Printer Friendly

Game of thrones: the ongoing discourse on religion and state in Israel (the second part).

TABLE OF CONTENTS

III. The Unique Model of the Status Quo
   A. The Exemption of 'Yeshiva' Students from Mandatory Military
       Service
   B. Marital Law in Israel
   C. The Shabbat
   D. The Kashrut
   E. The Religious Education System

IV. As Israel Develops: Additional Status Quo Disputes
   A. Status Quo and the Feminist Angle
   B. Euthanasia in Israel
V. Euthanasia, Religion and State: Israel and Italy
VI. Conclusion
Bibliography


'Religious institutions that use government power in support of themselves and force their views on persons of other faiths, or of no faith, undermine all our civil rights. Moreover, state support of an established religion tends to make the clergy unresponsive to their own people, and leads to corruption within religion itself. Erecting the "wall of separation between church and state," therefore, is absolutely essential in a free society.'

Thomas Jefferson

III. THE UNIQUE MODEL OF THE STATUS QUO

The status quo is a special agreement between religious and nonreligious political groups in Israel, which dates back to the years before the state of Israel was founded. (2) On behalf of orthodox organizations the status-quo letter was sent to the temporary council of Jews in Israel in 1947, just one year before the UN declaration 181 was adopted. This document included the main requirements of the ultra- orthodox community regarding the implementation of religion in the state law. (3) The Letter covered four main subjects. The community demanded full responsibility as drafted in the letter:

'A. Shabbat. It is clear that Shabbat will be the legal day of rest in the Jewish state. Permission will naturally be given to Christians and to those practicing other religions to rest on their weekly day of rest.

B. Kashrut. All means should be pursued to ensure that every state-run kitchen for the use of Jews serve kosher food.

C. Marital Law. All the members of the Executive appreciate the seriousness of the problem and the grave difficulties pertaining to it, and all the bodies represented in the Agency's Executive will do whatever possible to satisfy the deep need of the religiously observant in this matter, lest the House of Israel be divided in two.

D. Education. Full autonomy will be guaranteed to every education network (incidentally, this policy already exists in the Zionist Federation and Knesset Yisroel) and the state will not infringe on the religious philosophy or the religious conscience of any part of the Jewish people. The state will naturally determine the minimum requirement of compulsory studies in Hebrew language, history, science, and so forth, and will supervise this minimum, but will allow full independence to each network to educate according to its outlook and will avoid any injury to the religious conscience.' (4)

This letter has no official stamp. It is a special kind of agreement, which has never been officially adopted. Even so, it was regarded as the fundamental agreement in the relevant issues, and later on was borrowed by several laws, including the Hours of Work and Rest Law of 1951, recognizing the Shabat as the official day of rest in Israel; (5) The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law of 1953 (6) provided full and unique responsibility on the matters of personal status of Jews to the Rabbinical Court; and the State Education Law of 19537that guarantees separate and autonomous educational system for orthodox Jews.

Israel has also established several religious institutions. The religious council sexist in different regions of Israel and provide-religious services for the communities. Another institution is the Chief Rabbinical. It consists of two chiefs (Ashkenazi and Sefaradi) and a central council. It enjoys the jurisdiction in deciding upon Kashrut matters as established in the conformity with dietary law. (8) This provides the council monopoly over the kosher food in Israel, which involves a great amount of power since most of the Israeli population tend to eat kosher food.

The acceptance of a non-formal agreement such as the status quo agreement that has no legal grounds has two different ways of explanation. First, the question of balance between law and religion is so complicated that a formal legal agreement could impose a threat for the stability of the Israeli society. (9) The second one is about a conflict between the state and religion in Israel being irreconcilable; therefore the status quo is the only way to achieve a compromise. (10) It should be taken into account that the status quo has changed a lot. However, some of the orthodox Jews believe that the best way to handle the problem of the relation between religion and state is to strictly preserve the status quo while the others think that it is necessary to challenge the status quo, since it is not compatible to the a dynamic situation in Israel. (11)

I would like to discover the influence of the status quo agreement, focusing on the main problems directly affected by it: the exemption of 'yeshiva' students from military service, the personal status in marital law, the Shabbat, the Kashrut laws, the orthodox educational system; as well as their implication upon the right for freedom of religion.

A. Exemption of "Yeshiva" Students from Mandatory Military Service

The main idea of the status quo--even being not specifically mentioned in the letter--is de facto exemption from the mandatory army service that is granted to the orthodox 'yeshiva' students. 'Yeshiva' students are the ones who are recognized by the state as belonging to a certain religious institute. (12) Therefore, in order not to interfere their studying process the state agreed to postpone their mandatory service. According to the Defense Service Law of 1949 (13), every male over 18 has to do three years of mandatory military service, whereas every female has to serve for two years. However, this law did not concern 'yeshiva' students.

Prime Minister David Ben-Gurion decided to release the 'yeshiva' students from the military service. In the beginning it concerned a small group of people. During the years, more and more orthodox declared themselves as 'yeshiva' students. As a result they served in the army for less than one year, or did not serve at all. According to the official statistics of the Knesset, the number of 'yeshiva' students released from service in 1948 was 400; by the 1990's, this number increased and reached 61,000. (14)

In the beginning, the idea was to support the orthodox community but as a result became a subject for the legal disputes. Since the beginning of the 1970's, the High Supreme Court has been constantly dealing with petitions by non-religious parties, demanding equality in terms of military service, and asking the Minister of Security to use his legal power in order to stop the release of the 'yeshiva' students. (15)

On the other hand, the ultra-orthodox people pretended to have a right to protect their society from entering non-religious world but that if the orthodox had to serve in the army they would be exposed to this world, which would have a substantive threat to the orthodox community. They also claimed that learning and analyzing the 'Torah' was traditionally Jewish, therefore they were having a different but nevertheless important role in the Jewish state since they believed that their prayers kept the Israeli soldiers safe. (16)

Another opinion was that in order to defend freedom of religion the orthodox should be exempted from military service but there is a fear of becoming orthodox only in order to be exempted. But being a 'yeshiva' student should mean following strict every-day rules as well as avoiding a comfort of non-orthodox life. (17)

These contradicting claims from both sides were lengthily examined by the High Court of Justice. At first, the Court rejected most of the claims on the ground of the Court's reluctance to interfere in the matters concerning the 'political sphere', as a part of the democratic general principle of separation of powers. In the past, the Court accepted only those petitions in which petitioner would be affected directly by the decision. In the case of Beker V. The Minister of Defense, the petitioner claimed to have a personal affect since he was student as well, but had to serve a full military service. (18) The court rejected the petition on the ground of the fact that the petitioner had no 'special interest'. Until 1980's a number of petitions were declined on the same grounds.

In the 80's the situation changed. As I mentioned in former chapters, these years symbolized a wind of change in the judicial system, moving towards judicial activism. This was expressed also in the new rulings regarding the 'yeshiva' students. In the ruling of the Court as delivered in Resler V. Minister of defense, (19) a 'Public Petitioner' was allowed to file a petition to the High Court of Justice. This led to a wave of numerous petitions, and forced the legislator to confront the problems.

