חומר רקע

Published 25 Israel Yearbook on Human Rights 193-241 (1995) This is a computer scan version that contains some errors of transfer. RELIGION, MULTICULTURALISM AND EQUALITY: THE ISRAELI CASE By Frances Raday* I. INTRODUCTION Equality is perhaps the stepchild of civil rights in Israel. In spite of its place of glory in the Declaration of the Establishment of the State of Israel (hereinafter: Declaration of Independence) in 1948,1 the principle of equality has been a withered branch of Israeli law. One of the main reasons for the demotion of the principle of equality in the Israeli legal system is deference to religious values. It is the above interaction which forms the subject of this paper. 1. On Equality The concept of equality is basic to any theory of justice. Over the past two hundred years, the scope and nature of the concept of equality have been transformed in politico-legal theory from an arithmetic and formal equation, which could be differentially applied to different social groups and which served to reinforce the privilege of the dominating elite, to an all-embracing formula which recognises the members of all human groups as subjects of entitlement to equal treatment. 2 This shift of perception in political and legal thought has produced a widely based international consensus that members of disadvantaged sub-groups have a fundamental right to equal treatment and that States are required to take active measures to guarantee the implementation of that right. This concept of equality has been adopted and given force in 20th century legal instruments, both at the level of international law and constitutional and municipal legal principles,3 and has been established as a fundamental principle of Israel's legal system.4 2. Historical and Socio-Political Background The place of religion in the Israeli legal system is derived from a complex historical and political reality. The State inherited from the British Mandate the Ottoman Millett system, which granted autonomy over matters of personal status to the three major religious communities living in Palestine - Jewish, Muslim and Christian.5 Under this system, the laws relation to marriage, divorce, maintenance, inheritance and the custody of children were the laws applied by the various religious courts to the members of their different communities. The national-cultural identities of these communities were perceived in pre-State Palestine as being an extension of their religious definition. After the founding- of the State, the religious autonomy retained by the non-Jewish minorities has continued to be regarded, from the perspective of these communities, as a central element of their national cultural autonomy representing, in a wider sense, a form of community autonomy. In regard to the Jewish population, there has been a constant clash of ideologies as to the nature of the "Jewishness" of the Jewish State whether its identity was and is religious of necessity, or whether it has a non-religious historic, cultural and political identity.6 It has been said that mainstream modern political Zionism has a clear preference for a secular definition of the Jewish character of the State.7 Nevertheless, the existence of a socio-political perception of association between national-cultural and religious identification cannot be ignored. The group identity of the founding Jewish population had been formed through generations of minority existence in hostile social and political environments under which, in accordance with the prevailing political norms, Jewish identity became indistinguishable from religious identity.8 In seeking to give content to the “Jewishness” of the State, obviously the well-tried and documented religious definition has been the most easily available. Furthermore, for the Orthodox religious sector, according to the traditional Jewish conception, “the function of state-government is the enforcement upon the population of divine law as established by the legitimate religious authorities.”9 An immediate compromise in favour of the status quo, the Millett system, was made by the Zionist leadership when the State was founded10. From that time until the present, this status quo has been consistently upheld by the power of the religious political parties in coalition governments.11 It is significant, however, that this compromise was superimposed on existing pre-State legal facts. One can only speculate as to how far this affected the initial outcome of the ideological debate. These brief glimpses into the historical development of the legal incorporation of religious rule into a modern democracy reveal the ongoing political expediency of retaining the system. Forces for change have to contend with a formidable array of vested interests in favour of maintaining the status quo. 3. Constitutional Policy Issues Constitutional regulation of State support for religion may take the form of guaranteeing non-interventionist neutralism or of .permitting promotion of religion in accordance with constitutional principles. Where the State adopts a policy of non-interventionist neutralism toward all the various forms of ethical ideology, religious or ethical belief remains a private matter and there is theoretically no problem in ensuring equal treatment. In such a situation the State needs only to ensure absolute non-intervention in the realm of private conscience and equal treatment naturally follows. The solution of separation of State and religion was intended to achieve this kind of egalitarianism on a conceptual level.12 However, where religious or other forms of ethical expression is perceived as requiring public expression and where the State adopts a promotionalist and not a non-interventionist stance, the problem of securing equal treatment becomes crucial. This is the case in the Israeli reality. a. The Impact of Religious Promotionism on Sub-Groups There are four sub-groups which may be disadvantaged by the current modus vivendi on law and religion in Israel - non-Jewish communities, non-Orthodox Jews, the secular, and women. These groups have some differing characteristics for the purpose of an equality analysis: First the membership of some but not all of these groups is acquired immutably at birth. The religious communities are hereditary communities, both sociologically and by legal definition. In theory, membership in a religious group can be changed by choice; in practice, however, because Judaism, Christianity and Islam represent national- cultural group identities, in the Israeli reality, choice is operative only between different streams within the major religious communities. Women, needless to say, derive their membership of the female class immutably at birth. Second, some of these groups fall obviously into traditionally protected group discrimination classifications - religion, race or national origin and sex - while others do not. It is clear that members of hereditary religious groups, whether they are considered to constitute a racial or national origin group or not, and women, are entitled to protection against group discrimination under the internationally recognized norm of equality; as regards non-Orthodox Jews and the secular, protection against discrimination can be derived from the norm of equality but these groups do not form part of the hard core of identified historically discriminated against groups. It is not, of course, coincidental that it is those groups whose membership is determined as a birth status who are accorded the highest level of protection in anti-discrimination regulation, Clearly a discriminatory disadvantage immutably imposed at birth, on grounds of group membership, is the most severe form of group discrimination. As for secularism, the relevance of equality analysis is ideological and does not relate to group membership as such. The secular can claim an equality entitlement to recognition of their interests and ideology on an equal footing with religious ideologies. The claim would be one of symmetry: that the entitlement to freedom from religion be given equal consideration with the entitlement to freedom of religion. There can be little doubt that secular ethics compete with religious ethics in contemporary society.13 The link between freedom of conscience and equality is to be found in the right of every person to reason about the nature and substance of the ethical obligations imposed upon him or her, as a democratic equal, and to choose between ethical alternatives.14 It has been argued that it is difficult to compare freedom of religion with freedom from religion. While every religion has a system of dictates which the religious person must observe, this is not so for the secular since their belief is not composed of a series of ceremonial obligations but of release from obligations.15 Where, however, we are talking about the distribution of resources in society and about the nature of the social contract under which we all live, the requirements of the secular are not merely the release from religion but a positive requirement of equal opportunity for each person to forge and enjoy the resources of the society in which he/she lives16 The impact of the promotion of religious values as legal norms on each of these sub-groups requires analysis in the light of the principle of equality and this will be a central endeavour in this article. b. The Concept of Promotionalist Neutralism As between the religious communities in Israel, the Millett system has been said, on the face of it, to be conceptually egalitarian in that the autonomy of the different religions is equally recognised.17 Equality based arguments are adduced to justify an equal promotionist approach, with the claim that in a society in which secular educational and cultural activities are State funded, equal treatment considerations require State funding of religious educational and cultural activities since these are competing value systems.18 There are, however, also equality arguments which militate against the idea that promotionism can be neutral or equal. It is highly problematic to promote religious activities without infringing the principle of equality.19 Where the choice to recognise certain religions is based on social concepts of worthiness, a choice between groups is made which cannot be objectively justified and, hence, cannot be said to bar the charge of inequality by the unrecognised.20 Not only is a choice between different religions problematic, but so also is the choice between sects within any particular religion. If the test of the validity of a specific interpretation of a religious doctrine is based on interpretation by State agencies, whether the legislature or the courts, such intervention must undermine the right to equality in freedom of worship. This, of course, remains true whether such interpretation is direct or through adoption of any particular sect's interpretation. In the case of Peretz v. Local Council of Kfar Shmaryahu 21Justice Cohen, with Justices Zussman and Witkon concurring, summed up the matter thus: Religion and worship are not only of legal rules, in the nature of some kind of book to which we refer, but in their essence they are of the heart, in belief and faith, and even in taste and sensation. and these are not measured by objective criteria equally applicable to all.22 Establishment of the criteria for funding as between recognized religions suffers, of course, from the same conceptual dilemma as the initial choice between the recognized and the unrecognised religions.23 The extent of support provided for the various recognized communities is highly unlikely to achieve implementation of any theoretical aim of equal treatment. Hence, the equality based justifications for a promotionist approach are likely to lead to funding policies