Religion-And-State Conflict in Israel

Cambridge University Press 978-1-108-48546-3 — A Multicultural Entrapment Michael Karayanni Excerpt More Information

Religion-and-State Conﬂict in Israel The Absent but Present Palestinian-Arab Religious Minorities

1.1 religion and state in israel as exclusively jewish Religion-and-state relations have led to much debate from the establishment of the state of Israel until the present day. This is not surprising, for a major rift1 or divide2 in Israeli society underlies the recognition granted to religious institutions and norms, second only to that between Jews and Palestinian- Arabs.3 This conflict has affected Israel’s national character, its government coalition politics, and the Supreme Court’s judicial activism. The quandary of defining the status of religion in Israel proved so prodigious that it helped prevent Israel from adopting a constitution upon its establishment in 1948 and has delayed the writing of one.4 At times, the passion and fervor of the arguments mounted by the various adversaries on religion and state in Israel qualified the clash as a “culture war”5 and “one of

1 See S. Clement Leslie, The Rift in Israel: Religious Authority and Secular Democracy (London: Routledge, 1971); Asher Cohen and Bernard Susser, Israel and the Politics of Jewish Identity: The Secular-Religious Impasse (Baltimore: Johns Hopkins University Press, 2000). 2 See Menachem Mautner, Law and the Culture of Israel (Oxford: Oxford University Press, 2011), 193. 3 Other distinguishable rifts that exist in Israeli society are the Jewish ethnic Ashkenazi – Sephardi divide and the political right-hawk – left-dove divide. See Asher Cohen and Bernard Susser, Mi-Hashlama Le-Haslama: Ha-Shesa ha-Dati-Hiloni be-Fetakh ha-Me’ah ha-Esrim ve- Ahat [From Accommodation to Escalation: The Secular-Religious Divide at the Outset of the 21st Century] (Jerusalem: Schocken, 2003), 9 (in Hebrew). 4 See Norman L. Zucker, The Coming Crises in Israel, Private Faith and Public Policy (Cambridge, MA: MIT Press, 1973), 62–72; Gabor Halmai, “Constitutionalism, Law and Religion in Israel: A State’s Multiple Identities,” Journal of Civil and Legal Sciences 5 (2016): 1–11, 4; Hanna Lerner, Making Constitutions in Deeply Divided Societies (Cambridge: Cambridge University Press, 2011), 48. 5 Frank S. Ravitch, “Religious Freedom and Israeli Law,” Drake Law Review 57 (2009): 879–900, 881, 887.

2 Religion-and-State Conﬂict in Israel

Israel’s greatest social problems.”6 Yet despite the complexities of the claims presented and discussed within this debate, one matter was always clear: the debate was, and still remains, Jewish-centered.7 The discussion excludes religion-and-state issues pertaining to the Palestinian-Arab minority – a minority that comprises over one-fifth of Israel’s population, divided into Muslims, Christians, and Druze. The confinement of the religion-and-state discussion in Israel to the Jewish community is so pervasive that in the subject index of the leading commentary on Israeli constitutional law, one finds the following entry: “Religion and state – see Jewish State”8 No wonder that on a number of occasions, the religion-and-state issue in Israel was termed as that of “synagogue and state,”9 or seen as subjugating “the state to the synagogue.”10 Similarly, it is customary to give general titles to scholarly work on religion and state in Israel, such as “religion and state,”11 “state and

