"Religion in the Modern Nation-State" -- a synopsis of presentations from panel five of the ISCP's inaugural conference

Religion in the Modern Nation-State

*Prepared by Orly Rachmilovitz

Ori Aronson (Bar Ilan Faculty of Law):

The divide between the public and private sphere in religion is the idea that the state must not intervene in the private sphere. Israel has not taken that road, and the state is deeply intertwined with public and private life, particularly regarding Judaism. State religiosity prioritizes Judaism in marriage/divorce, immigration, institutions, and holidays. However, religious distinctions play an interesting role in private and public life. I focus on adjudication. Because of the lack of separation between church and state, conflicts over adjudication are quite vibrant in Israel and involve a lot of politics. The Israeli Supreme Court is quite a significant player in navigating these dynamics. The Court is more willing to recognize rights. Also, what may be told as an optimistic story about the Jewish state is actually a result of a lot of trade-offs for this privatization. Additionally, though we might expect institutional dichotomy and an interest in independence from the state, we see religious communities actually seeking the state’s legitimization.

Private rabbinical courts engage mostly in Jewish civil law. These are basically arbitration courts that apply Jewish law rather than Israeli law. The public rabbinical courts have exclusive jurisdiction over marriage and divorce and also hear commercial disputes between Jewish religious parties. In the past decades we’ve seen very strong extension of authority (or taking of authority) by the rabbinical courts over private law.

In some sense, even though these are rabbinical courts they increasingly resemble official Israeli courts, including the possibility of appeal, which does not exist in Jewish law. The same holds true for concepts of due process, so the courts are adding elements from modern secular law. For example, the rabbinical court in Elad presents itself as a fully private institution but is led by the City Rabbi. So there’s a duality in independence and authority but also a struggle for legitimacy through affiliation with formal public, state institutions. Another example is the Karaite court that uses official Israel government letterhead paper with the state emblem. The Israeli Supreme Court found this ultra vires but allowed it to go on.  So the Israeli Supreme Court is giving its stamp of approval to religious tribunals that are complete unknowns as to how they may implicate human rights, pluralism, and excessive privatization when public institutions fail.

Leora Batnitzky (Princeton University)

Israel affirms that religion is a matter of private conviction but does not affirm Judaism as a religion. This might be because of the context of Zionism, where the question of Jewishness is not understood necessarily as a religion but more as a culture or politics.

It would seem that conversion would epitomize the tension in the relationship between religion and state, and highlight the question of whether it is possible for a state to be religious and democratic. The state sponsors institutions and therefore sponsors conversion. In this way it controls benefits vis-à-vis conversion.

Comparing Ben-Gurion and Rabbi Shlomo Goren, Ben-Gurion rejected the rabbinic definition of Judaism. In the late 50s we saw early stages of controversy because many non-Jews were coming to Israel and there was the question of how to respond. Ben-Gurion said that just by virtue of their tying themselves to the fate of the Jewish people they are not required to convert. He meant that if you come to the country and you are not Jewish but you want to join, you would not need to convert but instead would go through a different process. Rabbi Goren had a similar claim with reference to married couples, and he suggested a less stringent process of conversion. So we can see from a democratic point of view that the state can have a legitimate interest in conversion. One can compare this to the Frenchness of France. In both you have a vision based on common history, interest, etc. Anyone can join, though the process can be difficult. The naturalization process can be similar to conversion to Judaism.

One of the things that is interesting is that the institution of conversion in Israel becomes undemocratic when Orthodoxy begins to define Judaism in terms of religious conviction. We see this, for example, when conversions are annulled, or in the Brother Daniel case. So Judaism internalizes an idea of religion that Zionism claims to reject.

This all matters for these reasons: generally, even though there is an attempt to found a modern state that rejects a certain legacy of religion as privatized belief, in a modern nation state it seems very difficult not to internalize. In Israel, one of the things we see is that the problem of minorities is also a problem for Jews who do not consider themselves or are not considered Jewish by Orthodoxy. Israel ought to institute civil marriage and other institutions where Jews and non-Jews can have their rights recognized. The point is that conversion understood through Zionism and religion is not just about religion, and so the notion of being a Jewish and democratic state is not fundamentally problematic as long as there are individual rights along with the general religious rights.

Jeremy Kessler (Columbia Law School)

Religious libertarianism in the United Sates. American law of religious freedom has tended to focus on minorities and runs afoul of secular groups. It has also failed in forming coalitions between religious groups.