which belie the rationale of equality. Furthermore, equal promotionist arguments should not be adduced for religious activities when these are different, with a degree of relevance, from the funded secular activities which constitute the basis for the claim of equal treatment. In this case, differences in their treatment by the State would not be discrimination. To give an example reflecting the reality regarding some religious activities in Israel24: Where the religious group is anti-Zionist and promotes the non-participation of its members in State activities such as the payment of taxes or army service (not on grounds of pacifist conscience but of sectorial preferences), or preaches discrimination against particular sub-groups, it might not qualify for some kinds of State funding on an equality analysis .25 For the purpose of educational funding, for instance, there might be equality grounds for drawing a distinction between such a group and funded groups on the basis of the objects of State education.26 That same religious group, however, might be able to make an equal promotionist argument for State funding of other cultural activities thus, synagogues and ritual baths might be compared to secular programmes on the public media, theatres or sports activities. Here its antiState or anti-egalitarian philosophy would not necessarily obstruct its claim for equal promotionism, and, on the contrary, the principle of freedom of speech protects the claims of beneficiaries of parallel kinds of cultural activity to State funding27 4. Purposes of this Research In the first part of this article, I shall explore the possible justifications for according legal dominance to religious values even where they infringe the principle of equality. This analysis will involve a consideration of multiculturalist arguments - should the value of imbuing a society with its own traditional moral values be considered to have priority over the quest for egalitarianism? It will involve an examination of the claim of democratic legitimisation - can a majority social consensus, expressed through the democratic vote, vindicate the deference to religious values over the right to equality? Finally, I will explore whether, if multiculturalism and consensus do not legitimise a deference to religious values, individual acquiescence will validate consent to inequality. In the second part of this article I shall show the interplay between deference to religious values and the principle of equality in the Israeli legal system. I shall show the extent to which this interplay is expressed in basic legal institutions, from constitutional principles and legislation to court judgements. Finally, I shall explore, on a comparative basis, policy factors which determine the role of the legal system in establishing a balance between the values of religion, equality and multiculturalism. II. MULTICULTURALISM, CONSENSUS AND CONSENT In order to ascertain the principles which should govern the role of the law in regulating the interaction between religious and equality values, it is necessary to clarify the significance for normative theory of two basically opposed approaches: the first, legitimisation of deference to religious or sub-community, over universalist values; and the second, insistence on the guarantee of equality as a universal norm, not to be curtailed by majority decision within communities or sub-communities. In this context - the limited context of developing normative theory in a legal system of our kind - I shall examine the significance of these two world views. To this end, I shall briefly present and analyse the theoretical contentions which can be adduced in support of deference to religious values over universalist values. To the extent that those contentions fail, I shall contend that equality can be demonstrated to be a universalist value which should be given dominance in the legal system. A number of theories of justice may be put forward in support of deference to religious values. The first, to which I shall refer as the multiculturalist approach, contends that preservation of community autonomy is a sufficiently important value to override equality claims. The second, which I shall label the consensus approach, argues that the status quo has the sanction of political consensus in a democratic system. The third, which may be regarded as the consent or waiver approach, claims that there is widespread individual consent to the prevailing deference to religious values, and that those who do not opt out can be taken to have consented. 1. Multiculturalism Communitarian claims that adherence to the traditions of a particular culture are necessary in order to give coherence and a sense of meaning to our lives could be considered a source of justification for according Jewish and, as regards the non-Jewish communities, Muslim or Christian tradition preference over universalist principles of equality.28 The relevance of tradition to the choice of moral imperatives for a society is expounded by Maclntyre, who argues that the ethics of tradition rooted in a particular social order are the key to sound reasoning about justice.29 Communitarianism is closely allied with anthropological concepts of enculturation and cultural relativism - the idea that moral consciousness is unconsciously acquired in the process of growing up in a specific cultural environment.30 From this description of the way in which human morality evolves there have been those who have concluded that there is no objective social justice and that each cultural system has its own internal validity which should be tolerated.31 Normative communitarianism is oriented to the preservation of tradition within the culture. The culture is identified by its existing patterns and standards and recognition of the culture's intrinsic value seems to go together with a desire to preserve them.32 Where the culture is based on religious sources, this traditionalism will often be accentuated by the demand that social patterns remain faithful to the written sources. Certainly as regards Judaism, Christianity and Islam - which are the cultural patterns under discussion in this article - preservation of the culture requires social observance of the standards laid down in historic written sources. The most recent of these authoritative sources dates from the 16th century.33 Hence, the concept of preservation of tradition is an extremely significant factor in the maintenance of these cultural systems. Where does this approach to ethics lead us in the context of legal implementation of the values of religion and equality in Israeli society? Three different aspects of the communitarian argument deserve attention in examining this question: social meaningfulness, relativism and preservation of tradition. First, does the contribution Jewish culture can make to the meaningfulness of social existence justify deference to Jewish cultural values in the Israeli legal system? On the face of it, promotion of Jewish culture, like the promotion of any other culture, answers the aims of normative communitarianism. However, where a country is host to a number of different cultural groups, like Israel, for example, the concept of multiculturalism cannot of itself legitimise the dominance of any particular culture within a multicultural society. For sub-groups which do not belong, to the dominant culture, multiculturalism requires equal recognition of their cultures. Only in this way can the “meaningfulness” of community existence be realised for them. Indeed, this requirement, as we have seen, is accorded recognition in the Millett system's concept of promotion of religious autonomy for the non-Jewish sub-groups in Israel. Where, however, in its application the promotionism is not equal for Jewish and non-Jewish cultures, the multiculturalist argument not only fails to justify it, but actually condemns it. It is clear that some of the sects within Judaism, even if they regard the Jewish culture as “their culture”, do not regard Orthodox Judaism as such. Imposition of an alien code of behaviour on. these subgroups subverts the very meaningfulness of community norms propagated by communitarians. Any religious version of their community's culture may be alien to many of the secular of all the religions34 Although secularism cannot be said to provide an internally absolute value system, what it does provide, in the eyes of some post-modernist philosophy, is an emphasis on the freedom to make interpretative choices 35 Restrictive imposition of religious values is likely to create a barrier to the sense of the meaningfulness of social existence for secular persons, limiting, as it does the range of permissible interpretative choices. Second, does the cultural relativism implicit in normative communitarianism displace the value of equality? If cultural relativism is taken to its logical conclusion, it undermines not only the value of equality but also the value of communitarianism itself, since communitarianism is also the product of a particular cultural pattern of thinking.36 Indeed, taken to extremes, cultural relativism is another name for moral nihilism and, if cultural relativism were to be taken as the dominant value basis of a legal system, it would be impossible to justify any moral criticism of its norms.37 At this level, multiculturalism could not be useful in any attempt to engineer legal policy in a positive legal system. If, however, we acknowledge that cultural relativism is merely a tool which helps us to distinguish ethnocentric from universal standards, then it will not, I would argue, override the value of equality. This stems from the fact that equality is indeed one of the universally shared ideals of our time38. Furthermore, equality might also be described as a threshold requirement for multiculturalism itself - the very objection to moral universalism rests on the accusation of moral imperialism and lack of equal respect for the cultural mores of groups considered to belong to inferior cultures.39 Hence, acceptance of the imperative of equal respect is itself implicit in multiculturalist arguments. In the context of Israeli society, the argument that the value of equality should not, under multiculturalist concepts, be displaced by specific religious/cultural norms is even stronger because the value of equality is not an alien universal standard but an accepted internalised social value. Third, let us take a look at the way in which communitarianism secures the value of preserving tradition. If the preservation of tradition is considered to be an inherent aspect of communitarianism, as it seems to be in the writing of its proponents 40 the legitimacy of the claims of the theory to override universal principles such as the right to equality must stand or fall along with the legitimacy of the claim that traditionalism should do likewise. There is a whole battery of reasons why traditionalism cannot legitimately be regarded as overriding the principle of equality. Traditional patterns cannot form the dominant foundation for current meaningfulness, except in a static society. It may be that the ethical norms of a society are themselves a factor in determining the dynamism of the society and it is not inconceivable that a society which believed in traditionalism as an ethical imperative might "choose" to be static. However, where as an empirical fact the society does change, in ways not dictated by the ethical traditions of the society, a rigid application of traditional norms will produce dissonance. Communitarians do not tell us how we can continue to apply the community's traditional values to hanged socio-economic institutions41. We can take some concrete examples. Rules for ensuring the sacredness of the Sabbath and nonemployment of labour are not suited to an urban society in which the maintenance of centralised services - water, electricity and gas, transport and communications - are essential to social survival and intercourse, or to a sophisticated technological infrastructure which cannot be brought to a halt once a week. Patriarchal religious norms which exclude women from the public sphere are ill adapted to a society in which women are out at work and responsible for their own, and often their children's survival, rather than "protected" and "supported" within the hierarchy of an extended family. Furthermore, if traditionalism is allowed to oust egalitarianism, it is an effective way of continuing to silence any voices which were not instrumental in determining the traditions. As Okin shows, the Aristotelian-Christian traditions chosen by Maclntyre to demonstrate the appeal of his communitarian theory are not women's traditions. Women were excluded not only from the active process of formulating those traditions but also from inclusion as full human subjects of the theories of justice developed within those traditions.42 The same can be said for Judaism and Islam. Similarly, the argument can be applied not only to women but also to the secular. Secularism and feminism - new voices ­are silenced where traditional values are imposed. The impact of allowing communitarian/religious norms to override the principle of equality is to silence sub-groups who wish to contest the status quo and contend for their own interpretation of the world. 