The High Court of Justice has struck down the government’s 2015 policy on recruiting haredim into the IDF and national service, ruling on Tuesday that it fails to meet that goal and discriminates against most Israelis who are drafted.
The court gave the government one year to pass a new law before the default emergency regulations kick in, which will require drafting all of-age men, with no exemptions for haredim.
The decision follows a massive almost year-and-half lag in which no hearings were held and it appears that the High Court and the government played a game of chicken. The court did not issue a ruling and waited to see whether the state would modify aspects of the law that it had watered-down to please the haredi parties in the coalition, but which the court and the petitioners had criticized.
The last hearing was in April 2016, and the court had already ordered the state in January 2016 to explain how its policy was not discriminatory.
Likewise, the state waited to see if the court would refrain from ruling to avoid being attacked for judicial activism and so that it could avoid addressing the time-bomb issue that could blow up the coalition.
Haredim as a rule oppose army service
as they are concerned about their young men losing their religious values, which include a focus on Torah study. Most secular Israelis are angry that haredim mostly get an exemption from the draft that binds them – an exemption which haredi parties demand before joining any government coalition.
The decision was 8-1, including Supreme Court President Miriam Naor, who wrote the majority opinion, and just-retired justice Elyakim Rubinstein – whose retirement forced the court to issue a ruling so that he could still participate. Rubinstein reached the mandatory retirement age for judges of 70 in June, but, as is the rule, continued to sit on cases he had already begun hearing.
The one dissenting vote came from Justice Noam Sohlberg.
The 2013 coalition government, under pressure from Yesh Atid party chairman Yair Lapid and which excluded the haredi parties, had passed a revolutionary March 2014 law requiring haredi men to join the IDF and, for the first time, with the teeth of criminal sanctions for draft-dodgers.
Haredi extremists protest against the drafting of Orthodox men into the IDF
This fix was also necessary ever since the High Court struck down the “Tal Law” in August 2012. Absent a new law, the state would have been obligated to draft all haredi men into the IDF at age 18 – the same as all other Israelis. So even the Lapid law did not require all haredim to join the army, which made the issue of discrimination a close call for the court.
But the Lapid law’s aggressive targets were eviscerated by the government’s 2015 law, making it easier for the High Court to strike it down and send the government back to the drawing board on the issue.
Explaining the decision, Naor wrote that “the new recruitment policy harms equality in a deep way which harms the constitutional right of the dignity of man.”
She said the new law failed to achieve its purposes of significantly raising the number of haredim joining the IDF, national service and the workforce through setting incremental but concrete benchmarks for recruitment.
Naor emphasized that the court never required full equality and full drafting of haredim, only a substantial change and a sign that as close as possible to fuller equality would be on the horizon.
She attacked the 2015 law as imposing only voluntary benchmarks over a six-year period, which was itself too drawn out. Following that period, another three-year period had even more amorphous targets that the defense minister had too much discretion about. Then beyond those nine years, there were no clear targets at all.
The Supreme Court president said that if the data the court was given had showed substantial increased enlistment despite the weak legislative framework, the court might have held back.
Instead, she said the numbers the court received, which she implied were far too low, reinforced the finding that no major increase was occurring.
Rubinstein wrote a stirring defense of Torah study and the haredi cultural way of life, but still came out saying that these values could and needed to be balanced with service in the IDF, just as for other Israelis.
Justice Yitzhak Amit, who sometimes sides with the conservative side of the court, likewise said he respected haredi culture and was ready to agree to a temporary emergency transitional period in which enlistment increased only gradually.
However, Amit found that the current law failed to even achieve modest necessary progress, and came out against any law that pushed off the decision for haredim from age 18 to a later age.
Justice Neal Hendel, who also sometimes sides with the conservatives of the court, said the very idea of having to choose between Torah study and IDF service was disproved by the religious-Zionist community which combines Torah study with extensive IDF service.
Sohlberg agreed with the majority that the new law had not yet met its goals. However, he said it was too soon to toss it out the window and that the law was an improvement on the 2012 Tal Law.
The conscription law passed in 2014 would have required the majority of young haredi men to enlist in the IDF or civilian service by 2017, with a small percentage of exemptions for elite yeshiva students.
The amendment to the law for haredi conscription passed in 2015 at the behest of the haredi parties postponed the implementation of obligatory enlistment until 2020 and also gave the defense minister the authority to exempt any number of yeshiva students after that date, essentially eviscerating the target-based system.