6 Ephraim Tabory, “State and Religion: Religious Conflicts among Jews in Israel,” Journal of Church and State 23 (1981): 275–83, 276. 7 See Daniel Friedmann, The Purse and the Sword: The Trials of Israel’s Legal Revolution (Oxford: Oxford University Press, 2016), 129–35; Elazar Weinryb, Dat u-Medina: Hebetim Filosofi’im [Religion and State, Philosophical Aspects] (Tel-Aviv: Ha-Kibbutz ha-Me’uhad, 2000), 8 (in Hebrew); Cohen and Susser, Mi-Hashlama Le-Haslama, 34. See also Hanna Lerner, “Critical Junctures, Religion and Personal Law Regulations in India and Israel,” Law and Social Inquiry 39 (2014): 387–415, 404 (noting how the Israeli conflict about personal status law was an intra-Jewish matter, whereas in India it was both and intra- and inter-religious matter); Zvi Yaron, “Religion in Israel,” The American Jewish Year Book 76 (1976): 41–90, 42 (“Religion in Israel can be understood only in the lights of historical events that shaped its role in the life of the Jewish people.”). 8 Amnon Rubinstein and Barak Medina, Ha-Mishpat ha-Konstitutsioni shel’ Medinat Yisra’el [The Constitutional Law of the State of Israel], 6th ed., vol. 1 (Tel-Aviv: Schocken, 2005), 533 (in Hebrew). 9 See, e.g., Daniel Altaras, “Separation of Synagogue and State in Israel,” Arizona Journal of International and Comparative Law 36 (2019): 133–64; Lucy Endel Bassli, “The Future of Combining Synagogue and State in Israel: What Have We Learned in the First 50 Years?,” Houston Journal of International Law 22 (2000): 477–524; Charles S. Liebman and Asher Cohen, “Synagogue and State: Religion and Politics in Modern Israel,” Harvard International Review 20, no. 2 (Spring 1998): 70–73; Pnina Lahav, “The Status of Women in Israel – Myth and Reality,” American Journal of Comparative Law 22 (1974): 107–29, 107, 128; Asher Maoz, “State and Religion in Israel,” in International Perspectives on Church and State, ed. Menachem Mor (Omaha: Creighton University Press, 1993), 239, 243. 10 Baruch Kimmerling, “Religion, Nationalism and Democracy in Israel,” Constellations 6 (1999): 339–63, 360. 11 Aharon Lichtenstein, “Religion and State: The Case for Interaction,” Judaism 15 (1966): 387–411; Izhak Englard, “The Relationship between Religion and State in Israel,” Scripta Hierosolymitana 16 (1966): 254–75; Gidon Sapir, “Religion and State in Israel: The Case for Re- Evaluation and Constitutional Entrenchment,” Hastings International and Comparative Law Review 22 (1999): 617–66; Asher Cohen and Jonathan Rynhold, “Social Covenants: The Solution to the Crisis of Religion and State in Israel?,” Journal of Church and State 47 (2005): 725–45.

1.1 Religion and State in Israel As Exclusively Jewish 3

religion,”12 “religion and politics,”13 “religion and democracy,”14 “religion, society and state’,15 “freedom of religion,”16 “religious rights,”17 “marriage and divorce in the Jewish state,”18 and even “Interreligious Conflict in Israel: The Group Basis of Conflicting Visions”19 – only to find the discussion centered once again on the Jewish community. This is true also of comparative studies between Israel and foreign jurisdictions; even in such contexts, religion and state in Israel refers exclusively to the Jewish religion.20

