Even as there was no decision, there was no ambiguity on Sunday about the High Court of Justice’s view of the radical change in November to the law about haredim serving in the IDF, with Justice Uzi Vogelman telling the state that “you’ve created a monster.”
The law passed in November pushed back targets for inducting haredim from 2014- 2017 to 2020 and beyond, and essentially eliminated criminal sanctions for draft-dodging ultra-Orthodox men by giving the defense minister nearly unlimited discretion to exempt them from meetings the targets.
The other justices on the nine-justice panel hearing petitions from Yesh Atid and the Movement for Quality Government in Israel to strike down the law as unconstitutional were not much more hospitable to the state.
The state’s lawyer Donna Briskman told the court that “currently, the legislature legislated in a way that is not equal, because we are in a complex process and a situation that is not simple. The Knesset and the government hope that the law will lead to attaining equality and maybe at the end of the period [in 2023] they will say that the regular law,” which requires all citizens to be drafted, applies.
Supreme Court Deputy President Elyakim Rubinstein responded, “This is a kind of Fata Morgana [illusion]” or a kind of building that is built to fool the eyes into thinking it is larger and better than it is.
He continued, “We move forward, then once again we will be in the year 2023, which is not the final year on the world’s calendar,” having achieved no substantive change, adding, “I am in despair from all of this.”
Supreme Court President Miriam Naor complained that the law was a step backward because it neither sets a final commitment about when equality in the burden of service will be achieved nor does it set firm annual benchmarks for measuring what will be considered enough of an increase in haredim joining the IDF and National Service.
Put succinctly, she said that after all of the debates about the law, “we still have not gotten to the point of checking there is an actual draft” of haredim.
Homing in on the absence of sanctions to pressure haredim to join the IDF and National Service, Justice Uri Shoham said the absence of such a “stick” “had changed everything into being political.”
“I was not a huge fan” of Yesh Atid chairman Yair Lapid’s March 2014 law that had criminal sanctions for noncompliance with the draft, “but there at least it said that if you do not meet the benchmarks... there was a form of stick that was clear. Here, nothing is clear regarding a stick, it is a political issue,” Shoham said.
Briskman was more timid in defending the current law than the state had been in defending the 2014 law from arguments about inequality.
Then-attorney-general Yehuda Weinstein was extremely frank with the government when it debated passing the current law, all but saying that it was unconstitutional, though using the less abrasive refrain that he doubted he could successfully defend it before the High Court.
Briskman’s defense focused on apologetically saying that the current law is not an endpoint and implying that since there was no way to achieve equality overnight, the current law should be given a chance. She also said that it had the benefit of having the haredi political parties onboard for the first time.
This brought a rejection from the court, noting that the haredim effectively supported the “Tal Law,” struck down as unconstitutional in 2012.
Briskman responded that the new law was an improvement because it had a clearer mechanism and review process for the defense minister to push for increasing ultra-Orthodox participation in the IDF.
The state, Briskman and Brig.-Gen. Meirav Kirshner also argued for the law on the basis of a recent recommendation by the Defense Ministry to provide incentives to haredim to join up, such as discounts when buying a home, and on a recent increase in haredim joining the IDF.
However, under questioning by the court, Kirschner admitted that as many as 30 percent of those included in the number of haredim joining the military are closer to right-wing modern- Orthodox who would likely serve no matter what, than being truly from the haredi community, which still broadly objects to IDF service.
MK Yaakov Peri (Yesh Atid), who was one of the lead sponsors of the 2014 law, slammed the current law, saying, “We cannot distinguish between blood and blood. How can it be that a secular youth who avoids service is sent to jail, and a haredi youth who avoids service gets a prize from the state in the form of subsidies?” MK Yisrael Eichler (United Torah Judaism) told Israel Radio, “It is prohibited for the High Court to intervene in the actions of the legislative branch. That is a judicial dictatorship.
Who appointed them to intervene in legislation?” In its petition, the Movement for Quality Government had not only blasted the November law as a disaster, but also argued that even the 2014 Law to Equalize the Burden of military service between haredim and the rest of the population, which set 2017 as a deadline for high-participation rates and pledged criminal sanctions for noncompliance, had been discriminatory.
The main arguments against the 2014 law were it still allowed a sizable, though minority, percentage of haredi exemptions that no other group gets and its permitting routine delays from complying with draft notices from age 18 to 21.
The haredi political parties, UTJ and Shas, had set eviscerating the 2014 law as a threshold issue for joining the current government.
If the 2014 law was still unequal, then the November 2015 law is “deepening the absence of equality and discrimination, including exacerbating the problems which were part of” the 2014 law, according to the Movement for Quality Government.
The 2014 law itself was a response to the High Court’s 2012 decision striking down the Tal Law as unconstitutional.