Where prayer is a crime

‘This morning, close to 9:40, the respondent was detained... after, during the course of his visit...he began to pray... he was even seen and heard praying... and this was against the regulations and instructions of the police which he was aware of....”

This was the prosecution’s argument against Likud activist Moshe Feiglin on Succot, when he and several others were arrested over the course of the holiday for allegedly praying at the Temple Mount.

In court, Feiglin, as could be expected, criticized the lack of publicized regulations regarding Jewish visits to the site and the prohibition on Jewish prayer. He denied, however, that he had prayed out loud – saying he only prayed in his heart. The judge accepted his version of events and ordered that he be released without any conditions or fines.

While the judge’s reluctance to punish a defendant accused of prayer is admirable, it is almost unimaginable that in a civilized country founded on principles of liberalism, democracy and Return to Zion, a court of law would entertain arguments on whether a person was actually praying and therefore subject to penalty, or that the state would accuse a defendant of the crime of prayer – not of directly disturbing anyone with that prayer – but the mere act of prayer itself.

But this is the Middle East, and the situation is said to be complicated, especially when it comes to the issue of the Temple Mount. In one of the earliest Supreme Court cases on the Temple Mount, in 1968, Judge Alfred Vaknon wondered whether the issue had any parallel in the “history of our country or the entire world.”

At its core, however, the issue is not that complicated: A Muslim Arab population is ready to resort to violence of the most extreme kind when anyone opposes it or offends its religious-cultural sensibilities.

And, as the events of the past decade, perhaps the past year especially, have proven, this is not a unique situation, certainly not to the region, but increasingly not to the rest of the world as well.

What is unique in Israel is that even though this is occurring in the capital city and at the holiest site for its people, Israel dares not confront those making the threat of violence.

Instead, Israel has adopted a decades-long policy whereby it passes on the restrictions demanded by the violent minority onto its citizens. It thus subjects Jews who wish to visit the Temple Mount to lengthy waits before entering the area and bars them from any outward sign of worship, from bringing in religious effects, such as tefillin (phylacteries) a tallit (prayer shawl) or prayer books, and from other religious actions. Violation of these rules can lead to being ejected, arrested, fined and/or banned from the Mount.

As then-public security minister Avi Dichter explained in a 2008 letter to Knesset Members Uri Ariel and Aryeh Eldad, who wished to visit the Temple Mount, while “[i]t is not possible to arrest a person for conversing with his maker... it is possible to carry out an arrest for expressions of outward and demonstrative signs.”

In other words, if it can be discerned that you are praying then you can be arrested and subjected to prosecution.

This is despite Israeli law, which states that, “The Holy Places shall be protected... from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them” (Protection of the Holy Places Law, 1967).

JEWISH TEMPLE Mount activists claim that Israeli policy toward the site is bound up with the vitality of the Jewish state: Israel’s hold on the geographical and historical heart of the country – Judea and Samaria; its willingness to fight terrorism; and its confidence in the justice of its cause, both internally and before the international community.

They are correct.

Dating back to the Mandate, Arab and Muslim opposition to Jewish prayer at Jerusalem’s holy places went hand-in-hand with opposition to Zionism. At that time it was not the Temple Mount that was the flashpoint, but the Kotel, the Western Wall, whose importance stems from it being a remnant of the Temple compound.

The Arabs were determined not to allow Jews access to the area and protested their holding prayers there, setting up of a mechitza (divider between men and women during prayer) and benches there. In August 1929, they ultimately resorted to violence, rioting and killing 133 Jews and injuring 339 more.

The British (Shaw) commission of inquiry into the riots sympathetically noted the “Arab feeling of animosity and hostility towards the Jews consequent upon the disappointment of their political and national aspirations” as a cause for the murderous rioting.

Afterwards, the British said they would continue to allow Jews’ access to the site, but would not permit anything which would disturb the “status quo,” such as erecting a divider to separate men and women during prayer.

Like the British during the Mandate, Israel today fears “altering the status quo at the site” by allowing Jewish prayer as that may “serve as a provocation, resulting in disorder, with a near certain likelihood of subsequent bloodshed,” as Dichter explained in 2008.

The Supreme Court has largely accepted that rationale, holding that Jewish rights are to be balanced against the threat to public order, especially when there is a “near certainty” of violence. In making that assessment, the court has noted that while the police must not “recoil from using force” against criminals, “the force available to the police is not unlimited.” (See e.g., HCJ 83/292 Temple Mount Faithful v. Jerusalem District Police Commander).

While taking police resources into account on a particular occasion is sound policy, the court has ignored the state’s obligation to adopt a larger policy to secure public order and the free access of citizens to holy places without harassment.

In practice, the state’s rationale means that if a certain level of violence is threatened by those who oppose Jewish claims and the sovereignty and the existence of the Jewish state, their demands are to be met, while the rights of peaceful citizens, set in law, are cast aside.

This is not only legal confirmation of the “heckler’s veto” or the Muslim mob’s veto, but also of the anti-Semite’s veto.

It is a veto over Jewish religious rights, and the Jewish historical connection to and restored sovereignty in this country. The state of Israel should not be confirming or appeasing it, but fighting it with all of its might, so that the Jewish people can be a free people in their homeland, including their holiest site, the Temple Mount.

The writer is executive director of Likud Anglos.