaust their administrative remedies with the Antiquities Authority, the Court ruled. Their attorney protested that he had been a plaintiff in the suit to force Prime Minister Rabin to dismiss Aryeh Deri as Interior Minister, and the Court had not imposed any exhaustion requirement at that time. The presiding justice replied curtly, ``That is at our discretion."
The brief of Voices of the Wall raised a compelling legal argument that had not been adequately briefed by the State Attorney’s office, which had sought a rehearing on the Court’s original decision in favor of Women of the Wall. In a long series of cases dating back to 1969, and reaffirmed as recently as 1996, the Court has held that it is barred by statute from establishing the forms of public prayer at holy sites.
Most of those cases dealt with suits to permit Jewish worshippers to pray on the Temple Mount. The Court reiterated in each of those cases that under the statute governing holy sites it was up to the government to weigh the desire of Jews to pray publicly against the sensitivity of the majority of Moslem worshippers at the site. Its jurisdiction, the Court said, is confined exclusively to ensuring equality of access to holy sites. Equality of access to the Wall is not at issue. Every person of whatever religion or belief is free to the Wall at any time of day or night and to recite whatever private prayers he or she wishes.
The Court’s past refusal to involve itself in determining the forms of prayer at holy sites is not only anchored in statute but based on sound policy grounds. The Court has no competence to determine the proper forms of worship and no interest in being dragged into an endless series of intra and interreligious disputes. The justices presumably have no wish to become the shul gabbai at the Wall determining who will pray, when, and how.
If the Court determines that one group has a ``right" to pray as it wishes at the Wall, it will inevitably be beset by countless petitions from other groups, ranging from egalitarian minyanim to Jews for ``J", each citing their own ``traditions." In the process, the Wall will be transformed from the most powerful symbol of Jewish continuity and unity to a place of bitter division and rancor.
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