Competing Visions of the Jewish State: Promoting and Protecting Freedom of Religion in Israel
Fordham International Law Journal
Religion in Israel
Copyright c 1995 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
Religion in Israel
Basheva E. Genut
This Note argues that religion and state cannot be separated in Israel. Part I presents the
historical connection between the Jewish nation and the land of Israel and its impact on Israel’s
legal system. Part I also examines the current legal status of Jewish law in Israel. Part II discusses
proposed models for resolving the religion-state conflict in Israel. Part III defends the integration
of Jewish law into Israeli law, arguing that incorporating only the national and cultural elements of
Judaism into Israeli policy, while ignoring its religious components, is insufficient to sustain the
notion of Israel as a Jewish state.
COMPETING VISIONS OF THE JEWISH STATE:
PROMOTING AND PROTECTING FREEDOM OF
RELIGION IN ISRAEL
Basheva E. Genut*
As the only democracy in the Middle East' and the only
Jewish State2 in the World, Israel is faced with the concomitant task
of preserving the unity of the Jewish nation and promoting and
* J.D. Candidate, 1997, Fordham University.
protecting civil rights against government intrusion.3 Often,
Jewish law and individual rights clash and Israel is forced to
elevate one above the other.4 As a relatively young state, Israel is
still attempting to precisely define the dimensions of its
democratic nature and the parameters of the relationship between the
individual and the community within its borders.5
In shaping Israeli policy, the Knesset,6 Israel's legislature,
and the Supreme Court of Israel have looked to older, more
established democracies for guidance.' Israel has emulated U.S.,
English, and European legal principles and adopted them as its
own.' Despite such influence, Israel's unique geography,9
na3. See Declaration, 1 L.S.I. at 3, 4 (Isr.) (guaranteeing that Israel isJewish State and
that freedom of religion will be protected).
4. See Rabbinic Courts Jurisdiction (Marriage and Divorce) Law, art. 1, 7 L.S.I. 139
(1953) (Isr.) [hereinafter Marriage and Divorce Law] (declaring application ofJewish
law to marriages and divorces of Jews in Israel). Jewish law governing marriage and
divorce is viewed as restrictive and forcing its application on all Jews, regardless of their
individual beliefs, is considered coercive by some Israeli citizens. Shimon Shetreet,
Freedoa of Religion and FreedomFrom Religion: A Dialogue, 4 ISR. Y.B. ON HUM. RTS. 194, 211
5. SeeJAcOBSOHN, supra note 2, at 18-54 (analyzing Israeli pluralism).
6. SAMUEL SAGER, THE PARLIAMENTARY SYSTEM OF ISRAEL 1 (1985). The Knesset,
translated as "assembly," is Israel's legislative body. Id.
7. See Aharon Barak, Freedom of Speech in Israel: The Impact of the American
Constitution, 8 TEL Aviv U. STUD. L. 241, 243, 248 (1988) (discussing examples of Supreme
Court of Israel utilizing U.S. cases, articles, and books). See also DAPHNA SHARFMAN,
LIVING WITHOUT A CONSTITUTION: CiviL RIGHTS IN ISRAEL 44 (1993) (quoting Y.S.
Shapira, member of political party Mapai, regarding English influence on Israel's legal
system). Shapira stated that:
I think the fact that the vast majority received their political education as a
whole or in part under the British mandatory government had a great
influence ... it is possible that if England had been different, let's say if it would
have been like France or Germany, a constitution would have been considered
indispensable for independence.
Id.; Amos Shapira, Why IsraelHas No Constitution, 37 ST. Louis U. LJ. 283, 285 (1993)
(discussing Israel's inheritance of English legal tradition).
8. See, e.g., H.C. 65/51 Jabotinsky and Kook v. Weizmann, 5 Piskei Din (P.D.) 801,
translated in I Selected Judgments of the State of Israel (S.J.) 75 (1951) (Isr.) (citing
one English case and nine U.S. cases); H.C. 73/53 Kol Ha'am v. Minister of Interior, 7
P.D. 871, translatedin 1 S.J. 90 (1953) (Isr.) (citing eight English cases and nine U.S.
cases); H.C. 69/81 Bassil Abu Aita, et al. v. Regional commander ofJudea and Samaria,
) P.D. 197, translatedin 7 S.J. 1 (1981) (Isr.) (citing five English cases, one Italian
case, and two U.S. cases); H.C. 153/83 Levi v. Southern District Police Commander,
) P.D. 393, translatedin 7 SJ. 109 (1983) (Isr.) (citing three English cases, one Irish
case, and nine U.S. cases); H.C. 428/86 Barzilai, Adv. v. Government of Israel, translated
in 6 SJ. 1 (1986) (Isr.) (citing eight English cases and thirteen U.S. cases).
9. LEONARDJ. FEIN, POLITICS IN ISRAEL 1 (1967). Israel is a small country consisting
tional and political experience,1" and culture 1 distinguish it
from other democracies.1 2 The laws of other countries are
insufficient, therefore, to address Israel's uncommon situation. 3
For most of Israel's history, it has been in a constant state of
war with its neighbors. 14 Consequently, Israel has channeled its
energies primarily to maintaining national security 5 Although
still plagued with terrorist attacks and indiscriminate killing, 6
Israel is now focusing inward, examining the relationship
between Jewish and secular law in its legal system and attempting
to extend legislative protection to individual rights.' 7
of approximately 8000 square miles. Id. Israel is one-third the size of Lake Michigan.
10. Id. The roots of Israel's political institutions can be traced to the organization
of the Jewish community in Palestine before the establishment of the State of Israel and
Jewish law. Id.
11. Id. Most of Israel's adult citizens were born in other countries and brought
diverse elements of other cultures to Israel. Id.
12. JACOBSOHN, supranote 2, at 10 (quoting interview with Avraham Ravitz in Israeli
Democracy 23 (1990)). Ravitz, head of the Degel HaTorah religious party, stated in
response to a proposed bill of rights that:
In my opinion, the current version of the human rights bill imitates the bill of
rights of those civilized nations-that club to which we like to flatter ourselves as
belonging. But it is no secret that we are different from other nations of the
world; we have defined Israel as ajewish state ....This is made quite explicit
in no less than the country's Proclamation of Independence.
13. See Barak, supra note 7 at 241-44, 247, 248 (contrasting U.S. and Israeli
governmental structures and explaining limitations of U.S. experience to Israel).
14. See CHARLES D. SMITH, PALESTINE AND THE ARAB-IsRAELI CONFLICT 146-51,
17478, 197-205, 227-31, 267-71 (1988) (outlining five Israeli wars: War of Independence,
1948, Suez Crisis, 1956, Six Day War, 1967, Yom Kippur War, 1973, and War in
Lebanon, 1981-82); see also DON PERETZ, Ir,iFADA: THE PALESTINIAN UPRISING (1990)
(discussing Palestinian uprising).
15. YEHOSHAFAT HARKABI, ISRAEL'S FATEFUL HOUR 1 (1988). "[T]he Arab-Israeli
conflict is the dominant issue of Israeli life. It casts its shadow on almost all our
activities-our politics, social relations, economic development, and military deployment. As
such, it determines our present and our future - as individuals and as a nation." Id.
16. Leslie Susser, Is Peace Beyond His Reach?, JERUSALEM REP., Apr. 4, 1996, at 14.
Commencing on February 25, 1996, Islamic militant terrorists launched four suicide
bomb attacks in Israel, murdering over sixty people in only nine days. Id.
17. Ruth Gavison, The Controversy overIsrael'sBill of Rights, 15 ISR. Y.B. ON HUM. RTS.
113 (1985). Israel lacks both a written constitution and an entrenched bill of rights. Id.
Recent efforts to extend legislative protection to civil rights in Israel have escalated. See
generallyAmos Shapira, A ProposalforConstitutionalJudicialReview in Israel, II TEL Aviv U.
STUD. L. 123 (1992) (discussing Tel Aviv University professors' draft of constitution for
Israel); David Kretzmer, The New Basic Laws on Human Rights: A Mini-Revolution in Israeli
ConstitutionalLaw?, 26 ISR. L. REv. 238 (1992) (discussing first Basic Laws enacted which
address human rights).
Public debate regarding the role thatJudaism should play in
the State of Israel began even before its establishment. 8 With
the establishment of the State, the debate intensified, as its
founders were forced to transform competing ideologies into a
national policy on religion-state relations.1 9 Rather than
formulating a clear policy through a constitution or a bill of rights, the
Knesset adopted compromises that permitted it to avoid
enacting constitutionally binding laws on religion-state issues.2 0
Fortyeight years later, Jewish Israelis remain divided over how to
effectively balance Israel's Jewish and democratic character.y
This Note argues that religion and state cannot be
separated in Israel. Part I presents the historical connection between
the Jewish nation and the land of Israel and its impact on Israel's
legal system. Part I also examines the current legal status
ofJewish law in Israel. Part II discusses proposed models for resolving
the religion-state conflict in Israel. Part III defends the
integration of Jewish law into Israeli law, arguing that incorporating
only the national and cultural elements of Judaism into Israeli
policy, while ignoring its religious components, is insufficient to
sustain the notion of Israel as a Jewish state.
I. AN HISTORICAL A CCOUNT OF THE NATION OF ISRAEL
AND THE STATE OFISRAEL
The nation of Israel and the land of Israel are inseparably
connected. 22 Israel's Declaration of Independence, '2 3
recognizing this connection, begins by proclaiming Eretz Israel 24 as the
birthplace of the Jewish people and tracing Jewish struggle
throughout history to reestablish the nation in its ancient
homeland. 25 The Knesset has incorporated Jewish law into its legal
system, adding a new dimension to the historical link between
the Jewish nation and its ancient homeland, and producing
unique conflicts. 26 Although Israel has incorporated Jewish law
as part of its system of governance, Israel is not a theocracy.2 7
Rather, religion and state interact, propelling conflicts that
challenge both Israel's Jewish and democratic character. 8
A. HistoricalConnection Between Judaism And The Land Of Israel
God created the nation of Israel through his covenant with
Abraham and assigned to it the land of Israel. 29 The Jews
reigned in Israel, with only minor periods of interruption,3"
the qualities certified by our faith, and history has corroborated the singularity
of both people and the land.
23. Declaration, 1 L.S.I. 3 (1948) (Isr.).
24. SMITH, supra note 14, at 1. In Hebrew, Eretz Israel is translated as the Land of
Israel and is a termJews have used, throughout the ages, to refer to the land that their
God assigned to them in the Bible. Id.
