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Time for a historic deal on religion and state

Though the State of Israel faces pressing problems in numerous critical areas including defense, foreign affairs, the economy, and government corruption, one of the main issues on which governments rise and fall in Israel is that of religion and state. Diverse issues — whether proposed reforms to kashrut supervision or religious conversion, bringing hametz into hospitals, or transporting a turbine on Shabbat — can generate major public controversy and threaten the stability of the government. This stems from the fact that the relationship between religion and state is at the heart of our existence here in Israel, religious and secular alike, touching on the rawest nerves of Israeli society.

The array of controversial issues relating to religion and state is extremely broad: marriage and divorce, kashrut, Shabbat, ritual baths, cemeteries, the rabbinate, rabbinical courts, and more. On each of them, conservative and liberal approaches are diametrically opposed and clash head-on. What are the roots of these deep-seated controversies?

The difference between these opposing views is not only about whether, on the issues in question, stricter halakhic positions should be adopted (as the conservatives would prefer) or more lenient positions (as the liberals propose). There is another underlying theme, no less important, that influences the controversy on each of these issues: the tension between centralized state-run regulation, and decentralized community-run regulation.

On the one hand, are those who demand that only the state should have the power to determine arrangements on religion and state, and that these arrangements should be uniform throughout the country. Thus, for example, the chief rabbinate, which is an organ of the state, should be the exclusive regulator on issues of marriage and divorce, operate the official conversion system, award kashrut certificates, and so on, without such authority being given to any other rabbinical body. Those who take this view would also argue with regard to public transport on Shabbat, that there should be uniform statewide regulation, overseen by the Ministry of Transport.

On the other hand, are those who demand that these powers be distributed among municipal rabbis and community rabbis, so that they too will be able to perform conversion, provide kashrut certification, marry couples, and so on, thus expanding the range of religious options available to citizens. In other areas as well, such as public transport on Shabbat, the proponents of this approach argue that the state should not institute sweeping and uniform arrangements, and that such arrangements should be made at a municipal level, since what is suitable for residents of the Tel Aviv region (for example) is not necessarily suitable for Jerusalemites. Thus, for example, a new initiative was recently announced to transfer the authority on the operation of public transport from the Ministry of Transport to local authorities. Among other things, this would allow the operation of public transport on Shabbat in cities whose residents are interested in that option.

The tension between the centralized and decentralized approaches can be misleading. It is more complex than it seems at first sight, and in fact it provides opportunities for achieving new agreements and a more balanced situation.

At first glance, it might seem that it is the conservative religious camp that supports centralized regulation — that is, strengthening the authority of the chief rabbinate so that it is the only body in Israel authorized to perform conversion, award kashrut certification, marry and divorce couples, and impose nationwide decrees on other issues of religion and state. Similarly, it might be assumed that it is the liberal-secular camp that supports decentralization, which would allow more and more private and local religious bodies to deal with conversion, kashrut, marriage, and so on, and would recognize different municipal arrangements in different cities.

However, this is not an accurate portrayal of the situation, and is liable to be misleading. For example, there are strong religious arguments in favor of decentralization and privatization of religious services in Israel. Indeed, throughout Jewish history, going back to before the destruction of the Second Temple, conversion was handled by local, private rabbinical courts rather than being centrally managed. According to rabbinic tradition, those who were not allowed to be converted by the court of Shammai would simply ask to be converted by the court of Hillel. Similarly today, some ultra-Orthodox groups are interested in having private courts for conversion, which would apply more stringent ultra-Orthodox standards (as does the court of Rabbi Karelitz in Bnei Brak, for example). On other religious issues as well, there are groups that take a stricter line than that followed by the chief rabbinate, and thus would like to operate their own private religious services. To support their view, these groups note that halakha has always recognized the authority of each Jewish community to respect its own leadership and to develop its own application of the laws of marriage, divorce, kashrut, Shabbat, and more.

On the other hand, there are areas in which it is the secular approach that leads to support for centralization of religious services under the control of an appointed state body. The prime example of this is conversion. In Israel, conversion to Judaism is not only a religious issue pertaining to a person’s faith and way of life, but also a civil matter, as it confers the right to Israeli citizenship under the terms of the Law of Return. The idea that conversion would be decentralized and privatized, such that every private rabbinical court could perform conversion as it sees fit, would mean that every community court would be able to award Israeli citizenship. Is it conceivable that a sovereign state will allow any given community to hand out citizenship as it sees fit? No, this would be an absurd notion from the perspective of the secular statehood school, which therefore prefers leaving conversion in the hands of the state and its agencies.

This complexity opens the door to more nuanced and non-binary approaches, which might provide an opportunity to reach new agreements and much-needed historic compromises. Israeli society must engage in a public discussion to define the areas in which it is important to maintain centralized state control of religious services, from both a religious and secular perspective, and in which areas is it possible (or even desirable) to decentralize religious services and permit a broader range of religious approaches to be expressed.

Let me offer one proposal by way of example, which I present here very briefly. A clear line can be drawn between marriage, divorce, and conversion on the one hand, and other issues related to religion and state, on the other. Marriage, divorce, and conversion are all gateways into the Jewish and Israeli collective, and thus have an impact on the question of “who is a Jew,” and who is entitled to citizenship. The transition that took place in 1948 from an affiliation of communities to statehood sharpened the importance of setting clear and agreed-upon criteria for determining “who is a Jew.” Consequently, there is no alternative to setting uniform rules for marriage and divorce, as for conversion. These rules can be strict or lenient, and there will certainly be disagreement about which is preferable, but without agreement on uniform rules, Jewish society is liable to rapidly disintegrate into subgroups that do not recognize each other’s Jewishness (a process which unfortunately has already begun).

By contrast, other areas are not related to the question of “who is a Jew,” but to the question of how Jewish life should be lived. There is no reason to assume that there is just one answer to this question, and certainly no single answer should be imposed on those who think differently. On this matter, a broad range of options should be made available, via the provision of services by private and municipal bodies, without imposing uniform, state-wide arrangements on all of Israeli society. The State of Israel will continue to be a Jewish and democratic state even if there is public transportation on Shabbat in some of its cities (those that want it) and not in others; or if certain hospitals strictly enforce a ban on hametz during Pesach, while others allow every patient and their families to eat whatever they want during the festival.

The continuing lack of political stability we are enduring in Israel is not only a problem; it is also an opportunity to find new compromises and agreements. Is Israeli society ready to make a “historic deal” on religion and state, in which it will be agreed that certain areas — marriage, divorce, and conversion — will be regulated uniformly by the state, while others — such as kashrut, Shabbat, and burial — will be managed privately and in a decentralized fashion, with each community being given the option to make its own choices?

Such a deal would mean that all parties end up with only some of their desires met. Those who prefer centralized regulation will be the winners with regard to the core issues of marriage, divorce, and conversion, but will have to compromise and agree to privatization of arrangements regarding kashrut, Shabbat, burial, and more. At the same time, those who prefer privatization and flexibility in arrangements regarding religion and state, will be the winners the opening up of the kashrut market and the operation of public transport on Shabbat in municipalities that want it, but will have to agree to uniform rules on marriage, divorce, and conversion. A historic compromise of this kind could mark the start of a new chapter in the relationship of religion and state in Israel.

About the Author
Prof. Benjamin Porat is a senior fellow at the Israel Democracy Institute, and director of the Israel Matz Institute for Jewish Law at the Hebrew University of Jerusalem.
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