Four reasons the override clause should terrify women
The proposed ‘override clause,’ a mechanism that would allow Israel’s Knesset to override a Supreme Court ruling deeming legislation unconstitutional, is bad for us Israelis – men, women, minorities, persons of whatever sexual orientation. It is particularly bad for Jewish women when their rights are challenged in the name of religion, God and the Jewish People. It is bad because it gives the Knesset the almost unfettered power to draft religiously-inspired legislation that infringes on the rights of women, leaving all of us no place to go for redress.
In Israel there is no government agency dedicated to identifying and correcting violations of human rights; Israel’s Justice Department has no Division of Civil Rights. There is no separation of church and state. Only the judiciary stands guard, armed with a weak constitution – the Basic Laws – which is filled with holes and exceptions, to act as some sort of protective shield in the face of the coercive powers of the state.
As the founder and executive director of the Center for Women’s Justice (CWJ), a legal advocacy organization that has leveraged the judiciary to remedy violations of women’s rights, I’ve seen first-hand how the Supreme Court has, in the past – sometimes, tentatively and equivocally – protected Jewish women from forced gender separation, work discrimination, the withholding of religious services, and the effacement of property rights. Should the override clause be passed, it will not only embolden religious state actors and communities to ratchet up their infringements on the rights of women, but it will also chill the ardor of an already hesitant and tentative Supreme Court to respond to such infringements – whether those infringements take the form of religious legislation, rabbinic regulations, religious court decisions, or religious community practices.
First, gender segregation
The Supreme Court has, over the years, attempted to limit gender segregation in the public domain, while at the same time expressing its desire to accommodate the needs and sensibilities of the Haredi community.
In 2011, the Israeli Supreme Court held that coercive segregation of the genders on public buses was a violation of equality and dignity. Getting to that point, however, took four long years, during which state actors and a specially formed committee deliberated while bus drivers ordered women to the back of the bus and turned a blind eye to passengers who physically attacked women who refused.
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In 2021, the Supreme Court ruled to accommodate some gender segregation in academia. Feminist activist and academic Yofi Tirosh, bolstered by various amicus briefs, including one submitted by the Center for Women’s Justice, argued that all gender segregation should be disallowed. The Court resultantly disallowed gender segregation in public places like the cafeteria and walkways, and prohibited the practice of preventing women lecturers from teaching men. But, at the same time, the Court held that gender segregation is permissible in classrooms in order to encourage higher education for the ultra-Orthodox.
I fear that if the override clause is passed, gender segregation will be embraced by law, practice, and regulations. In my feminist eyes, the public space cannot tolerate any gender segregation. Separate is never equal.
Second, work discrimination
In the area of work discrimination, the Supreme Court has, for the most part, accepted petitions asking for equal work opportunities. But two areas stand out as exceptions – women’s inclusion in Haredi political parties; and women working as judges in state rabbinic courts.
Over the last 30 years, the Court has paved the way for women: to sit on municipal religious councils (1988); to work as rabbinic pleaders in the state rabbinic courts (1994); to sit on the committee to appoint state rabbinic judges (2012); to act as state kashrut supervisors (2014); to work as legal advisors to state rabbinic judges (although there aren’t many of those) (2009, Labor Court) (2018 ); and even to submit their candidacy for key administrative positions in state rabbinic court (2017). CWJ was instrumental in several of these battles.
All those advances are commendable, however slow though obvious they should have been. That said, the Supreme Court has consistently avoided ordering Haredi parties to include women on their Knesset slates – even though the Court did succeed in convincing the Haredi parties to strike the language barring women from their bylaws. Similarly, the Court has refused to ban the participation of Haredi parties in the Knesset because of this discrimination. In addition, when CWJ sued haredi papers for discrimination when they refused to advertise a nascent Haredi women’s party, lower courts threw out the case.
With respect to barring women judges in the state rabbinic courts, it is simply taken for granted as fact. We women don’t even try to attack this sad and obvious act of discrimination, anticipating that any such attack would be dismissed with derision and contempt.
If the override clause is passed, I fear that the Court will hesitate to further advance the participation of women in state religious institutions. And as for women being Knesset representatives in Haredi parties or rabbinic judges, it will not happen.
Third, religious services
As long as the state provides religious services, it should be a clear and evident truth that those services must be provided to all citizens without reservation or discrimination. The Court, however, has been reluctant to state this unequivocally. In one case, involving the state-operated ritual baths (mikveh), the Court used its clout to broker a compromise regarding religious services without making a statement about basic rights. In another, involving Torah scrolls at the Kotel, it has avoided making any decision at all.
