Our judicial system was out of character last week.
Known primarily as a
catalyst for the liberalization and secularization of Israeli society – at least
since the early 1990s when former Supreme Court president Aharon Barak presided
over an increasingly activist judiciary and the “constitutional revolution” –
the Supreme Court last week played an altogether different, some might say
Defending the religious status quo, the court’s
justices – president Asher Grunis, deputy Miriam Naor and Elyakim Rubinstein –
overturned a lower court ruling and ordered the Tel Aviv Municipality to enforce
its blue laws.
Municipal legislation prohibits operating retail
businesses starting sunset on Friday until after sundown Saturday night. But in
cities like Tel Aviv, where there is a strong secular majority, clientele put
immense pressure on businesses to ignore the day of rest and give in to the
dictates of consumerism. For larger retailers – particularly chain stores – it
is worthwhile paying the small fines of a few hundred shekels customarily
leveled against them by the municipality. Smaller retailers are less able to
absorb the periodic fines.
The Supreme Court justices rightly argued that
as long as the local law prohibits commerce on Shabbat, the municipality has an
obligation to enforce that law in an effective and fair-handed manner. Failing
to do so undermines the public’s respect for the law. That the municipality
profited from the lawlessness by collecting fines made the situation all the
If the law does not reflect Tel Aviv’s
city-that-never-sleeps character, the law should be changed. Until then, warned
the court, the law must be enforced effectively, including forcing the closure
of transgressors if necessary.
Secular lifestyles and blue laws clash
more resoundingly in Tel Aviv than in most cities. But the underlying tensions
are the same elsewhere in the Jewish state. With the breakdown of the old
statist ethics that characterized Israel in the first decades after its
establishment and the rise of forces such as globalism, neoliberal economics,
identity politics, and the influx of a million mostly secular immigrants from
the former Soviet Union, the religious status quo has become increasingly
For liberal-minded democrats the legislation of religious
values is nearly always suspect. But even in Israel, where a strong majority
favors maintaining the Jewishness of the state, old paradigms that anchor that
Jewishness in coercive legislation have become obsolete and even
We live in an era in which individuals – in Israel and
in the West in general – enjoy unprecedented autonomy. Market forces and the
right to the pursuit of happiness have undermined religious authority. At the
same time, religiosity has not waned. The amount of people who define themselves
as religious has, if anything, grown. But increasingly people are practicing
religion on their own terms.
The time has come for a new way of thinking
about how to maintain the Jewishness of the State of Israel.
way forward was articulated by MK Nitzan Horowitz (Meretz), who hopes to become
Tel Aviv’s first openly gay mayor. Commenting on the court’s ruling, Horowitz
noted it was time to amend the municipal laws, not only to enable businesses to
operate legally on Shabbat but also to “safeguard” Saturday as a day of
Even secular-minded leaders like Horowitz who call for recognizing
Tel Aviv’s mundane realities nevertheless identify with and want to protect
certain aspects of the Shabbat, particularly those aspects that promote social
justice by protecting workers from the whims of capitalist employers who want
employees available 24 hours a day, seven days a week.
If both religious
and secular are willing to compromise, an updated and consensual status quo can
be established either through legislation or not. Religious Israelis might
consent to allowing restaurants and places of culture and entertainment to
remain open on Shabbat, while secular Israelis might agree to close shopping
centers and large malls.
Attempts have been made in the past to reach
such a compromise. Most notable among them was the Gavison- Medan Covenant
initiated by Rabbi Yaakov Medan, one of the heads of the Har Etzion Yeshiva in
Alon Shvut, and Hebrew University law professor Ruth Gavison. These initiatives
might have come before their time. They should be revisited for the sake of
protecting a sense of common purpose and minimizing unnecessary social tensions.