12 Izhak Englard, “The Conflict between State and Religion in Israel: Its Ideological Background,” in International Perspectives on Church and State, ed. Menachem Mor (Omaha: Creighton University Press 1993), 219; Ervin Birnbaum, The Politics of Compromise: State and Religion in Israel (Rutherford: Fairleigh Dickinson University Press, 1970); Joseph Badi, Religion in Israel Today: The Relationship between State and Religion (New York: Bookman, 1959). 13 Charles Liebman and Eliezer Don-Yehiya, Religion and Politics in Israel (Bloomington: Indiana University Press, 1984); Ezra Kopelowitz, “Religious Politics and Israel’s Ethnic Democracy,” Israel Studies 6, no. 3 (2001): 166–90; Reuven Y. Hazan, “Religion and Politics in Israel: The Rise and Fall of the Consociational Model,” Israel Affairs 6, no. 2 (1999): 109–37; Robert O. Freedman, “Religion, Politics and the Israeli Elections of 1988,” Middle East Journal 43 (1989): 406–22. 14 Charles S. Liebman, Religion, Democracy and Israeli Society (Amsterdam: Harwood Academic Press, 1997); Benyamin Neuberger, Dat ve-Demokratiya be-Yisra’el [Religion and Democracy in Israel] (Jerusalem: Floersheimer Institute for Policy Studies, 1997) (in Hebrew). 15 Shlomo Hasson, ed., Yakhasei Dat, Hevra u-Medina: Tasritim le-Yisra’el [Relations between Religion, Society and State: Scenarios for Israel] (Jerusalem: Floersheimer Institute for Policy Studies, 2002) (in Hebrew). 16 Ariel Rosen-Zvi, “Freedom of Religion: The Israeli Experience,” Zeitschrift für ausländisches öffentiches Recht und Völkerrecht 46 (1986): 213–48; Simha Meron, “Freedom of Religion As Distinct from Freedom from Religion in Israel,” Israel Yearbook on Human Rights 4 (1974): 219–40. 17 Ephraim Tabory, “Religious Rights As a Social Problem in Israel,” Israel Yearbook on Human Rights 11 (1981): 256–71. 18 Susan M. Weiss and Netty C. Gross-Horowitz, Marriage and Divorce in the Jewish State: Israel’s Civil War (Waltham: Brandeis University Press, 2013). 19 Kenneth D. Wald and Samuel Shye, “Interreligious Conflict in Israel: The Group Basis of Conflicting Visions,” Political Behavior 16 (1994): 157–78. 20 See Amal Jamal, “Democratizing State-Religion Relations: A Comparative Study of Turkey, Egypt and Israel,” Democratization 16 (2009): 1143–71; Lerner, “Critical Junctures”; Gila Stopler, “National Identity and Religion-State Relations: Israel in Comparative Perspective,” in Israeli Constitutional Law in the Making, ed. Gideon Sapir et al. (Oxford: Hart Publishing, 2013), 513; Ran Hirschl, “Constitutional Courts vs. Religious Fundamentalism: Three Middle Eastern Tales,” Texas Law Review 82 (2004): 1819–60; Benyamin Neuberger, “Religion and State in Europe and Israel,” Israel Affairs 6, no. 2 (1999): 65–84; Ira Sharkansky, “Religion and Politics in Israel and Utah,” Journal of Church and State 39 (1997): 523–41; Donna E. Arzt, “Religious Freedom in a Religious State: The Case of Israel in Comparative Constitutional Perspective,” Wisconsin International Law Journal 9 (1990): 1–68; Norman L. Cantor, “Religion and State in Israel and the United States,” Tel-Aviv Studies in Law 8 (1988): 185–218; Bruce M. Borthwick, “Religion and Politics in Israel and Egypt,” Middle East Journal 33 (1979): 145–63.

4 Religion-and-State Conﬂict in Israel

The topics dealt with in these studies focus first and foremost on the historic status quo agreement.21 In 1947, Israel’s Prime-Minister-to-be, David Ben Gurion, then the head of the Jewish Agency, sent a letter on his behalf of himself and two other prominent religious figures that were members in the Jewish Agency administration to Agudat Yisrael – an ultra-Orthodox political body. In order to assure Jewish unity in the face of the pending United Nations plan for a two-state solution in Palestine, the letter made assurances that the Sabbath would be the official day of rest in the Jewish state; that dietary laws of kosher food would be observed in public institutions; that the laws governing marriage and divorce would maintain Jewish unity; and that autonomy for religious education would be guaranteed, with state intervention authority to assure knowledge of a core curriculum.22 Following this, with the establishment of the state, the topics mentioned in this letter – keeping the Sabbath as the official day of rest, kosher regulation, rabbinical jurisdiction over matters of marriage and divorce, and religious education – became central themes in the Israeli religion-and-state debate. In due course, other subjects were also added to the list of religion-and-state issues, which were equally centered on concerns of the Jewish community, such as the standards defining “who is a Jew,”23 religious versus secular burials, recruitment of yeshiva students to the Israel Defense Forces (IDF),24 conversion,25 postmortem autopsy,26 and the propriety of the dominance of the Orthodox stream in Judaism over the Conservative and the Reform streams.27

21 See Daphne Barak-Erez, “Law and Religion under the Status Quo Model: Between Past Compromises and Constant Change,” Cardozo Law Review 30 (2009): 2495–507, 2496; Hanna Lerner, “Entrenching the Status Quo: Religion and State in Israel’s Constitutional Proposals,” Constellations 16 (2009): 445–61. 22 Menahem Friedman, “Ve-Ele Toldot ha-Status-Kvo: Dat u-Medina be-Yisra’el [The History of the Status Quo: Religion and State in Israel],” in Ha-Ma’avar mi-Yishuv le-Medina, 1947–1949: Retsifut ve-Tmurot [Transition from Yishuv to State, 1947–1949: Continuity and Change], ed. Varda Pilovsky (Haifa: Haifa University, 1990), 47 (in Hebrew). 23 Eliezer Don-Yehiya, “Dat u-Medina be-Yisra’el: Hitpatkhuyot u-Megamot ba-Mekhkar [State and Religion in Israel: Developments and Trends in Research],” in Medina ve-Kehilah [State and Community], ed. Moshe Naor (Jerusalem: Magnes Press, 2004), 151 (in Hebrew). 24 Menachem Hofnung, “Ethnicity, Religion and Politics in Applying Israel’s Conscription Law,” Law and Policy 17 (1995): 311–40. 25 HCJ 2597/99 Rodriguez-Tushboym v. Minister of Interior, 58(5)PD412 (2005); HCJ 5070/95 Na’amat v. Mininster of Interior, 56(2)PD721 (2002); HCJ 1031/93 Passero (Goldstein) v. Mininster of Interior, 49(4)PD661 (1995). 26 Fred Rosner, “Autopsy in Jewish Law and the Israeli Autopsy Controversy,” Tradition 11, no. 4 (Spring 1971): 43–63. 27 See Hirschl, “Constitutional Courts vs. Religious Fundamentalism,” 1833; HCJ 1438/98 Traditional Movement in Israel v. Minister of Religion, 53(5)PD337 (1999).

