Judicial Power and National Politics: Courts and Gender in the Religious-Secular Conflict in Israel

3 The Irony of State Incorporation

59 3 The Irony of State Incorporation I want the state to hold the religion in the palm of its hand. —David Ben-Gurion The reality in Israel is that we are men of the law. If the same husband receives an invitation [for a divorce hearing] from me and he does not come, he is already tied: by the scuff of his neck, he’s going to jail. The second time, I do not need any favors from him. The police bring him to me. —Interview with Rabbi Klein, Rabbinical Court of Beer Sheva They look upon the Oriental communities as if they were cattle. They are beaten and humiliated because the [Zionist] Establishment can’t stand religious people. —Rabbi Betsalel Cohen of the Mizrahi Movement I am afraid we will soon have a civil war. When the conflict with the Palestinians and surrounding neighbors is no longer so heated, we will have a civil war between the religious and secular within Israel. I am not optimistic. —Interview with anonymous former clerk of Justice Aharon Barak In 1988, the Israel High Court of Justice entered into a virulent and protracted conflict with Jewish religious authorities in Israel; indeed, the conflict continues to this day. That the HCJ, founded on secular principles of Parts of chapter 3 are adapted from Boundaries and Belonging: States and Societies in the Struggle to Shape Identities and Local Practices, edited by Joel S. Migdal, © 2004 Cambridge University Press, all rights reserved. Reprinted with permission. general law, should come into conflict with religious authorities was not surprising. While relatively weak vis-à-vis other state institutions in the first ten years of the country’s existence, the institutional organization of the courts put the HCJ in the position of ultimate authority over religious courts in questions of jurisdiction and (certain) conflicts between religious and secular law.1 There had been tensions between secular and religious courts, and the HCJ and religious authorities, throughout the history of the country. However, the HCJ avoided direct conflict with religious authorities, with a few notable exceptions, before the beginning of the religious law conflict in 1988, as mentioned in chapter 1. Why were religious authorities included in a modern state that called itself a secular socialist state? By all three criteria—modern, secular, socialist— we might expect the establishment of a strong separation between religion and state. And yet in Israel religious authorities were incorporated into the state as state officials, and religious laws came to be the law of the land for matters of personal status. The matters that came under the rubric of “personal status” varied by one’s assigned religious community (for Jews, marriage, divorce, birth, and burial; for other communities, more areas were included, such as conversion). And, within the fourteen official religious communities with their separate legal jurisdictions relating to personal status issues, rights and responsibilities varied drastically by gender. Religious identity was assigned formally by the state, not by personal affiliation, and was defined in practice, if not in law, by religious officials. The contradictions inherent in combining such a religious legal framework within an ostensibly secular socialist state are innumerable. So why would secular socialists include religious authorities in the state? And, equally importantly, why would religious leaders choose to heed the call and join the state when many, particularly from ultra-Orthodox communities, vehemently disapprove of the establishment of a secular state in the absence of the Messiah. The first part of this chapter seeks to answer the first question: why would secular socialists invite religious institutions and authorities into the state? The solution to this irony lies in the critical strategic decision of the first prime minister of Israel to delay what he referred to as “the dreaded Kulturkampf ” between religious and secular (Avi-Hai 1974, 97). This strange decision culminated in the equally ironic increasing of the political power of religious authorities at the same time that it made the state the critical site of religious decision making for religious communities, even those that disapproved of the state. With the new centrality of the state in both the national (post-Mandate) and the global (postimperial and postcolonial) contexts, 60 Judicial Power and National Politics religious officials realized that to pursue one’s policy goals, and particularly to create and regulate institutions, one must use and/or enter the state. The incorporation of religious authorities and institutions into the...