2. Consensus If communitarianism does not justify the domination of religious/ traditionalist patterns of social organisation in the legal system, might ranging social consensus nevertheless become a legitimising factor? It has been argued by Walzer that justice is relative to social meanings and a given society is just if its substantive life is lived in a way faithful to the “shared understandings” of its members. This view legitimises the adoption of particularist principles of justice in preference to universalist oes43. The process of reaching shared understandings is seen as a dynamic one based on a dialectic of affirmation by the ruling group and development of dissent by others.Walzer's theory of justice ' has been criticised in so far as it applies to situations of “pervasive domination”. Okin points out that in societies with a caste or gender hierarchy, it is not just or realistic to seek either shared understandings or a dialectic of dissent. Where there is pervasive inequality, the oppressed are unlikely to acquire either the tools or the opportunity to make themselves heard. Under such circumstances it cannot be assumed that the oppressed participate in a shared understanding of Justice. Rather, there are two irreconcilable accounts of what is just44. Application of a "shared understandings" theory could be justified only if the dissenters were assured of equal opportunity to express their interpretation of the world and challenge the status quo. The principle and practice of equality are hence a prerequisite for application of the shared understandings theory. Empirically, there is evidence of a lack of any overall social consensus in Israel on a national level which may 'justify the deference to religious over egalitarian values. Political consensus based on party politics does not necessarily represent "shared understandings." There may exist, however, a shared understanding within sub-groups. Can this shared understanding justify the deference to religious over egalitarian values in regard to the sub-group itself? To give an example, even if deference to religious norms regarding marriage and divorce, where those rules infringe principles of equality, cannot be 'justified for the community at large, can it nevertheless be justified for those sub-groups which adhere to a traditional religious way of life? In such sub-groups, it may be argued, freedom of religion, communitarianism and consensus combine to indicate the ethical propriety of respecting the voice of the sub-group. The problem with this approach arises at the sub-sub-group level. If the religious convictions of the sub-group condone unequal treatment of groups or individuals within it, at what level should the "shared understanding" of the group be ascertained? If, for instance, there is a caste of slaves, untouchables, eunuchs or women within the group which, on the basis of its birth characteristics, is excluded from equality of opportunity, this sub-sub-group cannot be taken to share in the sub­group's understanding, even if it does not formulate its own dissent. The silencing of such a sub-sub-group should pre-empt wholesale deference to the sub-autonomy. Such deference to the sub-group's autonomy would negate concern for the autonomy of oppressed sub-sub-groups within it.45 This is true, in the religious communities, of the sub-sub-group of women. Their sharing of the community understanding cannot be taken for granted even if they do not express dissent - where that understanding is based on a patriarchal tradition. In the words of Simone de Beauvoir: Now what peculiarly signifies the situation of women is that she - a free and autonomous being like all other human creatures ­nevertheless finds herself living in a world where men compel her to assume the status of the Other. ... How can independence be recovered in a state of dependency? What circumstances limit women's liberty and how can they be overcome?46 More recently in the words of Okin: When the family is founded in law and custom on allegedly natural male dominance and female dependence and subordination, when religions inculcate the same hierarchy and enhance it with the mystical and sacred symbol of a male god, and when the educational system .... establishes as truth and reason the same intellectual bulwarks of patriarchy, the opportunity for competing visions of sexual difference or the questioning of gender is seriously limited.47 3. Consent Even if we reject the concepts of multiculturalism and consensus as justifying the imposition of inegalitarian norms on or within sub-groups, this will not invalidate direct individual consent to those norms by members of the sub-group. Only if the inegalitarian norms reach a level of repugnance which justifies an absolute prohibition by the legal system will free and genuine consent be ineffective. The invalidation of consent may be applied in extreme cases of oppression of sub-castes - examples of which include slavery, mutilation, or polygamy. All these kinds of oppression may be classified as repugnant and hence consent will not validate them.48 in a democratic system. Alternately, they may be considered to undermine the potential of the members of the sub-sub-group to exercise an autonomous choice to dissent so severely that no consent can be considered genuine.49 In either case, the wider ethical norms of the State should be imposed on the sub-group in order to protect the autonomy of members of the sub­-caste. In such extreme cases, mandatory legal techniques should be employed to release the sub-caste member from his/her inegalitarian status, and to mitigate any accompanying adverse socio-economic effects of the release.50 It seems clear that, both practically and theoretically, a genuine choice to accept certain social mores - provided these do not fall within the category of prohibited repugnance - should be accepted as valid even if the acceptor will be disadvantaged by them. This liberty to choose is an essential part of the freedom of religion and the right to equal autonomy of the individual and the group.51 However, as I have shown above, formal consent is not necessarily evidence of genuine consent in the context of pervasive oppression. In such situations, all consent must be suspect since pervasive oppression seriously diminishes the possibility of free consent. Individuals who consent to the perpetuation of their inequality as members of a historically disadvantaged caste within the religious/cultural community to which they belong have little real choice, but to accept their oppression because of their social status and because their alternatives to acceptance of group dictates may be very limited, if not non-existent. If consent is considered a legitimising, criterion for imposition of norms, then, where sub-group members are compelled by status or socio-economic necessity to accept an inferior status, the role of the legal system should be to enhance their level of autonomy in order to facilitate their power to give or withhold genuine consent. There are perhaps ways in which this can be attempted a priori. The legal system might insist on full disclosure of options so that members of a sub-group be enabled to make their decision to be treated as unequals on the bas's of informed consent. Thus, for instance, compulsory education laws might incorporate a requirement that all children be exposed to information regarding fundamental human rights including the right to equality. However, all the options of preparing members of groups to exercise autonomous choice are of course problematic in view of the principles of freedom of religion and freedom of expression.52 There are less problematic ways in which enhancement of individual autonomy can be achieved ex post facto. The legal system can provide a right of exit for those members of the sub-group who wish to withdraw their prior consent to be subjected to inequality within the religious community.53 The liberal notion of freedom of religion includes the right of each individual to change his religion at will; people have a basic interest in their capacity to form and to revise their concept of the good.54 This is especially so where the revised concept of the good which is being, chosen is the fundamental human right to equality. In this case, the right of exit rests not only on the principle of freedom but also on the right to equality and the suspect quality of initial consent to inequality. In legal terms, the consent to inequality should be considered voidable.55 As in the case of prohibited repugnance, the release from an inegalitarian status can be effective only if the socio-economic effects of the release are regulated by egalitarian norms. Only in this way can a true right of exit be secured.56 III. RELIGION VERSUS EQUALITY: THE ISRAELI LEGAL SYSTEM 1. Constitutional Principles Nowhere is the deference to religious institutions over the principle of equality better revealed than in the formal constitutional documents produced during the existence of the State. When we speak of constitutional documents in Israel, we are referring to something- less than a written constitution. Israel does not have a complete written constitution and indeed the deference for religious over egalitarian values is one of the central factors contributing to that situations, as I shall show. In 1948, the Declaration of Independence expressly incorporated Guarantees of equality in political and social rights without discrimination on grounds of race, religion. or sex.57 It expressly provided for both freedom of religion and freedom of conscience, while at the same time it established Israel as a Jewish State based on freedom, Justice and peace as envisaged by the prophets.58 It has been said that this shows signs of ideological ambiguity.59 But even if this were so, and in view of the historical background of the drafting of the Declaration, it seems to be otherwise, it certainly cannot be said to establish a regime of deference for the value of religion over equality. It is, rather, the values of equality and freedom of religion and conscience which are given explicit guarantees while there is no express provision that the Jewish character of the State must be religiously defined. In 1951, however, with the legislation of the