In order to react to the questions raised by the public petitioner's in the court the Tal commission was formed by the Knesset in 1999. The goal was to create a new settlement regarding this dispute. The solution of the committee was the following: the 'yeshiva' students should continue to be exempted from the service during the first 4 years; after that period they have to decide, either to stay in the 'yeshiva' and continue dedicating their lives to learning Torah, or to try to get some regular job. If they decide to continue working but not to go back to the 'yeshiva, theyhave to go through a short military service and then will be allowed to go back to work

The main purpose of this settlement was to respond to the claims against the orthodox people as the ones taking advantage of religion in order to avoid public duties. In 2002 the recommendations of the commission were formed into a temporary law ('Horaat Hashaa'). 'Temporary' means that it should be reviewed in 5 year period. In 2012 the Court ruled Tal law unconstitutional. The judges, almost unanimously, claimed that the law was violating and contradicting the Basic Law of Human Dignity (1992). (20) However, they did not claim that the purpose of the law is unconstitutional, whereas the law did not achieve its goal and a new settlement should take place. (21) Judge Rubinstein referred to freedom of religion in his ruling: "Israel is a Jewish and Democratic state therefore the Court is obliged to adhere to the principle of freedom of religion. Prohibition a religious Jew to study the Torahviolates Human rights as mentioned in Basic Law: Human Dignity (1992). It is important to keep balance between freedom of religion and the value of equality in a democratic state." (22) After some investigation on the subject of mentioned balance the court concluded that the Tal law did not complete its targets since the right to equality was discriminated. The law was declared unconstitutional and formally canceled. However, it has not affected the 'yeshiva' students. The government continues to financially support them. One of the reasons for that is the fact that the orthodox have a strong political power. On the one hand the government cannot allow the orthodox parties to turn against it, and on the other--cannot ignore the Court's decision. This position of the government is also a part of the status quo which became a part of the legal and political culture of Israel. No any government has tried to provoke the status quo so far since it would be considered as an infringement of the long-term agreement.

Another interesting idea was mentioned by Judge Mishael Cheshin pointing out the connection between the 'yeshiva' students and the Israeli society: 'we shall remind ourselves; "yeshiva" students are involved in the Israeli social life. I wonder how it is possible that they are exempt from mandatory military service but still manage to deliver their representatives to the Knesset and the government in order to decide about the matters of life and death and other issues that directly affect those who are doing the mandatory military service'. (23) This emphasizes the problem of separation between religion and state, even more since for many Israelis military service mean being a loyal citizen of Israel.

B. Marital Law in Israel

A historical review of the marital law in Israel goes back to the ottoman law, as mentioned in the first chapter. The ottoman system granted autonomy to each religious community on the matters of marriage and divorce. (24) As it was mentioned before the nature of having a religious autonomy on issues of personal status is one of the reasons why Israel could not be conceived as a democratic state and what's more, cannot be perceived as an illiberal one. The exclusive jurisdiction overmarriage and divorce matters belongs to Rabbinical Courts. Both religious and civil courts first of all apply the religious law. The Rabbinical Courts Jurisdiction Law (1953) states that: (1) Matters of marriage and divorce of Jews who are Israeli citizens or residents will be under the exclusive jurisdiction of the rabbinic courts. (2) Marriage and divorce of Jews will be carried out in Israel according to the law of the Torah. (25) This law obtains the Jewish law autonomy upon marriage and divorce, and imposes two illiberal consequences. First, a Jew is not allowed to marry a non-Jew. Secondly, the Jewish law is patriarchal that violates fundamental right to equality for women. (26) Section two also implies that all Jews in Israel must be married according to religion that means that all Jews have to be married with the presence and authorization of an orthodox rabbi. Also, before wedding women have to make a purification procedure in the Mikveh (a pool), completely naked, supervised by an orthodox woman which violates the right to privacy. (27)

Although according to the general principals the Rabbinical Courts have an exclusive competence over issues relating to marriage and divorce, couples are entitled to choose in a pre-marriage contract a Civil Court for their case. What's more, a couple can be divorced in the Rabbinical Court, but property issues can be solved in the Civil Court. If one of the parties desires, he or she can announce that he or she wants the property issues to be 'attached' to the claim for divorce in the Rabbinical Courts. This creates a phenomenon called 'the chase for jurisdiction'. In most of the cases a man prefers' to stay inside' the Rabbinical Courts jurisdiction since it is a patriarchal system, which is always in favor of a man. The Knesset made an attempt to prevent this situation. Therefore, according to Article 3 of the Rabbinical Courts Law claims must be 'honest', meaning to make law process easier and to reduce its costs. The 'honesty' of the claim, however, is a very problematic demand since the burden of proof is almost unreachable. Rabbinical Courts are the ones to decide if the claim was honest. Since they have a clear motivation to strengthen their jurisdiction they approve the 'attachment' in the most of the cases. High Court of Justice had to intervene in order to diminish the damage caused by the 'honesty' exam, so in the case of Bavli v. Grand Rabbinical Court (1994) the Court declared that Rabbinical Court had to decide the matters of property according to the general principle of equality between spouses. (28) The Rabbinical Court, however, reacted stating that the Jewish law has an unrestricted monopoly and is not obliged to follow any of general principles. (29)

Another case worth mentioning is the one of Funk Shlezinger v. Minister of Interior. (30) This case deals with a Jewish woman and a Christian man who got married in Cyprus within a civil marriage procedure. Then, they applied to Ministry of Interior in order to be enlisted as a married couple in a registry of Israeli. The officer refused to register them since they weren't married according to Israeli law. The couple filed a petition claiming to have a right to be registered in Israel as a married couple in the population registry. As a result Ministry of Interior was obliged to register the couple. According to the court, the registration is a technical procedure that does not involve any religion; it does not affect the autonomy of the Rabbinical Courteither. However, this decision was criticized by the orthodox parties since it did not concern only technical procedure. It meant that marriage between Christians and Jews were recognized in Israel. Nevertheless, even though civil marriage gained some recognition by the state, they still cannot be entered into in Israel; one must travel abroad to get married. This means that Israel is relying on other jurisdictions in those matters, infringing its citizens' freedom and right to marriage.

The situation of non-marital cohabitants is different. The Israeli legal system created a possibility for the unmarried couples who share a household to claim their rights in case of separation. This option does not create any further burden on the couple, so it is becoming a solution for those couples who want to avoid the rabbinical system. (31)

The impact of the constitutional revolution on marital law

As it was mentioned before, the constitutional revolution made by Aharon Barak changed the face of the legal system in Israel. The Rabbinical Court--being a part of this system--faced with a new threat of autonomy. Declaring the superiority of Basic Laws, the High Court of Justice ordered the Rabbinical Courts to apply the principles guaranteed by basic laws. However, this was and still is a hard task for the Rabbinical Courts. The Judges of the Rabbinical Court have to consider a balance between religious and constitutional law. It is worth mentioning 'Mesoravot get' and 'Agunot' phenomena. 'Mesoravot get' relates to women who were refused a divorce by their husbands for no reason. As for 'Agunot' phenomenon, it refers to women whose husbands cannot give a divorce because they are absent or not in a state of 'clear mind'. In the last years, the term Aguna' is applied also for 'Mesoravot get' women. (32) These two situations obviously violate basic human rights, since a woman depends on a man's decision and mercy. The Rabbinical Court is also involved in a conflict. On the one hand, it is expected to apply harsh sanctions including imprisonment of men who refuse to divorce their wives and on the other--the Court is obliged to observe 'Halcha' laws, which state that a divorce ought to be given voluntarily and any coercion is forbidden. The Israeli legislator has tried to settle the conflict. According to Article 6 of the Rabbinical Courts Law, if a mandoes not follow the Court's decision to divorce within the period of six months, the Civil District Court is allowed to imprison that man. (33) This was accepted by orthodox Rabbis, since they agreed that imprisonment nowadays is not as harsh as it was in the old days and therefore would not be considered as coercion. (34)

Another problem that arises is that the judges of the Rabbinical Court do not tend to give an order to coerce a divorce that easily; they usually use their right to only "recommend" a divorce. This is actually the most problematic issue since giving this coercive order can be possible only under one of the following circumstances:

(a) Incurable health conditions of a man

(b) Religious conversion (becoming not a Jew anymore)

(c) Cheating on his wife (at least two witnesses are required)

(d) Physically violence towards his wife

(e) Failure to give a financial support to his wife.