25. Declaration, 1 L.S.I. at 3, 4 (Isr.).
Thus says Cyrus king of Persia, The Lord God of heaven has given me all the
kingdoms of the earth; and he has charged me to build Him a house
atJerusalem, which is injudah. Whoever is among you of all His people, let his God be
with him and let him go to Jerusalem which is injudah, and build the house
of the Lord God of Israel.
from approximately 1030 B.C.E. to 70 C.E.31 The Jews were
defeated by the Romans in 70 C.E.3 2 and dispersed throughout the
Roman Empire.3 3 Throughout their long period of exile, Jews
were subject to severe persecution.3 4 At the close of the
nineteenth century, Jewish longing to return to Israel was
transformed into a political movement, Zionism.3 5 The Zionist
movement, realizing its goal, established the State of Israel in 1948.36
1. Judaism in Antiquity
That the Jewish state was established in the region now
called Israel is not an historical accident, as the nation of Israel
and the land of Israel are inexorably linked.3 7 The nation of
Israel, unlike other nations, did not form itself.8 God called the
nation of Israel into being through his covenant with Abraham,
commanding Abraham to travel to the land of Israel, promising
that he would make Abraham's descendants a great nation and
that Abraham's descendants would inherit the land of Israel. 9
Approximately 400 years later, God covenanted with Abraham's
descendants at Mount Sinai and, through Moses, delivered the
Torah' to the nation of Israel.4 1 The Torah is more than a
historical account of the nation of Israel or a book of civil and
religious laws.4 2 The Torah details a way of life for the Jewish
nation, encompassing ethical teachings not merely for the
individual Jew, but forJewish society.4 3 Adherence to God's covenant is
considered the Jewish nation's reason for existence, without the
covenant, Jewish existence is a mere delusion.'
The Jews reigned in Israel from approximately 1030 B.C.E.
until the Babylonians exiled the Jews and destroyed their First
Temple in 586 B.C.E.4 5 Cyrus, King of Persia, permitted the
Jews to return to Israel and rebuild their Temple.4 6 Although
Cyrus did not grant the Jews complete independence, he
permitted the Jewish community to govern with Jewish law.47 In 70
C.E., after the Romans defeated the Jews and destroyed the
Second Temple,48 the Jews were dispersed throughout the Roman
Empire.4 9 During the 1813 years of Jewish exile, Jews never
ceased to long for their return to Israel.5"
2. Jewish Exile in the Middle Ages
Jews expressed their attachment to the land of Israel
through religious and social customs. 5 1 For example, the ninth
42. Arthur Koestler, A Valedictory Message to the Jewish People, reprinted in
MENDES-FLOHR & REINHARZ, supra note 34, at 243-45.
The Jewish religion is not merely a system of faith and worship, but implies
membership of a definite race and potential nation ....To be a good
Catholic or Protestant it is enough to accept certain doctrines and moral values
which transcend frontiers and nations; to be a good Jew one must profess to
belong to a chosen race, which was promised Canaan, suffered various exiles
and will return one day to its true home.
Id. at 244.
43. Id.;JOSEPH BADI, RELIGION IN ISRAEL TODAY- THE RELATIONSHIP BETWEEN STATE
AND RELIGION 13 (1959).
44. Id. at 14; Rabbi Abraham Isaac Kook, Linking Life With God, in ABRAHAM ISAAC
KooK: THE LIGHTS OF PENITENCE, THE MORAL PRINCIPLES, LIGHTS OF HOLINESS, ESSAYS,
LETTERS, AND POEMS 156, 156 (Ben Zion Bosker ed., 1978). "We must attach ourselves
to the divine ideals and we must always strive to realize them in life, in thought, in
action and in the imagination, in life of the individual and of society, in our deepest
and most zealous aspirations. Id.
45. Tadmor, supra note 30, at 157.
46. Id. at 166.
47. See id. at 166-71 (discussing Jewish return under Cyrus).
48. Sifrai, supra note 33, at 303.
49. Id. at 307.
50. Declaration, 1 L.S.I. at 3 (Isr.) "After being forcibly exiled from their land, the
people kept faith with it throughout their Dispersion and never ceased to pray and
hope for their return to it and for the restoration in it of their political freedom." Id.
51. AHARON COHEN, ISRAEL AND THE ARAB WORLD 25 (1970).
day of the month of Av was declared an official Jewish day of
mourning, commemorating the destruction of the Temple.5"
Daily prayers resounded with the longing to return to
Jerusalem.5" Jewish attachment to Israel was also expressed by a
constant trickle of Jewish immigration, often in the face of extreme
danger. 4 Jewish return was propelled by religious motivations
and the Jews who settled in Israel during the Middle Ages
established religious communities and centers of Jewish learning. 5
3. Jewish Communities in Europe
In Europe, Jews lived under foreign rule and were subjected
to anti-Semitism 5 6 expulsion, and often death at the hands of
those in power. 57 During their exile, Jews developed distinct
streams of thought regarding their individual connections to the
Jewish nation and to the land of Israel.5 8 The contrasting
politAnti-Semitism as a political movement cannot and should not be determined
by emotional factors, but rather by the facts .... Hence, it follows:
AntiSemitism based purely on emotional grounds will find its ultimate expressions
in the form of pogroms. Rational anti-Semitism, however, must pursue a
systematic, legal campaign against the Jews, by the revocation of the special
privileges they enjoy in contrast to the other foreigners living among us. But the
final objective must be the complete removal of the Jews.
ical and social experiences of Jews in Western and Eastern
Europe shaped Jews' relationships to their religion and tradition
and propelled conflicting views on Jewish return to Israel.5 9
Western European Jews fought for emancipation arguing
that they should be nationalized because they could contribute
valuably to society,60 not because they possessed intrinsic rights
as human beings.6" In their fight for emancipation, Western
European Jews sought to relinquish their ties to Israel.6 2 They
hoped to gain societal acceptance by proving that they were not
a separate nation, with divided loyalties, dwelling within the
larger nation.63 In Western Europe, Jews sought to integrate
into mainstream society by distinguishing individual
membership in the Jewish religion from the idea that the Jews
constituted a nation, were loyal to that nation and would prefer to
consolidate and reestablish themselves in Israel.64
The promise of Jewish emancipation throughout Western
Europe stimulated Jewish assimilation.65 Many countries
required assimilation as a pre-requisite to nationalization.66 Jews
sonal ties to the land of Israel. Id. In Eastern Europe, Jews were severely persecuted
and sustained strong religious and communal bonds. SMiTH, supra note 14, at 27.
59. See Ettinger, supra note 57, at 777-89 (discussingJewish communities in
Western and Central Europe); see id. at 813-24 (discussing Jewish communities in Eastern
60. MENDES-FLOHR & REINHARZ, supra note 34, at 7. The emergence in Western
Europe of the centralized state, from the sixteenth to eighteenth centuries, facilitated
the development of mercantilism or' early capitalism. Id. At this time, Jews in Europe
had no political power and, therefore, were not perceived as a threat by rulers. Id.
Rather, they possessed requisite skills to assist rulers in developing national treasuries
and economies. Id. Jews introduced a novel criterion for determining the legal status
of the Jew in Europe, suggesting that they should be nationalized because of their
61. Id. at 8.
62. John Toland, Reasons for Naturalizing the Jews in Great Britain and Ireland,
reprinted in MENDES-FLOHR & REINHARZ, supra note 34, at 12.
Another consideration that makes the Jews preferable to several sorts of
People, is, their having no Country of their own, to which they might retire, after
having got Estates here; or in favor of which, they might trade under the
umbrage of our naturalization .... [blut the Jews having no such Country, to
which they are ty'd by inclination or interest as their own, will never likewise
enter into any political engagements, which might be prejudicial to ours.
65. Ettinger, supra note 57, at 807.
66. See, e.g., The French National Assembly, Debate on the Eligibility of Jews for
Citizenship, translatedin MENDES-FLOHR & REINHARZ, supranote 34, at 103 (stating that
seeking emancipation attempted to rid Judaism of traditional
laws that set them apart, thereby preventing them from
integrating into the non-Jewish world." The first comprehensive reform
to Judaism was instituted in Hamburg, Germany in 1817:68
ancient Hebrew prayers were translated to German, the synagogue
service adopted church-like qualities, including organ music that
desecrated the Sabbath, and all prayers mentioning the
Messiah 69 and Jewish longing to be redeemed from exile and
restored to their homeland were omitted.70 Jewish reform was met
with widespread opposition from Orthodox Jewish communities
At the same time that Western European countries were
nationalizing their Jews, Eastern European countries embarked on
to acquire citizenship, Jews must relinquish national distinctiveness and judicial
autonomy); Joseph II, Edict of Tolerance, translatedin MENDES-FLOHR & RENHARZ, supra note
34, at 34 (declaring that Jews could be useful to State by sending their children to
Christian schools); Ettinger, supra note 57, at 805 (discussing Hungary's policy denying
Jews equal rights while they observed customs setting them apart from their
67. MENDES-FLOHR & REINHARZ, supra note 34, at 141. See ROBERT M. SELTZER,
JEWISH PEOPLE, JEWISH THOUGHT: THE JEWISH EXPERIENCE IN HISTORY 580-618 (1980)
(discussing Jewish religious reform).
68. The New Israelite Temple Association, Constitution of the Hamburg Temple,
reprintedin MENDES-FLOHR & REINHARZ, supra note 34, at 145.
69. WEBSTER'S NEW UNIVERSAL UNABRIDGED DICTIONARY 1130 (Jean L. McKechine
ed., 1983). Messiah is defined as, "in Judaism, the promised and expected deliverer of
the Jews." Id.
One ofJudaism's fondest hopes and most fervent prayers is for the coming of
the messiah. The messianic age is humankind's ultimate goal and reward-the
time when there will be eternal reward for anyone who has ever lived, and
when all the ills and evils that beset the world will be gone, replaced by
complete peace and perfection.
RABBI WAYNE DOSICK, LIVING JUDAISM: THE COMPLETE GUIDE TO JEWISH BELIEF,
TRADITION, AND PRACTICE 43 (1995). Jewish tradition affirms that the messiah will be a
descendant of King David, gain sovereignty over the land of Israel, gather the entire
Jewish nation in Israel, restore complete observance of the Torah, and bring peace to the
world. RABBI JOSEPH TELUSHKIN, JEWISH LITERACY- THE MOST IMPORTANT THINGS TO
KNOW ABOUT THE JEWISH RELIGION, ITS PEOPLE AND ITS HISTORY 545 (1991).
70. MENDES-FLOHR & REINHARZ, supra note 34, at 142.
71. See The Hamburg Rabbinical Court, These are the Words of the Covenant,
translatedin MENDES-FLOHR & REINHARZ, supranote 34, at 150 (stating that learned men
in Germany, Poland, France, Italy, Bohemia, Moravia, and Hungary join to abolish
reforms instituted by ignorant individuals unversed in Torah and to reaffirm necessity of
Jewish law and Israel); Moses Sofer, A Reply Concerning the Question of Reform,
translated in MENDES-FLOHR & REINHARZ, supra note 34, at 153 (discussing central role of
Jewish law to Jewish survival and condemning reformers.)