In 2011, Plia Oria, represented by the Center for Women’s Justice, sued for the right to use the state-run mikveh as an unmarried single woman. She argued that, as a citizen, she is entitled to use state religious services just like married women. The rabbinate argued that it has the right to operate religious services in accordance with its religious conscience and that, according to religious laws, single women are prohibited from having sexual relations and therefore are not entitled to use the mivkeh. The rabbinate also argued that the use of the mikveh must be limited to married women who want to engage in sexual relations with their husbands, and not for any other spiritual purpose, such as ascending the Temple Mount or immersing before Yom Kippur. Rather than explicitly declaring that the state cannot deny services to the public in a discriminatory way, the Court convinced the rabbinic establishment to adopt a policy of “don’t ask, don’t tell” when it comes to marital status and allowing access to state mikveh facilities. Today, single, divorced, and women who want to use state-run ritual baths for any purpose, have the right, at least theoretically, to do so.
However, with respect to the Kotel, the Court has effectively deferred to the religious conscience of the Commissioner of the Wall, transforming the Kotel from a public space into an ultra-Orthodox synagogue. For the past 30 years and more, women have been trying to pray unobtrusively at the Kotel with tallit, tefillin and Torah scrolls. The Commissioner has not only objected to their prayers, stating that they “violate the sanctity of the Kotel,” but has turned a blind eye to violence inflicted on the women. He even, at one point, ordered guards to body search the women for Torah scrolls that they might be sneaking into the Kotel. In 2015, the Center for Women’s Justice asked the Court to void a regulation issued by the Commissioner that provides state-owned Torah scrolls to men at the Kotel, but not to women. Neither the State Attorney’s Office nor the Court have addressed the allegations made in that petition.
It seems clear that if the override clause is passed, the petition regarding the Torah scrolls will never be heard. And even any compromise at the Kotel appears doomed.
And fourth, property rights
When it comes to married women’s property rights, the Supreme Court has consistently protected the rights of Jewish women. Of late, however, it stammered.
Under Jewish law, there is no such thing as joint property within a marriage. All property, and all of a woman’s earnings while married, belong exclusively to her husband. In 1950, the Court held that a building owned by a married woman belonged to her and not to her husband, as he claimed and the rabbinic court held, thus paving the way for the 1951 Women’s Equality Rights Law. In 1994, the Court ruled that civil laws of marital property apply in the rabbinic courts. And in a series of decisions since 2008, the Court has held that fault, including sexual fidelity of a partner, should not be taken into consideration when dividing up marital property.
But recently, one Supreme Court tribunal refused to intervene in the face of a rabbinic court decision that held that a woman’s sexual infidelity is reason to deny her marital property rights that would otherwise be hers. The Court argued that it does not sit as a court of appeals on rabbinic court decisions. Only after the woman asked for a rehearing before an expanded court of nine judges did the Supreme Court (6 to 3) reverse its prior holding.
Under Jewish law, women and men are not treated the same. In Israeli rabbinic courts, a woman who is unfaithful is judged much more harshly than a man. In general, under Jewish law, there is a double standard between men and women when it comes to “fault” for the breakdown of a marriage. The Supreme Court decisions regarding marital property try to rebalance this double standard.
I anticipate that rabbinic courts will continue to take the fault of a woman – in particular her sexual fidelity – into consideration when dividing marital property. After all, many of the rabbis who sit on the state rabbinic court’s tribunals are still of the opinion that there is no such thing as joint property in a marriage anyway. If the override clause is passed, I would imagine that the ardor of the Supreme Court to come to the aid of such women will be significantly curtailed.
In summation, I’m worried.
I am worried that the override clause will not be limited to an isolated case of Knesset legislation overturned by the Supreme Court and then overridden by the Knesset.
I am worried about the broad chilling effect of an override clause on the Supreme Court, shackling any attempt of the Court to address any issue where the rights of women are compromised in the name of religion; and reversing any successes we women have already achieved thanks to the Court – even when those successes have been incremental and hesitant in the areas of gender segregation, work discrimination, religious services and property rights.
And I am terrified with respect to areas that I have not even mentioned. This is the arena to which I have dedicated my professional life. I fear that an override clause will paralyze the Supreme Court completely when we ask it to interpret the jurisdiction of the rabbinic courts in a strict and narrow manner so that it will not stigmatize children as mamzerim; interrogate women regarding their sexual activities; revoke their conversions; and probe their Jewish roots.
Today there is a delicate balance between the Supreme Court and the religious arm of the state. Tomorrow, I fear that all gloves are off. Religious interests will be emboldened. The Supreme Court will be silenced. God help us. Because the Supreme Court won’t be able to do so.