What's more, the court demands a woman to show so much proof that sometimes it becomes impossible for her. Another solution to avoid coercion is to force a man to pay a woman 'Mezonot' (financial support), as according to 'Halacha' the man has to support his wife. (35)

Another right which is infringed by the court's decisions and therefore ought to be mentioned is the right to 'Marital Freedom'. All Judges of the High Court of Justice agreed that the right to family life is enshrined in Basic Law: Human dignity and Liberty. (36) The basic element of this right is freedom to make his or her family life. (37) Some judges even claim that the right to marry and enjoy family life is an integral part of the fundamental right to life, declaring this right as a 'raison d'etre'. (38) However, depriving the right to divorce and remarry holds an unconstitutional act. What's more, it violates the constitutional right to freedom of basic life choices. (39)

At the end we can observe high tension between the 'Halachic' laws and Basic Law of Human Dignity. On the one hand 'Mesoravot Get' is experiencing equality with man. On the other hand forcing imprisonment of man infringes his right to freedom of movement. Therefore, the balance test has to apply in each particular case.

An additional and innovative solution to the 'AgunoV problem is filing a tort lawsuit against the husband. A lawsuit like that can be justified in tort's law as a 'corrective justice' since a compensation is usually used to declare that an act was wrong, whereas under corrective justice the focus remains solely on the two parties of the tort. (40) The reason for this justification is that a public declaration would threaten the status quo. A further justification for using torts law is deterrence; this claim is persistent with the economic argument as especially in 'Agunot' cases. (41) The innovation about torts law is the fact that even if the divorce is only 'recommended', a woman can still use the tort's law because it has no demand of coerced divorce. The first lawsuits in Israel were filed in 2004 and regarded only coerced divorce. However, starting from 2008 the women who were only recommended to get a divorce have managed to bring their case to the civil court and even get compensation. Judge Wiezman, one of the first judges who gave this kind of compensation, used to say that if a rabbi recommended to divorce, there should be a 'Lighthouse' for the civil court to decide whether the divorce is justified and should still take place. (42)

It still remains important whether the civil court would be able to acknowledge a lawsuit in case if the Rabbinical Court does not acknowledge even a recommendation for divorce. It is claimed that the negligence suit should be filed as an independent cause, regardless the Rabbinical Courts decision. This definitely somehow diminishes the autonomy of the Rabbinical Court, and is going to be a subject to dispute in the next years.

C. The Shabbat

The Shabbat (Saturday) is the official holiday day in Israel according to the Law and Administration Ordinance. (43) It also gives the non-Jewsthe right to enjoy their days of rest and holidays and establishes work and rest hours. (44) As for the people of other religions they can choose their holiday days according to the religion. The law prohibits an employer to disclaim employee's right to have holiday days upon his/her religion.

The religious parties were not satisfied with these laws; they demanded to enact a Shabbat law that would establish the centralized part of the Shabbat in the Jewish nation life, since the other laws did not mention it specifically. Their claim was denied. (45) The main dispute in this regard concerned a conflict between the religion and the state and was about a demand to stop every businesses activity during Shabbat day. In 1987 the court decided that a municipal order to close cinemas on Shabbat is ultra-vires to the Knesset decisions. (46) In the case of Horev v. Minister of Transportation (47) the orthodox demanded to close an area with massive religious population for vehicles coming in and out. However, the area in question is one of the main streets in Jerusalem. Closing it would cause difficulties for the non-orthodox people who also live around it and drive during Shabbat. Eventually the court decided that during times of prayers the street would be closed, but not for the whole day Shabbat. (48)

About 20 years ago the secular community started to support the idea of having entertainment and commercial activities during Shabbat. It is worth mentioning that before everything had been closed. Nowadays many restaurants, coffee shops, cinemas and even malls are open. In fact this is a clear violation of the status quo. The non-orthodox Jews have gradually changed the reality of the first years in Israel; they claimed not to accept the 'Religious Coercion'. In addition, they claimed public transportation to be allowed on Shabbat. (49) The Shabbat is another proof of the wide gap between religious and non religious communities in Israel. In a recent survey that was conducted by an Israeli newspaper it was shown that 73% of the Israeli would want public transportation to be allowed on Shabbat. (50) However, the Shabbat is a symbol of Judaism and is a crucial part of the status quo. This is still a subject for public discussions.

D. The Kashrut

As it was mentioned above, the Rabbinical Institution has a complete monopoly over kosher food in Israel. It is the only ones entitled to give Kashrut authorizations to factories and restaurants. It is worth to be noted that until the constitutional revolution in Israel, it was prohibited to sell and import pork. The dispute over pork meat can somehow be compared to the dispute over crucifix in public spaces in the Christian world, since these disputes are not only about narrow religious issues but about religion in general and its role in the western society. It emphasizes the connection between religion and culture, and its place in the political and legal systems. (51) In the Jewish culture, the prohibition of pork meat is fundamental since it is one of the prohibitions that are explicitly mentioned in the Torah. This prohibition is essential for understanding the Jews in the period of the diaspora since it created a clear distinction between them and the other nations (except the Muslims). (52) However, it is quite uncommon that there are no any debates on this topic among the 'Halacha' commentators.

The legal dispute about the pork meat dates back to the 1950's. The first laws that prohibited distribution of pork were municipal ones. Up until the 1980's, there was no any further discussion as most of the population respected this prohibition under the status quo agreement. What's more, the hegemonic left winged party 'Mapai'ruled in Israel since its foundation had no special interest in religious laws. However, the political revolution happened in 1977--when the Likud, a right winged party won--changed the focus on the religion. It was commonly claimed that the Likudhad won because of the support of the orthodox parties. But even then, no fundamental changes were made. (53) The changing point lies as mentioned above in the constitutional revolution. An extra reason that gave a rise to the conflict was the immigration wave from the former USSR which brought approximately 1,000,000 Russian Jews to Israel, most of whom used to eat meat. As a result a lot of un-kosher stores were opened in the cities with big immigration community. However, it's never easy to find a right balance between freedom of occupation, allowing citizens to open stores and sell any productsthey want, and interests of the religious community. (54) In her essay, Daphna Barak Erez suggested two perspectives.

(1) The restriction should be localized and applied only in those areas that have large religious population.

(2) If taking into consideration that not eating pork meat is an essential part of the Jewish nation symbols and cultures, there should be a whole new set of arguments to balance.

