Pork in the "Jewish State"

Sunday morning an expanded panel of nine justices heard arguments on the validity of municipal ordinances in Beit Shemesh, Karmiel, and Tiberias, either limiting the sale of pork products to specific zones or banning it altogether. The case poses directly the meaning of Israel as a "Jewish and democratic" state.

Court President Barak opined in the course of the argument that the case would be easy if Israel were only a "democratic" state or only a "Jewish" state, thereby implying that the municipal ordinances are an affront to democratic values. With all due respect, that is true only if one conceives democracy as primarily a set of rights.

But if one views democracy primarily as a set of agreed upon procedures for ensuring majority rule, then it is not clear where the affront to democracy lies. Each of these ordinances was voted upon by a duly elected and representative city council, and pursuant to a Knesset statute specifically granting municipalities the power to regulate the sale of pork products.

Certainly the"right to eat pork" is not one of those basic rights – like the freedom of political speech and freedom of the press – without which representative government is inconceivable.

A number of European countries, for instance, ban kosher slaughter, and thereby place hardships on religious Jews and Moslems in the observance of their religion far greater than the restrictions placed on pork eaters by the municipal ordinances in question. Yet those countries do not thereby cease to be democracies.

Justice Barak might counter that a ban on shechita can be justified on general humane principles whereas the ban on the sale of pork can only be based on religious grounds. Indeed during oral argument, he suggested that the validity of Sabbath closing laws might depend on whether a social, as opposed to religious, justification could be offered for the statute.

But as a matter of democratic theory, it is far from clear why it should make a difference if elected representatives derive their values from the writings of French existentialists or from traditional religious texts. Most people’s values – those of legislators included – derive from a hodgepodge of different sources, and they do not become more or less valid according to their coherence or source.

The basic law of Freedom of Occupation does not confer an absolute right to sell whatever one wants, to whomever one wants, at any time or place. For instance, the Court would surely uphold licensing requirements for practitioners of the learned professions. And it is equally unlikely that our Supreme Court would strike down a prohibition on prostitution, even though there is a specific verse in the Torah "There shall not be a promiscuous woman among the daughters of Israel."

It would be a strange understanding indeed of the term "Jewish state" if the Court were to determine that the Israeli public square must look exactly like the public square of every other Western democracy or that any law based on Jewish religious tradition that does not find a ready parallel in other Western democracies with large non-Jewish majorities is ipso facto invalid.

In addition, bans on the sale of pork are as much an expression of Jewish national identity as of religious identity. There are many equally or more severe prohibitions in the Torah concerning what a Jew may eat. Yet Jews throughout history have always been identified by their particular aversion to pork, not even referring to it by name but as 'davar acher'. And that was true even when religious observance in other areas waned considerably.

It would be a strange result indeed for the Supreme Court to determine that in Israel a properly elected representative body could no longer give expression to that aversion that has been so entwined with Jewish identity throughout history.