1.1 Religion and State in Israel As Exclusively Jewish 5

Not long ago, Eliezer Don-Yehia, an Israeli scholar with extensive work in the field of religion and state, wrote a magisterial survey entitled “State and Religion in Israel: Developments and Trends in Research.”28 In his introduc- tory remarks, Don-Yehia points out the complexity of the definition of religion and state in Israel, given Judaism’s relation to the national identity of Israel, its society, and the inter-communal relations existing among the different groups. Thus, the relevant research conjures up Zionism, political culture, the relationship between Israel and the Jewish Diaspora, and the relationship between Jews and Arabs. However, as one proceeds, it is striking how much the subject is Jewish-oriented in practice, and homogenous in terms of the communities surveyed. The survey focuses on issues such as the status of halakha (Jewish religious law) in Israel, the Jewish religious parties, the question of “who is a Jew,” nationalism and fundamentalism within the Jewish religious community, the status quo agreement, the ultra-Orthodox community, the exact meaning of Israel as a Jewish and democratic state as the structural context for the relation between religion and state in Israel, and comparative studies on the standing of Judaism in Israel as compared with the standing of religions in other Western countries. Consequently, it was natural for a commentator on Don-Yehiya’s paper to caution regarding the impossibility of conducting research on the subject of religion and state in Israel without a having a proper knowledge of Jewish halakha.29 There are three other closely related components of the religion-and-state debate that I would like to highlight here – all of which are just as much Jewish centered. The first concerns Israeli secularism. At the basis of this secularism is the constant struggle against what is termed “religious coercion” (kfiyah datit). But once again, when relating to instances of religious coercion, the topics that come up are intra-Jewish, such as rabbinical jurisdiction over matters of marriage and divorce, the hegemonic status of Orthodox Judaism over other streams, excessive funding for Jewish religious institutions, and other such issues. As one scholar has noted, “secularization” in the Israeli context: “refers specifically to the erosion of the status quo ... and specifically ... to the erosion of the control of Orthodox rabbinical establishment over daily life.”30 So in discussing individual freedom from religion rather than just the freedom of religion, the discussion becomes confined to

28 Don-Yehiya, “Dat u-Medina be-Yisra’el,” 151. 29 Asher Cohen, “Diyun [Discussion],” in Medina ve-Kehilah [State and Community], ed. Moshe Naor (Jerusalem: Magnes Press, 2004), 183 (in Hebrew). 30 Guy Ben-Porath, Between State and Synagogue: The Secularization of Contemporary Israel (Cambridge: Cambridge University Press, 2013), 27. See also Zucker, The Coming Crises in Israel, Private Faith and Public Policy, 2–4.

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Jewish individuals.31 Grassroot movements formed in order to ﬁght against religious coercion were also exclusively preoccupied with the Jewish community.32 One prominent organization that operated in the 1950s until the late 1960s was the “League against Religious Coercion”, which followed the idea that a person’s belief is his or her own private matter and demanded separation between religion and state as well as assistance to individuals affected by religious coercion.”33 However, the agenda of this organization was exclusively Jewish,34 concerned with issues such as promoting a civil marriage regime, facilitating conversions into Judaism, and easing the restric- tion of the various Sabbath laws and regulations. The second element involves the process of politicization of Jewish religious and secular agendas. From the establishment of the state of Israel through the present, Jewish religious parties were formed with the clear intention of promoting their religious agendas. Such parties represented either the ultra-Orthodox camp or the national religious camp. With the Labor (or some substitute, such as Kadema or Kahol_ Lavan) and Likud parties constantly battling each other in elections but not able to form a government on their own, the religious parties were sought after in order to form a government coalition.35 This, in turn, gave these parties extensive political power and lasting political presence. In due course, this religious political presence was countered by secular political parties with the explicit agenda of battling religious political power. Secular Jewish Zionist parties such as Meretz, Shinui, Yesh Atid, and the parties representing immigrants from the former Soviet Union were formed with a clear vision of advancing their secular