The Court has yet to decide on those grounds but considering the fact that pork meat has been distributing and consuming in Israel for a few years, in reality the decision has already been made. (55)

E. The Religious Education System

As it was stated in the status quo, the orthodox claimed to have an autonomic education system. In 1950 it was decided to exempt several orthodox institutions from the Compulsory Education Law. (56) In fact, that meant that they did not have to include 'core studies' in their curriculum: such as mathematics, foreign language, sciences, etc. As a result, in most orthodox schools, mathematics and Hebrew are being taught in a basic level, while English is not being taught at all. (57) At first, the number of students followed the orthodox system was quiet insignificant. However, with the strengthening of orthodox parties, nowadays the orthodox take 26.5% of all education system in Israel. (58) The orthodox system separates boys and girls into different universities and according to the age of the students. These universities are recognized by the Ministry of Education as exempt ones, so the supervision upon them is different from the regular universities.

The orthodox young women have a better education in high schools, as a woman is considered to be the one who should support her future husband when he is in Yeshiva studying 'Torah'. The orthodox young men, however, only study religious subjects. This process of detaching a man from the modern world makes him enter the world of Torah enthusiastically and wholeheartedly. (59) Although in the last few years some of the Rabbis of the communities have allowed their students to study technological studies after they graduate from the Yeshiva high school, they still have a huge knowledge gap since they do not speak English and their level of mathematics is the level of an elementary school student. What's more, it is expensive to study in technological colleges but most orthodox students have financial problems since they do not work and mainly are supported by social protection. (60)

However, the main problem, regarding the religion and the state, is still the ignorance of democratic values by orthodox universities. According to the statistics 1 of 4 young people today is educated within this system, so that contains an actual threat to the Israeli democratic society. Also, these young people are not exposed to other groups since they are in a separate system, so they do not experience the 'hidden curriculum' that provide the opportunities to interact and to live in a pluralistic environment. (61) The lack of democratic education leads to harsh results in the orthodox community, ones that democratic state could not stand. In 2009 a famous petition was filed to the High Court of Justice; it was the case of 'Noarka-Halacha' v. Ministry of Education. (62) During the years, many complaints about a discriminative policy against Sepharedic were sent to the Ministry of Education. This policy unofficially limits a number of Sepharadic students up to 30% of all students. A good example is Beit Imanuel High School, an orthodox religious school for girls. In 2007 the school was separated into two different parts. The purpose was to separate regular and Sepharadic students. Although the students and their parents were ensured that the teachers were not going to be replaced, indeed they were, together with the head of the school. Some of the parents of the Sepharadic girls filed a complaint to the Ministry of Education, claiming that the separation creates prohibited discrimination on ethnic grounds. However, after a legal adviser appointed by the Ministry of Education made a revision, he did not find any discrimination since this kind of separation is based only on educational needs. On these grounds, a petition to the High Court of Justice was filed. The petitioners claimed that the separation was based on unacceptable differentiation between the girls. The court demanded the Ministry of Education to provide the explanation. Eventually, the school had to remove the walls between itstwo parts. At the same time it created harsh rules regarding the 'Hassidic' study plan, among other things demanding from the Sepharadic girls to change their prayers pronunciation to an Ashkenazi one. Judge Levi balanced the right to equality against the freedom of practicing religion based on ethnical relevance. He concluded that the school and the Ministry of Education had failed in preventing this kind of discrimination. (63) This is a result of the independent educational system, which is being supervised by the Ministry of Education, allowed clearly antidemocratic phenomenon to occur.

Having examined the tension between the religion and the state in the light of internal problems of the orthodox community, I would like to mention an attempt of the non-religious system to implement the democratic values in separate educational system. One of the attempts was examined in the case of Union of Teachers in High Schools, Seminars and Colleges V. Minister of Education. The teachers filed a petition asking a court to oblige the Ministry of Education to create a special program for the orthodox schools in order to make them include 'core' study plan like in non- religious schools. (64) The Court accepted the petition, however having given three years to the Ministry of Education for the program formation since it is supposed to be delicate and gradual process that corresponds to democratic values. But the current situation after 13 years this decision has been made is that the plan for 'core' studies has been created only for elementary school, but not for high school. What's more, even elementary school does not give any democratic education. So, the children educated within the religious system are not exposed to democratic values, therefore becoming a threat to the democratic society. The next step for the Israeli non-religious community is to decide whether it respects certain democratic values such as freedom of religion, taking into account that the same values risk to hurt the already questionable stability of the Israeli democracy.

IV. AS ISRAEL DEVELOPS: ADDITIONAL STATUS QUO DISPUTES

A. Status Quo and the Feminist Angle

The discrimination of women in Israel originated from both 'Halacha' and tradition. Orthodox Jewish law considers the man to be absolutely dominant. Women were not allowed to participate in military activities, receive public leader roles, not allowed to actively participate in religious ceremonies or even hold religious administrative positions. However, during many years women in Israel did not see themselves as being discriminated at this point since they did take active part in the process of 'building the Jewish State', but in fact they weren't equal to men since their role was typical feminine like raising the kids, cooking and working as teachers and nurses. But in the mid 1970's feminist wave began in Israel when women realized that they were excluded from the masculine sphere. During 'Yom Kippur' war, the women took men's roles since their husbands were suddenly taken to the military. Feminist voices more and more demanded recognition of female discrimination and gender-based understanding of the society. (65) It is worth mentioning two recent claims regarding the equality between genders.

'Neshot Ha-kotel' (the women of the Western Wall) is a group of religious women that imitate the Jewish prayer habits preserved for men only. They are usually wrapped in a 'Talit'and pray in groups in a loud voice. Their purpose is to redefine women in the patriarchal religious sphere. They demand equality within the border of the orthodox community. They are concentrated around Jerusalem Western Wall where women are not allowed to pray as the men do, as it is the central and significant place for the Jewish religion. However, it is worth mentioning that according to the 'Halacha' it is not forbidden for women to pray in the same way as men do; it is just not normatively acceptable by the orthodox community. (66) The strongest reaction from the rabbis in the orthodox community is the group prayers. Talmud says that a woman should not carry her voice in the open, in order to keep her modesty and to prevent her from acting in a sensual way (for example: singing that might provoke sexual reactions). In order to protest against that on 9 December, 1988 a group of women made their first group prayer in front of the Western Wall. They were yelled at, attacked by the men who hit and threw different items to them. (67) The western wall is protected by the Protection of Holy Places Law (68) which states the following: 'The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places.' Therefore the western wall is a holy space, and is a subject to public law. As a reaction to a junction that was published by Rabbi Gatz which prohibited women practicing public prayers, the women of the western wall filed a petition to the High Court of Justice claiming to remove this prohibition. They claimed that the junction violated their right to practice their religion, the principle of equality and freedom of movement. The court rejected the petition, stating that the government had to appoint a committee in order to find a solution which would balance between the freedom of movement and male-orthodox prayers feelings. The government reacted to this request and several committees were appointed. After several deliberations it was agreed that the women could pray, not in front of the Western Wall but in an archeological place close to it. The women turned to the court once again. The court concluded that the government had not found an acceptable solution since praying in a different place is not a proper alternative. (69) The court ordered the government to assign women's right to pray in the Western Wall within six months. This caused a political crisis. The orthodox parties proposed to adopta law that would prohibit any kind of non-orthodox rituals in front of the Western Wall and surroundings. According to this law, a woman entered that area, would get seven years of imprisonment. In order to avoid tensionst he legal advisor of the government asked the court to change its decision which is considered as a very unusual act of the legal adviser.

