The Kotel ball is back in the court’s... court

Two years ago, activists from Original Women of the Wall, of which I am one, and our attorneys at the Center for Women’s Justice filed suit before the Supreme Court.

By SHULAMIT S. MAGNUS
Updated: JANUARY 10, 2018 15:58
Members of of the Original Women of the Wall pray at the Kotel last year (photo credit: CHANA SPERBER)
Members of of the Original Women of the Wall pray at the Kotel last year
(photo credit: CHANA SPERBER)
On January 14, 2018, the case of women’s right to the same options for religious expression at the Kotel (Western Wall) that men have enjoyed since 1967 will be back before the Supreme Court. It will be heard before an expanded panel of justices, in line with the seriousness of the issues involved.
The first time this matter went to court was in – 1989. That’s right. For nearly 30 years, the simple proposition stated above has been debated; sent to one commission after another; on tours of the Kotel and of proposed alternative sites; to political desks and smoke-filled rooms – literally and figuratively, given the degree of obfuscation, distortion and evasion to which it has been subjected.
In 2003 – 19 years after the suit was first filed – the Supreme Court ruled that there is nothing illegal in Jewish women praying together at the Kotel. How could it have ruled otherwise? How could the same act be a mitzva when done by men and desecration and illegal when done by women? But, given haredi (ultra-Orthodox) objections to this practice, the court wished to see it removed to another site and gave the state a year to make Robinson’s Arch appropriate for it.
At that time and since, we said categorically that no alternative site is acceptable.
In any case, the state did not carry out the court’s order, which also stated that in that eventuality, Jewish women were within our rights to be at the Kotel.
And there we have been, in cold and heat, early in the morning, before work, school, to pray together as is our custom. That custom got District Court recognition in 2013, when Judge Moshe Sobel ruled that not only is women’s prayer not a “disturbance of the peace” (as opposed to the orchestrated intimidation and violence directed against it) but that, by that year, after 25 years of sustained practice, it was also “minhag hamakom,” a “custom of the place.”
Israel being a state of law, the Israel Police, which prior to this ruling, acting on the orders of the rabbinical administrator of the Kotel, detained women for donning a tallit (I was so detained), began protecting our rights, and we continued our services.
In 2010, this same rabbinical administrator suddenly published a rule on his website that declared that henceforth, no one was permitted to bring a Torah scroll to the Kotel. A strange ruling, reminiscent of Gentile restrictions on Jewish practice at the Wall. But seemingly gender neutral. Except that he also refuses women access to any of the dozens of scrolls kept at the Kotel.
Two years ago, activists from Original Women of the Wall, of which I am one, and our attorneys at the Center for Women’s Justice filed suit before the Supreme Court to strike down this arbitrary and illegal rule. It violates Israeli law prohibiting discrimination in access to or use of public property. And it exceeds this administrator’s authority, whose mandate is to facilitate access to the site. He has no authority to limit access to those whose religious practice he approves.
For two years, the court has suffered all manner of delay from a government and haredi establishment desperate to see this case disappear. The best hope for them came in the form of the “Kotel deal” announced shortly after we filed our suit. That deal, between the Reform and Conservative movements and the Women of the Wall organization on the one side, and the haredi establishment and the state on the other, would have done several major things.
It would have made Robinson’s Arch – the site of egalitarian prayer services for over 17 years – officially a site of Reform and Conservative prayer, under the auspices and control of those movements, with state funding. This would have given these movements the state recognition they have long craved. It is no wonder the movements hailed the deal in near-messianic terms.
Why, however, did the haredi establishment, which anathematizes those movements in extreme terms I will not repeat here, ever agree to such a thing? We all know that the deal was ultimately frozen by haredi threats to bring down the government if it were implemented. But why did they ever agree to it?
Because the trade-off for this recognition was changing the status of the Kotel from “national holy site” of the Jewish people to synagogue under haredi control. From this official haredi shrine, women’s prayer would be banned as a criminal offense, punishable by long jail sentences and heavy fines.
This is the deal that has been characterized as “progressive” and “tolerant,” when it was nothing of the sort. It would have been paved with the rights of women, with the historic victories women have achieved in decades of commitment. It would have immensely empowered precisely the retrograde religious establishment that some proponents of the deal purport to oppose. The deal would have denominationalized the Kotel area, turning it into warring plazas, in the hope, in Anat Hoffman’s words, that “the best plaza” would “win.” It would have made of it a Jewish version of the Holy Sepulcher, where competing Christian denominations vie for pilgrims and every inch of space.
The deal would have been terrible social policy for Israel and for Diaspora Jewry, neither of whom were given the facts about its terms. We share important values and goals. The deal was not one.
The deal is now off the table and the court, which hoped for its implementation in order to evade ruling on our case, is now faced with ruling.
What is at stake here is not just women’s prayer. It is the reining in of illicit, theocratic haredi establishment encroachment on civil rights and individual conscience and public space in Israel. It is the protection and preservation of the Kotel as the “national holy site” of the Jewish people – all of us – including secular Jews, who once related to it as such. When religious and secular soldiers sacrificed their lives to get it back in 1967, they did so for us all.
The current scene at the Kotel makes a travesty of that sacrifice.
It is time for the court to enforce its own ruling on this matter, fully and unequivocally.
The writer is professor emerita of Jewish Studies and History at Oberlin College and teaches at Hebrew University-Rothberg. She read Torah at the Kotel in the first women’s service there, in 1988.