a century-long phase ofJewish oppression and forced isolation.72
Russian authorities forced Jews to live in designated areas7" and
prohibited Jews from participating in Russian society.7 4 The
isolation and concentration of Eastern European Jewry, however,
facilitated the continuity of strong religious and communal
bonds.7 5 Jews remained committed to Israel and yearned for the
day when allJews could return to their ancient homeland.7 6 The
earliest stirrings of Zionism 77 were championed mainly by
religious Jews from Eastern Europe 78 who were concerned with
adherence to Jewish law, particularly the Jewish duty to settle in
4. The Pre-State Period
During the century preceding the establishment of the State
of Israel, Jews espoused distinct ideas regarding Jewish return to
the land of Israel and the goals of the Zionist movement.80 They
were united, however, by their rejection ofJewish exile and their
common goal of establishing a safe haven for Jews from
persecution.8 1 Jews emigrated to Palestine and lived under Ottoman,8 2
and then British rule,8 3 until they established the Jewish State.84
a. Zionist Ideologies
At the close of the nineteenth century, against the
background of both Jewish persecution and acceptance, Zionism was
transformed from a formless longing to return to Israel into a
political movement."5 The Zionist movement was
factionalized,8 6 as Zionists debated which political strategies would hasten
autonomy, whether political independence should be the
movement's primary goal, whether physical settlement should be
elevated over political negotiations, and if independence was
attained, whether Jewish law should serve as the country's
foundation." Despite internal disagreements, Zionists encouraged all
Jews to emigrate to Israel, regardless of their individual beliefs. 8
Approximately 385,000 Jews emigrated to Israel, in five waves,
from 1881-1939.9 Each wave of immigration, Aliya, 90 was
propelled by distinct religious, social, and political forces and the
Zionists of each Aliya contributed uniquely to the Jewish
community in Palestine and to the establishment of the State of
Israel. 9 1
Theodor Herzl founded political Zionism.9 2 As an
assimilated, secular Frenchman, he originally advocated Jewish
emancipation as the solution to anti-Semitism and Jewish
persecution. 93 After witnessing the persistence of anti-Semitism in
France, the birthplace of liberalism and Jewish emancipation,
Herzl sought to employ a new vehicle to end Jewish suffering. 94
He rejected political assimilation and argued that only Jewish
sovereignty could ensure freedom for the Jewish nation.95 For
new social order. Id. at 20. Although they viewed political independence as necessary,
they first sought to create a self reliant community based on cooperative enterprise and
The fourth Aliya was comprised of 60,000 Polish, middle class immigrants. Id. at
21. The fourth Aliya was triggered by increased anti-Semitism in Poland and by a new,
more restrictive immigration policy in the United States. Id. By the end of the fourth
Aliya only 17% of Palestine's population wasJewish. Id. at 22. Zionists were concerned
and hoped to stimulate an increase in Jewish immigration. Id.
Zionists' concerns were quieted by the 225,000Jews that returned to Palestine
during the fifth Aliya between 1932 and 1939. Id. For the fist time, substantial numbers of
Jews came from Central Europe. Id. ManyJews of the fifth Aliya were professionals and
contributed widely to the existing Jewish communities. Id. By 1939, Jews comprised
30% of Palestine's population, and were a force to be reckoned with. Id. The
leadership of the Zionist movement had shifted to Palestine and their demand was clear: the
establishment of an independent, Jewish State in Palestine. Id.
90. FEIN, supra note 9, at 9. In the Jewish tradition, immigration to Israel is called
Aliya which literally means to go up or ascend. Id.
91. See id. at 16-22 (outlining five waves of immigration); Ettinger, supranote 57, at
918-38 (discussing implementation of Jewish institutions during waves of Aliya); supra
note 89 (discussing contributions of Zionist pioneers to Jewish community in
92. See Declaration, 1 L.S.I. at 3 (Isr.) (referring to Herzl as father of Zionism).
93. Herzl, supra note 77, at 423.
94. Ettinger, supra note 57, at 898.
95. Herzl, supra note 77, at 423. Herzl stated that:
We have honestly striven everywhere to merge ourselves in the social life of
surrounding communities, and to preserve only the faith of our fathers. It has
not been permitted to us. In vain we are loyal patriots, in some places our
loyalty running to extremes; in vain do we make the same sacrifices of life and
property as our fellow-citizens; in vain do we strive to increase the fame of our
native land in science and art, or her wealth by trade and commerce. In
countries where we have lived for centuries we are still cried down as strangers ....
We are one people - our enemies have made us one in our despite, as
repeatedly happens in history. Distress binds us together, and thus united, we
suddenly discover our strength. Yes, we are strong enough to form a state and a
Herzl, the primary goal of the Zionist movement was to establish
a Jewish state.9 6
Rabbi Abraham Isaac Kook, leader of religious Zionism, 97
argued that the land of Israel was an integral part of the soul of
the Jewish people.9 8 Rabbi Kook rejected the notion thatJewish
return to Israel should be encouraged on purely nationalistic
grounds.9 9 He viewed the Zionist movement as a vehicle to
promote adherence to the Torah."°° By aligning the religious
community with the Zionists, Rabbi Kook believed that Torah could
be infused into the Zionist movement. 1 ' Religious Zionists
worked with secular Zionists before the State of Israel was
established and continued to serve as their partner in government
after a Jewish state had been secured."0 2
Ahad Ha-am, the leader of cultural Zionism, argued that the
primary goal of the nationalist movement should be to revive
Jewish spiritual unity." 3 Ahad Ha-am believed that preserving
Judaism was the only means of strengthening the Jewish nation
and political attempts to establish a state should be subordinated
96. NOAH LucAs, THE MODERN HISTORY OF ISRAEL 71 (1975).
97. Rabbi Zadok Ha-Cohen Rabinowitz, The Zionists are not our Saviors, translated
in MENDES-FLOHR & REINHARZ, supra note 34, at 432-34. Many religious Jews opposed
Zionism, claiming that only God could redeem the Jewish nation and return them to
Israel. Id. Rabbi Zadok Ha-Cohen argued that Zionist creation of a state, modeled
after other states, demeans the Torah and will propel the Jewish nation's destruction.
98. Rabbi Abraham Isaac Kook, The Land of Israel, translatedin HERTZBERG, supra
note 78, at 419. Ray Kook stated that:
Eretz Israel is not something apart from the soul of the Jewish people; it is no
mere national possession, serving as a means of unifying our people and
buttressing its material, or even spiritual, survival. Eretz Israel is part of the very
essence of our nationhood; it is bound organically to its very life and inner
100. JOHNSON, supra note 81, at 547, 548.
101. Id. at 548.
103. LucAs, supra note 96, at 27. Ahad Ha-am wrote, "We must liberate ourselves
from the inner slavery, from the degradation of the spirit caused by assimilation, and we
must strengthen our national unity until we become capable and worthy of a future life
of honor and freedom. All other aims are still part of ideas and fantasies." Ahad
Haam, The First Zionist Congress,translatedin MENDEs-FLOHR & REINHARz, supra note 34, at
430. See generally SELEcrED ESSAYS OF AHaD HA-AM (Leon Simon ed., 1962) (discussing
Ahad Ha-am's approach to theoretical and practical problems of Jewish people).
to the task of creating a spiritual center of Judaism in Israel. 10 4
Insisting that Jewish survival was contingent upon reversing
assimilation, Ahad Ha-am fought vehemently against separating
the national and religious elements of Judaism.10 5
Mainstream Zionism mandated that before the Jews could
establish a political state in Israel, they had to first build a strong
Jewish community and solid economic and social foundations
for a Jewish state."0 6 Mainstream Zionists sought to create
Jewish agrarian and working classes who would labor together to
build the Jewish homeland." 7 They viewed the establishment of
statehood as a long process of struggle to build Jewish national
assets in Israel. 08
Vladimir Jabotinsky, leader of the Revisionist Zionist
movement, 0 9 argued that to overcome exile and its negative effects
on the Jewish nation, Jews must establish a state immediately."'
Revisionist Zionists claimed that Jews needed to be imbued with
the fighting spirit and to reclaim the land that was rightfully
theirs." 1 They argued that establishing a state was a
pre-requisite to developing economic and social foundations and
advocated the use of force as a means of gaining control.' 12
Jabotinsky argued that mainstream Zionists were dreamers, lacking the
revolutionary thrust that was necessary to establish a state.1 3
b. The Jewish Community in Pre-State Palestine
Unlike their predecessors," 4 the Zionists who emigrated to
Palestine during the five Aliyot created a communal framework
for the growing Jewish community.1" Under Ottoman rule,
from 1517 to 1914,116 religious minorities, including the Jewish
community, were granted judicial autonomy in matters of
personal status including: marriage, divorce, family maintenance,
and education. 1 7 This system, termed the millet system, granted
religious minorities living within the Ottoman empire the
freedom to safeguard their individual religious laws. l" 8 The Jews of
the first two Aliyot, who emigrated to Ottoman controlled
Palestine, established religious courts that strictly applied Jewish
law. 19 After the First World War, the British Government
gained control of what was then Palestine under the mandatory
scheme enacted by the League of Nations. 2 ' The British
preserved the millet system in Palestine and religious authorities
continued their governance over matters of the personal status
of their adherents.12 1
The Jews of the third, fourth, and fifth Aliyot arrived in
British controlled Palestine between 1919 and 1939 and were met
with hostility from the Arab population. 2 2 With the increase in
Jewish immigration, Jewish-Arab tension mounted and clashes
broke out between the two communities.12 3 In 1917, the British
government issued the Balfour Declaration1 24 supporting the
eswith religious observance, not with building political and social foundations for ajewish
115. See id. at 16-36 (discussing Zionists' political, social, and agricultural
enterprises in pre-state Palestine).
116. See SMITH, supra note 14, at 11-37 (discussing Ottoman rule in Palestine).
117. Itzhak Englard, Law and Religion in Israel,35 Am.J. CoMP. L. 185, 196 (1984).
120. See LEAGUE OF NATIONS COVENANT art. 22 (outlining mandatory scheme). See
also Terms of the British Mandate for Palestine confirmed by the Council of the League
of Nations, LEAGUE OF NATIONS O.J. 1007-12 (1922) (outlining terms of British Mandate
121. The Palestine Order in Council (1922-1947), Paragraph 83, III Laws of
Palestine 2569 (1934). The Palestine Order in Council states that:
All persons in Palestine shall enjoy full liberty of conscience and the free
exercise of their forms of worship subject only to the maintenance of public order
and morals. Each religious community shall enjoy autonomy for the internal
affairs of the community subject to the provisions of any ordinance or order
issued by the High Commissioner.
122. Ettinger, supra note 57, at 997.
124. The Balfour Declaration (1917), reprinted in RUTH LAPIDOTH & MOSHE
HIRSCH, THE ARAB-ISRAELI CONFLICT AND ITS RESOLUTION: SELECTED DOCUMENTS 20
tablishment of a homeland for the Jews in Palestine. 125 British
statesmen were deeply sympathetic to the Zionist cause because
they possessed religious, Christian interests in the land of the
Old Testament and were burdened with guilt over Europe's
treatment of the Jews. 126 The Balfour Declaration sparked
increased Arab hostility toward the Jewish community127 and the
intermittent riots continued.1 2 8
The British Government appointed a commission to
investigate the causes of the riots and to propose policies to ease
Jewish-Arab tensions. 12 9 The Shaw report, published in 1930,
identified Zionist immigration and their purchasing of Arab lands as
the source of the riots.1 3 The British responded by issuing a
series of White Papers, limiting Jewish immigration.'
