High Court asks progressive groups tough questions in Western Wall hearing

“You don’t need the legislature to tell you it's the Western Wall, it is the Western Wall. Everything we’re talking about is symbolic. Even if it’s not recognized in law, it is the Western Wall."

Members of "Women of the Wall" pray with a Torah scroll during a monthly prayer near the Western Wall in Jerusalem's Old City July 24, 2017 (photo credit: REUTERS/Ronen Zvulun)
Members of "Women of the Wall" pray with a Torah scroll during a monthly prayer near the Western Wall in Jerusalem's Old City July 24, 2017
(photo credit: REUTERS/Ronen Zvulun)
The judges of the High Court of Justice had tough questions for the progressive Jewish movements and the Women of the Wall on Sunday morning during a marathon four-hour hearing on the issue of prayer rights at the Western Wall.
An expanded seven-justice panel intensively quizzed the state’s attorneys about progress, or lack thereof, regarding physical upgrades promised for the current egalitarian site, and expressed deep concern for the ongoing confrontations between Orthodox and progressive Jewish groups at the holy site.
But the justices also expressed a certain amount of skepticism toward arguments made by the progressive petitioners and Women of the Wall in their demands for either implementation of the January 2016 government resolution, or for the establishment of an egalitarian section at the main Western Wall Plaza.
One of the key clauses of the resolution was that the upgraded egalitarian area at the southern end of the Western Wall share the entrance to the main complex at the site.
But Supreme Court President Justice Esther Hayut questioned the critical nature of this stipulation.
“Does lack of a joint entrance change your rights?” she asked.
Justice Yitzhak Amit also questioned whether the formal designation of the current egalitarian site as a state-recognized holy place was a critical component of the equal access and freedom of worship demanded by the progressive groups and Women of the Wall.
“Why is the statutory issue important?” asked Amit. “You don’t need the legislature to tell you it’s the Western Wall, it is the Western Wall. Everything we’re talking about is symbolic. Even if it’s not recognized in law, it is the Western Wall.”
Questions asked by the justices of the state’s attorney also indicated a desire by the court to have the government fulfill its obligations for equal access to the site for the progressive movements.
Immediately following the indefinite suspension of the January 2016 agreement in June, the Prime Minister’s Office announced it would still physically upgrade the current egalitarian site, partly to appease the progressive movements and partly to meet the court’s demand for equal access to the area.
The progressive movements argued that the current site lacks the requisite services and amenities for prayer, and has very little space up against the ancient stones of the Western Wall.
The PMO has said that it is allocating NIS 19m. toward these upgrades, but so far no construction work has begun. The judges asked when the work will begin and finish and the exact nature of the plans, which the state’s attorney only answered vaguely, although he promised to get more concrete answers for the court.
JUSTICE UZI FOGELMAN asked if the NIS 19m. would make the current egalitarian site more fitting as a place of prayer and fulfill the requirements of equal access for the progressive movements.
The justices also gave short shrift to the demands of Original Women of the Wall (OWOW), a splinter group from Women of the Wall. Their petition seeks to preserve the right of women to pray in the women’s section of the main prayer plaza – something the government resolution would revoke – and for women to be able to freely read from a Torah scroll there.
Attorney Susan Weiss, of the Center for Women’s Justice which is representing OWOW, argued that at issue was the basic right of women to the same access and freedom of worship at the Western Wall Plaza as is afforded to men.
Justice Hanan Melcer said, however, that not all rights are absolute and sometimes certain rights need to be balanced with other considerations.
The justices were critical of ongoing confrontations at the site when Women of the Wall hold their monthly prayer services in the women’s section of the main prayer site, and when progressive groups forcibly enter the site with Torah scrolls.
Hayut described the situation as “painful and saddening” and asked why the police cannot do more to prevent these conflicts.
The court watched several videos that showed verbal abuse, intimidation and harassment faced by Women of the Wall, as well as efforts by the progressive movements to bring Torah scrolls into the site in contravention of the current regulations established by Western Wall administrator Rabbi Shmuel Rabinowitz.
Hayut expressed concern over actions by all sides of the conflict. Melcer told the state’s attorney that a Haredi (ultra-Orthodox) man seen in a video who tore up a prayer book belonging to Women of the Wall that included traditional prayers and the name of God in Hebrew, should be investigated by police and brought to justice.
Following the hearing, director of the Reform Movement in Israel Rabbi Gilad Kariv said it was “clear that the government has no time frame for establishing the [upgraded] egalitarian section and no detailed plan for that prayer section.”
He said that given the government’s record on the issue “it is hard not to feel that it [the government] is interested in leaving the egalitarian section hidden and disconnected from the Western Wall.”
Kariv said he believed that once the state presents its new plans, the court would deem them to be insufficient and discriminatory towards progressive Jews.
Yizhar Hess, head of the Masorti (Conservative) Movement in Israel, described the state’s efforts to meet the demands for equal access with a physically upgraded egalitarian section as “far from the truth” and “deceptive.” Although he acknowledged the apparent stance of the court to accede to the state’s arguments, he said he hoped the justices would nevertheless be attentive to claims of the progressive movements.