Women's Equal Rights Law, it became clear that, at least in regard to equality between the sexes, religious values were to be accorded clear priority. The Law expressly excluded marriage and divorce laws from the scope of its guarantee of equal -treatment for women.60 Since marriage and divorce laws were to remain under the jurisdiction of the religious courts, this exclusion of equality for women in the framework law laid the ground rules for the subsequent subordination of the principle of equality to religious values in the Israeli legal system. All subsequent attempts to legislate a bill of rights which includes the right to equality have foundered on this point. In some such proposals existing law is preserved together with its inegalitarian norms,61 in some there is an express provision that the law will not apply to laws of prohibition and license in marriage and divorce,62 and in others an attempt has been made to allow future individual opting out of the personal law system at the time of marriage.63 None of the proposed bills got very far in the parliamentary process. Perhaps the central reason for this was the opposition of the religious parties, which were not prepared to tolerate these bills even with their watered down version of equality. In 1991, the civil rights lobby in the Knesset suspended the attempt to legislate a constitutional bill of rights in favour of promoting a series of separate basic laws which guarantee individual human rights. Two basic laws were passed: The first in 1991, guaranteeing freedom of occupation and the second in 1992, guaranteeing human dignity and liberty.64 While the right to equal treatment and opportunity should certainly be considered an inherent aspect of the "human dignity" guaranteed in the 1992 Law, it is in no way accidental that the word equality itself does not appear. On the contrary, it is clear that these two basic laws were actually legislated in lieu of a general constitutional bill of rights in order to avoid the difficulty of giving constitutional priority to the principle of equality as such. Furthermore, a comparison between the two laws shows that the principle of human dignity and liberty, which might conceivably be used to promote equality, was legislated as a weaker constitutional right: unlike freedom of occupation, this right was perhaps not expressly entrenched and can therefore be reversed by ordinary legislation; and furthermore it will not override existing law, statutory or judge-made.65 Finally, the expressed purpose of the 1992 Law is to entrench the values of the State of Israel as “a Jewish and democratic State”66 and the Law allows legislation which “conforms with the values of the State of Israel, is intended for an appropriate purpose and is not disproportionate to the This section leaves a possibility for attainment of that purpose”.67 This section leaves a possibility for preservation of the status quo in regard to the definition of Jewishness and its place in the values of the legal system.68 In 1994 the Basic Law was amended to include as criteria the principles of the Declaration of Independence. These principles include explicitly the value of equality and hence, it could be said that the judicial review will now be based on three criteria: democracy, the values of the Jewish State and equality, but the precedence of equality has still not been explicitly established but only incorporated by reference.69 Nevertheless it seems clear that, in spite of these limitations, the Basic Law has opened up a new possibility of challenging norms which give dominance to religious values over secular values in the regulation of public life if they infringe human dignity or liberty. Under this Basic Law, it is to be expected that the Supreme Court will review pre-existing provisions with a higher degree of scrutiny and the Court will certainly have the power to overturn any future measure taken by any public authority - executive, judicial or legislative - which infringes the rights protected by the Basic Law. In the following pages we shall examine to what extent current regulation of State and religion affects the rights of each of the sub-groups - non-Jewish communities, non-Orthodox Jews, the secular, and women - to equal treatment. a) Non-Jewish Communities Conceptually the Millett system is egalitarian in that equal respect is afforded to the various religious communities in Israel. As we have seen, each of the communities has autonomous jurisdiction over the personal status of its members. Also, prohibition of work on the weekly day of rest and religious holidays varies in accordance with the religion of the employees70 and, in regard to the opening, of businesses, in accordance with the religion of the owner and the make-up of the local population.71 This equal respect is, however, restricted in its scope. Israel was established as a “Jewish State” and this results in a preferred status for Judaism, which expresses itself in various ways beyond the confines of the Millett system.72 Religious activities in Israel are State-promoted and there is a preferred status for Judaism in its institutionalisation as the official State religion.73 Varying levels of support and recognition of the different religions have given rise to charges of unequal treatment.74 This primacy of Judaism has been given renewed constitutional sanction in the 1992 Basic Law which entrenches the values of the State of Israel as "a Jewish and democratic State". b) Non-Orthodox Sects in Judaism - An Orthodox Monopoly Within Judaism, as a religion, there is an available range of choices of belief between Orthodox, Ashkenazi or Sephardi, Habad, Netorei Karta, or Lubavicher interpretations, and between Orthodox, Conservative or Reform Judaism. There are also birth status sects such as the Karaim and the Ethiopians, both of which practice their own form of Judaism, The application of the Millett system to the Jewish community has resulted in the hegemony of Orthodox Judaism. Jurisdiction over marriage, divorce and connected matters, licenses to register marriages or to perform religious burials and jurisdiction over the Jewish holy sites are delegated almost entirely to the Orthodox establishment.75 Conservative and Reform Jews, non-Orthodox sects of Judaism well established amongst Jews abroad,76 have repeatedly challenged the resulting non-recognition of their movements. The first challenge before the High Court of Justice was in 1962 and was Successful.77 The Court held that the Reform Movement was entitled, on equality grounds, to use public facilities which were made available for Orthodox Jewish activities for its meetings. Some of the challenges in the 1980s - those concerned with registration of Jews converted to Judaism by Reform rabbis abroad ­were successful. Their success, however, rested on statutory interpretation rather than on the principle of equality.78 Furthermore, the outcome in these cases mainly affected what might be called the international relations aspect of Judaism and did not make substantial 'inroads into the Orthodox hegemony over the internal fabric of Israeli society. In only one case has the equality issue regarding the Orthodox monopoly over the determination of personal status - which is the cornerstone of the Orthodox monopoly in the Israeli legal system - been fully examined and, in that case, the challenge failed. The case concerned the refusal of the Minister for Religious Affairs to recognise Reform rabbis as marriage licensing authorities.79 The Court found that the Minister of Religion was acting within his authority and on reasonable grounds in accepting the expert opinion of the Chief Rabbinical Council in Israel which denied the eligibility of the Reform rabbis -to register marriages.80 The Movement for Progressive Judaism had asked the High Court of Justice to find discrimination as compared with those Jewish sects which have been granted licenses - the Orthodox, on one hand, and the Karats, an ancient minority sect of Judaism, on the other. The Court did not summarily reject the comparison but rather examined it and rejected the analogy between Reform Judaism and the Karaim. Vice President Elon found that the Karaim were distinguishable because membership of the sect is a birth status while Reform Judaism is a personal belief.81 In a recent challenge regarding their right to participate in religious councils, the Conservative and Reform Movements were successful but once again that success did not bring their right to equality as religious movements fully into focus. The High Court of Justice held that members of the Conservative and Reform movements who had been elected as representatives of political parties to religious councils, could not be discriminated against due to their own personal religious beliefs. It should be noted, however, that the Court emphasised the personal aspect of their religious beliefs and the fact that the members did not represent these beliefs on the councils but rather represented the political parties to whom they were affiliated. Thus, no recognition was afforded to or representation allowed of the Conservative and Reform movements 82 In contrast, in the case of the petition of the Movement for Progressive Judaism to be included in an exhibition of religious services organised by the Ministry for Religious Affairs, Justice Shamgar gave full theoretical recognition to the night of Jewish sects other than Orthodoxy to equal treatment by public authorities. However, the Court nevertheless rejected the petition on grounds of administrative convenience - the short time before the opening of the exhibition - and doubt as to whether the Ministry's decision not to include the Reform Movement had indeed been inegalitarian since its reasons for doing, so were that it had included only religious activities in which the Ministry itself had taken part - and these were activities of Orthodox Jewish sects.83 Another recent challenge. this time brought by a dissident Orthodox group, was concerned with the Rav HaCotel's (Rabbi of the Western Wall) exercise of his statutory authority to make regulations regarding the behaviour of the public in the vicinity of the Western Wall (the Cotel).84 The Rav HaCotel prohibited women from praying out loud from the Sefer Tora (Bible scroll), and wearing, prayer shawls in the way that men do, by the Western Wall. A group of Orthodox women challenged this ruling as an infringement of their freedom of worship and of their right to equality as women.85 Their petition was dismissed by the High Court of Justice. Justice Elon held that the ruling was justified since there was clear evidence that the women's public prayer meetings would be contrary to religious law according to majority opinion; further-more, it would cause a violent disturbance to the other worshipers at the Western Wall, leading to a desecration of the holy place. Justice Elon held that, due to the sensitive nature of the site, as the most holy site for the entire Jewish population, a common denominator must be found which would allow all Jews to pray there and that this common denominator was to be found in the religious traditions of the site which had developed over many generations. President Shamgar held that the most effective way to dispose of the issue before the Court would not be by judicial edict. Hence, he dismissed the petition, recommending instead the establishment of a governmental committee to find a way to allow every person freedom of access to the Western Wall while minimising the injury to the sensitivities of other worshipers. Justice Shlomo Levin held that the common denominator which should establish norms of behaviour at the site should be that of all groups or individuals who wish to use it for legitimate purposes, religious or other. He