Supreme Court on Draft Inequality: Enough is Enough

Israel’s Supreme Court has decided not to allow for further renewal of the 2002 Law Deferring Military Service for the ultra-Orthodox (haredim), set to expire in August 2012. Is this a landmark decision expediting the actual draft of larger segments of haredi society into the army? Will it cause, or rather force, more integration of haredim into Israeli society? Most likely not. The decision only strengthens the haredi (mis)perception of the Supreme Court, as being categorically anti-haredi. It also puts a halt to any efforts of gradual haredi integration into Israeli society made over the last decade.

Contrary to media reports, the court did not rule that starting in August 2012 all or even most haredim must be drafted. All it decided was that the current attempt to encourage more equal service, as embedded in the 2002 law, has failed. None of the nine judges thought that starting August 2012 the Knesset should or would allow for a forceful and equal conscription of all Jewish Israelis. The court is too practical. It can only decide which solutions are unconstitutional and hope that an improved law is enacted.

The real significance of the misrepresented decision lies in the underlying principles and conceptions it raises. After all, declaring a law unconstitutional is a very rare occurrence in Israel.

The majority opinion (six to three) rests on firm constitutional legal grounds, but also on a sense of urgency. When Israel’s first prime minister, David Ben-Gurion, first allowed for the exemption of yeshiva students in 1948 there were 400 students; today there are over 60,000. In 2011 they numbered 14% of all those fit to serve in their age group. This percentage is expected to double within the next decade. Who, then, will defend Israel?

The purpose of the law was to slowly integrate the haredim into Israeli society through military and civil service. The court was able to stomach the ongoing inequality in the draft arrangements, as long as the ultimate goal of more equal duty-sharing was being further realized. After ten years, says the Court majority, the Law has proven to be a dismal failure, with the percentage of those exempt only increasing and equality becoming ever-more elusive. The court has dealt patiently with this complex issue since it was first thrown into its lap in the ’70s, but enough is enough. Beinish even mildly alludes to a possibility that we may be reaching a point of no return.

When Ben-Gurion first allowed for the exemption of yeshiva students in 1948 there were 400 students; today there are over 60,000. (photo credit: Kobi Gideon/Flash90)

It’s not really about Torah study

Interestingly, there was wall-to-wall agreement amongst all of the judges that the study of Torah is of primary importance for the Jewish people, and deserves special arrangements that even outweigh simple equality. The Supreme Court has long recognized the special needs and lifestyles of certain segments in Israeli society.

Yet this is also where legal reasoning falls short, weighing in on “sterile” legal principles and values but unable to touch on the roots of a fragmented society’s problems. The current all-encompassing exemption of haredim is not about those who thirst for learning. There is almost unanimous agreement that an arrangement can be found for those outstanding few who really do devote their all to Torah study.

The court does not really address the major concern of haredi society, which is to maintain its traditional lifestyle in the face of a liberal secular surrounding — for all haredim, learners or not. It is about full separation from those same surroundings with which the court expects more integration. What “better” legal arrangement can be achieved when this is the prevalent mindset of haredi society? These are the same separationist undercurrents fueling the Beit-Shemesh school disputes and the separate-bus disputes.

The tyranny of the minority

In this sense, the terse and clearly dissenting opinion of incoming Chief Justice Gronis is significant. He dismisses the petitions, simply saying that the court should not involve itself with this issue, which must be resolved “in the public sphere.” It is consistent with his ongoing view against judicial activism and for accepting the Knesset’s right to legislate “as is.”

Yet his explanations are tenuous at best, and extremely problematic from a constitutional point of view. Gronis reasons that the majority has the right to exempt a minority of its basic duties and obligations, including categorically releasing all haredim from military service. Why? Because this is what the majority has decided through its parliamentary representatives in Knesset. This is a flawed argument that rests on a misconception of the fundamental meaning of democracy, which is not just majority rule, but also the protection of individual civil liberties. This is the greatest political lesson to be learned from the events leading up to WWII.

A tenuous argument. Justice Asher Grunis (photo credit: Yossi Zamir/Flash90)

Most haredim are happy that Gronis “got it right.” But what would they say if the next government were formed based on an anti-haredi undercurrent with a Likud-led coalition and other large secular parties that would use their majority power to infringe on basic religious sensitivities, or on yeshiva funding? After all, if equality is something the Knesset can dismiss by a majority vote, who’s to say that it should stop at the doorstep of religious freedoms, and who would stop it then if not the Supreme Court?

Gronis’ reasoning also ignores the reality of Israel’s coalition politics, in which often enough the minority dictates its norms to the majority. This is what happened with the Deferment Law as well. In addition, this reasoning rests on indefinable terminology. Is a religious man who plans to return to yeshiva after completing his army service but is also interested in seeing haredim share the burden with him part of the majority or the minority?

Yet the most troubling statement made by Gronis, especially considering his new post as chief justice, is his rhetorical question: were an equal and full draft to be demanded, could the courts actually enforce the law? Gronis may be right — 60,000 haredim won’t enter the army via jail terms — but his statement that such a legal arrangement cannot be enforced undermines the basis of any legal system. Gronis’ unwarranted statement serves to further exacerbate a prevalent problem in Israeli society, namely that brute force and disregard of the law are acceptable norms. This is not a specific haredi issue, and it is increasingly rampant in Israeli society. No justice should reinforce it, astute as his “observations” and conclusions may be.

Most interesting and relevant is the middle-ground minority opinion voiced by Jutsice Arbel, who believes that the validity of the Law should be temporarily lengthened. Arbel focuses on the fact that specifically over the last five years there has been a very sharp increase in haredim joining either the army or the civil service. Do not stop a process when it is just budding, says Arbel. Deep changes in society are gradual and, yes, contrary to the majority opinion, trends must be detected beyond the dry numbers.

The hot-potato has now been thrown back into the political arena. Unwittingly, the Court’s decision forcing the enactment of a new law by August and the anticipation of upcoming elections will make this a central issue over the coming year. For lack of a workable solution with the current coalition, the Court’s decision may actually send Israel to elections earlier than expected. The general public’s dissatisfaction with the growing sense of inequality has certainly raised the stocks of haredi-bashing. Israel may soon find itself governed with a new secular-party-based coalition, free of haredi pulls. The new law enacted then may be more extreme, and call for quicker and deeper change. Perhaps the Supreme Court was right.

Contact Gabi Danon