World War II had begun and the British sought to resolve
the crises in Palestine in a manner favorable to the Arabs, in the
hopes of fostering Arab support for continued British rule of
Palestine. 3 2 The British entered World War II with the
knowledge that their policies had not only failed to resolve Jewish-Arab
tension in Palestine, but also had failed to secure the support of
either community for continued British rule. 3 British reversal
of their favorable policy towards the Zionists, through the
issuance of the White Papers, failed to satisfy the Arabs and
outraged the Zionists.1 3 4
In 1941 Adolf Hitler implemented his plan to exterminate
the Jewish race.1 35 As the massive slaughtering ofJews coincided
with British restrictive immigration policies, Zionist leaders
facilitated the illegal immigration of thousands of Jews into
Palestine. 13 British officials interceded and attempted to transfer
illegal refugees to the island of Mauitius in the Indian Ocean.3 7
Jews became increasingly bitter at Great Britain's inhumane
policies and began to attack British installations.13
5. The Establishment of the State of Israel
By the conclusion of World War II, Hitler had succeeded in
exterminating two thirds of Europe'sJewish population,
approximately six million Jews.1 39 Conflicts between the Jews and the
British over Jewish immigration continued as did conflicts
between the Jews and the Arabs and the Arabs and the British. 0
In February of 1947, the British thrust the Palestine problem
into the hands of the United Nations,' 4' openly denouncing the
Jewish call for statehood. 4 '
In June 1947, the U.N. Special Committee on Palestine
("UNSCOP") convened in Jerusalem to discuss
recommendations regarding Palestine. 43 The Zionists, interested in
presenting a unified front, wanted to prevent a situation where
representatives of Jewish Orthodoxy would openly express opposition
to the establishment of ajewish state.'" On the eve of the
Commission's arrival, the Zionists consolidated and passed the Status
Quo Agreement, a series of four promises assuring the religious
leadership that the principal arrangements regarding
religiousstate issues that existed prior to independence would be
A. The Extreme Positions
Israelis that advocate instituting a theocracy in Israel are
only with adherence to God's commandments. 34 5
They posit that the only way to preserve the Jewish nation is by
preserving Jewish law. 346 Theocrats maintain that freedom of
religion and conscience must always be subordinated to Jewish
Israelis at the other extreme, however, advocate
complete separation of religion and state both to enhance Israel's
nature and to rescue Judaism from
The theocratic model, advocated by a small minority of
Orthodox Jews, is not seriously considered by the Israeli
The theocratic position maintains that the State of
Israel must function as a religious entity governed solely by
Jewish law.35 Jewish law, therefore, would function as Israel's
For theocrats, the preservation of the Jewish nation
is synonymous with the preservation of the Jewish religion and
the State of Israel is viewed as the only appropriate place for the
reinstitution of Jewish law.3 3 2
tinuity ofJewish nation, but seek alternative modes ofJewish identity, outside confines
345. RAcKAN, supra note 339, at 46.
346. LIEBMAN & DON-YEHIYA, supra note 26, at 72.
347. See RACEMAN, supranote 339, at 46 (discussing member of Agudat Israel Party,
Meir David Lowenstien's, argument that adherence to Jewish law should not be matter
of individual conscience).
348. See BIRNBAUM, supra note 203, at 280-82 (discussing secularists' argument for
separation); LEIBOWITZ, supra note 340, at 174-84 (discussing religious argument for
349. See RAcKaMAN, supra note 339, at 35-49 (discussing parties' official statements
during constitutional debate and noting that suggestions to institute Jewish law as
Israel's constitution were disregarded).
350. Id. at 46.
351. Id.; 4 Knesset Protocols 745 (1950) (Isr.), translatedin SHA"mAN, supra note
7, at 41 (articulating Knesset Member, Meir David Lowenstien's, demand that Jewish
law serve as Israel's constitution).
352. 4 Knesset Protocols 812 (1950) (Isr.), translatedin SHARFMAN, supra note 7, at
41. Objecting to the enactment of anything other than Jewish law in Israel, Minister of
Welfare Yitzhak Meir Levin stated that:
[D]o you think that what our enemies failed to do, what blood and fire failed
to do, you will succeed in doing through the power of the state? No you
won't! You still do not understand the Jewish soul. It will awaken and burst
into a great flame. If in the Holy Land, of all places, we want to turn things
Theocrats oppose the belief that Jewish identity can take
many forms and argue that Israel's connection withJudaism
cannot be merely cultural or nationalistic."' 3 They posit that even
within the most secular Jew lies a spark of holiness that a
religious state would reawaken and that it is Israel's responsibility to
implement Jewish law and serve as an example of adherence to
its precepts3. 5 4 According to theocrats, the function of the
Israeli Government should be to enforce Jewish law throughout
the State.3 55 They view the Jewish State as a vehicle for
achieving the transcendent objectives of the Jewish religion. 5 6
2. Absolute Separation
Although the slogan, "separation of religion and state," is
injected into Israeli public debate on occassion, 5 7 no political
party has actually adopted it as a policy position.3 5 8 Complete
separation of religion and state is a minority position, extreme
and uncommon, and it is not clear what proponents of this
position intend when they argue for its implementation. 359
Numerous works have been published detailing the negative impact of
the integration of religion and politics in Israel on both Jewish
law and the political system. 36° Aside from addressing the
infirmities of the present system and urging the untangling of
religion from the political arena, however, few undertake the task of
upside down and to make the life of religiousJews unbearable .... Don't we
have anything else to do besides starting a Kulturkampf, which, God forbid,
might destroy us and the state?
353. 4 Knesset Protocols 729 (1950) (Isr.), translated in S1HARFMAN, supra note 7, at
40. Leader of the National Religious Party, Zerah Warhaftig, argued that replacing the
Jewish Bible with a constitution would weaken the connection between the Jewish
nation and its religious laws, thereby, decreasing the worldwide status of the Jewish
354. LIEBMAN & DON-YEHIYA, supra note 26, at 72.
355. Englard, supra note 117, at 188.
357. LrnBowrrz, supra note 340, at 174. The slogan is raised as a theoretical
position in secular circles. Its advocates do not regard it as a serious political demand to be
realized in the present. Id.
359. LIEBMAN & DON-YEHIYA, supra note 26, at 15.
360. See, e.g., LEIBowIrz, supra note 340, at 158-84 (arguing that interaction of
religion and state corrupts Judaism); S~matMA, supra note 7, at 69-92 (arguing that
religious legislation is coercive); Shetreet, supra note 4, at 207-15 (concluding that
enforcement of specific religious norms violates freedom of religion).
elaborating how, precisely, religion and state should be
separated, what role Judaism should play in the new system, and how
the ramifications of total separation should be dealt with. 6 '
Two groups advocate separation of religion and state:3 62 a
minority of extreme religious and secular thinkers. 63 Their
reasons for advocating separation, however, are distinct.3 64 The
Orthodox separatist position is based on the notion that politics
exploits and corrupts religion.3 6 5 Yeshayahu Leibowitz, a
leading religious scholar advocating separation, explains that the
purity of religion must be saved from the political organ. of the
State. 6 6 Leibowitz believes that holiness consists only of the
observance of the Torah and its commandments, and any assertion
that the founding of the State of Israel, a political and historical
event, is embedded in holiness is unjustified. 6 7 Israel came into
existence through the common efforts of Jewish patriots,
religious and secular alike, and patriotism, he asserts, is a secular
human motive and not a sanctified undertaking. 368
Leibowitz claims that the Government utilizes religion, not
for religious purposes, but to gain power.3 69 Absent complete
separation of religion and state, Leibowitz argues that religion
becomes a political tool, used to gain concessions from religious
groups and to advance secular, political objectives. 7 ' Leibowitz
describes the present situation, a secular state, recognizing
gious institutions and supporting them with government funds,
as neither aiding nor imposing religion. 71 What is imposed is
not true religion, but rather only specific religious provisions
deemed appropriate by political, not religious authorities.1 2
This system rejects the guidance of Jewish law and replaces it
with arbitrary choices fueled by political negotiation. 3 73 It serves
political ends and not God, thereby degrading religion. 74
Leibowitz believes that when religion ceases to shield itself with
administrative status, its strength will be revealed and it will be
better equipped as both an educational and influential force. 75
Separation also will allow the religious community to
control religious institutions in the interest of religion.3 76 The
rabbinate would be empowered to speak with the voice of Jewish
law about all religious issues, not only those authorized by the
State. 77 Leibowitz asserts that the religious community can
support its own agencies and institutions, without aid from the
Government.378 Leibowitz concludes, however, that should the
community decide to accept governmental aid, it would be entitled
to such support even after the separation of religion and state
because the community is comprised of taxpayers who share the
burden of the State. 79
Secularists who call for separation believe that separation is
the only way to protect freedom of religion and conscience, as it
would prevent the religious minority from imposing religious
law on the public at large. 80 Shulamit Aloni, leader of the
Citizens Rights Movement,38 1 articulates the secularist argument,
arguing that the people of Israel should not be confused with the
State of Israel and that although the people of Israel may
voluntarily undertake to be guided by religious law, the State must be
a purely secular entity with purely secular ministries. 8 2
Furthermore, Aloni argues that the State should be prohibited from
legislating that the Government take an interest in religious issues,
even when a Knesset majority supports such an interest.3 8 3
The separation of church and state in Western democracies,
in general, and in the United States, 8 4 in particular, is based on
the notion that democratic political systems cannot deal
effectively with religious issues.3 8 5 The injection of religion into the
political arena, it is argued, has two primary adverse effects: the
stability of the political system is threatened by religion and
religion is undermined and corrupted by the political system.3 8 6
The First Amendment of the U.S. Constitution,3 8 7 for example,
which separates church and state, is a product of early U.S.
history and was passed to eradicate persecution against
non-members of the established church.3 88
The centuries immediately preceding the colonization of
the United States were wrought with turmoil, civil strife, and
persecution. 89 Established sects, determined to preserve their
religious and political power, jailed, cruelly tortured, and even
killed those with opposing religious beliefs.3 g" The offenses
meriting these punishments included: speaking disrespectfully
regarding the views of ministers of government-established
churches, failing to attend these churches, expressions of
nonbelief in their doctrines, and neglecting to pay taxes and tithes
382. 15 Knesset Protocols 1571 (1966) (Isr.), translated in BIRNBAUM, supra note
203, at 281.
384. See U.S. CONST. amend. I (separating religion and state).
385. LIEBMAN & DON-YEHYA, supra note 26, at vii.
387. U.S. CONST. amend. I. "Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof." Id.
388. Everson v. Board of Educ. of Ewing Tp., 330 U.S. 1, 33 (1946) (Rutledge, J.,
dissenting). "No provision of the Constitution is more closely tied to or given content
by its generating history than the religious clause of the First Amendment. It is at one
the refined product and the terse summation of that history." Everson, 330 U.S. at 33.
389. Id. at 8.
390. Id. At various times and places Catholics persecuted Protestants, Protestants
persecuted Catholics, Protestant sects persecuted other Protestant sects and they all,
from time to time, persecutedJews. Id. All of this took place with government support.
FREEDOM OFRELIGION IN ISRAEL26
to support them. 39 1
Although a significant number of settlers came to the
United States specifically to escape religious persecution, they
brought the practices of the old world with them and religious
persecution began to flourish in the new world. 92 Individuals
and companies designated to the make the laws that would
govern the colonies were armed with charters, granted by the
English Crown, authorizing them to establish churches which all
colonists, believers and non-believers alike, were required to
support.393 All dissenters were compelled to pay tithes and taxes
and to support government-sponsored churches whose ministers
sought to strengthen the established religion by encouraging
hatred of all non-believers. 394
The persecution of the religious sects not in power aroused
the indignation of colonists who wished to preserve freedom and
liberty for all individuals3. 95 A movement to strip the
Government of all power to tax, support, assist religious groups, or
interfere with the beliefs or practices of any individual or group
developed.3 96 Their efforts culminated in the adoption of the
Establishment Clause of the First Amendment, a provision
embracing religious liberty3. 97
The metaphor of a wall of separation between church and
state represents a central principle in U.S. constitutional
thought: the State should not involve itself in matters on the
other side of the wall, matters relegated to the private sphere. 9 8
This principle incorporates more than religious freedom.3 9 9 Its
protections from government intervention encompass
considerations of race and ethnicity, in accordance with the precepts of
392. See LEONARD LEVY, THE ESTABLISHMENT CLAUSE 1-26 (1994) (discussing
colonial establishments of religion); id. at 27-78 (discussing state establishments of
393. Everson, 330 U.S. at 8.
395. Id. at 11.
396. Id. No single group of colonists can be credited for the protests that
eventually resulted in the adoption of the First Amendment. Id. Colonists from Virginia,
where the established church was a dominant force in political affairs, however,
propelled the movement and served as its leaders. Id.
