Analysis: Is Shabbat grocery store deal legal?

The vast majority of the court’s current justices understand Israel’s quasi-constitutional principles as having democracy trump Jewish law when the two conflict.

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November 27, 2017 21:43
2 minute read.
Haredim protest in Mea She’arim

Haredim take part in a protest in Mea She’arim against the municipality opening a nearby road on Shabbat.. (photo credit: REUTERS/BAZ RATNER)

 
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Coalition crisis averted. Or is it?

Prime Minister Benjamin Netanyahu has worked out a deal in which around 150 Tel Aviv grocery stores can remain open on Shabbat, but the trend stops in Tel Aviv.

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The idea was to grandfather in the High Court of Justice ruling last month, which already made it impossible to block the Tel Aviv stores from being open on Shabbat, but prevent other cities from trying to use the ruling.

Will this fly with the High Court when the next predominantly secular city petitions to strike this limitation as unconstitutional? As the deal and proposed legislation are currently crafted, probably not.

But if separate, additional, bigger-ticket legislation relating to tilting the balance between the state’s Jewish and democratic identities more to the Jewish side passes, combined with the changes to the court’s makeup in 2017-2018, the deal could hold.

What are the main issues? When the High Court struck down any attempt to block the over 150 Tel Aviv grocery stores from being open, it did so for two main reasons relevant to the new compromise and proposed bill.

The first – that the Knesset has a law empowering localities to decide the Shabbat issue as appropriate to their differing and unique diverse populations – would be overcome by the new proposed law.

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The second would not.

Unlike, the first reason, the second is a far broader principle which several justices referred to as a meta or organizing principle of all Israeli law in balancing the country’s religious and secular identities when it comes to Shabbat and other religion- state issues.

Any new bill that simply says that the interior minister can choose to prevent mostly secular localities from opening more stores on Shabbat will get vetoed by the High Court as violating that organizing meta principle and balance.

Simply put, the vast majority of the court’s current justices understand Israel’s quasi-constitutional principles as having democracy trump Jewish law when the two conflict. Individual and secular communities’ rights to shop for food on Shabbat would trump the contribution of Shabbat’s religious side to the state’s Jewish character.

To allow the interior minister to compel mostly secular cities to have their local establishments closed on Shabbat, the Jewish Nation-State law often pushed by Justice Minister Ayelet Shaked would need to be passed and be applied to change the meta-legal balance on issues of religion and state to favoring Jewishness.

The other development that could allow the deal and proposed bill to succeed would be the ongoing change to the kinds of justices sitting in judgment.

The October ruling in favor of Tel Aviv grocery stores staying open on Shabbat passed by a vote of 5-2, and two of the justices in the majority – Miriam Naor and Yoram Danziger – will be gone by later 2018.

Naor is not the only justice liberal on religion-state issues who has been replaced.

With four justices replaced this past year and two to be replaced in 2018, the 5-2 vote for secularism could shift to 5-4 in favor of the state’s Jewishness, by the time the court actually rules on the issue.

So while the current deal between Netanyahu and the Haredim might not survive a court challenge on its own, there is a clear scenario where bigger legal changes and the court’s slow but ongoing shift to the Right could make the deal stick.

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