Due to the political chaos the court decision created and political interests regarding the maintenance of the status-quo, the court delivered a further decision. (70) Eventually it was stated that only if the government was not able to turn the alternative place into a decent prayer's area in one year after the Courts decision, the women would be allowed to pray in front of the Western Wall. The actual meaning of the decision is that in fact the court supported the estrangement of the women from the Western Wall. After that decision, some construction works were made at the archeological place in order to allow pray there.

This decision puts in question the recognition of the women's freedom to perform religious rituals in Israel. The court avoided the discussion in terms of the gender equality, concentrating on values of religion. The only judge delivered an opinion on equality was the judge Menachem Elon who was considered to be the representative of the Jewish Law in the court. He concluded that the Western Wall was not the suitable place to practice the value of equality since the risk of hurting the orthodox feelings and rituals was too high. Yet again, the political pressure of the orthodox parties and the lack of unity among the non-orthodox parties supported to preserve the status quo in terms of strong general principle of equality in the Israeli Jewish democracy.

Another example of gender inequality in Israel is the separation of space in public transportation for orthodox. In July 1997, in order to encourage a population to use public transport, the Ministry of Traffic adopted a policy of sex segregation in several lines which mainly serve for the ultraorthodox in Jerusalem and Bnei Brak, both cities with high concentration of this population. The arrangement was to allow men to enter and sit in front, while the women had to enter from the back of the bus and remain sited there. It is worth mentioning that this committee included only one woman among its sixteen participants, and that there were just few ultraorthodox representatives. (71) The Israeli Women's Network appealed to the High Court of Justice, (72) claiming that the policy appeared to be a discrimination against women and violate the principle of gender equality. The state denied the networks allegations, stating that the arrangement was to the overall satisfaction of the passengers and the members of the committee. Another argument was that the orthodox women themselves are fine with the arrangement since it helps them to practice their own beliefs of modesty and the role of the women according to 'Halachic' law.

Three years after the appeal, the network was convinced by the High Court of Justice to dismiss the appeal. As in the case of the Western Wall prayers, the court again declined to use its power in order to deal with issues regarding religion. It is clear that the court also takes into consideration the maintenance of the status quo arrangement even in terms of marginalization upon the women's physical and geographical space.

A different point of view was suggested by Alon Harel. (73) Harel examined the bus lines with separated seats for men and women from the perspective of moral and political theory. Harel claims that some ultraorthodox women support this practice since it allows them to avoid the discomfort of being harassed by men. This might create a perfect situation when they could share their personal experiences concerning marriage or even sexual life without the hazard of being heard and eventually hated by the men since the society they live in is very strict. (74) It also says that Orthodox Judaism still has a belief that women and men are fundamentally different, so it can be claimed that the democratic value of respecting the culture of the minorities up to some extent is necessary. (75) Finally, Harel suggests a different solution: to make the separation on right and left side of bus. The author does not believe that this way would be accepted in the religious community, however, believing that Harel's point of view makes nonreligious population think.

B. Euthanasia in Israel

Euthanasia is not very common phenomenon being too far from the Judaism spirit. 'Halacha' position in relation to the question of euthanasia is not extensively discussed in the Talmudand other Jewish commenters' books. However, the question can be discussed in terms of human life value under a view of Jewish law. 'Halachic' view is that human life cannot be rated; that a man has to rely on God's salvation. The 'Halacha' does not make any difference between a murder out of rage and a murder in state of despair. (76) In terms of euthanasia, the Jewish interpretations observe the 'sanctity of life'. This 'Halachic' term almost never appeared in rabbinic literature. For Judaism sanctity of life has a very important value, it mainly means fulfilling the will of the God understanding that it is beyond our comprehension. Therefore, this concept allows interpret the euthanasia, prolonging life in an artificial way, as not respecting God's will. However, there is a clear distinction between accelerating death and removal of artificial instrument that prolongs life: God does not desire a life that is supported artificially but also cannot allow an active acceleration just in order to prevent neither pain nor misery. (77)

Before Dying Patient Actwas adopted in 2005 (78) the Court had reviewed two cases regarding the euthanasia. In the case of Shefer V. state of Israel (79) the appellant was diagnosed with an incurable genetic disease known as Tay-Sachs. The appellant's mother using her guardian's right filed a request for a declaratory judgment that declared that if the appellant got worse and she needed respiratory drugs, she would be entitled to refuse from treatment. The District Court rejected the request. The Supreme Court dismissed the appeal as well. In the Lubatzki case (80) the son of 91 year old patient in constant coma state filed a petition asking to unplug his mother from the probe an artificial feeding device. He claimed that in the past the mother had said that she would not want to remain in a vegetative state, and wished not to be connected to devices that would prolong her life artificially. Supreme Court overturned the decision of the District Court holding that there was no sufficient factual basis that would demonstrate a desire of the patient to end her life. One of the main reasons for those dismissals was the protests of orthodox Rabbis and orthodox members of the Knesset, who denied the right to euthanasia appealing to religious motivation.

The situation changed in 2001 when the court affirmed euthanasia for a patient who was in terminal state suffering from ALS disease. In 2002 the Legal Advisor of the Parliament stated that euthanasia in a terminal state should be allowed. This caused a great dispute in the Knesset and Israeli society. Orthodox parties and the Rabbis of the communities were appealing harsh complaints regarding this decision.

After several years of the disputes, Israel enacted the Dying Patient Act in 2005. The law attempts to regulate medical care for terminal patients, based 'on the values of Israel as a Jewish and democratic state'. There is a distinction between patients who are able to express their will and the ones who are not since they are in a hard physical or mental state. The law states that a will of the patient in a clear mind must be respected. In case if a patient who is not able to express his/her will, the law offers three options: (1) a will might be expressed in advance; (2) it can be given by an authorized representative on his/her behalf; (3) ethics committee of the hospital decides. This is actually the renewal of the law since all these options were not previously allowed. Regarding the doctor's role, the law removed any responsibility concerning the approval or rejection of the request for euthanasia. The role of the physician should be to diagnose a patient, offer the best medical care and give full explanation about his/her state, either to a patient, or his/her family. The law prohibits any extermination assistance based on physician's opinion only. (81)

Apparently the law recognizes the sanctity of life but allows the patient to decide only if he is in a clear mind. Menachem Elon, a judge of the Supreme Court known as the representative of the Jewish Law among the Judges, stated in his essay: 'The balance in the issue of euthanasia is to find the middle way between Jewish Law and Democratic Law. (82)

V. EUTHANASIA, RELIGION AND STATE: ISRAEL AND ITALY

Italy is mostly a catholic country. 90% of the Italians declare themselves as catholic. However, only 30% declare themselves as religious and fulfill the obligation to go to a weakly mass. The cooperation between the Catholic Church and the state was established within the approval of the concordats. Like in Italy, most of the people relate to one religion but do not declare themselves as being 'religious'. (83)

After the First World War, the Fascist party started a conciliatoriness policy towards the Catholic Church. It resulted in the Lateran Pact (concordat agreement) of 1929. The problem of Rome was resolved and the state of Vatican was founded. The fall of the Fascism and the establishment of the Constitution in 1948 changed a few of the concordat articles that contradicted to fundamental principles of equality and freedom of religion. Italy became more secular which was proved by enacting some acts that recognized the right to divorce (1970) and the right to abortion (1978). (84) In 1984 the Lateran pacts were amended, and Catholicism was no longer described as the 'religion of the state'. (85) The approach of the Italian legal system is often called 'positive secularism'. In one of the Courts rulings it stated that the principle of secularism implied the impartiality of law against all religions. (86) Several articles of the Constitution protect freedom of religion and create the ground for relation between the state and numerous religious groups. Article 19 guarantees the freedom of religion: 'Everybody has a right to freely profess his/her own religious faith in any form, individual or associate, to propagate it and to exercise it in private or public cult, provided that the rites are not contrary to morality'. There is no any article directly mentioning the term 'secularism' though.