397. U.S. CONST. amend. I.
398. JACOBSOHN, supra note 2, at 28.
399. Id. at 29.
modem constitutionalism. °° Thus, the Government is
prohibited from making an individual's adherence to a religion or
membership in a specific race or ethnic group relevant to his or
her standing in the political community.40 1 Rather, the political
community in the United States is based on a universal standard
of equality.4 2 Rights inhere in the individual, not the group,
and the Government is charged with protecting those rights.40
One of the effects of the Establishment Clause, therefore, is to
facilitate and encourage assimilation, to replace ascriptive
recognition with individual equality. 4 Members of groups are viewed
as U.S. citizens irrespective of their other group affiliations and
the force uniting the U.S. citizens is their common national
The U.S. Supreme Court's treatment of bigamy highlights
its assimilative approach toward community.4 "6 The U.S.
Supreme Court, in Reynolds v. United States,4° 7 upheld a federal
statute criminalizing bigamy.4"' The Court addressed whether
the petitioner, a member of the Mormon faith, which permits
bigamy, should be exempted from the statute.40 ' The Court
concluded that every civil government has the right to
determine whether bigamy or monogamy should be enforced and
held that the petitioner could not be exempted from the
prohibition on bigamy.41 0 Ten years later, the Supreme Court
explained that exempting members of religions that permitted
bigamy would shock the moral judgment of the community.4 The
Court must have been referring to the nation at large when it
used the word community, as the institution of bigamy could not
401. Id. at 28-29.
402. Id. at 29.
403. Id. at 21.
404. Id. at 30. Religions construct walls to protect themselves from the outside
world; separating religion and state prevents governments from protecting these walls
and, therefore, from protecting specific religious interests. Id.
405. Id. at 9; SAMUEL P. HUNTINGTON, AMERICAN POLITrCS: THE PROMISE OF
DIsHARMONY 24 (1981). Huntington argues that without the values that constitute the
American creed, U.S. citizens have nothing vital in common. Id.
406. JACOBSOHN, supra note 2, at 30.
407. Reynolds v. United States, 98 U.S. 146, 166 (1879).
408. Reynolds, 98 U.S. at 166.
411. Davis v. Beason, 133 U.S. 333, 341 (1889).
shock or offend the morals of religious communities that
permitted bigamy.4 12
B. Proposed Religion-State Compromises
The majority of Israelis wish to retain the Jewish character
of the State of Israel while, simultaneously, curbing religious
coercion.413 They offer a range of possibilities to eradicate existing
religious coercion resulting from the application ofJewish law in
Israel.41 4 Some defend the status quo.4 15 Others advocate
additional steps toward separation through implementing an interest
analysis test 41 6 or by supporting only those religious laws that
serve primarily secular purposes.41 7 In addition, many Israeli
scholars advocate the revival of the constitutional project and
the establishment of legislative protection of civil rights as the
only means of solving religious-state conflicts. 418
1. Defending the Status Quo
Examining the status quo in the context of the Marriage
and Divorce Law highlights the dimensions of conflict,
propelled by the competing conceptions of Israel as a Jewish
state.41 9 Proponents of the existing system argue that so long as
non-Orthodox Jews are not forced to adopt Orthodox beliefs,
there is no significant breach of religious liberty.4 20 They claim
that Orthodox marriage ceremonies can be regarded as a mere
formality imposed by the State, no more offensive than a
compulsory civil ceremony might be to a religious person.4 2 1
Orthodox rabbi would simply be regarded as the State's
marriage registrar.4 2 2
Supporters of the status quo maintain that all Jewish legal
prohibitions on marriages and divorces must be upheld, arguing
that disrupting the existing system will open the floodgates to a
mass of intermarriages, which would threaten the continuity of
the Jewish nation.4 2
Advocates of maintaining the status quo
also contend that any compromise would endanger national
unity,4 2 4 and that freeing divorce laws from the jurisdiction of
would irreparably divide the nation.4 2 5
This argument, that a change in the status quo would endanger
the unity of the Jewish people, has proven to be politically
effective because national unity is a rational objective that garners
consensus among Israeli political parties.42 6
2. Interest Analysis
Implementing an interest analysis test would serve to
balance the competing interests of Jewish law and rational, valid
governmental objectives.4 27
According to this test, Jewish law
would be given priority where religion has an overriding interest
in fostering the continued growth of the Jewish community and
government objectives would be served absent an overriding
religious interest.4 28 In the context of the Marriage and Divorce
Law, the harm that would result from not adhering to Jewish law
422. Id. The same sources would concede that Orthodox marriage ceremonies
would constitute religious persecution if Christians or Muslims were forced to marry in
like circumstances. Id.
423. 44 Knesset Protocols 1834 (1966) (Isr.); M. Porush, leader of religious party
Agudat Israel, translatedin BIRNBAUM, supra note 203, at 282. "The Torah and religion
are the essence of our existence. Every thought that borders on separation of religion
and state is identical with the separation of the soul from the body. Our people is not a
people except by virtue of its Torah." Id.
424. See Englard supra note 117, at 422, 423 (discussing danger to national unity).
But see LEIBOWITZ, supra note 340, at 180 (arguing that national unity would not be
425. LIEBMAN & DON-YEHrYA, supra note 26, at 26. A large part of the population
would regard the offspring of any second marriage, performed absent a legal Jewish
divorce, as mamzerim, and, therefore, would be restricted from marrying them. Id.
This could ultimately lead to the creation of two Jewish nations in Israel. Id.
426. Englard, supra note 117, at 202.
427. Lubetski, supra note 288, at 364, 365.
428. Id. at 365.
would have to be weighed against the governmental interest of
preventing religious coercion. 42 9
The result of this test would provide for civil marriages in
Israel where the consequences of such marriages would not lead
to the birth of a mamzer.430 For example, civil marriages
between a Jew and a non-Jew or between a Cohen and a divorcee
or widow could be permitted because children born to either of
these marriages are Halachicly permitted to marry other Jews
and do not advance the danger of the creation of two Jewish
nations in Israel.43 l Only in a case where a union could produce
a mamzer, who is restricted from marrying other Jews, would
national unity be affected sufficiently to elevate a religious interest
above the governmental objective to protect freedom of religion
3. The Secular Primary Purpose Test
Israeli legal scholar, and Minister of Religious Affairs,
Shimon Shetreet, supports the integration of religion and state,
but argues that only those religious norms which have been
adopted by the society at large can be enforced without violating
religious freedom.43 3 Minister Shetreet argues that if religious
legislation passes a secular primary purpose test,4 3 4 synonymous
with acceptance by enlightened members of society, it should
not be considered coercive. 43 5 For example, thatJewish holidays
and the Sabbath are national days of rest in Israel could
constitute religious coercion.43 6 Because the law could be attributed
to a primarily secular purpose, the enactment of a uniform day
of rest, however, that Jewish law is legislated by the State would
not be sufficient to invalidate the law.4 37
429. See id. at 368-70 (discussing application of interest analysis to Marriage and
430. Id. at 370.
431. Getsel Ellinson, Civil Marriage in Israel: Halakhic and Social Implications, 13
TRADITION 24 (1972).
432. Lubetski, supra note 288, at 370.
433. Shetreet, supra note 4, at 214. Shetreet argues that religious freedom is
violated only when norms that are not accepted by a consensus of society are enforced. Id.
434. See id. at 214 (defining secular primary purpose test).
436. Days of Rest Ordinance, 1 L.S.I. 18 (1948) (Isr.).
437. See Shetreet, supra note 4, at 214 (making same argument regarding Sunday
as U.S. day of rest).
Minister Shetreet maintains that the application of Jewish
law in the areas of marriage and divorce constitutes religious
coercion.43 8 He argues that because the majority of Israeli citizens
oppose the Marriage and Divorce Law, it conflicts with religious
freedom.43 9 Minister Shetreet continues to explain that several
religious norms exist that should be adopted by official state
institutions despite their lack of societal consensus. 440 He argues,
for example, that the military's adherence to Jewish dietary
laws" 1 is justified not because a majority of Israelis support it,
but because it is a symbol that forges a bond with the history of
the Jewish people." 2 The continued existence of Israel as
ajewish state, Minister Shetreet argues, requires government
authorities to preserve Jewish symbols and values." 3
4. Toward A Constitution
A constitutional revolution has begun in Israel. 4 " Many
legal scholars assert that the only way to effectively address the
obstacles that the present system places in the path of protecting
civil rights, while at the same time retaining the Jewish character
of the State, is by completing the task assigned to the nation in
Israel's Declaration, the adoption of a constitution. 445 While the
enactment of Basic Laws resulted in some progress toward
drafting a constitution, the progress was minimal. 446 Basic Laws
merely addressed structural issues defining the form of
government to be instituted in Israel and the powers of the
Government's branches. 447 All issues of contention that originally
thwarted the adoption of a constitution were ignored by the
The development of a judge-made constitution in Israel
438. Id. at 215, 216.
439. Id. at 216.
441. Kasher Food for Soldiers Ordinance, 2 L.S.I. 37 (1948) (Isr.). This law
ensures that all Jewish soldiers in the Israeli Defense Army will receive kasher food. Id.
art. 2, 2 L.S.I. at 37 (Isr.).
442. Shetreet, supra note 4, at 216, 217.
443. Id. at 216.
444. Daphne Barak-Erez, Froman Unwrittento a Written Constitution: The
IsraeliChallenge in American Perspective, 26 COLUM. HUM. RTS. L. REv. 309, 355 (1995). The
constitutional revolution began with the enactment of two Basic Laws on human rights. Id.
445. Id. at 323.
446. Id. at 316.
447. Id. at 312.
caused many to question whether a written constitution was
necessary, or even desirable."4 Because the judiciary took such an
active stance in promoting basic freedoms and was successful in
protecting numerous civil rights, scholars pointed to the
advantages of an unwritten constitution.4 4 9 Scholars argued that
because an unwritten constitution is free from precise textual
definitions that often limit rights, it is better equipped to safeguard
freedoms in light of changing circumstances. 450
were at first satisfied with leaving the protection of human rights
to the judiciary, discontent with the Knesset 45 1 and with the
limited scope of judicial review allotted to the Court,452 propelled
the notion that the time was ripe to revive the constitutional
Because certain rights were so controversial, including
freedom from religious coercion, a proposal was made to enact
human rights provisions gradually, 45 3 following the chapter by
chapter approach outlined in the Harari Resolution. 45 4 The
notion behind this proposal was that after initial legislation was
passed protecting less controversial rights, the issue of religion
and state, a more controversial issue, would receive serious
attention in light of the progress that would have already been
achieved.4 5 5 In March 1992, the Knesset passed the first two
Basic Laws addressing civil rights: Basic Law: Freedom of
Occupa448. Id. at 318.