31 Shimon Shetreet, “Freedom of Religion and Freedom from Religion: A Dialogue,” Israel Yearbook on Human Rights 4 (1974): 194–218. See also State of Israel, Implementation of the International Covenant on Civil and Political Rights (ICCPR): Combined Initial and First Periodic Report of the State of Israel (Jerusalem: Ministry of Justice, 1998), 224 (noting that “it is more difﬁcult to claim that freedom from religion is fully protected, particularly for the Jewish population”). 32 Ben-Porath, Between State and Synagogue, 35. 33 Ibid. In later years another body was formed: The Forum for Freedom of Choice in Marriage – an umbrella organization for several organizations and movements promoting reform in the existing exclusive jurisdiction of the Orthodox establishment. Ben-Porath, Between State and Synagogue, 71. 34 See Eli Tzur, “‘Lehiyot Am Hofshi’: Ha-Liga le-Meni’at Kﬁya Datit ba-Hekshera ha-Histori [‘To Be a Free People’: The League for the Prevention of Religious Coercion in Its Historical Context],” in Medina ba-Derekh: Ha-Hevra ha-Yisra’elit ba-Asorim ha-Rishonim [A State in the Making: Israeli Society in the First Decades], ed. Anita Shapira (Jerusalem: Zalman Shazar Center for Jewish History, 2001), 205, 237. 35 See Frances Raday, “Religion, Multiculturalism and Equality: The Israeli Case,” Israel Yearbook on Human Rights 25 (1995): 193–241, 195 n. 11.

1.1 Religion and State in Israel As Exclusively Jewish 7

agendas.36 But the secular agenda of these parties was not the excessive application of shari’a among Muslims or the teachings of the New Testament among the Christians through their courts and schools, but mainly the hegemonic and exclusive authority of rabbinical orthodoxy over the Jews. It is true that in recent years Islam has also been politicized among the Palestinian-Arabs.37 However, political movements associated with political Islam are far from being considered as government coalition partners. Add- itionally, and unlike the realm of Israeli Jewish politics, Palestinian-Arab politics have not yet generated an anti-religious political agenda or an active secular one.38 Even secular Palestinian-Arab parties such as the Democratic Front for Peace and Equality, Al Jabha – Hadash, (led by the Israeli Com- munist Party) and the National Democratic Assembly (Al Tajamou’–Balad, with strong pan-Arab national leanings) have refrained from directly opposing the Islamic Movement. On the contrary, in the last election of September 2019, these parties opted for joining forces with the Islamic Movement to form what is called the “Joint List.”39 The third element concerns the Israeli Supreme Court and its judicial activism in this area.40 Under the jurisdictional legacy of the British Mandate, the Supreme Court of Israel was entrusted with the power of adjudicating petitions ﬁled against the government, its agencies, and other statutory bodies, in which cases it sits as the High Court of Justice.41 This design enables petitioners to have direct recourse to Israel’s highest court when asking for judicial relief against the government, as well as other statutory bodies, including the religious courts. Numerous petitions were ﬁled before the Court, asking it to restrict the jurisdictional authority of a religious institution as prescribed by law. This reality turned the courtroom into another battle- ground on religion-and-state issues. The judicial philosophy adopted by the Court in these matters tended to be liberal in its outlook; hence, the Court