However, the court considers secularism to be one of the fundamental principles of the Italian legal system. The court interprets the idea of secularism in a wider way than just from the perspective of freedom of religion. Every law should be consistent with secularism and freedom of religion, as they both are fundamental constitutional provisions. (87)

None of states implies complete secularism. With that being said, both states do have strong rules that were established by legislation and Courts judgments. The Israeli Declaration of Independence guarantees freedom of religion and conscience to its citizens. It was officially recognized in the 1994. The amendment to Basic Law 'Human Dignity and Liberty: Freedom of Occupation' states: 'The purpose of this Basic Law is to protect human dignity and liberty, in order to establish the values of the State of Israel as a Jewish and democratic state'. When mentioned 'the values of the state' it remains unclear if the legislator meant to grant to the declaration of independence a constitutional status; but nevertheless we can consider freedom of religion to be a right that comes from the human dignity.

In terms of euthanasia it is worth mentioning that in Italy there is no any law similar to the Israeli Law. A physician who decides to help an ill person to die will be considered as a murderer according to article 579 and 580 of the Italian Penal code. (88) Nevertheless, two extraordinary cases were deliberated in Italian courts that created a lot of social disputes concerning state and religion matters.

Piergiorgio Welby was in a terminal phase of muscular dystrophy. In 2006, he filed a claim to the Tribunal of Rome in order to oblige doctors to unplug a ventilating tube which kept him alive. The Tribunal dismissed the claim. Although according to Article 32.2 of the Italian Constitution 'no man is obliged to undergo any health treatment except under the provision of the law', the Tribunal stated that this right could not be enforced in this case, since the law does not provide any settlement regarding euthanasia particularly. However, on 20 December, 2006 a doctor agreed to unplug Welby. The doctor was prosecuted for murder but was acquitted at the end since the judge pointed out that Welby had a right to refuse from the medical treatment. (89)

A young woman Eluana Englaro was involved in an accident and was staying in a vegetative state for 17 years. After several processes the Court of Cassation defined the artificial treatment as medical treatment, and stated that two conditions must be complied in order to stop artificial feeding: (1) the vegetative state should be irreversible; (2) the decision must be in accordance with the presumable will of the patient drawn from his early declarations, his personality and beliefs. In the case of Eluana both conditions were fulfilled. (90) In Israel the dispute about euthanasia is not just a legal dispute; it is also a political dispute, and it was exactly the case of Eluana. In September 2008 Parliament claimed that the Court of Cassation had acted ultra vires and entered the legislator area. Furthermore, the regional administration of Lombardy (location of Eluana) forbade the suspension of the artificial feeding as the regional governor Formigioni, who is considered to be a conservative catholic, had described the act as 'unimaginable'. Eluana's father reacted by hospitalizing her in the city of Udine, in a clinic which was willing to host his daughter and suspend artificial feeding. However, the story became a national problem. Prime Minister Silvio Berlosconi initiated an act that immediately prohibited suspension of artificial feeding. The government started the examination of the law only three days later, but during those days Eluana passed away.

The similarity between two countries is clear: both Catholicism and Judaism are based on a belief that' each human life is a manifestation of God'. (91) But not only the will of God plays role in that kind of disputes; it is a direct consequence of a conflict between religion and state in these countries. In Israel, there is a conflict inside the political system, between orthodox and non orthodox parties, as the Court stands to protect the fundamental right of the people. In Italy, the Court stands aside since state and religion are in cooperation but that is executed also just on behalf of political interests, since the Catholic parties are strong and stable in Italy. For the meanwhile, people who face this poor situation have to turn to a solution of 'death tourism', meaning traveling to other countries in order to practice their fundamental right of freedom of choice. (92) It is worth mentioning the Italian Judge AmedeoSantosuosso who states: 'As for myself, a Judge serving in a State Court and having sworn to uphold the Italian Constitution, I respect religious beliefs. But, in cases where the law conflicts with religious beliefs, I must give priority to the Constitution and laws which allow everybody to make choices according to their religious, moral, and philosophical beliefs, whatever they may be'. (93)

VI. CONCLUSION

I began the essay with a quote of Thomas Jefferson, explaining the difficulty or even impossibility of religious values to coexist with democratic values in the state. I believe this essay contains enough facts to prove this saying.

Nevertheless, the orthodox community has managed to be a part of the Israeli society, at the same time maintaining their strict religious rituals and way of life. One of the important questions that this essay brings upon is the necessity to keep Israel as a democratic state while the religious community ignores democratic values but remains an active player in the public sphere. It might be suggested that in order to protect itself, the democracy should limit the power of the orthodox parties in the Knesset. Against this argument, I would also suggest that the orthodox minority should be vital to the Israeli democracy; since these are the anti-democratic parties that eventually strengthen democracies.

Observing the peculiar status-quo agreement, I have shown that it affects life of every Israeli citizen, in a direct and indirect way. The everyday lives of Israelis are directly affected by status quo agreement regarding the Shabbat and the Kashrut. What's more, moral social disputes have been widely examined by the Israeli society regarding the exemption of the 'yeshiva' students, the women of the western wall, separation in public transportation, euthanasia, etc. As Israel became less religious and more modern, the non-religious majority claimed to change the status quo and regarded it as a coercive agreement by nature. A significant development in this discussion was been made by the constitutional revolution, eventually changing the 'rules of the game'. Now more than ever, the dispute is going from behind the scenes to the main stage; the cases that have been observed in this essay are the tip of the iceberg. On the one hand, Israel is adopting more democratic values. On the other hand, one can consider that it is also becoming less tolerable to the orthodox minority therefore undermining democratic values.

Regarding the religious minority views, the road is still open and both ways are possible: there is a possibility that the non-tolerable orthodox community will become more understanding; but there is the chance that it would only take advantage of the tolerable democratic society and would expand its anti democratic views. Observing the last few years, I cannot point towards positive developments in the orthodox society; in the last few years I observe anti-democratic declaration from the leaders of the orthodox community, starting from the condemnation of same-sex relations, followed by ethnical discrimination and up to physical violence against women and girls who were not 'modest' according to the strict rules.

As the title suggests, this is an ongoing discourse or even dispute that is far from being ended--between the two thrones that constitute the Jewish democracy.

