Legal torment in Rechovot

The Israel Religious Action Center (IRAC), the legal action wing of the Movement for Progressive Judaism (Reform) in Israel, has now moved beyond its traditional agenda of advancing "religious pluralism." Instead of just pushing for the recognition of Reform conversions and for greater government financing of the Reform movement, IRAC is now determined to make life miserable for Torah organizations in any manner possible.

The old agenda and the new one do, however, have one thing in common: Both depend on the Israeli Supreme Court for their advancement.

A few months ago, IRAC filed a petition with the Supreme Court seeking an injunction against the provision of national service volunteers to EFRAT, an organization devoted to increasing the number of Jewish births. IRAC's petition denied that the encouragement of Jewish births could be a considered a valid public purpose, and therefore insisted that it was inappropriate to assign to EFRAT any national service volunteers.

What raised IRAC's fur was the fact that EFRAT does not simultaneously strive to increase the Arab birthrate. Apparently, IRAC has never heard of Israel's demographic crisis – e.g., the growing threat to Israel's Jewish majority – which has been used to justify everything from the Gaza disengagement to proposals for mass conversion of immigrants from the FSU.

But for sheer determination to torment a religious organization and arouse religious hatred, IRAC's efforts to prevent the building of religious center by Rabbi Tzvi Schwartz of Rechovot cannot be topped. Eight years ago, Rabbi Schwartz, who has been organizing shiurim in Rechovot and its environs for over thirty years, applied to the municipality for a plot of land upon which to build a religious center under the auspicies of Lev L'Achim. After a long search, the City Engineer recommended a plot of land on one of the city's main thoroughfares, HaRav Zechariah Madar Street.

After the allocation was approved by the land allocations committee of the City Council and subsequently by the full City Council, the late Ornan Yekutieli of Am Hofshi and Yossi Paritsky, late of Shinui, came to the city to incite a group of residents of a nearby neighborhood against the proposed center. Flyers went out claiming, among other things, that the center would be a shelter for Jewish women who had married foreign workers or Arabs.

Eventually, a group of residents from the adjacent Ramat Yigal neighborhood petitioned the Supreme Court, which proceeded to run Rabbi Schwartz through a series of procedural hoops. Despite the evidence that neither Rechovot nor any other city in the country had ever sought Interior Ministry approval for such allocations of land, Rabbi Schwartz was ordered to do so.

When he passed that hurdle, the Court ordered the City Council to reconsider the allocation in light of the objections of neighborhood residents. On the second go around, the Council voted 11-3 in favor of the allocation. That too was insufficient for the Court, which now demanded that an absolute majority of the City Council vote in favor. (Note that the Court bases its claim that Israel now has a written constitution based on the 1992 Basic Laws, which were passed in the middle of the night by less than 20% of the Knesset members.)

Once again, Rabbi Schwartz passed the test. The City Council, after a tour of the proposed site by all the council members, voted 17-3 in favor of the allocation. This time the Supreme Court had had enough. It ruled that the allocation must be invalidated for its failure to comply with Interior Ministry regulations for dealing with such allocations, developed in the midst of the lengthy proceedings. The Court ignored the Attorney-General's recommendation that the Interior Ministry's regulations not be applied retroactively.

No doubt the Court assumed that Rechovot would get the hint that it would never allow Rabbi Schwartz to continue building (he had already invested close to $300,000 in the site) as long as there were any objections from nearby secular residents. But Rabbi Schwartz pressed on. In the meantime, new municipal elections were held, and a new City Council took office in place of that which had originally approved the allocation to Rabbi Schwartz.

According to the new Interior Ministry regulations, any recipient of a municipal land allocation must show a capability of developing the site. Only Rabbi Schwartz's organization presented such a plan for the site in question. And so nearly four years after the Supreme Court decision, the Rechovot City Council once again took up the issue of the proposed Lev L'Achim Center.

The allocations committee of the Rechovot City Council held lengthy public hearings on June 8 and June 27, 2004, at which opponents of the allocation were heard. Between the hearings, members of the committee also toured the site.

In the course of its deliberations, the City Council received over one thousand letters of support for the center, as opposed to 200 in opposition. Indeed there were more letters of support from adjacent neighborhoods than those in opposition. Opposition to the proposed center continued to focus on the claim that such a center was inappropriate for a secular neighborhood, like Ramat Yigal. At a meeting of the full City Council on June 28, a number of demonstrators waved anti-chareidi signs.

Even Dov Chafetz, a Meretz member of the allocations committee, admitted, however, that Ramat Yigal is not an exclusively secular neighborhood. Like every other neighborhood in Rechovot, it contains a mixture of secular and religious residents, and a number of nearby streets are closed on Shabbos.

Another member of the allocations committee, Yaacov Botnik of Labor, stated that he had approached the allocation with suspicions and that he had friends among the opponents. But after touring the site, it became clear that the proposed site was located at the very edge of the Ramat Yigal neighborhood, and that all access, both vehicular and by foot, would be from a main municipal thoroughfare and not through the neighborhood.

Botnik opined that if Rabbi Schwartz were not religious not a word of opposition would have been heard to the proposed center. He accused the opponents of having refused all efforts at dialogue and compromise. In fact, Rabbi Schwartz had reached an agreement with the neighborhood council of Ramat Yigal on a number of issues related to noise from the center, and the head of the Council had even asked the city to condition the allocation on enforcement of those agreements. But the opponents of the center announced that they would not be bound by the neighborhood council's agreement.

With the passing of Yekutieli and Paritzky from the scene, the mantle of anti-religious incitement against the Lev L'Achim center has fallen to IRAC, whose attorneys brought yet another petition to the Supreme Court after the City Council's final approval of the allocation to Rabbi Schwartz's organization.

At the most recent Supreme Court hearings, Justice Ayala Procaccia told the petitioners that they would never get an explicit statement from the Court that no public institution can ever be built in a chareidi neighborhood or that no religious institution can ever be built in a secular neighborhood. (One of Procaccia's predecessors on the Court, Justice Tova Strasbourg-Cohen, had, in fact, once taken judicial notice that religious and secular Jews cannot live together.)

The Court, said Procaccia, would concern itself only with whether proper procedures were followed. Yet despite the fact that the full Rechovot City Council has approved the allocation on four separate occasions, over a period of many years, and after lengthy hearings on the opponents' objections, the Supreme Court did not dismiss the suit. Instead it said it would await the final decision of the Interior Ministry on whether to approve the allocation.

What the Court should have done is to have dismissed the petition as groundless in light of Rechovot's strict compliance with the new Interior Ministry requirements and the lack of anything in the record to suggest that the City Council's decision was patently unreasonable or that petitioners' objections had not been fully aired. That is apparently what two of the three justices on the panel wanted to do, until Justice Procaccia prevailed upon them.

Alternatively, the Court could have dismissed the petition on jurisdictional grounds, and directed the petitioners to the district court, which has jurisdiction over municipal decisions, or have dismissed the petition as premature until the final approval of the Interior Ministry, which concludes the allocation process.

By failing to do either, the Interior Ministry's review – in which approval of the municipal allocation is normally automatic, will be carried out under the shadow of Supreme Court supervision. And that raises fears that "procedural review" may once again become a means of allowing secular residents of mixed neighborhoods to exercise veto power over any religious institutions in proximity to them.