said: "If we do not hold this to be the case, we will in effect give an exclusive monopoly to One particular approach to freedom of expression over another, and the right to worship and freedom of expression will be infringed.”86 In principle, the right of different sects to equal treatment has been recognized in judicial dicta. In the Peretz case, Justice Zussman indicated that the non-recognition of forms of worship on the grounds that they do not conform to a unitary determination of a universal form is discriminations.87 In 1988, in the Movement for Progressive Judaism case Justice Shamgar said: "General activities of public authorities carrying, out State functions must be based on a fair and open approach, which is not conditioned on identification with the ideology of any particular sect but rather gives expression to the right of all sects to equal treatment.”88 Nevertheless, non-Orthodox Jewish sects have made only marginal inroads on the Orthodox hegemony. The Supreme Court has frequently upheld distinctions made between them by public authorities and has done so by upholding the Orthodox interpretation of Judaism, or on grounds of administrative conveniences.89 Where there are insufficient grounds for distinguishing between different sects of Judaism in a convincing way, partisan religious interpretations and administrative convenience should not be considered as adequate Justifications for unequal treatment.90 On the evidence which emerges from the Supreme Court decisions, there has been no convincing brief for distinguishing objectively between the right of the Conservative and Reform Jews to State recognition and funding as compared with that of the various Jewish Orthodox sects and a wide range of Christian denominations. c) The Secular - Disregard for Secularism as a Competing Ideology and Persuasion Religious ideology has been given dominant expression in various spheres of public life.91 This has resulted in the demotion of secular values. There is no right to secular citizenship.92 There is no form of civil marriage. Furthermore,, a private contract of marriage will not be recognized as a marriage unless there was some objective bar to a religious ceremony; and the conscience of the couple will not be recognized as a valid ground for recognising their right to many in this way.93 The only way to marry officially and yet avoid a religious marriage ceremony, on grounds of conscience, is through marriage abroad or marriage before a foreign consul in Israel which will be recognized in Israel in accordance with the rules of private international law.94 But this cannot be regarded as respect for secular conscience within the Israeli legal system. There is preference for values of religion and religious education over values of conscience and secular education with respect to military service. Deferment of army service for students in yeshivot, institutions of higher religious learning, amounts in effect to exemption from compulsory military service of those religious youths who choose this way of life.95 Various techniques have been found for securing the right to veterans' benefits for this group in spite of their non-service.96 The power of the Minister of Defence to effectively exempt the religious population from compulsory army service has been upheld by the High Court of Justice. The Becker challenge to the policy of the Minister of Defence in deferring the army service of yeshiva students was rejected by the Court on grounds of lack of standing.97 After that challenge, the legislature amended the Law to extend the Minister's discretion and forestall future challenges.98 In the Ressler case, the reasonableness of the Minister's continuing and indeed extended policy of deferring the army service of yeshiva students under the amended Law was upheld.99 Religious girls, who declare that they are observant, are exempt from army service on grounds of conscience and the National Service Law - 1953, under which they may be required to do compulsory national service in lieu of army service has never been activated.100. Burials for the general population have been exclusively religious, and in the case of Jews, the Orthodox Hevrot Kadisha (burial associations) have been the only recipients of burial licenses.101 Only kibbutzim and moshavim have had their own burial grounds and have been able to carry out burials in a non-religious ceremony. Recently, after a petition to the Supreme Court by the Association for Proper Rest, the Ministry of Religion agreed in principle to give a license to a non-religious burial association to carry out burials. In view, however, of unexplained delays in allocating land for this purpose, the High Court of Justice has ordered the Ministry to allocate land within a reasonable time.102 The weekly day of rest has been designed to conform in many ways with religious ideology: on the Sabbath, employment of employees is prohibited and work of the self-employed in a place of trade or business is also prohibited,103 public transport ceases in most of the country,104 places of entertainment are closed in many municipalities,105 there are no incoming or outgoing flights into Israel.106 It is prohibited to sell or serve food which is not kosher for Passover in public areas.107 Advertising on public billboards has to accord with religious sensitivities regarding modesty.108 Some legal challenges have been brought before the courts to limit this domination of religious values but they have been only marginally successful in introducing ideological pluralism into public life. These challenges have rarely been based squarely on claims of equality. Many of the successful challenges have been on the basis of statutory interpretation: it is on this basis that the courts have held that they can review the power of municipalities to close streets109 or garages110 or cinemas111 on Saturdays; -on the power of municipalities to impose requirements for kashrut (dietary laws) on the private market112 and on the conditioning of eligibility for kashrut licenses by the rabbinate and religious councils on fulfilment of conditions beyond observance of the halachic dietary laws.113 Furthermore, it is on the basis of lack of standing of the petitioner or other potential petitioners that the Court refused to intervene to prevent the broadcasting- of television programmes on Friday night. 114 The equality issue was addressed, directly or indirectly, only in occasional judicial decisions. In the Kaplan case,115 Judge Proccaccia in the Jerusalem magistrate's court, invalidated Jerusalem by-laws closing places of entertainment on the Sabbath on the grounds that they were based on religious considerations and not in order to secure a day of rest.116 She balanced - as deserving- equal consideration - the interests of the secular in freedom from religion and in the right to act according to their conscience as against the needs and beliefs of the religious and held that the closing of cinemas on the Sabbath constituted a substantive injury to the fundamental rights of the secular population.117 In the Mitterel case,' 118 the High Court of Justice invalidated a government decision to prevent the private importation of meat on the grounds that the decision was based on religious and not economic considerations. Justice Or referred expressly to the need to preserve equality values: A State in which freedom of conscience coexists with freedom of religion and worship cannot prevent one person from eating non­kosher meat merely because knowledge of it will injure the sensitivities of another person... In such a case, consideration of the latter's feelings at the cost of the former's would result in inequality: the person who keeps kashrut will continue in the life style which he believes is correct whilst the other will be forced to live in a way which does not accord with his beliefs, or his non-beliefs - that is, he Will suffer from religious coercion.119 The essence of this balancing of the rights of the secular against the rights of the religious as a concept of egalitarianism emerges from some of the dicta in other cases: There can be no freedom of religion if the citizen is not free not to belong to any religion120. There is absolutely no doubt that it is the night of the individual to shape his life autonomously in accordance with his own world view ... the idea of the freedom of the individual derives from the desire for equality of all citizens in everything which relates to their right to live undisturbed in accordance with their own world view, so long as they do not infringe the law.121 I have presented a picture of the domination of religious over secular values in public life by legal edict and have suggested that pluralistic elements are marginal. On the other hand, it is claimed on behalf of Orthodox Jewry that the status quo prejudices its right to equal respect. the basis of this claim seems to be that the very fact that the country is not in its entirety organised on a religious Jewish basis is considered by the122 Orthodox themselves as injurious to their freedom of religion. It is our view, however, that the right to equal treatment for a religious way of life in a pluralistic community can extend only so far as to leave space for freedom from religion. Let us demonstrate this by applying an equality analysis in greater depth to two issues: regulation of the public arena and military service. First, regarding regulation of the public arena, there are opposing claims of the religious and the secular regarding the mode of behaviour which is appropriate to their differing life styles. Regarding the day of rest: the religious claim that the preservation of the Sabbath according to their rights requires the cessation of all transport, work, commercial activity and entertainment. Regarding modes of public behaviour: the religious claim that the sale of pork or of food which is not kosher for Passover, during Passover or "immodest" advertising on billboards offends their sense of public propriety. These claims are of course counterposed to the opposing claims of the secular to freedom of expression on these issues. Settlement of these claims on the basis of civil liberties, and in particular freedom of speech and freedom of worship, would lead us into an analysis of the gravity of the danger to public peace and sensitivities which would be occasioned by the activity.123 Hence, where one side is likely to react violently to the activity, the chances of the High Court upholding a restriction on that liberty would be higher. However, this would not provide a satisfactory answer regarding problems of equality. On the contrary, it would give an unequal advantage in the struggle to determine the legality of public behaviour to the group which is most militant and best organised to threaten a breach of the peace. This approach totally undermines the right to equal enjoyment of human rights. One apparently egalitarian way to determine these claims has been by regional breakdown into religious and secular areas. If the different areas were neatly isolated from each other, this would indeed make for a kind of segregated equality. However, although there is wide-spread voluntary segregation in housing areas, it remains problematic to determine the boundaries of behavioural norms. 