Judicial Power and National Politics
By PATRICIA J. WOODS
The following essay is part of Wood's forthcoming book, Judicial Power and National Politics: Courts and Gender in the Religious-Secular Conflict in Israel.
Israel shares with its Middle Eastern neighbors an Ottoman institutional legacy that shapes the relationship between religion and state. And, like its neighbors, the relationship between religion and the state has led secular and religious leaders in Israel on a collision course with one another. In Israel, this tension has culminated in an all-out conflict between institutions within the same state, in this case, the secular judiciary and state religious authorities. It is a battle that has not abated for 20 years.
This clash has become nothing less than a culture war in the Israeli state and the wider society. It became so heated after two landmark decisions in 1988 and subsequent HCJ decisions challenging state religious authorities that, by the mid-1990s, the President of the High Court began to receive death threats. In 1999, at least 200,000 ultra-Orthodox men descended upon the High Court building, calling the High Court President a traitor to his people and decrying the “tyranny” of his unelected rule over the country. Meanwhile, 50,000 secular demonstrators confronted them in counter-protest. Some commentators in ultra-Orthodox newspapers called for nothing less than the dismantling of the judiciary, comparing the High Court to Haman, Biblical enemy of the Ancient Israelites. From a failed HCJ attempt in 1969 to challenge religious authorities, justices on the court knew the stakes—for both institutional and social stability—in mounting an attack on the autonomy of state religious institutions. And, yet, it did just that in two cases in 1988, cases that marked only the beginning of the battle.
Religious authorities are part of the state in Israel. They have official legal authority over matters of personal status, including, for the Jewish population, marriage, divorce, and burial. A separate judicial system is in place for religious courts, parallel to the civil, military, and labor courts that exist in the country. The Israeli justices may sit as the Supreme Court, which has final jurisdiction over all of these court systems for most appeals. Or, they may sit as the High Court, which has final jurisdiction for what are called “constitutional” matters of appropriate application of state authority. The difference between the two courts is simply a matter of function; they are made up of the same judges and take place in the same location.
Religious authorities also have formal jurisdiction over observance of Sabbath, Kashrut, and religious education for religious communities. However, the application of these rules for the entire population of Israel has decreased over time, with both the wider state and religious authorities being relatively flexible in allowing variations of observance for citizens, villages, towns, and cities. On the legal issues of personal status, however, religious officials argue it is important not to be flexible. Why? These are the issues that define, for them, who is a “real” Jew and who is part of the national community. Indeed, for religious authorities, the questions, "Who is a 'real' Jew, halakhically?" and "Who is part of the national community?" are one and the same. Meanwhile, secular social movements have brought challenges to the High Court based on principles of rights against religious practices that have been formally sanctioned by the state (e.g., religious marriage and divorce law), as well as religious norms that had been accepted by the state in practice but were not entrenched in formal laws (for example, barring women from participating as representatives on Local Religious Councils).
In 1988, the High Court made a fundamental shift in its policy of avoiding challenges to the state-sanctioned power of religious authorities. Within a few days of one another, the High Court announced two decisions that would change the political landscape of Israel for years to come (cases known, informally, as Shakdiel and Poraz). It decided that religious authorities could not bar women from being representatives of Local Religious Councils nor from voting bodies to select municipal rabbis. Because religious officials were part of the state, they were required to follow secular state law, including the political enfranchisement of women. In a paradoxical twist, the High Court used the rabbinical choice to be part of the state as a way to constrain rabbinical power—using exactly the same legal principle by which other state institutions are constrained by the law (administrative legality combined with the principle of equality).
Why should we care about a rarified legal battle in Israel between secular and religious authorities, and centered most particularly between secular and religious courts and lawyers? Israel’s system of religious courts within the state is based on the Ottoman Empire’s millet system, by which local communities were granted communal sovereignty or autonomy over “communal” matters (usually defined as religious and personal status issues). Religious minority communities in the Ottoman Empire had separate religious courts to govern themselves on these questions. Most states in the Middle East, including Israel, have drawn upon significant aspects of the millet system in developing their own formal, institutionalized relationship between religion and the state. Most of the Middle East as well as some parts of Asia—based on a slightly different model—have incorporated religious institutions into the state at least for some matters of personal status. Newly emerging states, such as Iraq, Afghanistan, and the Palestinian Authority must grapple with decisions on just what to do about incorporation of religious authorities into the state. Should separate legal systems be put in place to continue the Ottoman tradition of local religious autonomy?
The Ottoman millet system had itself been part of an attempt to centralize state power in the diffuse context of empire. However, regarding religion and personal status, these laws were focused on ensuring local autonomy as other centralizing trends took place. The 20th- and 21st-century versions of the millet system, as it has developed in the context of nation-states, has ironically become part of a single, centralized state authority with the end result that one single interpretation of each recognized religion gains the status of official religion. This has created a condition in which there is no right of exit for co-religionists who do not approve of the officially recognized version of their religion, and in which a single strain within a religion gains the status of orthodoxy based on its relationship with the state. This phenomenon, which is called the “monopoly on religion” in Israel, is a new permutation of the millet system that was not characteristic of the system as created by the Ottoman Empire. I suggest that it is the new centralized role of the state, by contrast to the relatively more diffuse power exercised in the context of empire, that is largely responsible for this change.
Modern nation-state versions of the millet system, as seen throughout the Middle East, have also put the state in the position of being the center of decision-making on policy regarding religion. This new status as decision-maker on religion has transformed state bureaucracies around the Middle East as new constituencies seeking to influence religious policy have turned their attention to the state rather than to other arenas. Israel is confronted with a quagmire just as are its Middle Eastern counterparts: How to ensure religious autonomy—and perhaps even a vibrant place for religion—without creating altogether novel human rights problems?
For religious officials in Israel, the answer is clear. Religious personal status law must be the binding law on all Jewish citizens of the state, because it is through religious marriage and divorce law that the boundaries of the community are maintained. “Who is a Jew,” religiously, is defined by religiously sanctioned reproduction. Children born out of wedlock may be full members of the community, religiously, but children born to a woman tied to another man (through, for example, secular divorce without a religious divorce paper) are not. Thus, for religious officials, maintaining religious marriage and divorce law is a matter of nothing less than maintaining the Jewish People in the State of Israel.
Meanwhile, for secular social-movement lawyers in the women’s movement, civil-rights movement, and religious-pluralism movements (represented most forcefully by the Reform and Conservative Movements in Israel), the question is one of civil and human rights. Religious marriage and divorce laws impinge on women’s human rights in several ways, making Israel one of the states that has signed on to the United Nations’ Universal Declaration of Human Rights with “Reservations.” That is, Israel is a member of the charter except in those areas pertaining to personal status and family law.
My book, Judicial Power and National Politics: Courts and Gender in the Religious-Secular Conflict in Israel grapples with these issues, drawing upon over three years of political-ethnographic research in Israel. In addition to court documents, legal treatises of justices, social movement records, and Orthodox and ultra-Orthodox press treatments of the conflict, the book draws extensively on interviews with legal scholars, social movement lawyers and members, religious officials, and others to develop its argument regarding the causes of judicial intervention into religious-secular tensions, and the dramatic increases in judicial power that emerged as a result of this and other similar judicial challenges to the state.