Shulamit S. Magnus
Jewish historian

Decision Time for the Supreme Court

Something significant was supposed to have happened in Israel’s Supreme Court last week. The State of Israel, the rabbinical administrator of the Western Wall (the Kotel), and the Western Wall Heritage Foundation, were to have responded to the lawsuit which I and others in the group, Original Women of the Wall/ tefillat nashim bakotel, filed a year and a half ago. Our suit is the second for the right of Jewish women to exercise the same options for religious expression that men have had there since 1967. The first suit, filed in 1989, resulted in a ruling fourteen years later, which held that nothing we seek to do at the Kotel is illegal (hard to imagine how the Court could find Jewish prayer illegal in the Jewish state, but then, why 14 years to say so? Back to that in a minute.) In 2013, we got a District Court ruling which not only dismissed claims that women’s prayer “disturbed the peace,” much less, “caused” haredi violence (“like blaming women for rape,” one Judge said), but also stated that, after 25 years, women’s group prayer at the Kotel was one of the “customs of the place” – “minhag hamakom.”

Given the 50th anniversary of the Six Day War, we have been hearing a great deal lately about the Kotel. So striking in the reports from 1967 is the self-evident significance of this site then to all segments of Israeli society, and to Jews around the world. Again and again, we hear secular people, soldiers, civilians, saying: I have never been religious but I am standing at the Kotel, and I am shaking. Images of joyous dancing at the site in the aftermath of the ceasefire have surfaced. The Kotel was the symbol par excellence of the Jewish nation, its tribulations, tragedies, hopes, and in that moment, its literally incredible, triumph. Everyone felt this, intuitively, and a people united around it.

I am willing to bet that most reading this do not know that the official status of the Kotel is “national holy site.” It is not a synagogue, let alone an ultra-Orthodox synagogue. Anyone going there now could be forgiven the mistake, given what the site has been turned into, with more changes—stone walls, barricades— erected all the time, carving the space into the preserve of ultra-Orthodox Jews, with everyone else suffered only on haredi terms.

Except for us. Ours is the only group which has succeeded in establishing as “minhag hamakom,” that this place is not the preserve of any one segment of the Jewish people but the inheritance of us all.

The fact that one sector of the population has appropriated the supreme national holy site of the Jewish people does not make it so— unless the rest of us collude with that hasagat gvul—trespass. The haredi look and function of the place now is not the result of any open, inclusive process, let alone, worldview. It simply has been mapped onto the site, step by step, while the rest of us, in particular, our elected representatives and all the religious bodies and movements, slept, allowing the encroachment.

Women’s group prayer there is the reminder that Israeli soldiers fought and died for this place for us all.

Women’s prayer is the remnant of the national claim to this place.

If Jewish women have won every legal round, why our group’s second Supreme Court case?

In 2010, the rabbinical administrator of the site (he calls himself the “rabbi of the Kotel”—though the Kotel has no rabbi—because it is not a synagogue), wrote a “nohal,” a directive, barring bringing a torah scroll to the site. Shades of Ottoman and British restrictions, and a violation of the access Jews thought we achieved in 1967. Since, however, he does not allow women access to any of the 180 –or-so torah scrolls at the site, even one we would donate, the directive discriminates against women and infringes our Court-recognized rights. Israel has a law barring discrimination in access to or use of public space. Rabbi Rabinowitz’s nohal violates this law. It is also a major expression of the relentless encroachment of the haredi establishment beyond the limits of law, which is responsible for the haredi appropriation of the Kotel in the first place. We see that encroachment all the time— in the threat to revoke kashrut certification of hotels and kibbutzim if they permit egalitarian, or even all-women’s, prayer services; in the violation of Court orders that publicly funded mikvaot respect women’s discretion about immersing without, or with, supervision; in demands to scrutinize the lives of gerim years after their conversions, with threats to revoke their conversions.

The suit by activists of Original Women of the Wall/tefillat nashim bakotel is to void the Torah scroll nohal. We deny Rabbi Rabinowitz’s authority to have issued it. Even for those to whom the Kotel is not, or is no longer, important; for those to whom women’s tefilla is not important, the constitutional issues at stake in our case should matter to everyone who cares about the kind of society we want to have here, where freedom of conscience and equality in public space are living realities.

Our attorney, Susan Weiss, Director of the Center for Women’s Justice, filed our suit in November, 2015. Since then, the State and Rabbi Rabinowitz have sought and been granted delay after delay in responding to our suit. Initially, this was because of the deal between the Reform and Conservative movements and the Women of the Wall organization, on the one hand, and Rabbi Rabinowitz, on the other, to divvy up the Kotel plaza among them: under that deal, the status of the Kotel would be changed and it would be made a synagogue, under official haredi control. In return, Robinson’s Arch, long a site of egalitarian prayer, would be made officially a prayer site under Reform and Conservative auspices, supported by State funds, with women’s group prayer shunted there. The deal would obviate our case. Rabbi Rabinowitz does not now have legal authority to withhold Torah scrolls from Jewish women, but under the deal, he would.

