Last Wednesday the High Court of Justice added another wave to its tsunami of rulings on fundamental constitutional issues.
This time the ruling concerned the law regulating the military enlistment (or rather non-enlistment) of haredim (ultra-Orthodox Jews), and once again the court ruled (in my words) that the current law is constitutionally unacceptable.
It is unacceptable because it is in breach of the principle of equality, since it enables the haredim to shirk military service, which is mandatory in Israel, by means of all sorts of convoluted regulatory tricks, that are allegedly designed to bring about a gradual increase in the number of haredim doing military service, or alternative national service, but are in fact little more than a fiction designed to earn for the government a few more years of relative political quiet in this sphere. The court gave the state one year to replace the current law.
The court’s rulings dealt with three petitions submitted in 2014, during the term of Netanyahu’s previous coalition, and one in 2015, after the formation of Netanyahu’s current government. Three of the petitions complained about discrimination to the benefit of the haredim. One of the 2014 petitions claimed the exact opposite – that it is the haredim who are being discriminated against within the heterogeneous group of those who do not enlist, including, in addition to the haredim, Arabs, women who declare themselves religious, conscientious objectors, persons who are physically or mentally unfit, etc. This group constitutes 30% of the population in the eligible age groups.
I highly recommend that anyone seriously interested in the subject read the 148-page ruling (HCJ 1877/19), which provides the complete history of the issue since David Ben-Gurion’s famous (or infamous) status-quo agreement with Agudat Yisrael, and gives an almost complete list of all the arguments raised by all sides. I say almost, because on principle the haredim themselves have never been party to any of the petitions, and refrain from explaining their position directly to the court.
The haredi position seems relatively straightforward. Over the years the haredim have recognized the secular/national-religious state de facto but not de jure. What this means is that following the status quo agreement – which inter alia laid down that all issues of personal status (marriage, divorce, burial and nationality status) will be dealt with on the basis of religious principles, that there should be no public transportation in the Jewish sector (except for Haifa for historical reasons), and dealt with various provisions concerning kashrut and Jewish holidays – the majority of haredim conformed to the rules of the political game.
This includes participating in elections to the Knesset and in the legislative process – even though they continue to maintain that Jewish religious law (Halacha) is supreme, and are even willing to serve as Knesset committee chairmen and in the government. Following a previous court ruling the Ashkenazi haredim have even agreed to serve as ministers rather than only deputy ministers, which requires them to take an oath of allegiance to the state and its laws, that they would rather avoid doing. (The story of the Sephardi haredim is different.) What most of the haredim refuse to accept is that mandatory military service applies to them as well, claiming that by being engaged in religious studies in the yeshivot, and through prayer, their young men fulfill an equally important role in Israel’s security as do the IDF’s soldiers.
The problem with this argument is that while the haredim do not deny that Israel requires a military force to survive, the seculars don’t believe that religious studies and prayer contribute anything to Israel’s security. Furthermore, the national religious offer an alternative model which combines religious studies and prayers with military service, while encouraging religious women to do alternative national service (in recent years a growing number of national religious women volunteer for military service, much to the chagrin of some rabbis).
However, besides the formal reason for refusing to let their young men serve, there is no doubt that the haredi leaders are afraid that if they allow their men to serve, even in special units that cater for their religious requirements and respect their religious beliefs, they will lose control over their flock, and might even lose souls. What is not clear is why they also refuse the option of alternative, non-military national service, in the general community or even within their own community.
As to the secular population, the majority view the haredi position on this issue as part of the refusal by the haredim to share in the responsibility for the security and well-being of the state, while not being averse to accepting wide-scale state-financed benefits.
In addition, there is nothing that enrages seculars more than the haredi saying in Hebrew that their youngsters “die in the tabernacle of the Torah,” which is a metaphor for being totally devoted to Torah study, but doesn’t literally involve any risk of loss of life, as active military service sometimes does. The equation of the IDF by many haredim with forced conversion from Judaism (shemed), is merely adding insult to injury.
What does the recent court ruling contribute to unraveling this Gordian knot? Nothing. The government’s reaction will apparently be to try to circumvent the ruling by revoking the court’s ability to cancel on procedural or constitutional grounds laws that have been approved by the Knesset, and if this fails (should Kulanu refuse to cooperate), it cannot be ruled out that Netanyahu will decide to call early elections (which he apparently favors for other reasons as well).
Other theoretical options include passing a law that more or less maintains the status quo regarding the non-mobilization of haredim without contravening the principle of equality, and conditioning the receipt of financial and other material benefits from the state by the yeshivot and individual haredi families on their students and sons doing military or alternative national service.
Both these option are tantamount to trying to square a circle – the first because it is impossible, and the second because neither the Likud, nor any other party likely to replace it, can afford to alienate the haredi parties, which they need as potential coalition partners, by supporting such measures.
This leaves only one possible realistic solution, which is to cancel mandatory military service in Israel, and establish a professional army, based on patriotic motivation on the one hand, and material benefits – including decent salaries, assistance with the acquisition of housing and higher education – on the other.
Such a system could not possibly be considered discriminatory, but would come with a price tag which the state probably cannot afford. It is, however, the only way to cut the Gordian knot.
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