Opinion: Religious pluralism won’t be achieved in Israel’s courts

An Israeli Supreme Court ruling recognizing non-Orthodox conversions is more symbolism than substance. The fight to curb the power of the rabbinate must be resolved at the ballot box.

By Jonathan S. Tobin, Editor-in-Chief, JNS

Reactions to this week’s Israeli Supreme Court ruling about recognizing the validity of conversions to Judaism by non-Orthodox denominations are all out of proportion to its actual significance in terms of the number of those affected by the decision.

Representatives of both Reform and Conservative Judaism, as well as other liberal groups, hail it as a breakthrough towards greater respect for Jewish religious pluralism in the Jewish state. Meanwhile, the ultra-Orthodox political parties in Israel are denouncing it as a “mortal blow to the Jewish character of the state.”

The truth is that the substance of the ruling doesn’t represent much progress towards genuine religious pluralism any more than it represents much of a threat to the institutional power of the Orthodox rabbinate, let alone to Judaism. The decision was extremely narrow in its scope, being strictly limited to the question of whether those who convert to Judaism via Reform and Conservative rabbis inside of Israel can be considered Jewish and eligible for Israeli citizenship under the country’s “Law of Return.” That means Israel’s Interior Ministry will recognize such persons as Jewish for the purpose of citizenship.

But that will affect the lives of only a few dozen people a year since the non-Orthodox movements continue to have relatively few adherents inside Israel, and the number of those who seek conversion under their auspices is smaller still.

Unaffected by the ruling is the haredi-controlled state rabbinate’s stranglehold on life-cycle events. So for the purposes of getting married, these converts will still be considered non-Jewish. And the rabbis who supervised the conversions will still not be formally recognized by the state as having any authority over religious questions. And when you consider that for the purpose of citizenship, Reform and Conservative conversions conducted abroad were already recognized, the change is even less earth-shattering than it seems.

More about politics than pluralism

So why the fuss over something that changes very little and resolves none of the ongoing sore points about Israel’s lack of Jewish religious pluralism, including the ongoing debate about the Western Wall or the status of Reform and Conservative rabbis?

The answer has more to do with Israeli politics and the ongoing battle over how much power the Supreme Court should have relative to that of the Knesset than it does about pluralism.

If the haredim and their political parties were up in arms over the ruling, it was not because it took away any of the vast power that they retain over the lives of Israeli citizens—the vast majority of whom, whether religious or not, deeply resent the rabbinate. But coming only weeks before another Israeli election, the court’s decision to act after sitting on the petitions for years was a shot fired over the bow of the Knesset.

The legislature has proven unable or unwilling to pass legislation that might resolve or clarify any of the complex issues that the courts are asked to rule on with respect to the limits of rabbinical power and Jewish identity in a country where that means so much.

It’s also a reminder that in the absence of a written constitution that would define a clear separation of powers between the legislative and judicial branches of government, the high court still thinks there are few limits on its power. In practice, that has meant that it has reserved the right to dive into a wide range of issues and make rulings that either override the will of the voters or to essentially make the laws themselves, rather than merely interpreting or enforcing them.

Though Israel’s leaders like Prime Minister Benjamin Netanyahu sometimes pay lip service to the way the lack of religious pluralism inside Israel alienates most American Jews, they have little incentive to do anything about it.

The disrespect shown by the rabbinate and by the two haredi political parties—the Ashkenazi-run United Torah Judaism and the Mizrahi Jews’ Shas—towards the denominations that are supported by most American Jews is disgraceful. But the Reform and Conservative Judaism lack the political muscle to compete with the Orthodox. And in a country where rabbis are paid by the state, the question of “who is a rabbi”—and not just “who is a Jew”—will remain a function of politics.

Since Netanyahu continues to count on the support of the haredi parties, as well as the nationalist Modern Orthodox parties, he won’t be sticking his neck out on behalf of the non-Orthodox. The only way there will be any progress towards pluralism will be if the next government can be formed without the participation of UTJ and Shas.

Even if that happens, the point most Diaspora Jews who care about this issue often fail to realize is that while most Israelis would be happy to be rid of the rabbinate, support for treating Reform and Conservative Judaism as equals is not a priority. While both movements have much to offer Israelis, Orthodoxy still is regarded as having a legitimacy the liberal movements lack, despite the fact that this infuriates many American Jews.

While Americans may regard the state recognition of Orthodox Judaism as inherently wrong, the notion of a wall of separation between Judaism and the state is one that is bound up with other issues of much greater importance to Israelis than what most of them regard as the minor issue of pluralism.

In a country that self-consciously defines itself as a “Jewish state,” pluralism is mixed up with controversies about what exactly that means. Israelis struggle to balance the need to ensure equal treatment for all citizens with the imperative to also protect the Jewish nature of the state. And that is where the Supreme Court and its periodic interventions on behalf of pluralism come in.

Undermining democratic rule?

The reason why a majority of the Knesset voted in 2018 to pass a basic or constitutional law that explicitly stated that Israel is the “nation-state of the Jewish people” is that an activist Supreme Court often intervened on issues far afield from its legal responsibilities that tipped the balance between democracy and Jewish identity in ways that undermined the latter. Acting in a manner that demonstrated the judges’ belief in their untrammeled and unaccountable power, the Supreme Court has generated a powerful backlash from right-wing parties that not unreasonably believe the judiciary has wrongly undermined the power of the Knesset, as well as the whole point of Zionism.

In the name of protecting democracy, as some on the left put it, the court has actually undermined democratic rule. Thus, even if you think the court is right to act where it can to boost pluralism, it’s also possible to decry the lawless nature of those interventions. It’s also possible to support pluralism while being concerned about the influence of those who are critical of all expressions of Jewish identity enshrined in Israeli law, such as those relating to the anthem, holidays and the historic rights of Jews to the land.

If true religious pluralism for the different streams of Judaism is to come to Israel—and that is a cause both just and necessary to promote unity between Israel and the Diaspora—it cannot be imposed solely by the courts or by the pleas of Diaspora communities. In order for that day to come, it must, instead, be a product of the democratic will of the Israeli people. It is Israel’s voters who must, by one means or another, eventually strip the haredi rabbis of their power while still retaining Judaism’s special place in the laws of a nation that must and will remain a Jewish state.