The Tal Law

On the face of it, the principle of equality before the law triumphed spectacularly when the High Court of Justice ruled on Tuesday against extending the Tal Law, which allowed exemptions from military service for haredi men under the guise of encouraging them to enlist.

This decade-old legal oxymoron was deemed unconstitutional by six of the nine justices on the panel.

Nonetheless, the crows of victory from a host of civil liberties lobbies and much of the general public are patently premature. Likewise, the wails of indignation from religious politicians are exaggerated and geared to exploit anew an old pretext for rallying the party faithful.

Come August, when the Tal Law expires, IDF recruitment bases are unlikely to be inundated by thousands of yeshiva students flocking dutifully in response to draft notices.

That’s hardly desirable but is an undeniable fact of life. Too many vested interests and ingrained social patterns dispose the High Court’s ostensible objectives to failure. Many of the exemptions for presumed yeshiva students are bogus because a sizable portion of them aren’t scholars and yet are indoctrinated to reject military service.

Moreover, the rabbinical and political establishments reinforce their hold on the ultra-Orthodox sector by discouraging contacts with the rest of society. Stultifying conservatism would be undermined by breaking the separatist mold.

Odds are that the High Court ruling, which many of us rightly endorse, will rebound in a regressive backlash just when welcome buds of integration and increasing enlistment begin to sprout. They may be too few, too late, and confrontation will harden and radicalize positions. The borderline Orthodox may well be sucked into more extreme circles once the battle lines are drawn.

The Tal Law was born under Ariel Sharon, later the progenitor of Kadima, which now decries his law’s essence. Binyamin Netanyahu will have to buy time by promising a substitute for the soon-to-be-defunct legislation. That is next to a mission-impossible as it means sewing another intricate patchwork quilt that promises everything to everybody yet delivers little, if anything, to anyone. It’s uncertain that Netanyahu can – or will be allowed to – manage the sleight of hand that Sharon achieved in his day.

Still, Netanyahu has no choice but to give it a shot because politics, as per John Kenneth Galbraith, “consists in choosing between the disastrous and the unpalatable.”

The Tal Law is categorically unpalatable, but leaving a gaping void in its place may be disastrous. Social dynamics suffer no vacuums.

The Tal Law is a flawed construct of inherently contradictory declarations of intent. It was a façade claiming to uphold egalitarianism, while in fact it was designed to facilitate the precise reverse. But that, fair or not, is the nature of political compromise. Rather than advance given goals, compromises tend to paper over differences to preserve the status quo and allow modified violations of stated aims.

The High Court didn’t shock us with radical discoveries of truths that had eluded us. It was no secret that arrangements such as the Tal Law are never what they’re presented as, but – imperfect as they doubtlessly are – they’re often indispensable in preventing outright conflict.

That said, our judiciary is hardly likely to consider incontrovertible realities. Indeed, it’s unrealistic to expect an overnight shift in the Supreme Court once Justice Asher Dan Grunis succeeds Dorit Beinisch as its president.

Significantly, Grunis remained isolated in his nonconformist opinion on the limits of judicial interference. He argued that when the majority offers perks to a minority, it’s not the task of the court to annul them. The court’s objective should be to protect minorities from majority hardheartedness. The rest is up to electoral processes.

But Grunis’s noninterventionist predilections weren’t echoed even by the two other dissenting justices on Tuesday. The mindset of this court, regardless of who presides over it, is still extra-activist.

This leaves us wondering, though, whether its activism would be directed with equal zeal at the draft exemptions accorded Israeli Arabs (who even refuse civil service in their own communities) and at the egregious draft-dodging by segments of secular, urban, upwardly mobile society.