Should the right to protest trump the right to worship? - analysis

Why is the right to protest sacrosanct and the right to worship a less hallowed value in the Jewish state?

Israelis protest against Israeli prime minister Benjamin Netanyahu outside Prime Minister Netanyahu's official residence in Jerusalem on August 01, 2020.  (photo credit: OLIVIER FITOUSSI/FLASH90)
Israelis protest against Israeli prime minister Benjamin Netanyahu outside Prime Minister Netanyahu's official residence in Jerusalem on August 01, 2020.
(photo credit: OLIVIER FITOUSSI/FLASH90)
Across continents and around the world, the COVID-19 pandemic has created multiple crises, conflicts and societal difficulties due to the severe social and economic effects it has had on daily life.
In Israel, with its diverse and disparate societal sectors and against the background of three intense and bitter elections, the coronavirus crisis has exacerbated political divisions and led to a crisis of confidence in the country’s leadership.
And the Jewish state has also needed to confront the virus’s challenge to Jewish religious life which is intensely communal, from prayer to religious study to the performance of numerous religious commandments.
During the course of the public health crisis, a significant dispute has arisen over the attitude of the state to two different groups of people; those protesting against the prime minister and those who seek to continue with communal prayer.
The corruption charges Prime Minister Benjamin Netanyahu is currently facing in the Jerusalem District Court, along with the government’s chaotic handling of the pandemic, has generated strong opposition to his ongoing tenure as premier, and led to thousands of people protesting against him around the country, especially outside the prime minister’s residence in Jerusalem where thousands of people gather every week in close quarters.
Despite the concerns that these demonstrations, like any mass gathering, may help spread the coronavirus, efforts to significantly restrict or limit them have been strongly criticized and rejected because of the fundamental right to protest that democratic countries have always zealously protected.
At the same time, communal prayer has faced tight restrictions, with the number of worshipers allowed to participate in the same service severely limited, including in outdoor spaces.
This dissonance has angered many in the religious community who see the clamp down on communal worship as unfair and discriminatory compared to the treatment of the anti-Netanyahu protests.
Why is the right to protest sacrosanct and the right to worship a less hallowed value in the Jewish state, they ask?
There are of course clear physical differences in between the protests and communal prayer; the former are conducted outside where the risk of infection is much lower, whereas prayer generally takes place indoors in synagogues where the virus can be spread easier.
Nevertheless, outdoor prayer remains severely restricted whereas the number of protesters able to attend a demonstration  are unlimited by government regulations.
Prof. Yedidia Stern, a senior fellow at the Israel Democracy Institute and former dean of the University of Bar-Ilan’s law faculty, asserts that the right to religious worship is a fundamental freedom in a democracy and that the government has not been sensitive enough to the needs of the religious population during the COVID-19 crisis.
He argued that if prayer is conducted outdoors then it should face the same limitations as outdoor political protests, as well as other outdoor activities such as going to the beach which many Israelis have continued to do.
“The need of people to express their political feelings in such a harsh situation needs to be respected, and democracies should allow this unless there is a very severe threat to life,” said Stern.
But, he continued, the government’s policies have not been “culturally neutral” and have reflected preferences for one set of values.
“For religious people, communal prayer is the meaning of obedience to God, and for people who do it three times a day all their life it’s like breathing and eating.”
He argued that religion and national identity are the two key manifestations of the desire of individuals to be part of a larger collective, and that is the reason why freedom of religious worship has become one of the primary touchstones of democracy.
The result of the uneven government policies, he argued, was the recent flexing of the political muscles of ultra-Orthodox mayors, with the backing of the ultra-Orthodox political parties, who threatened civil disobedience this week if their cities faced lockdowns.
Last month, chairman of the United Torah Judaism Party and Construction and Housing Minister Ya’acov Litzman threatened to quit the government if a lockdown is staged over the upcoming Rosh Hashanah holiday, which could make communal prayer at one of the holiest times of the year almost impossible.
Dr. Ori Aronson, a senior lecturer at the Bar Ilan University’s law faculty, concurred that in principle, the right to protest and freedom of worship in the Jewish state have equal weight within Israeli law, including the various provisions of Israel’s basic laws.
He said, however, that the nature of political demonstrations and religious worship was significantly different in that demonstrations by their nature can only be conducted in large groups, whereas prayer can be performed individually, although the ideal in Jewish practice for men is in a group of at least 10.
“One could say that the individual option for prayer might be sufficient to qualify as a minimal requirement,” said Aronson.
He also questioned the comparison between demonstrations, since one could argue that just as worship was limited to its most essential aspect of individual or small group prayer, so too has freedom of expression been limited to its most essential aspect, that is political speech, while artistic expression, such as theatre performances, has, like synagogue worship been heavily restricted.
Aronson also pointed to studies in the US which indicated that despite the large size of demonstrations for racial equality in numerous cities across the country following the killing of George Floyd in Minneapolis, the protests had not significantly spread the coronavirus.
But if the risks were equal, Aronson asserted that no preference could be made legally between the rights of protesters and worshipers, although he said that the fact that prayer services take place all around the country with the daily participation of hundreds of thousands of people meant that communal prayer is substantially different to the demonstrations usually staged just once a week.
“You might argue that Israel [as the Jewish state] has a stronger commitment to allowing religious practice than in its most minimal version of it, individual worship, and that the country should perhaps make an effort, and even accept a certain degree of risk, to allow Jews to have broader religious worship at this time,” he said.