By the end of the 1830s there has was a disestablishment of religion on the federal and state levels. There have been exemptions, but generally these exceptions are really exceptions. But by the end of the 19^th century another problem emerged – what to do with religions where laws forced them into behavior that infringed upon their rights. Until the 1940s, claims regarding religious conduct failed. It was understood that the government could not force belief but could compel act or failure to act. This changed, primarily through the litigation brought by Jehovah’s Witnesses. The Witnesses’ main activity was the door-to-door sale and distribution of religious literature. Many towns had regulations over this peddling activity, to which the Witnesses objected, along with objecting to expulsions of students who refused to salute the flag. Witnesses turned to litigation, which was based on religious arguments, but they were unsuccessful in courts. During the 1930s more influential groups began making arguments against the New Deal on first amendment rights, contending that dissent was effectively taxed or that labor laws discriminated against certain religions. These groups joined the Witnesses’ cause. This coalition paid off. The Witnesses brought several cases to the United States Supreme Court and won all of them. These precedents protect conduct as well as belief, including the right to refuse to salute the flag. In the 1943 cases the Court held that the first amendment had a preferred status. Justice Jackson warned the Court that the new treatment of religion would allow religious rights to outweigh others. 70 years later we see this in decisions on health care, etc. But generally religious protections are meant to protect individuals, not wealthy organizations, though some of the early free exercise cases protect economic interests.

Pnina Lahav (Boston University School of Law)

Is Israel democratic and Jewish, or Jewish or democratic, and how can this be viewed through the example of the Women of the Wall? Netanyahu declared that Jerusalem is the absolute and exclusive capital of Israel,  and that there is complete freedom of religion there. This is surprising in the context of the Women of the Wall, who argue that communal prayer by women is not prohibited by Jewish law. They emphasize opening the Torah scroll, wrapping themselves in the tallit and raising their voices in tefilla. They want to pray at the women’s section at the Wall. It’s a hybrid of rights – religion and sex equality as well as the issue of space. They could pray elsewhere, but the issue is whether they can pray at the Wall, because it is most symbolic. When the Women first came to the Wall they were met with violence, without police protection, and they ended up at the Israeli Supreme Court. At the end of three rounds, the Court would not allow them to pray there but at a different adjacent place. There’s a fourth round of litigation pending.

What we see here is a multi-layered system. On the surface is secular law pitted against Jewish law – gender equality, free speech, freedom of religion. Jewish law denies gender equality and does not recognize women’s right to pray communally. This tension found expression in this litigation. Then there is a tension within Jewish law – a challenge to Halacha on women’s prayer. So who is the ultimate authority? The law, or the rabbi as a state employee? rabbi or the law who is a state employee? Other rabbis in Israel? This reflects a Zionism problem – does Israel represent the center of religious concepts? Then there’s tension between Jewish law and Jewish custom. As the argument goes, even if Jewish law does not prohibit women’s communal prayer, custom has been against it and custom in the space of the Wall should prevail. But the question of custom at the Wall goes back to 1967, and since the Women have prayed there since the early 1990s, they already have a custom that should be respected. The institutional question is whether the rabbis respect the authority of the Court to say what happens at the Wall, which is an Israeli space. For the rabbis this is a zero-sum game and they will not compromise. This is why the court ultimately advised the Women to pray elsewhere.

My second point is that from Israeli law the result is unremarkable – that women have a right to pray at the wall, but they know it would be very hard to persuade the rabbis. This is not atypical; every court has tactics to avoid decision. Here, for many years the Court advised the legislature to take action, but this ultimately led nowhere. So the separation of powers is getting us nowhere, no branch wants to bite the bullet.

In the final analysis this is a general story of women – women are expected to ultimately shoulder the burden. Here for the unity of the Jewish people women must sacrifice and compromise. But what is the unity of the Jewish people? In the United States, for example, most are Reform or Conservative. The women can go to any synagogue and pray, but they insist on the wall because of the symbolism for Israeli sovereignty and the tradition of Shechina – God’s residence at the Wall.

The aftermath: the Women recognized that litigation was not going to help them. The Women then resorted to civil disobedience, defying authorities. Second, they are active in social media and try to get a lot of traction. It is unclear where this may take them, but it allows evaluation of the Jewish state. In the final analysis it looks like the Jewish people in the Diaspora will influence this, if they put enough pressure on the government to recognize women’s rights to pray as a group.