Analysis: A clash of two rights

Gay parade in Jerusalem pits freedom of expression versus public safety and order.

By DAN IZENBERG
Published: NOVEMBER 2, 2006 22:39
A petition submitted by haredi leader Yehuda Meshi-Zahav on Thursday, calling on the police to cancel next week's scheduled gay parade in Jerusalem, pits two fundamental social values against each other - freedom of expression versus public safety and order. The state is obliged to provide freedom of expression for its citizens. That principle was established in a ruling by the High Court of Justice 40 years before the Knesset passed the Basic Law: Human Dignity and Freedom. On the other hand, the state is also responsible for providing public safety and security for its citizens. Within civilian society, that responsibility is discharged primarily by the police. What happens when these two values clash? That is the issue that Meshi-Zahav has raised before the court in his petition. According to Meshi-Zahav and his lawyer, Dror Schossheim, the court must choose public safety over freedom of expression. "There is a substantial and concrete danger to human life involved in the gay parade," he wrote. "This danger exists for the marchers themselves, the protesters and the thousands of policemen and security guards who will participate in the event." Hundreds of thousands of protesters were expected at the parade, including haredi Jews, Moslems and Christians, he added. Meshi-Zahav argued that the circumstances surrounding the gay parade were similar to those involving members of the Temple Mount Faithful seeking to hold processions on the Temple Mount. Their requests are almost always refused by the police for fear they will lead to riots and bloodshed. Meshi-Zahav quoted from a recent High Court ruling upholding the police decision to reject the request of the Temple Mount Faithful. "Everyone is aware of the values that are involved," wrote the court. "On the one hand, the right of the petitioners; on the other, the obligation of the police to protect public safety. The question is one of finding the proper balance, or, more precisely, the proper proportionality…In our opinion, the police have demonstrated good reasons for limiting the rights of the petitioners." Meshi-Zahav added that in upholding the police position, the court had written, "This is not a question of surrendering to violence, but applying balance and proportionality to an act of government." Dan Yakir, the legal adviser of the Association for Civil Rights in Israel, told The Jerusalem Post that Meshi-Zahav's comparison was erroneous. "The Temple Mount," he said, "is one of the holiest sites for Moslems. But that is not the case regarding the gay parade. It is being held in the secular, commercial area of Jerusalem. It is the job of the police to enable the fulfillment of the right to freedom of expression and to protect the marchers from those who seek to harm them." Yakir rejected the argument that all of Jerusalem, and not just the Temple Mount or other specific religious sites, was holy. "Israel is also holy," he said. "It's the Holy Land. It's inconceivable that the entire city of Jerusalem will be an island of intolerance. A democratic society cannot accept such a thing. The gay parade has turned from a more restricted expression of the homosexual community into a test of the democratic principle of freedom of expression. It is the job of the police to enable the fulfillment of this principle." As in the petitions submitted by the Temple Mount Faithful regarding the right to hold a procession on the Temple Mount, the court will have to decide where to strike the balance between two conflicting values. And as it has done for many years regarding repeated demands by the Temple Mount Faithful, it will likely leave the matter to the discretion of the police and not intervene in its decision.