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The righting on the Wall

Curtailing religious practices that impose on others is not a violation of religious rights

In what is now becoming a monthly tradition, the Women of the Wall (WoW) services – and subsequent arrests – regularly reignite the debate over one’s “right” to worship as one chooses. According to the Women of the Wall’s mission statement, their “central mission is to achieve the social and legal recognition of our right, as women, to wear prayer shawls, pray and read from the Torah collectively and out loud at the Western Wall” – actions which are currently prohibited under Israeli law. Seeing his friends and colleagues denied this freedom and being detained or arrested for their efforts, Rabbi Jason Miller compares this restriction to oppression under Communism stating, “It is the Jewish capital and no Jew should be refused her right to religious practice as our fellow Jews were in the FSU [former Soviet Union].”

Since this controversy is presented as a matter of religious freedom, the question of whether or not women are halakhically permitted to wear a tallit or read from the Torah is irrelevant. Freedom of religion means by definition that It should not matter whether or not the practices violate anyone’s definition of Jewish law, and by logical extension, it should not matter if the practices are even Jewish.

The difficulty with the WoW’s argument is that selective restrictions on religious practices is not the same as oppression, especially when there is a compelling interest. One famous test case from the United States was the 1990 Supreme Court decision Employment Division v. Smith which affirmed the restrictions against taking peyote even if done as part of a Native American ritual. New York City is currently challenging the practice of metzitza b’peh at a brit milah due to several incidents of babies contracting herpes through the process. Perhaps the most significant restriction of religious worship in the United States is in the opposition to prayers in a public context. The Freedom From Religion Foundation protested a prayer at a university football game and the ACLU continues to monitor complaints regarding prayer at public schools.

While these decisions clearly restrict religious worship, only a minority (usually those directly affected) will claim that they are oppressive or an infringement on one’s freedom of worship. In fact, the Rabbinical Assembly of Conservative Judaism officially endorsed restricting prayer in public settings.

WHEREAS nothing prevents students and athletes form engaging in private, voluntary prayers for their respective groups either before, during or after their games…

THEREFORE BE IT RESOLVED that the Rabbinical Assembly offer strenuous objection to Congress’ endorsement of prayers at public school sporting events…

BE IT FURTHER RESOLVED that the Rabbinical Assembly continue to advocate the moral and constitutional obligation to prevent the imposition of religious beliefs and practices within the public sphere.

Thus, curtailing religious practices without formally outlawing them is hardly a violation of one’s rights, but in fact maintains the rights of the majority. In fact it is a “moral obligation” to curtail public religious practices which may be considered an imposition on others.

Israel also restricts religious freedoms when they serve a compelling interest. Jews are not allowed to pray at all on the Temple Mount for fear of starting an international incident, not to mention offering the paschal sacrifice. When Ministry of Religion first erected the mechitza at the kotel separating men and women in 1967, they were restricting the religious rights of those who would only pray in an egalitarian service. And imagine the outcry if a Christian or Pagan group wished to hold their ceremony in the middle of the kotel square.

Rabbi Steven Wernick, CEO of The United Synagogue of Conservative Judaism called Anat Hoffman’s arrest “undemocratic and frankly un-Jewish” and Rabbi Miller described the offense as a “crime of wearing a tallit.” However, these claims are simply unjustified if not disingenuous. Israel’s law does not preclude the WoW from worshiping as they see fit, but it does limit what can take place where. In 2003 the Israeli court ruled that the WoW services disrupts the public order, which as Evelyn Gorden notes includes the other women praying at the kotel. The Israeli court offered the WoW an area by Robinson’s Arch to hold their services – hardly the act of an oppressive regime – but the WoW rejected this offer as unacceptable.

I can sympathize with the position of the WoW and I can condemn the unduly harsh treatment with which the WoW have been treated by police and spectators. But do not confuse being told one cannot get everything one wants on one’s own terms with actual religious oppression.

About the Author
Rabbi Josh Yuter is an award winning blogger and social media personality.