Bibliography

Ahad Ha-Am, 'The Jewish State and the Jewish Problem' in Essential Texts of Zionism (Jewish Publication Society of America 1912)

Aharon B, 'The Constitutionalization of the Israeli Legal System As a Result of the Basic Laws and Its Effect on Procedural and Substantive Criminal Law' (1997) 1 Israel Law Review

--'Shitot Mishpat Be-Israel (Israeli Judicial Methods)' [1992] Hapraklit B (Hebrew)

Calabresi and Hirschoff JT, 'Toward a Test for Strict Liability in Torts' [1972] YLJ

Colombo S, Religion and State in Italy Compared to Israel-Institutional Aspects (Mishpat Ve Mimshal 1997)

Daphne BE, 'The Transformation of the Pig Laws: From a National Symbol to a Religious Interest?' [2003] Mishpatim

--'The Military Service of Yeshiva Students: Between the Citizenship and Justifiability Dilemma' [2006] Bar-Ilan Law Review

--'Law and Religion Under the Status Quo Model: Between Past Compromises and Constant Change' [2009] Cardozo Law Review

Dikhovsky, 'The Principle of Common Ownership-Is it the Law of the Land?' [1998] Techunim

Eliezer DY, Religion and Political Accommodation in Israel (Floersheimer Institute for Policy Studies 1999)

Eliya MC, 'Self Defending Democracy and Democratic Education in Ultra-Orthodox Jews Schools'(2008) 11 Law and Government

Elon M, 'Modes of Halakhic Creativity in the Solution of Legal and Social Problems in the Jewish Community' in Yitzhak F (ed), Baer Memorial Volume [Zion 44] (Hebrew 1979)

Ghiles-Meilhac S, 'From an Unsolvable Dispute to a Unifying Compromise' [2009] Bulletin du Centre de Recherche Francais a Jerusalem

Harel A, 'Benign Segregation--A Case Study of the Practice of Gender Separation in Buses in the Ultra-Orthodox Community in Israel' [2004] Afr J Hum Rts

Herzog, 'Israel's Road to Feminism 1973-2000: Analysis' in Rabinovich, Itamar and Jehuda Reinharz (eds), Israel in the Middle East: Documents and Readings on Society, Politics, and Foreign Relations, Pre-1948 to the Present (Brandeis University Press 2008)

Halperin-Kaddari R, Israel as a Jewish and Democratic State: Tensions and Prospects (Van Leer Jerusalem Institue, Hakibutz Hameuhad Publishing 2000)

--'Women, Religion and Multiculturalism in Israel' (2000) 5 Uvla J Intl L & Foreign Aff

Herzl T, 'The State of the Jews. Introduction' (The Jerusalem Center of Research) <http://bcrfj.revues.org/index6178.html> accessed 19 November 2014

Kaplan YS, Basic Law: Human Dignity and Liberty in the Rabbinical Court: The Balance Between Conflicting Jewish Values and Conflicting Human Rights (Kiryat Mishpat 2009)

Kop-Yosef Y, A Patients Right not to Be Treated (Daat 2003) Lapidoth R, 'Freedom of Religion and of Conscience in Israel' [1998] Catholic University Law Review

Lerner N, 'Religious Liberty in the State of Israel' [2007] EMORY INT'L L REV

Lupo Y, A Shift in Haredi Society: Vocational Training and Academic Studies (J Floersheimer Institute for Policy Studies 2003) Mancini S, 'Taking Secularism (Not Too) Seriously: The Italian "Crucifix Case" (2006) 1 Religion & Hum Rts

Panara C, 'In the Name of God: State and Religion in Contemporary Italy' (2011) 6 Religion & Human Rights

Raday F, Claiming Equality in Religious Identity--the Case of the Women of the Western Wall: a Supreme Court (Hamishpat 2007)

Rothenberg N, 'Mutual Education Core Studies for The Children of Israel: Overcoming Obstacales' in Dan Inbar (eds), Towards Educational Revolution (2005)

Rubinstein A, The Constitutional Law of the State of Israel (5th edn, Shoken 1996)

Samoha S, 'Jewish State and Jewish Democracy: A Review Article of Alexander Yakobson and Amnon Rubinstein's "Israel and the Family of Nations: Jewish Nation-State and Human Rights" [2006] Mishpat Umimshal (Law and Government in Israel)

Santosuosso A, 'End of Life Decisions in Italy and in Europe' in Selected Publications of the International Seminar Matters of Life and Death: Religion and Law at the Crossroads (Boston College Law School 2008)

Sapir G, 'Religion and State in Israel--The Case for Reevaluation and Constitutional Entrenchment' [1999] Hastings Int'l & Comp L Rev

--'Drafting Yeshiva Students in Israel: A Proposed Framework of the Relevant Normative Considerations' (2001) 9 Plilim

--& Daniel Statman, 'Religious Marriage in a Liberal State' [2008-2009] Cardozo L Rev

Sasson T, Tabory E, Selinger AD, 'Framing Religious Conflict: Popular Israeli Discourse on Religion and State' [2010] Journal of Church & State

Secara NA, 'Has Italy Discovered Virgil? Utilizing the British Archetype to Create End-of-Life Legislation in Italy' [2011] Cardozo J Int'l & Comp L

Segev J, 'Who Needs a Constitution? In Defense of the Non-Decision Constitution-Making Tactic in Israel' [2007] Alb L Rev

Shalev G, 'Interpretation in Law: Chief Justice Barak's Theory' [2002] Isr L Rev

Shmueli B, 'Tort Litigation between Spouses: Let's Meet Somewhere in the Middle' [2010] Harv Negot L Rev

Streinberg A, 'Euthanasia in the light of the Halacha' [1982] Asia Warsoff, 'The Legal System of the State of Israel' (1956) 2 NY LF

Yeffet KC, 'Unchaining the Agunot: Enlisting the Israeli Constitution in the Service of Women's Marital Freedom' [2009] Yale Journal of Law and Feminism

Zilbershatz Y, 'Freedom of Movement within a State' (1998) 4

Zucker N, 'Secularization Conflicts in Israel' in DE Smith (ed), Religion and Political Modernization (1974)

Liana Voloch (Israel)

Author

Student, Interdisciplinary Center Herzliya, Tel Aviv

E-mail: linavoloch@gmail.com

(1) The first part of this essay you can find in (2014) 1 2 KULawR 235-246.

(2) G Sapir, 'Religion and State in Israel--The Case for Reevaluation and Constitutional Entrenchment' [1999] Hastings Int'l & Comp L Rev.

(3) BE Daphne, 'The Transformation of the Pig Laws: From a National Symbol to a Religious Interest?' [2003] Mishpatim 403.

(4) Available at: http://strangeside.com/israels-status-quo-agreement/accessed 19 November 2014

(5) Hours of Work and Rest Law, 5711-1951, 5 LSI 125 (1950-51).

(6) Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953, 7 LSI 139 (1952-53).

(7) State Education Law, 5713-1953, 7 LSI 113 (1952-53) [hereinafter State Education Law].

(8) The Kashrut (Prohibition of Deceit) Law, 37 L.S.I. 147 (1982-83).

(9) Sapir (n 2) 625.

(10) N Zucker, 'Secularization Conflicts in Israel' in Donald E. Smith (ed), Religion and Political Modernization (1974).

(11) Sapir (n 2).

(12) Sapir (n 2) 624.

(13) Defense Service Law, 5709-1049, 3 LSI 112 (1949).

(14) HC 3267/97 Rubinstein v Minister of Defense, 52(5) PD 481 (1998) (Hebrew).

(15) Daphne (n 3).

(16) ibid 233.

(17) G Sapir, 'Drafting Yeshiva Students in Israel: A Proposed Framework of the Relevant Normative Considerations' (2001) 9 Plilim 217.

(18) HCJ 40/70 Baker v Defense Minister 24(1) PD 238.

(19) HC 6298/07 Resler v Knesset (Feb. 21, 2012), 2, Nevo Legal Database, (by subscription; inHebrew). [Hereinafter Resler].

(20) Basic Law (n 20).

(21) Resler (n 57).

(22) ibid 83.

(23) HCJ 6427/02 Movement for Quality Government in Israel v. Knesset PD 61(1) 619 (2006).