124 Furthermore, some activities cannot be regionally insulated. Public transport, international transport, television and behaviour in neutral commercial areas which cannot be defined by the make-up of local residential populations are examples.125 In regard to activities which are not purely internal to religious communities, there is an unavoidable conflict between religious and secular needs. To concede to the requirements of the religious is tantamount to accepting a right to religious domination and it cannot be justified on equality grounds. Just as the religious are free to influence the atmosphere in shared areas so, equally, should be the secular. In a democratic society - in which there are genuine and extreme differences of opinion between different sectors of the public - there is no alternative but for the different groups to "absorb" the offences to the sensitivities caused by public expression of contrary opinions126. Justice Heshin defines the nature of the limits of freedom of religion in the public arena as follows: The streets of a town lie to one side and the home of a person to the other. The State and its agencies will guard and protect the freedom of religion of a person in his home, but where he leaves his home and comes into the public arena or into the private realm of another person, he will no longer be able to impose his will or his opinion on any other person. 127 The equality issue is present in another mode as regards military service. The reason given by the supporters of exemption for yeshiva students is the importance of allowing them to devote their full time and energy to religious studies and the incompatibility of army life with this pursuit and way of life.128 The claim does not rest on pacifist religious convictions. Nor can it convincingly rest on the national interest in not allowing a way of life representative of Jewish history and experience to disappear, which is clear from the fact that there is no upper limit on the numbers of youths who may avail themselves of this exemption.129 Can any convincing justification be offered, in answer to a claim of inequality, as to why a religious conviction and way of life should be preferred to comparable secular interests? Thus, devotion of time to a secular civilian life style, including education for the secular purposes of musical performance, athletic excellence or scientific research, and including the pursuit of political activities or social volunteering, may be as incompatible with army service as is yeshiva study. There is no doubt that the exemption for yeshiva study results in a preference for religious over secular values. This preference finds its expression in relation to one of the issues most sensitive to the demand for equality, since it relates to tragic choices of life and death.130 It is impossible to see how this preference could be 'justified from an equality perspective, in which freedom from religion is regarded as the corollary of freedom of religion. As regards the exemption of religious girls from army service, the reasoning seems to be different. In their case there is no requirement that the exemption be conditional upon the pursuit of religious studies or an institutionalised form of religious life.131 The reason usually given for the exemption is that -girls who declare a religious conscience should not be exposed to the immodesty of army service. It must be countered that, if there are problems regarding the exposure of girls in the army to sexual harassment, the proper conclusion should certainly be that all girls are entitled to be protected and not that religious motives for opposition to such exposure are to be preferred to secular motives. Such preference infringes equality principles. 4. Women - Subjection to Patriarchal Legal Systems Women are the ultimate victims of the deference to religious over egalitarian values. Patriarchal domination has not been an incidental and unforeseen result of the delegation of power to the religious communities. As we have seen, the Women's Equal Rights Law, 1951 expressly provides that women’s right to equality under the Law would not apply to the determination of status in marriage and divorce.132 Indeed Israel delayed ratification of the Convention on Discrimination against Women for more than ten years because signing the Convention would pre-empt the according of priority to religious norms over the right of equality for women on questions of personal status. In 1991, Israel eventually signed the Convention with a widely drafted reservation regarding the rights of women in family law.133 Not only in the delegation of personal law to religious institutions as such under the Millett system but also in the exclusion of non-Orthodox sects, the buttressing of patriarchy plays a recognisable part. In rejecting the petition of the Movement for Progressive Judaism for a license to register marriages, Justice Elon commented on the fact that in the Reform marriage ceremony there could, in some cases, be an element of active involvement of the bride, who - instead of playing, the silent and passive role of the bride in an Orthodox ceremony - would say to the groom: "You are mine and I am yours." Justice Elon said: I do not intend to determine here whether or not this additional element in the marriage ceremony is or is not in accordance with the law of the Bible and of accepted Jewish law. What is clear from the claims of the petitioners is that they would determine the inclusion of changes in the marriage ceremony without receiving- authorisation to do so from the body which has the jurisdiction to determine such things under Jewish law - the Council of the Chief Rabbinate.134 The Court's deference to the authority of the Chief Rabbinate in determining the proper interpretation of Jewish law sources on this point reflects, in fact, the choice of the Court.135 The incorporation of religious patriarchy takes effect on two levels. First, it excludes women from participation in policy-making or holding office in the public activities delegated to the institutions of the religious communities. Second, it subjects women to patriarchal norms in those spheres of social life regulated by these institutions, and particularly the domestic sphere. Participation in Public Life The religious institutions of all the recognized religions are exclusively male. This emanates from the patriarchal nature of these religions. It is claimed by some writers that there is no absolute ban on women judges (dayanot) in Jewish law136 and it has been held by a Muslim court in Pakistan that there is no absolute ban in Islam on the appointment of a woman as a judge (ka'adi).137 The fact remains that women judges are not appointed to the religious courts and that there seems to be no official opposition in Orthodox circles to the prevalent opinion that they should not be. Since the Jurisdiction over matters of personal status is delegated by statute to these religious institutions,138 it is a fact that, in contemporary Israel, women are, in effect, barred by legal decree from appointment to the judiciary on. matters of marriage and divorce. It might, perhaps, have been imagined that the religious communities are passively bound by religious conservatism and that the exclusion of women is an accidental relic from a patriarchal past. This, apparently, is not the case e. As late as 1988, the rabbinical establishment was exercising 228 ISRAEL YEARBOOK ON HUMAN RIGHTS its influence in order to extend the exclusion of women from institutions other than their own courts. In the first such instance, the rabbinate successfully exerted pressure on the Minister of Religion to prevent a woman who had been elected to a religious council from taking her place. on the council.139 In the second, it prevailed upon the Mayor of Tel Aviv to prevent the inclusion of women in the electoral board for municipal rabbi. In both cases, petitions to the High Court of Justice were successful in foiling the attempt to exclude women.140 However, in its reasoning in these cases, the Court did not rely exclusively on the principle of equality between the sexes in striking down women's exclusion from participation in public bodies but, instead, saw fit to give weight to Jewish law principles and indicated that the absence of a prohibition in Jewish law - and the resultant feasibility of rabbinical cooperation despite the inclusion of women - was instrumental in enabling them to strike down the decision to exclude women.141 In taking this course, the Court paid deference to religious norms beyond the deference required under the constitutional framework in force at the time of the decisions. The Women's Equal Rights Law - 1951 had often been said by the High Court to be an ideological law which declares a basic concept of Israeli law. The law excluded from the ambit of its guarantee of equality only marriage and divorce status and did so in order to preserve the dominance of religious norms on this issue. Hence, all other substantive issues were, under the interpretative rule of inclusio unius exclusio alterius, clearly subject to the principle of equality in the Law, without reference to the religious norms governing, them. While express or very strong, determined language in subsequent legislation might have been enough to override the Law's principle of equality, a merely implied intention in the statute would not.142 The Jewish Religious Services Law, on which the administrative acts under review were based, did not articulate an intention to exclude women from participating in the State agencies providing services under the Law. Hence, even if it had been impossible to carry out functions under the Law because of the unwillingness of the rabbinate to cooperate if women participate, it should have been exclusively the role of the legislature, and not the High Court of Justice, to decide whether this merited sanctioning the discriminatory exclusion of women. It is argued by some that the references of the High Court justices to the principles of Jewish law served an important rhetorical function, convincing the religious public that the inclusion of women in these public frameworks was not contrary to their own norms. It is our opinion, however, that the positive value of that rhetorical function for the religious public constitutes its injurious impact on the secular public and women. The Court's rhetoric puts the balancing of religion and equality beyond the reach of secular rationality and subjects it to a religious analysis which silences, both procedurally and substantively, the very group whose rights are at issue - women. This silencing is illustrated - both theoretically and symbolically - in the recent Hoffman decision.143 In that case, the petition of Orthodox women to worship by the Western Wall, in a prayer group, praying aloud with a Sefer Torah and wearing, prayer shawls, was not regarded by the Court as an issue of woman's right to equality but was disposed of as an issue of freedom of worship and expression144 Justice Elon referred to the issue of equality only to exclude its consideration in the context of the Western Wall because of the national and religious importance of the site. Neither of the other two Supreme Court justices, Justice Shamgar and Justice Shlomo Levin. referred to the issue of equality between the sexes at all, and their opinions, while expressly invalidating the infringement of the freedom of worship and expression, were silent on the subject of discrimination against women. Patriarchal Regulation of Women's Lives The regulatory norms of the recognized religious communities are blatantly patriarchal. In regard to those areas in which the religious communities have autonomy and are not subject to the principle of equality in the Women's Equal Rights Law - marriage and divorce status - the religious norms reinforce male power over women. This applies to all women in Israel, whether religious or secular. In this area, only on the issue of bigamy do secular concepts of justice and equality override religious norms: bigamy is prohibited even where religious norms countenance polygamy.145 Even here, there is an exception to the prohibition of bigamy for married Jewish men who have obtained permission of a rabbinical court to marry another woman.146 In Jewish law, the establishment of patriarchy is most clearly expressed in the ultimate power of the male not to release his wife from the bonds of marriage. There is no Jurisdiction, religious or secular, which can free her from the marriage if the husband is not willing to agree. 