449. See Segal, supranote 176, at 3 (describing Supreme Court's role in protecting
civil rights); see supra notes 231-45 and accompanying text (discussing judicial
protection of civil rights).
450. Barak-Erez, supra note 444, at 318.
451. Id. at 321. The 1980's marked years of instability in the Knesset where
coalition forming increased. Id. With the increase in coalition agreements, the relative
power of small parties also increased. Id. Small interest groups made demands,
including illegitimate demands, and ruling party politicians bowed to these demands because
they needed the support of these small parties to reach the delicate majority needed to
form a government. Id. The professional community and the public at large grew
skeptical of the legislature when they believed that ruling parties elevated the need for
forming a majority to insure their own power base above public fairness and the will of the
people. Id. at 321, 322.
452. See Bracha, supra note 160, at 112-20 (discussing judicial review in Israel).
453. Amnon Rubenstein, The Strunge Over A Bill Of Rights For Israel, in DANIEL J.
ELAZAR, CONSTITUTIONALISM: THE ISRAELI AND AMERICAN EXPERIENCES 139, 139, 140
(1990). Amnon Rubenstein, Knesset member and prominent constitutional law
professor, proposed this plan hoping that reaching consensus on the definition of a few rights
would stir the dynamics of the constitutional project. Id. at 139, 140.
454. Harari Resolution, 5 Knesset Protocols 1743 (1950) (Isr.).
455. Barak-Erez, supra note 444, at 323.
tion4 5 6 and Basic Law: Human Dignity and Freedom.457
Although these Basic Laws codified several important rights,
they ignored others for fear of opposition from religious
parties.458 The problem of religion and state, therefore, was not
Another method employed to advance the constitution
project was the introduction of a private bill, never passed, entitled
Basic Law: Human Rights." 0 This bill similarly neglected to
address the issue of religion and state in Israel.46' Amnon
Rubenstein, one of the drafters of this bill, explained that addressing
religious issues would have precluded the bill from passing.462
Rubenstein agreed to exempt all issues of family law and
personal status, preserving the exclusive jurisdiction of the
Rabbinical courts.463 He addressed his intentional exemption
only by expressing his hope that the two sides could work out a
satisfactory solution in the future."64
III. ISRAEL MUST PROTECT THE CONTINUITY OF THE
JEWISH NATION AND JEWISH NATIONAL UNITY
Although some non-observant Jews complain that the
integration of religion and state in Israel constitutes religious
coercion, Israel should not separate religion from state. Israel was
established as a Jewish state and one of its functions is, and
should remain, to promote the continuity of the Jewish nation
and to protect Jewish national unity, at least, within its borders.
Advocates of the extreme positions fail to recognize the
importance of both Israel's Jewish and democratic nature, and
there456. Basic Law: Freedom of Occupation, Sefer Hakhinukh (S.H.) 90 (1994) (Isr.).
457. Basic Law: Human Dignity and Freedom, S.H. 150 (1992) (Isr.).
458. Barak-Erez, supra note 444, at 325.
460. Rubenstein, supra note 453, at 141.
462. Id. Amnon Rubenstein wrote:
Needless to say, we have a very touchy problem with regard to the religious
issue. From the first, both Shulamit Aloni and I, who represent the strong
opposition to the present status quo in matters of religion, accepted the
notion that if we insist on the universality of the law with regard to all issues, it
would not have a chance.
464. Id. Amnon Rubenstein wrote that, "[G]iven the good will on both sides, I
think we can work out some sort of satisfactory solution . . . ." Id.
fore, do not effectively address the existing conflict. 1 5
Advocates of compromise, who recognize that Israel must protect civil
rights while retaining its Jewish character, disagree as to which
aspects ofJudaism merit governmental enforcement and seek to
repeal those laws originally enacted to maintain the continuity of
the Jewish nation and preserve national unity, including the
Marriage and Divorce Law.466 The re-establishment of Jewish
sovereignty in Israel was foreshadowed by thousands of years of
Jewish history where Judaism bound the Jewish nation together,
often only through persecution, despite individuals' attempts to
renounce their Jewish heritage. As a Jewish state, Israel has the
responsibility of supporting Judaism and enacting those aspects
of Jewish law that ensure the survival not only of the Jewish
nation, as a collection of individuals, but also as a Jewish
A. Dismissing the Extremes
Both the theocrats and the separationalists seek to advance
their own interests while discarding the positions of their
opposition.467 Recognizing that preserving the unity of the Jewish
nation is an instrumental function of the Jewish State and
protecting individual rights is critical to the democratic State of Israel,
extreme positions that disregard either of these essential
governmental responsibilities must fail. Instituting either a theocracy
in Israel or strictly separating religion from state is not a viable
option for a government striving to protect both civil rights and
1. Dismissing Theocracy
Enacting Jewish law as Israel's constitution would not
merely fail to remedy the the plight of non-observant Jews in
Israel, it would heighten the conflict and increase complaints of
465. See supra notes 349-55 and accompanying text (discussing theocratic model);
supra notes 357-412 and accompanying text (discussing proposals for absolute
466. See supra notes 427-31 and accompanying text (outlining interest analysis
approach); supra notes 433-43 and accompanying text (discussing secular primary
purpose test); supra notes 444-64 and accompanying text (advocating revival of
467. See supranotes 345-405 and accompanying text (outlining theocratic and
religious coercion. 468 Because Jewish law is not merely a system
of belief for the individual, but dictates measures to govern all
aspects of society,469 it can not provide the scope freedom of
religion that some Israeli citizens seek. Rather than addressing the
concerns of non-observant Israeli citizens, the theocratic
approach focuses solely on preserving Jewish law for the Jewish
nation, regardless of its consequences for the individual.
2. Dismissing Absolute Separation
Despite that non-observant Jews in Israel argue that the
existing position of Jewish law in Israel's legal and political system
curtails their freedom of religion, divorcing Judaism from the
State of Israel would dramatically change the character of the
State and deny Israel's unique history and tradition.
Furthermore, it would violate specific principles outlined in the
Declaration assuring that Israel is, and will remain, a Jewish state.47°
Advocates of separating religion and state that point to the
United States as the paradigm of a thriving democracy,
separating religion and state and fiercely protecting freedom of
religion, fail to recognize the limitations of the U.S. experience to
Israel. Separation of religion and state was enacted in the
United States to combat religious persecution supported by the
Government. Because Israel is comprised of a majority ofJewish
citizens, it maintained autonomous communal religious
institutions, in part, to ensure the Arab community equality. If
complaints of religious coercion were expressed by the Arab minority
in Israel, Israel's dilemma would be more similar to the
persecution in the United States that propelled the enactment of the
Establishment Clause. Israel, however, does not share the
history or national experience of the United States. Minorities in
Israel are not persecuted at the hands of the majority.
Furthermore, no single religion is supported by the Government at the
expense of any other. Rather, all religions are recognized and
supported by the Israeli Government. Applying the U.S.
solution to the Israeli problem, therefore, must ultimately fail, as it
468. See supra notes 349-55 and accompanying text (discussing theocratic model).
469. See supra notes 42-44 and accompanying text (discussing Judaism as religion
for community, not merely individual).
470. See Declaration, 1 L.S.I. at 3, 4 (Isr.) (discussing establishment of Israel as
does not address the unique facets of the Israeli dilemma:4 71
government responsibility for the maintenance or religion, in
general, and religious coercion among members of the
majority, in particular.
In the United States, attributes of nationhood flow directly
from the political conception of the state. To be a U.S. citizen is
to embrace certain political principles. The United States is a
case of a state creating a nation.47 " Israel's establishment, on the
other hand, was the antithesis of the U.S. founding. The State of
Israel is an example of the political expression of a people
already formed.473 The argument among the majority of Jews in
Israel is over which dimensions of Judaism should receive public
recognition, not whether such recognition is legitimate.4 7 4
One legal scholar, Professor Jacobsohn, draws distinctions
between the U.S. and Israeli approaches toward community
through their contrasting treatment of bigamy.475 Unlike the
United States, Israel, as the cradle of three religions, accepts the
responsibility of protecting the religious interests of religious
communities. The Knesset provides different protection to each
community, therefore, in order to facilitate equality, 47 6 a notion
that has been rejected in the United States. 4 77
Separation of religion and state in the United States has
facilitated the advancement ofJewish individuals, but not the
continuity of the Jewish nation. The Jewish community in the
United States is not unified.478 Orthodox and Reform leaders
vehemently oppose each other on a wide array of religious issues
471. Shetreet, supra note 4, at 205. Ben Gurion stated that:
The convenient solution of separation of Church and State, adopted in
America not for reasons which are anti-religious but on the contrary because
of deep attachment to religion and the desire to assure every citizen full
religious freedom, this solution, even if it were adopted in Israel, would not
answer the problem.
472. JACOBSOHN, supra note 2, at 37.
474. Id. at 38.
475. See id. at 31-35 (contrasting U.S. and Israeli courts' treatment of bigamy).
476. See supra notes 270-74 and accompanying text (discussing Israeli Supreme
Court's treatment of bigamy which highlights Israel's recognition of distinct religious
477. See supra notes 406-11 and accompanying text (discussing U.S. Supreme
Court's refusal to exempt Mormons from laws prohibiting bigamy).
478. Stewart Ain, Fightin' Words, JEwIsH WEEK, March 29, 1996, at 14. A Reform
leader stated that, "[i]t is all very well to sloganize that 'we are one'... but in fact we
including intermarriage and the definition of who is a Jew.
Recently, the Reform movement adopted the doctrine of
patrilineal descent which violates Halacha by accepting as Jews children
born to Jewish fathers.4 79 The Reform movement is not keeping
records of those Jews which the Conservative and Orthodox
communities would not consider to be Jewish. It is quite
possible that in two generations observant Jews will be forced to
separate themselves entirely from the Reform community because
they will be unable to ascertain who is Jewish for the purposes of
marriage. This fragmentation of the Jewish community is
precisely the situation that the laws in Israel were enacted to
B. Analyzing Compromise
Advocates of compromise recognize the Israeli
Government's responsibility to both preserve national unity and to
protect civil rights. 480 Legal scholars disagree, however, as to the
balance that should be struck between these competing
interests. Although several suggested solutions theoretically seem to
adequately give force to both religious and secular concerns,
applying these solutions to practical conflicts, such as the Marriage
and Divorce Law, exposes their flaws.
1. Attacking The Status Quo
Clearly, in the context of the Marriage and Divorce Law, the
compromise achieved by the civil courts, the recognition of
private marriage ceremonies and marriages that are conducted
outside the State,481 is an attempt to preserve the symbolic value
of religious marriage, while at the same time creating outlets to
ease the restraints of religious prohibitions. Although it does
make circumventing the law possible, it is wrought with
contrahave ceased to be one and I strongly advise that we recognize that fact and proceed."
479. Gary Rosenblatt, Quick FixJudaismDoesn't Work, JEwIsH WI-, Mar. 29, 1996, at
480. See supra notes 427-63 and accompanying text (discussing three proposed
compromises: interest analysis approach, secular primary purpose test, and revival of
481. See supra notes 320-29 and'accompanying text (discussing civil courts'
circumvention ofJewish law).
diction and fails to formulate a clear policy on the role religion
should play in the area of marriage.