(24) G Sapir & D Statman, 'Religious Marriage in a Liberal State' [2008-2009] Cardozo L Rev 2855.

(25) Rabbinical Court Jurisdiction (Marriage and Divorce) Law 5713-1953, S.H165.

(26) Statman (n 62) 2870.

(27) ibid.

(28) HCJ 1000/92, Bavli v Grand Rabbinical Court [1994] IsrSC 48(2) 6.

(29) Dikhovsky, The Principle of Common Ownership-Is it the Law of the Land? (Techunim 1998) 18.

(30) HCJ 143/62 Funk Shlezinger v Minister of the Interior [1963], Isr SC 17, 225.

(31) ibid 2878.

(32) YS Kaplan, Basic Law: Human Dignity and Liberty in the Rabbinical Court: The Balance Between Conflicting Jewish Values and Conflicting Human Rights (Kiryat Mishpat, Hebrew 2009) 145.

(33) Rabbinical Court Jurisdiction (Marriage and Divorce) Law (n 64) Art. 6.

(34) Kaplan (n 32) 177.

(35) ibid 199.

(36) HCJ 3648/97 Stamka v Minister of Interior [1999] lsrSC 53(2).

(37) KC Yeffet, 'Unchaining the Agunot: Enlisting the Israeli Constitution in the Service of Women's Marital Freedom' [2009] Yale Journal of Law and Feminism 441.

(38) ibid 463.

(39) ibid 465.

(40) B Shmueli, 'Tort Litigation between Spouses: Let's Meet Somewhere in the Middle' [2010] Harv Negot L Rev 195.

(41) Calabresi and JT Hirschoff, 'Toward a Test for Strict Liability in Torts' [1972] YLJ1055.

(42) ibid 194.

(43) Law and Administration Ordinance, 5708-1948, 1 LSI 7 (1948) (Isr.).

(44) Hours of Work and Rest Law, 5711-1951, 5 LSI 125 (1950-51) (Isr.).

(45) DY Eliezer, Religion and Political Accommodation in Israel (Floersheimer Institute for Policy Studies 1999) 42.

(46) Crim A (Jer) 3471/87 State of Israel v Kaplan et al., [1988] IsrDC 5748(2) 206.

(47) HCJ 5016/96 Horev v Minister of Transportation [1997] lsrSC 51(4) 53.

(48) Y Zilbershatz, 'Freedom of Movement within a State' (1998) 4 Mishpat U'mimshal (Hebrew) 793.

(49) T Sasson, E Tabory, AD Selinger, 'Framing Religious Conflict: Popular Israeli Discourse on Religion and State' [2010] Journal of Church & State 662.

(50) <http://www.ynet.co.il/articles/0,7340,L-4337381,00.html> (Hebrew).

(51) Daphne (n 3) 403.

(52) ibid 413.

(53) ibid 404.

(54) ibid 458.

(55) ibid 472.

(56) State Education Law, 5713-1953, 7 LSI 113 (1952-53) (lsr.).

(57) MC Eliya, 'Self Defending Democracy and Democratic Education in Ultra-Orthodox Jews Schools' (2008) 11 Law and Government 367.

(58) ibid 387.

(59) ibid 389.

(60) Y Lupo, A Shift in Haredi Society: Vocational Training and Academic Studies (Floersheimer Institute for Policy Studies 2003).

(61) N Rothenberg, 'Mutual Education Core Studies for The Children of Israel: Overcoming Obstacales' in Dan Inbar (eds), Towards Educational Revolution (Hebrew 2005)

(62) HCJ 1067/08 NoarKaHalacha v Ministry of Education (decision released 6 August 2009).

(63) ibid para 29.

(64) HCJ 10296/02 Union of Teachers in High Schools, Seminars and Colleges v Minister Of Education (2004) Isr SC 59(3) 224.

(65) H Herzog, Israel's Road to Feminism 1973-2000: Analysis' in Rabinovich, Itamar and JehudaReinharz (eds), Israel in the Middle East: Documents and Readings on Society, Politics, and Foreign Relations, Pre-1948 to the Present (Brandeis University Press 2008).

(66) F Raday, 'Claiming Equality in Religious Identity--the Case of the Women of the Western Wall: a Supreme Court' [2007] Hamishpat (Hebrew) 10.

(67) ibid 13.

(68) Protection of Holy Places Law, 5727-1967, 21 LSI 76 (1967) (Isr.).

(69) HCJ 3358/95 Hoffman v Director General Prime Minister's Office, 54(2) PD 345.

(70) FHC 4128/00 Director General Prime Minister's Office V. Hoffman, 57(3) PD 289.

(71) ibid (n 108) 363.

(72) Israel Women's Network appeal to the High Court of Justice in H.C. 5079/97.

(73) A Harel, 'Benign Segregation--A Case Study of the Practice of Gender Separation in Buses in the Ultra-Orthodox Community in Israel' [2004] African Journal on Human Rights 20.

(74) ibid 84.

(75) ibid 70.

(76) A Streinberg, 'Euthanasia in the Light of the Halacha' [1982] Asia (Hebrew) 424.

(77) Y Kop-Yosef, A Patients Right not to Be Treated (Daat 2003).

(78) The Dying Patient Law 2005, S.H. 330 <http://98.131.138.124/articles/JME/ JMEM12/JMEM.12.2.asp> accessed 19 November 2014.

(79) CA 506/88, Sheffer v State of Israel, 48(1) PD 87.

(80) CA 3031/99 Attorney-General v Lubetzky [May 30, 1999] (unpublished).

(81) Dying Patient Law, 2005, S.H. 330.

(82) M Elon, 'Modes of Halakhic Creativity in the Solution of Legal and Social Problems in the Jewish Community' in Yitzhak F (ed), Baer Memorial Volume [Zion 44] (Hebrew 1979).

(83) S Colombo, Religion and State in Italy Compared to Israel--Institutional Aspects (MishpatVeMimshal, 1997).

(84) ibid 201.

(85) C Panara, 'In the Name of God: State and Religion in Contemporary Italy' (2011) 6 Religion & Hum Rts 75.

(86) ibid 80.

(87) S Mancini, 'Taking Secularism (Not Too) Seriously: The Italian 'Crucifix Case' (2006) 1 Religion & Hum Rts 179.

(88) Panara (n 90) 81.

(89) Decision of the Judge of the Preliminary Hearing at the Tribunal of Rome 23 July 2007.

(90) Court of Cassation (First Civil Division) Ruling No. 21748 16 October 2007.

(91) NA Secara, 'Has Italy Discovered Virgil? Utilizing the British Archetype to Create End-of-Life Legislation in Italy' [2011] Cardozo J Int'l & Comp L 127.

(92) ibid 164.

(93) A Santosuosso, 'End of Life Decisions in Italy and in Europe' in Selected Publications of the International Seminar 'Matters of Life and Death: religion and Law at the Crossroads' (Boston College Law School 2008) 37.
COPYRIGHT 2015 Kutafin Moscow State Law University
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2015 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Author:Voloch, Liana
Publication:Kutafin University Law Review
Article Type:Essay
Geographic Code:7ISRA
Date:May 1, 2015
Words:11395
Previous Article:International atomic energy agency action plan on nuclear safety: on the way to improving international safety standards.
Next Article:The interpretive approach to international law: a positivist view.
Topics:

Terms of use | Privacy policy | Copyright © 2019 Farlex, Inc. | Feedback | For webmasters