147The rabbinical courts may recommend that the husband divorce his wife, may oblige him to do so or may give an order "forcing" him to do so but, should he refuse, she remains married to him. 148Under Jewish law, there was a severe penalty of excommunication and lashing if the husband disobeyed a rabbinical order "forcing" him to divorce his wife and this was transformed in the Israeli legal system to imprisonment. As a matter of practice, the rabbinical courts refrain from giving, orders "forcing," divorce, on the grounds that such orders may result in a forced consent to divorce by the husband which would be 'invalid.149The refusal of the husband to divorce her results not only in the wife's inability to remarry150 but also in severe restrictions on her freedom to set up any kind of new, informal family life. Should she have a sexual relationship with another man, she is considered a rebellious wife and, as such, may lose her rights to child custody and spousal maintenance payments although she remains married; she will also be prohibited from marrying her lover if at any future time her husband dies or releases her from the marriage.151 Should she, while still married, have a child by another man, that child will be considered a "mamzer” and will not be eligible to marry under Jewish law except if he/she marries another "mamzer" or a convert to Judaism.152 This is a penalty visited-upon their children which even secular women are mostly unwilling to incur in a state in which official marriage is religious. The inequality between men and women becomes even clearer when the asymmetry between husbands and wives in this context is examined. The consent of a wife to a divorce sought by her husband is required;153 however, the requirement does not have the same implications as the requirement of a husband's consent to his wife's divorce. If the wife refuses her consent, the husband may be able to acquire a rabbinical dispensation to remarry.154 Furthermore, should the husband set up a new family without that dispensation and without his wife's consent to divorce, his relationship with the new partner will not brine, with it penalties such as those which are imposed upon an undivorced wife.155 In addition to the problem of divorce, women are under an additional disadvantage if they are widowed before their husband fathered a child. In these circumstances, the widow must obtain a release (haliza) from her deceased husband's brother before she is free to remarry. 'The potential for blackmail and humiliation in this context can easily be imagined. Muslim norms regarding the marital relationship are clearly patriarchal. Muslim law continues to allow polygamy - a man may take up to four wives. There have been claims made by some writers that such practices are not invariably inimical to women's interests - these claims are based on socio-psychological suppositions, which have not and, by their nature, cannot be objectively proved. In an equality analysis, however, the issue is clear. The practice must be regarded as inegalitarian so long, as it is asymmetrical between the sexes.156 The practice of polygamy is prohibited under Israeli law and so, as a matter of principle, the system of regulation of State and religion cannot be regarded as responsible for its survival. However, in practice, survive it does, especially amongst the Bedouin, and there is a question as to whether sufficient educational and administrative efforts are being made to bring about change. The recognition of unilateral divorce by a husband under Mu157 slim law disadvantages women. The Women's Equal Rights Law has gone part of the way to rectify this inequality, prohibiting the giving of unilateral divorces without the judgement of an authorised court.158 However, since the authorised court is the religious court of the community, this provision does not pre-empt mechanical authorisation of unilateral divorce by such court if it sees fit. 159 The denial of the right to custody is a particularly painful inequality for Muslim women. On widowhood or divorce, under Muslim law, if the mother remarries she loses her right to custody of her children, with custody going, to the father or his family. Although the principles of the Women's' Equal Rights Law apply in theory to rights of guardianship and. custody, the courts, as I shall explain below, have been reluctant to apply the principle in a way which would invalidate the Muslim law. Analysis of Christian norms, too, has shown their patriarchal nature. There is a vow of obedience by a wife to her husband in the marriage ceremony; under some forms of Christianity contraception is prohibited and abortion is prohibited, even if the mother's life is in danger; divorce is not allowed under Catholicism and while this appears a symmetrical restriction on males and females, it must be remembered that where there is an asymmetrical obligation to obedience, the disadvantage of insolubility must affect the subservient partner more than the dominant one.160 For all the communities of married women in Israel - Jewish, Muslim and Christian, religious, traditional and secular - the religious domination of marriage and divorce status radiates inequality throughout the sphere of family law and extends to issues of maintenance, matrimonial property and custody, even where they are in theory regulated by secular norms and although they are subject to the provisions of the Women's Equal Rights Law.161 There are various reasons for this. The religious courts may be apprised of these other matters directly as a result of their divorce jurisdiction. Thus, if one spouse starts divorce proceedings in the religious courts, the other spouse will be bound to the jurisdiction of that court for all matters related to the divorce. Even where the civil courts take jurisdiction over these other matters of family law, the subjection of women to the decisions of the religious courts for the divorce proceedings may undermine their power to insist on their civil rights. In regard to religious women, the jurisdiction of the religious courts is in reality exclusive on all matters since, if they apply to the civil courts, they will be considered traitors by their communities and subjected to harsh community pressures. Until very recently, where the patriarchal norms of religious law were referred to the High Court of Justice for review, the justices refrained from entering into the issue of their impact on women's equality. Where the Court was asked to review a decision by a Rabbinical Court to impose punitive maintenance payments on a husband in order to pressure him to give his wife a divorce, the Court held that this was a misuse of the Rabbinical Court's power to award maintenance. Maintenance, held the Court, was intended for support and not punitive purposes162' The Court refrained from entering into the policy issues of the patriarch's power to withhold divorce in Jewish law and the urgency of finding ways to mitigate the inequality of women in the divorce process. In another case, the High Court of Justice was asked to review the decision by a Muslim court to award custody of a child to its dead father's sister on the grounds that the mother had remarried and, under Muslim law. a woman who remarries after divorce or the death of her husband does not have the right to custody over her children. The Court held that the principles of the Women's Equal Rights Law applied, and hence the custody rule could not be applied in a way which discriminates against women. Nevertheless, held the Court, the Ka'adi was entitled to take the norms of Muslim law into account in determining the issue of the welfare of the child and in any case, held Justice Goitein, one of the Justices, there was no problem of equality for women here since the contest for custody was between two women.163 On the issue of rape within marriage, the Supreme Court departed from the potentially applicable English common law position that this was not a felony under the provisions of the Criminal Code and164 However, the Court found it to be criminal conduct. r-t based its decision on Jewish law principles and left open the question of whether the same rule would apply to non-Jewish marriages.165 In treating the issue in this way, the Court avoided determining whether the equal right of the married woman to bodily integrity took precedence over religious norms subjecting her to the will of her husband. It remained for the legislature to extend the rule to all married couples, without reference to the norms of their personal law.166 In what may be the beginning of a new and more radical trend, the High Court of Justice recently held in the Bavli case167 that civil law notions of equality must be applied by the Rabbinical Courts in. adjudication of matrimonial property rights. In the past, the Women's Equal Rights Law, although binding on the Rabbinical Courts in matters of matrimonial property, had not been interpreted as requiring these courts to apply the civil law presumption of Joint ownership of property acquired during marriage rather than the Jewish law concept of separation of spousal property rights. However, in Bavli, Justice Barak held as follows: Every religious law which is applied by the rabbinical courts must conform with the principle of equality (laid down in Section I of the Woman's Equal Rights Law). The Rabbinical Court is, hence, not authorised to establish a law of joint ownership - or a law of non-joint ownership - which rests on discrimination against women. Rejecting the claim that the Rabbinical Court's ruling - that the cohabitation of a married couple does not of itself create a presumption of joint ownership - is not a merely neutral concept which does not discriminate against women, Justice Barak held that, even if the motivation for the ruling were neutral, its results are discriminatory and hence the ruling is void. He concluded: The Rabbinical Court must act 'in accordance with the principle of equality in dividing [matrimonial] property. This means that it must divide it equally between the spouses, provided it was acquired in the course of regular family life and as a result of a joint effort of the spouses, even if the wife's efforts were centred on the home and the husband's outside. The spouses may, of course, agree otherwise between themselves... Claims are sometimes made that the norms of religious law were introduced in order to protect women. Such claims, however, even if historically accurate, cannot detract from the blatant patriarchal nature of the religious norms introduced in the past, and preserved into the present. Even if these norms were originally paternalistic and intended to benefit women, a claim, perhaps accurate in itself if the situation of 14th century Jewish or Muslim women is to be compared to that of other 14th century women, the incongruity and anachronism of these claims in our times is clear from the foregoing perusal of the asymmetries between men and women and the disadvantages imposed upon women under those normative systems. IV. THE ROLE OF THE LEGAL SYSTEM: A COMPARATIVE NOTE A brief look at some of the American and Canadian jurisprudence provides an illustration of the potential role of the law in defining the boundaries between the right to religious multiculturalist, autonomy and the right to equality. I shall treat the US and Canadian legal experience more as anecdotal than doctrinal since the constitutional basis for decision-making on the issue of