Ever since its inception as a Jewish and democratic state, Israel has tackled the question of where the rabbinical court’s authority ends and the secular court’s authority begins. This boundary was clarified this week when the High Court of Justice struck down a Supreme Rabbinical Court ruling that obliged a mother to circumcise her son as part of her divorce proceedings or face a daily 500-shekel fine ($140).
When passing down the original precedent-setting judgment, one of the dayanim (rabbinic judges) stated, “If the mother is given the opportunity to prevent the circumcision or use her objection [to the procedure] as a tool to make headway in the divorce struggle, we could find ourselves facing a flood of cases like these, and then divorce proceedings will take on a terrifying dimension. This trend must be stopped immediately for the common good, which takes precedence over that of the individual.”
But Attorney General Yehuda Weinstein recognized that the Rabbinical Court could not be objective in this situation. He urged the High Court to accept the mother’s petition to remove the rabbinical ruling,stating, “It’s doubtful that the rabbinic court’s decision was made based on the principle of what’s best for the child.”
This case highlights the issue of state-endorsed power of religious courts in Israel. There is no circumstance (outside risk of life) in which the Rabbinical Court would ever side with a parent who does not want to circumcise their child. In the eyes of the rabbis, one is doing harm to a child by not circumcising them, and a child should not be put in harm’s way as part of a divorce proceeding.
In overturning the Rabbinical Court’s decision, the High Court stated that issues of circumcision have zero to do with divorce, for disagreements over circumcision could just as easily arise for an unmarried couple with a son.
Allowing the Rabbinical Court to enforce its will in this manner would have given religious coercion a green light. This would have been precedent setting, for while Israeli law may sway toward Jewish law in certain areas, citizens still have the freedom to choose. Take marriage for example. Jewish Israelis are only permitted to wed in Jewish ceremonies; there is no such thing as a civil marriage in Israel. But Jewish Israelis are not forced into having Jewish weddings; they may choose to get married in a civil service overseas or to remain de-facto, without marrying at all. Another example is public transport. While public buses and trains do not operate on Shabbat, moniot sherut (shuttle taxis) do operate, providing an alternative form of transport for those who choose not to observe the Sabbath. Finally, chametz (leaven) may not be sold at kosher restaurants on Passover, but non-kosher eateries may operate, giving citizens choice over how strictly they observe the holiday.
Israel has always tried to balance the religious and democratic sides of its character. In order to continue a harmonious melding of the religious and public sphere within the realms of a liberal society, citizens must always enjoy the personal freedom to opt in or out of religion. The High Court decision to stop a mother from being forced into circumcising her son upholds the principle that no state body can force its citizens into keeping Jewish law. If Israel is to keep both parts of its Jewish and democratic character, it must never tip the scales into coercive religious law, whether judicial or otherwise.