Although recognizing marriages that take place abroad and
in private ceremonies does not remove Jewish law from the
political arena, it creates a situation where the dangers that Jewish
law seeks to avoid can flourish.48 Developing methods to
circumvent Jewish law erodes the law, but it does not destroy it, as
outwardly, the law of the State continues to accord legal force to
religious law.483 The question that needs to be asked is whether
the interests served by maintaing Jewish laws without full en-.
forcement are important enough to justify merely providing
loopholes in the existing system to prevent religious coercion
and not changing the actual law.
2. Flaws in Determining Which Jewish Laws Protect Jewish
Continuity and National Unity
Arguably, the interest analysis approach 48 4 was the very test:
employed by the founders of the State of Israel, resulting in the
status quo. As the religious parties originally sought to enact.
Jewish law as Israel's constitution, they agreed to the status quo
precisely because it preserved Jewish law in those areas that they
deemed closely linked with national unity and the preservation
of the Jewish nation. That the suggestion to reapply an interest.
analysis test has been raised exemplifies that citizens' percep.
tions regarding what fosters national unity and the perpetuation
of the Jewish nation is changing. For example, when the status
quo was adopted, preventing the loss of Jews to intermarriage
was perceived as critical. If the interest analysis test were to be
reapplied and civil marriages to be instituted in Israel, 485 it is
likely that at a later date yet another application of this test
would be sought. Instituting civil marriages suggests that the
only the birth of mamzerim contributes to the demise of Jewish
unity, while the consequences of intermarriage will not.
Arguments labeling specific Jewish precepts as instrumental
482. See supra notes 423-24 (discussing threats to continuity ofJewish nation and to
483. Shifman, supra note 320, at 542.
484. See supra notes 427-31 and accompanying text (discussing interest analysis ap-.
485. See supra notes 430-31 and accompanying text (advocating institution of civil
marriages in Israel).
to the preservation of the Jewish nation are subjective as factions
within Judaism interpret the binding nature of precepts
differently.4 8 6 One must understand, however, that religious Jews do
not argue for the legislative enactment of Jewish law to bind
themselves. Despite the secular laws of the State, religious Jews
will continue to live within the confines of Halacha. They argue
for the implementation of Halacha precisely to bind those Jews
who would not otherwise adhere to Jewish law. The very nature
of this system is coercive, but advocates of maintaining the status
quo deem the minimal coercion justified because the interest it
protects is the very preservation of the Jewish nation.
Furthermore, the question remains as to whether religious
authorities or secular politicians should be charged with
determining which laws have an overriding religious interest. Indeed,
the answer to this question will impact critically on the ultimate
laws adopted. Not only is there dissention between religious
leaders on the meaning of several Biblical commandments, but
also there are several matters for which there is no settled
Halacha at all.48 7 Rather, a continuum of opinion exists as to the true
nature of the meaning of these Jewish precepts. 488 A secular
legislator cannot enact a law containing two conflicting, undecided
opinions and would, therefore, be required to resolve the
dispute himself.48 If the secular legislator, who possesses no
Halachic authority and may not feel compelled to protect religious
interests, decides Halachic questions then Halacha will be
compromised and the legislator's decision, although rooted in
religious law, will not be recognized by religious communities.49 °
The very nature of the Halachic process provides the framework
for this situation to flourish. Jewish law is so controversial that it
is possible to find support for almost any desired outcome.491
486. See supra notes 283-85 and accompanying text (discussing Orthodox,
Conservative and Reform Judaism and their approaches to Biblical commandments).
487. Izhak Englard, The ProblemofJewish Law in aJewish State, 3 ISR. L. REv. 254, 267
489. Id. In Halachic codifications, two conflicting approaches to a law are often
490. Id. at 268.
491. Id. Justice Silberg commented that:
Our legal material is so rich and so controversial that in fact one can find
precedent for any desired view. Obviously for the Dayan [religious judge] this
does not facilitate a decision in the actual case he is trying, but it certainly
eases for the codifying legislator the choice of the abstract principle. For the
While religious authorities seek to curb their practices to Jewish
law, the secular legislator could merely choose the opinion most
desirable to suit secular, rather than religious needs.492
3. Flaws in the Secular Primary Purpose Test
Minister Shetreet's secular primary purpose test 493 avoids
addressing the central issue of the Israeli dilemma regarding
religion and state: what does being a Jewish state entail. That
Israel is a Jewish state that recognizes religion, suggests that it
can legislate laws to protect religious interests without assigning
the laws a secular purpose.494 Merely retaining all laws that serve
a secular purpose, while discarding those that only protect
religious interests, would be tantamount to an absolute separation
of religion and state. Furthermore, underlying the validity of the
secular primary purpose test is the notion that laws fashioned to
serve only religious needs should not be upheld. If Israel is to
continue to exist as ajewish state and as a safe haven from
persecution for all Jews, it must protect at least those Jewish laws that
are essential to the preservation of the Jewish nation.
Minister Shetreet's exception to the secular primary
purpose test, the allowance of religiously based laws that foster a
bond with the past of the Jewish people, despite the absence of
societal consensus,495 fails to clearly articulate how to determine
which laws should be afforded this privileged status. Minister
Shetreet labels the Marriage and Divorce law coercive,496 while
maintaining that statutes protecting Jewish dietary laws in the
military should be permitted according to this exception. The
consequences of eradicating Rabbinical courts' jurisdiction over
codifier's function is different from that of a decidingjudge: the latter is
obligated to find the accepted opinion, whereas the former is allowed to chose the
493. See supranotes 433-42 and accompanying text (outlining secular primary
494. Yosifif, 1 S.J. at 195 (Isr.) In his concurring opinion, Supreme CourtJustice
Silberg commented that Israel views, as its resposibility, "the maintenace and regulation
of particular forms of living and cultural values in which that particular section of the
community is interested, and which it holds dear." Id.
495. See supranotes 440-42 and accompanying text (discussing exception to
secular primary purpose test).
496. See supranotes 438-38 and accompanying text (labeling Marriage and Divorce
Law coercive under secular primary purpose test).
the marriages and divorces ofJews, however, would be so severe
that, despite a lack of societal consensus, the Marriage and
Divorce Law should be upheld. The Marriage and Divorce Law
facilitates a crucial bond with Jewish history and Jewish identity
by preventing intermarriage and preventing the creation of two
separate Jewish nations within Israel. Unfortunately, Minister
Shetreet does not address why the link to Jewish history is
fostered to a greater extent by adherence to dietary laws than by
adherence to laws that dictate who, in fact, is Jewish and who
Jews are permitted to-marry.497
4. Redefining the Constitution Project
Although the constitution project 498 recognizes the
importance of individual liberties and of maintaining the Jewish
character of the State, it avoids making principled decisions on the
issue of religion and state that might alienate religious parties. 499
The gradual approach of extending legislative protection to civil
rights, which advocates for enacting a constitution propose, 0 0
could, indeed, produce legislative protections of less
controversial rights. Without a definitive policy regarding the role that
religion should play in Israel, however, it is unlikely that the
mere momentum of the constitution project would propel a
solution to this intricate and emotionally charged dilemma.
Despite the multi-faceted dimensions of the conflict
surrounding religion-state issues in Israel, the Knesset must
articulate a clear role for Jewish law in Israel's legal system. While
Supreme Court decisions that facilitate the circumvention of
Jewish law prevent percieved religious coercion, they confuse,
rather than illuminate the role that Jewish law should be
afforded in the Jewish State. Satisfying both secular and religious
Jews in Israel is a difficult task as harmonizing Jewish law with
complete freedom from religious coercion is impossible.
497. Shetreet, supra note 4, at 215-17.
498. See supranotes 444-63 and accompanying text (discussing efforts to enact
constitution and bill of rights).
499. See supra notes 461-63 and accompanying text (discussing exemption of
500. See supra notes 453-54 and accompanying text (advocating gradual approach
to legislative protection of civil rights).
1. Testimony Sept . 20 , 1995 , Richard A. HeilmanPresidentChristians'IsraePlublicAction Campaign , House InternationalRelations Committee, 103d Cong., 2d. Sess. (Sept. 20 , 1995 ), availablein WESTLAW , database CONGTMY.
2. Declaration of the Establishment of the State of Israel, 1 Laws of the State of Israel (L.S.I .) 3 ( 1948 ) [hereinafter Declaration]. Israel's Declaration of Independence declared Israel as the Jewish state .
Accordingly , We, Members of the People's Council, Representatives of the Jewish Community of Eretz-Israel and of the Zionist Movement ... by Virtue of Our National and Historic Right and on the Strength of the Resolution of the United Nations General Assembly, Hereby Declare the Establishment of the State of Israel .... This right is the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State . Id. at 3 , 4. The Declaration does not define what it means to be a Jewish state. GARY JEFFREY JACOBSOHN, APPLE OF GOLD: CONSTITUTIONALISM IN ISRAEL AND THE UNITED STATES 7 ( 1993 ). Israelis have competing conceptions regarding what functioning as a Jewish state entails . Id.; See Norman L. Cantor , Religion and State in Israeland the United States, 8 TEL Aviv U . STUD. L. 185 , 203 ( 1988 ) (discussing competing conceptions of Israel as Jewish State) .
18. FEIN, supra note 9, at 16. Many of Israel's political institutions, including its electoral system of proportional representation, trace their roots to the severe factionalism of the Zionist movement . Id.
19. Bernard Susser , Toward a Constitutionfor Israel , 37 ST. Louis U. L.J. 939 , 940 ( 1993 ). In Israel, the dilemma of religion and state impeded the establishment of a Constitution . Id.
20. See Harari Resolution, 5 Knesset Protocols 1743 ( 1950 ) (Isr.) (outlining compromise postponing enactment of constitution).
21. NADAV SArtRAN, ISRAEL: THE EMBATrLED ALLY 200 ( 1981 ). A minority of Israelis seek to establish a theocracy in Israel where the State would be governed solely by Jewish law . Id. At the other extreme, a minority of Israelis argue for complete separation of religion and state . Id . The majority of Israeli citizens fall somewhere in the middle and seek to balance Jewish and democratic values . Id.
22. ABRAHAM R. BESDIN , REFLECTIONS OF THE RAV: LESSONS OF JEWISH THOUGHT 120 ( 1979 ). Rabbi Joseph B . Soloveitchik writes that: Only in this land, our sages say, does the Shekinah [Divine Presence] dwell and only therein does prophecy flourish. This singular attribute of the land is no more rationally explicable than the singularity of the people . These are
26. See CHARLES S. LIEBMAN & ELIEZER DON-YEHIYA , RELIGION AND POLITICS IN ISRAEL 15-28 ( 1984 ) (discussing religious symbols, institutions, and legislation supported by Israeli Government); Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, art . 2 , 7 L.S.I. 139 , 139 ( 1953 ) (Isr .). "Marriages and divorces of Jews shall be performed in Israel in accordance with Jewish religious law." Id.
27. See Declaration, 1 L.S.I. at 4 (Isr.) (guaranteeing social and political equality to all citizens regardless of religion, race, or sex).
28. LIEBMAN & DON-YEHIYA , supra note 26, at 28 , 29 .
29. Genesis 12: 1 - 7 . "Now the Lord said to Avram, Get thee out of thy country, and from thy kindred and from thy father's house, to the land that I will show thee: and I will make thee a great nation, and I will bless thee, and make thy name great .... And the Lord appeared to Avram and said, To thy seed I will give this Land." Id.