freedom of religion and multiculturalist autonomy is different, both between the United States and the Canadian constitutional systems, and from the Israeli framework. The equality arguments posed for equal promotionism, which lies at the basis of regulation of State and religion in the Israeli legal system, are alien to much of the thinking on the issue in North America. In the United States the promotion of religious activities is constitutionally barred under the establishment clause. In Canada, there is no establishment clauseand indeed there is even an express constitutional protection for privileges to denominational schools. However, it seems to be assumed that this provision is contrary to the principle of equality and certainly not supported by it and hence, equal promotionism is not a central constitutional issue.168 In Reynolds,169 the US Supreme Court prohibited the Mormon practice of polygamy and in Black170 went so far as to allow the removal of children from the custody of polygamous Mormon families on the grounds of the immorality of the religious beliefs of such families. In Bob Jones University,171 the Court upheld the constitutionality of removing tax exempt status from a Mennonite school which, on the basis of its relic,' IOUs tenets, maintained a police of race discrimination. In these cases. universalist ethical concerns were held to override the right to free exercise of religion. It is notable that the issue of universalist ethics which arose in these cases was. in regard to both religious practices of polygamy and race discrimination the right to equality. Even for writers who support a communitanan rather than an individualistic approach to religious liberty such exceptions to religious autonomy may be considered acceptable: " a democracy may support its legitimacy by reference to other goals - for example, political equality .... thus restrictions on religious exercise are permissible if they are essential to maintaining political equality.172 In Yoder,173 the Court went the other way, holding that Amish parents were entitled to take their children out of school in order to educate them in accordance with their religious beliefs and practices. In upholding, the religious/communal autonomy of the Amish, the Court allowed the Amish parents to foreclose ideological options and the potential of dissent for their children. Children are inevitably a weak sub-group and, if they are to be entitled to make their own choices, their exclusion from the intellectual training of a school education diminishes rather than enhances their autonomy.174 Nevertheless this decision should not perhaps be seen as detracting from the general preference of the Supreme Court for values of equality over sectarian religious values. In the Yoder case, there was no indication that in inculcating the values of their religion, the Amish would be raising their children to accept roles of oppressor or oppressed and, indeed, to the contrary, the opinion of the Court was that the Amish provided an alternate system of "Ideal" vocational education for their children in the adolescent years.175 In the Martinez case, in which the issue was tribal sovereignty and self-government, the Supreme Court refused to intervene to invalidate a Santa Clara Pueblo Ordinance which imposed discriminatory membership rules for tribal members.176 Under the tribe's rules, the children of female members who married outside the tribe would not be Santa Clara’s, while the children of male members who did so would be. Resnik offers one explanation of the decision as being "that membership rules that subordinate women do not threaten federal norms (either because federal law tolerates women holding lesser status than men or because federal law has labelled the issue one of 'private' ordering and non-normative) 177 Whatever the real explanation may be, the result is deference to tribal sovereignty over the right of the Santa Clara women to equal treatment in membership. In Canada, the legal lines of the dialectic are less developed but the socio-political lines are illuminatory. Sex discrimination as regards tribal membership status of Native Women was entrenched in Canadian legislation. The Indian Act provided that, unlike a Native man, a Native woman who married a non-Native lost her status as an Indian, as did her children. In 1974, Jeanette Lavell lost her challenge to invalidate the Act in the Canadian Supreme Court.178 However. after the passing of the 1 982 Canadian Charter, with its -guarantee of equality, the Indian Act was amended in 1985 and the statutory discrimination against women eliminated. A constitutional struggle evolved between the AFN, the established male leadership,179 and the NWAC, the Native Women's Association of Canada. The AFN contended that the Charter should not apply to Indian governments because it would undermine their inherent right to self-government and place an emphasis on individual fights not in keeping, with traditional Native values. The NWAC fought for applicability of the Charter in order to protect themselves against patriarchal dominance. Joyce Green highlights the problem of the silenced voice within autonomous sub-cultures: "Native women identify a shared experience of oppression as women within the Native community, together with (instead of only as) the experience of colonial oppression as Aboriginals within the dominant society. She concludes: "Ultimately the process excluded women qua women.”180 In a Canadian case, Hofer v. Hofer,181 the Supreme Court accepted the claim of the Hutterite Church that freedom of religion protected the congregation fight to expel members for apostasy without receiving any of their share of the colony’s assets. In a minority 'judgement, Justice Pigeon held that religious freedom cannot authorise the power of churches to make rules which in effect deprive the individual members of the fight to change their religion at will. The US and Canadian legal developments show a range of illustrations of the conflict between religious or community autonomy and equality rights but do not offer us any systematic method of balancing them. V. CONCLUSION In this article, I have explored the way in which legal systems, and in particular the Israeli legal system, address the contradiction between the values of religion and equality and the normative police considerations which should shape the role of law. There is clear evidence of the deference of the Israeli legal system to religious over egalitarian values. This deference is apparent in legislation and is conceded to in most decisions of the High Court of Justice and even in most proposed bills of rights. Four subgroups are disadvantaged by the current modus vivendi on State and religion: non-Jewish communities, non-Orthodox Jewish sects, the secular and women. Their disadvantage is contrary to basic principles of equality. In recent court cases, the issue of equality for these sub-groups has been more frequently articulated but the outcome of the cases cannot be regarded as correcting the imbalance between religious and equality values. Amongst the normative policy considerations which are used to 'justify a deference to religious values are multiculturalist, consensus, and consent arguments. For the reasons I have shown, it is my opinion that none of these arguments can 'justify deference for communitarian or religious autonomy over the principle of equality. The communitarian meaningfulness claimed by multiculturalists can only exist where it is a result of a genuine choice by everyone to live by communitarian or religious values. Where there is ideological pluralism, no such shared choice exists. Consensus, too, fails to justify the enhancement of community autonomy at the cost of equality because consensus is an expression of socio-political power and does not give expression to the needs of the politically oppressed. Legal endorsement of communitarian or consensus interpretations of the social good which infringe egalitarian values undermines equality of opportunity for dissenting members of society to live according to their own 'Ideas of social Justice. Furthermore. there is in such endorsement a reinforcement of traditionalist norms, preservation of the existing hierarchy of power and a silencing of dissenting voices. It should be the role of the legal system not to reinforce religious values at the cost of perpetuating inegalitarian norms but rather to enhance the autonomy of groups and individuals to make a genuine choice by guaranteeing, equal opportunity. Unlike multiculturalism and consensus, genuine individual consent to religious values can vindicate the denial of recourse to the principle of equality. Except where the religious norm is classified as repugnant, individual choice cannot be ignored even if it is a choice to be treated unequally. However, consent to group discrimination within a religious culture, even though potentially valid, should be considered suspect and should hence be rendered voidable by the legal system. It is, then, the role of the legal system to provide a night of exit for individuals who wish, ex post facto, to exchange religious choices for equality rights. The existing deference to religious values in the Israeli legal system infringes the fundamental right to equality of members of other religious groups, of non-Orthodox sects in Judaism, of the secular, and of women. This is a compromise which cannot be tolerated in a liberal democratic State. 182 AFTERNOTE A coalition agreement was signed between the Labour Party and the Shas Movement on September 1994. According, to this agreement the Labour Party undertook to support an amendment of the Basic Law: Human Dignity and Liberty which will entrench the status quo on matters of religion, which are widely defined as "any legal provision which is intended to protect the way of life of the religious public and its sensitivities". Furthermore, the parties agreed to correct any future breach of the status quo by legislation. The Hi-h Court of Justice, by a majority of three to two, rejected a petition to intervene and invalidate the Coalition Agreement.183 In his majority opinion, Justice Shamgar, President of the Court. stressed that the Agreement breaches the "proper constitutional balance" by entrenching limits on matters of relation while other fundamental individual liberties are not entrenched. Nevertheless, he held that the way to halt this trend was through the democratic process and not through the Court. Justice Cheshin.. also writing a majority opinion, held: However, not as in the past. this time the principle of [preserving] the status quo was formulated in harsh and aggressive language, in a provocative and overbearing way. And the Language leads to a different content from the past. This proposed Agreement is improper in its public aspect, but I have not found any legal cause of action to intervene and declare it illegal Justice Barak. then Deputy President of the Court, and Justice Or dissented. Justice Barak rested his dissent, however, entirely on the principle of independence of the judiciary and regarded the fact that the question involved was the religious status quo as irrelevant. The Coalition Agreement has not become operative because Shas left the government for unrelated political reasons. This afternote illustrates the nature of decision-making which has produced the regulation of religion and law in Israel which subjugates the principle of equality to religious values. It would be cynical for me to term it an "ideal" illustration. But these events, occurring after completion of this article, do dramatically demonstrate how the sacrifice of the principle of equality is produced by religious coercion, accepted by political expedience and tolerated by judicial hesitation.184