Indeed, this is why an otherwise inconceivable deal between a haredi establishment rabbi and the Reform and Conservative movements and the Women of the Wall organization to give the latter recognition and funding, was cut. Under the deal, Rabbi Rabinowitz and his “Western Wall Heritage Foundation”— an entity accountable to no one (its lawyer claimed in Court that its Board cannot be made to include non-haredi or women members— because it does not have a Board), would net the Kotel. While movements he anathematizes as inauthentic agreed to content themselves with a site lacking any history of Jewish devotion– an ersatz site to fit ersatz claims to Jewish legitimacy, in his view—-haredim (real Jews), would bag the real prize.

Rabbi Rabinowitz, who ordered the detention of Jewish women for the act of donning a prayer shawl (I was so detained), would indeed, become “rav hakotel” under the deal. He announced that, as such, he would immediately bar women’s tefilla, on pain not just of detention but significant jail time and fines. This is an essential part of a deal the progressive movements and the Women of the Wall organization consistently peddle as “progressive.”

As we know, the deal has not been implemented, because the haredi establishment caught hell from its street about it. That street, after all, has been inculcated to hate all non-haredi Judaism, including modern Orthodoxy. They take their hate seriously, and here were their own leaders (every haredi party was in on the deal), making an agreement with the very embodiment of heresy. The haredi street erupted, and the deal went south, way south of Robinson’s Arch. By now, it is anathema and nuclear-toxic in all haredi quarters.

The Court, however, has retained delusional hope that the deal will prevail. Why? Because it dearly wishes to avoid ruling on this or, in truth, on any contentious case involving religion. We saw this reluctance in the astounding interval it took to rule on our first Supreme Court case, sending it to commission after commission for years. The Court has given the political process, its hoped for salvation to evade ruling, every conceivable out and extension for nearly thirty years. We have long since passed the point where delay is reasonable, or even rational. The politics of the deal are clear. No segment of the haredi establishment will agree to any version of it. Zionist Orthodox elements have even entered the fray, erecting a mehitsa at Robinson’s Arch, to claim it for (their version of) Orthodoxy, and assert their creds against the haredi establishment in their war for legitimacy.

The Reform and Conservative movements, on the other hand, have riled their base in America about the deal to a fever pitch, projecting all the denigration and contempt to which they are subjected in Israel onto this issue; withholding from their constituents the basic facts that no “third egalitarian section” would be established “at the Western Wall” under the deal, as they have claimed, but rather, that the Kotel— you know, the one the Pope and Trump were taken to— would be ceded to the haredi establishment, with all who do not adopt haredi custom sent to Robinson’s Arch. They are far up a tree about this, as a result.

It is a total and unmovable impasse.

After a hearing this past February, the Court extended the State’s deadline to respond to our case, to June 4, 2017. After we were subjected to invasive searches at the checkpoints to the Kotel, it handed our group yet another victory: an interim ruling which stated that the Kotel authorities could enact only standard security searches on us, not special ones to ferret out Judaica “contraband” (my term), much less, impose body searches. The State and Rabbi Rabinowitz appealed for clarification: surely, the Court could not be saying what it appeared to be saying. Read the ruling, the Court responded. That’s exactly what it means. Yet, Rabbi Rabinowitz has continued to impose invasive searches.

June 4 has come and gone. The State and Rabbi Rabinowitz violated that deadline and returned with more delaying maneuvers. Leaders of the haredi parties, upon whose participation in the coalition Netanyahu’ s government depends, met with him recently demanding that he formally renounce the deal. Netanyahu, mindful of US Jewry, suggested that he simply continue to “ice” its implementation. He’s met with representatives of the movements, too, and heard, yet again, their position. The State then filed papers with the Court claiming that it had held discussions with representatives of “Orthodoxy”, implying that some meaningful negotiation was going on, justifying more delay. Our group has Orthodox members. Some of our legal team are Orthodox. No one from the State has ever met with us. We all know whom the State met with; this was reported in the press. The Court’s response? It just extended the State’s deadline till the end of June. Anyone care to bet what the State and Rabbi Rabinowitz do then?

Why is the Court tolerating this? Aside from the specifics of our case, with its broad, constitutional implications, which deserve a ruling, tolerating contemptuous behavior to the Court invites it, as the record of the State and Rabbi Rabinowitz’s behavior clearly shows.

It is time for the Court to shed its hesitation to exercise its authority and its mandate to execute justice. It is decision time for the Court.

About the Author
Shulamit S. Magnus Professor Emerita of Jewish Studies and History at Oberlin College. She is the author of four published books and numerous articles on Jewish modernity and the history of Jewish women, and winner of a National Jewish Book award and other prizes. Her new book is the first history of agunot and iggun from medieval times to the present, across the Jewish map. It also presents analysis and critique of current policy on Jewish marital capitivity and proposals to end this abuse. Entitled, "Thinking Outside the Chains About Jewish Marital Captivity," it is forthcoming from NYU Press. She is a founder of women's group prayer at the Kotel and first-named plaintiff on a case before the Supreme Court of Israel asking enforcement of Jewish women's already-recognized right to read Torah at the Kotel. Her opinions have been published in the Forward, Tablet, EJewish Philanthropy, Moment, the Times of Israel, and the Jerusalem Post.