30. H. Tadmor , The Period ofthe First Temple, the BabylonianExile and the Restoration, in A HISTORY OF THE JEWISH PEOPLE 157 ( H.H. Ben-Sasson ed., 1976 ) [hereinafter Tadmor] . In 586 B.C.E. (before the Common Era), the First Temple was destroyed and the Jews were exiled . Id . In 538 B.C.E., almost 70 years later, King Cyrus of Persia granted the Jews permission to return to their land and to rebuild their Temple . Id. at 166 . The Book of Ezra recounts Cyrus's edict:
31. See Tadmor, supra note 30 , at 91-182 (surveying Jewish rule in Israel during First Temple period, Babylonian exile, and Temple restoration); M. Stern, The Periodof the Second Temple, in A HISTORY OF THE JEWISH PEOPLE 185 , 185 -303 (H.H. Ben-Sasson ed., 1976 ) [hereinafter Stern] (surveying Jewish rule in Israel during Second Temple period ).
32. Stem , supra note 31, at 303.
33. S. Sifrai, The Era of the Mishna and the Talmud, in A HISTORY OF THE JEWISH PEOPLE 307 , 307 (H.H. Ben-Sasson ed., 1976 ) [hereinafter Sifrail.
34. See H.H. Ben-Sasson , The Middle Ages, in A HISTORY OF THE JEWISH PEOPLE 355 , 403 (H.H. Ben-Sasson ed., 1976 ) [hereinafter Ben-Sasson] (discussing persecution of Jews in Middle Ages); PAUL MENDES-FLOHR &JEHUDA REINHARZ , THE JEW IN THE MODERN WORLD 252-99 ( 1980 ) (discussing political and racial anti-Semitism in modem period); See id . at 484-523 (discussing Holocaust).
35. FEIN, supra note 9, at 12.
36. See Declaration, 1 L.S.I. 3 ( 1948 ) (Isr.) (proclaiming establishment of State of Israel) .
37. See BESDIN , supranote 22 , at 120 ( discussing connection between land of Israel and Jewish nation ).
38. See Genesis 12 : 1 - 7 , supra note 29 ( discussing God's covenant with Abraham) .
39. Id .
40. Torah, in THE JERUSALEM BIBLE 1-255 (Harold Fisch ed., 1982 ). The Torah is the first five books of the Hebrew Bible, the Old Testament . Id.
41. Exodus 34 : 27 - 35
52. Id .
53. Id .
54. Id . In 1211 , 300 Rabbis and scholars from France and England settled in Palestine and established synagogues . Id . In 1267, Nachmanides ( Ramban), the greatest religious authority of the age, migrated from Spain to Jerusalem with a community of followers . Id. at 25 , 26. In the thirteenth century, several groups of Jews moved to Palestine from Germany. Id. After Spain expelled the Jews in 1492, many Jews migrated to Palestine. Id. During the sixteenth century, Jewish Kabbalists migrated to Palestine and established a center of Kabbalist thought in Safed. Id. Throughout the eighteenth century, Jews migrated to Palestine in larger numbers and began to rebuild cities and found Jewish communities . Id.
55. Yossi BEILIN , ISRAEL: A CONCISE POLTCAL HISTORY 13 ( 1992 ). Jews lived mainly in Jerusalem and other holy cities and concentrated solely on religious worship and study . Id . They were supported by contributions from wealthy Jews living in the diaspora and were not concerned with establishing a Jewish communal framework . Id.
56. WEBSTER'S NEW UNABRIDCED DICTIONARY 83 (Jean L. McKechnie ed., 1983 ) Anti-Semitism is defined as, "[p]rejudice against the Jews; dislike or fear of Jews and Jewish things." Id. Letter from Adolf Hitler to Adolf Gemlich (Sept . 16, 1919 ), translated in MENDES-FLOHR & REINHARZ , supra note 34, at 484. Hitler wrote that:
57. See S. Ettinger , The Modern Period,in A HISTORY OF THEJEWISH PEOPLE 727 , 730 - 32 , 870 -90 (H.H. Ben-Sasson ed., 1976 ) [hereinafter Ettinger] (discussing anti-Semitism in Europe) .
58. Id . at 805. In Western and Central Europe, Jewish equality was contingent upon their rejection ofJewish customs . Id. Jews seeking emancipation renounced per-
72. SMITH, supra note 14, at 27.
73. Id . In 1790 and 1791 , Russia passed laws creating the Pale of Settlement, stipulating that Jews were confined to living in former Polish territories and other areas of Southwest Russia . Id.
74. Id . Jews were only permitted to integrate into Russian society if they converted to Christianity . Id.
75. Id. See W.F. ABBOUSHI , POLITICAL SYSTEMS OF THE MIDDLE EAST IN THE 20TH CENTURY 212 ( 1970 ) (stating that since Jews were exiled from Israel in approximately 63 C.E., they dreamed of returning to what they believed was their promised land).
76. See Declaration, 1 L.S.I. at 3 (Isr.) (discussing Jewish longing to return to Israel).
77. Theodor Herzl , A Solution of the Jewish Question, reprinted in MENDES-FLOHR & REINHARZ , supra note 34, at 422- 26 . Herzl defined Zionism by stating that: I am introducing no new idea; on the contrary, it is a very old one. It is a universal idea - and therein lies its power - old as the people, which never, even in the time of bitterest calamity, ceased to cherish it. This is the restoration of the Jewish State . Id. at 422.
78. ARTHUR HERTZBERG , THE ZIONIST IDEA 32 , 33 ( 1972 ). The first theoreticians of Zionism appeared in the 1850's and 1860's . Id. at 32. At the time, their work had little influence and was quickly forgotten . Id . Zionism reemerged in the 1880's and 1890's . Id. at 33.
79. Id .
80. See , e.g., Ettinger, supranote 57 , at 891-938 (discussing contrasting Zionist ideologies); HARALi, supra note 15, at 70-83 (contrasting Mainstream and Revisionist Zionism); SAFRAN, supra note 21 , at 14-23 (discussing Zionist movement).
. 81. PAUL JOHNSON, A HISTORY OF THE JEwS 375 ( 1987 ).
82. See SMITH , supra note 14 , at 11-37 (discussing Ottoman rule in Palestine from 1517- 1914 ).
83. See id. at 42-135 (discussing British Mandate in Palestine from 1914 - 48 ).
84. See Declaration, 1 L.S.I. 3 ( 1948 ) (Isr.) (establishing State of Israel) .
85. FEIN, supra note 9, at 12.
86. See Ettinger, supra note 57 , at 891-938 (discussing Zionist ideologies); see supra note 80 and accompanying text (discussing competing Zionist ideologies and goals).
87. FEIN, supra note 9, at 14.
88. See SAIRAN , supranote 21 , at 22 (discussing Zionists' task of encouragingJewish immigration to Israel).
89. SMITH, supranote 14 , at 28. From 1881 until 1884, the first series of attacks, or pogroms, were waged against the Jews of Russia. Id. Peasant groups, tolerated and even encouraged by Russian authorities, pillaged Jewish communities, looting, raping, and killingJews. Id. The pogroms shattered any remaining hope ofJewish acceptance in Russia and propelled the first Aliya, a vast emigration movement of approximately 40,000Jews to Palestine. Id. Jewish immigrants of the first Aliya were inspired primarily by religious motives . Id.
FEIN , supra note 9, at 17- 18 . During the second Aliya, between 1904 and 1913, approximately 40 ,000Jews emigrated to Palestine. Id. at 17; Ettinger, supra note 57, at 921. The second Aliya was also comprised of Russian Jews, however, their motivations were not purely religious . FEIN, supranote 9 , at 17. Rather, they had been influenced by socialist ideologies and viewed themselves as heralds of a new socialist order . Id.; Ettinger, supra note 57. at 921.
Thirty-five thousand Jews emigrated to Palestine during the third Aliya between 1919 and 1922 . FEIN, supra note 9, at 18. The third Aliya was also comprised mainly of Russian Jews. Id. These Jews, however, had strong roots in the Zionist movement before they arrived in Palestine and were better prepared than the Jews of the first and second Aliyot (plural of Aliya) to cope with the harsh conditions they met upon arrival . Id. at 19 . They opened schools and universities, founded Israel's major labor union, employed new agricultural techniques, and created institutions for communal self government . Id . The Jews of the third Aliya were primarily concerned with developing a
135. Ettinger , supra note 57, at 1025 , 1027 .
136. Id . at 1048 , 1049 .
137. SMITH, supra note 14, at 115.
138. Id .
139. Id . at 112.
140. See Ettinger, supranote 57 , at 1011-14 (discussing Arab revolt againstJews and English); Id. at 1044 (discussing Jewish terrorism against British) .
141. Id . at 1052. British Foreign Secretary Ernest Bevin announced that because the British were unable to resolve the conflicts between the Jewish and Arab populations in Palestine, they decided to refer the problem to the United Nations . Id.; see SAFRAN , supra note 21 , at 31 ( stating that British deferred Palestine problem to United Nations on April 2, 1947, after failure of Arab-Jewish-British conference ).
142. SMITH, supra note 14, at 135.
143. Ettinger , supra note 57, at 1052.
144. S-A ,rMN, supra note 7 , at 70.
361. LIEBMAN & DON-YEHIYA , supra note 26, at 15.
362. See Lubetski, supra note 288 , at 352-55 ( outlining secularist and ultra-Orthodox arguments for separation) .
363. See BIRNBAUM , supra note 203, at 280-82 (discussing secularist position); LEIBOWITZ, supra note 340 , at 174-84 (discussing religious position).
364. See BIRNBAUM , supranote 203 , at 280-82 ( discussing secularists' argument that religion corrupts politics); LEIBowrrz , supranote 340 , 174 - 84 ( arguing that politics corrupts religion).
365. LEIBOWrrZ, supra note 340, at 174.
366. Id . at 159. Advocates of religion-state interaction justify the legislation ofJewish law in Israel by maintaining that it is indispensable to a decent social order . Id. "Justification of religion, is , in effect, its vulgarization." Id.
367. Id . at 175. But see ROGER FRIEDLAND & RICHARD HECHT , To RULE JERUSALEM 148- 49 ( 1996 ) (advance uncorrected proof on file with the Fordham InternationalLaw Journal) (outlining Rabbi Kook's argument that secular Zionists were sacred part of Jewish messianic redemption ).
368. LEIBOWTZ, supra note 340, at 175. The founders of the State of Israel did act not under the guidance of the Torah and its precepts and neither does the State of Israel . Id.
369. Id . at 176.
370. Id .
371. Id .
372. Id .
373. Id .
374. Id .
375. Id . at 177.
376. Id .
377. Id . Presently, the rabbinate, as a governmental agency, must refrain from making public statements on urgent religious issues including religious education . Id.
378. Id .
379. Id . at 177 , 178 .
380. BiRNBAUM, supra note 203, at 281.
381. Sarah Honig , Aloni Rejects Overtures to Return to Meretz, JERUSALEM Posr, Feb. 9 , 1996 , at 2. Aloni founded the Citizens Rights Movement ("CRM") over two decades ago . Id . The CRM was a breakaway faction from the Labor party and is now the mainstay of the three-way coalition which comprises the Meretz party . Sarah Honig , Shula Blew It, and She Did It Her Way, JERUSALEM PosT, Jan. 26 , 1996 , at 9.