36 Tzur, “‘Lehiyot Am Hofshi,’” 53. 37 See As’ad Ghanem, The Palestinian-Arab Minority in Israel, 1948–2000: A Political Study (Albany: State University of New York Press, 2001), 123–35. 38 See Danny Rubinstein, “Ha-Shesa ha-Dati-Khiloni Bekerev Arviei Yisra’el [The Religious- Secular Rift Among Israeli Arabs],” in Shnaton Dat u-Medina 5753–5754 [State and Religion Yearbook 1993–1994], ed. Avner Horvitz (Tel-Aviv: Ha-Kibbutz ha-Me’uhad, 1994), 89, 95 (in Hebrew). 39 This was also the case in the elections of 2015. See Bernard Reich and David H. Goldberg, Historical Dictionary of Israel, 3rd ed. (Lanham: Rowman and Littleﬁeld, 2016), 45. 40 Weinryb, Dat u-Medina, 8–9; Cohen and Susser, Mi-Hashlama Le-Haslama, 41, 88, 91, 92. 41 See Shimon Shetreet, “Resolving the Controversy over the Form and Legitimacy of Constitutional Adjudication in Israel: A Blueprint for Redeﬁning the Role of the Supreme Court and the Knesset,” Tulane Law Review 77 (2003): 659–735.

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rendered many judgments that restricted the authority of the religious institutions and norms.42 But again, the focus of the discussion on the judicial activism in matters of religious authority of the Israeli Supreme Court is on Jewish religious institutions and norms. It therefore became common on the part of Jewish religious leaders to sound severe criticism against the Court and hold rallies and protests whenever an important judgment on a religion-and- state matter, or rather synagogue and state matter, was handed down.43 The exclusively Jewish nature of the public religion-and-state debate seems surprising, given the existence of three other major religious communities in Israel – Muslim, Druze, and Christian. At the end of 2017, the Palestinian- Arab minority numbered 1,838,200 individuals, which represented 20.9 percent of Israel’s total population of 8,797,900 (of which 6,554,500 – 74.5 percent – was Jewish).44 Muslim Israeli residents numbered about 1,561,700 (17.7 percent of the total population and about 85 percent of the Palestinian- Arab population); the Druze – about 141,200 (1.6 percent of the total population and about 7.7 percent of the Palestinian-Arab population); and the Christians – about 171,900 (1.95 percent of the total).45 The Palestinian-Arab

42 See Halmai, “Constitutionalism, Law and Religion,” 5; Benyamin Neuberger, “Religion and State,” 78. 43 See Patricia J. Woods, Judicial Power and National Politics: Courts and Gender in the Religious-Secular Conflict in Israel (Albany: State University of New York Press, 2008), 29, 112–20, 121. 44 Central Bureau of Statistics, Statistical Abstract of Israel 2018, available at: https://old.cbs.gov.il/ reader/shnatonenew_site.htm, table 2.1. One should note, however, that the official statistics include the Palestinian population of East Jerusalem, given the fact that this part of the occupied West Bank was effectively annexed to Israel following the 1967 Six-Day War. The Palestinian Arab residents of Jerusalem numbered 341,500 at the end of 2017. See Michal Korach and Maya Choshen, Jerusalem: Facts and Trends 2019 (Jerusalem: Jerusalem Institute for Policy Research, 2019), 16, available at: https://jerusaleminstitute.org.il/wp-content/uploads/ 2019/05/PUB_505_facts-and-trends_eng_2019_web.pdf. 405,300 residents of Israel were unidentified as Jews or Arabs – these are mostly immigrants who acquired Israeli citizenship under a special provision in the Law of Return, 1950. See Central Bureau of Statistics, Statistical Abstract, table 2.1. The relevant provision is that of a 1970 amendment: Law of Return (Amendment no. 2), 5730-1970, 14 LSI 28 (1969/70), article 4A(a): “The rights of a Jew under this Law and the rights of an oleh under the Nationality Law, as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion.” The amendment adds in article 4B: “For the purposes of this Law, ‘Jew’ means a person who is born of a Jewish mother or has become converted to Judaism and who is not a member of another religion.” See, generally, Menashe Shava, “Comments on the Law of Return (Amendment No. 2), 5730-1970 (Who Is a Jew?),” Tel-Aviv University Studies in Law 3 (1977): 140–53. 45 CBS Statistical Abstract, table 2.2. As the data on Christians includes Arabs and non-Arabs alike, the Christians’ share in the Palestinian-Arab population should be about 7.3 percent.

1.1 Religion and State in Israel As Exclusively Jewish 9

Christian community is itself divided into ten recognized religious communities: (1) the Eastern (Orthodox) Community; (2) the Latin (Catholic) Com- munity; (3) the Gregorian Armenian Community; (4) the Armenian (Catholic) Community; (5) the Syrian (Catholic) Community; (6) the Chal- dean (Uniate) Community; (7) the Greek (Catholic) Melkite Community; (8) the Maronite Community; (9) the Syrian (Orthodox) Community; and (10) the Evangelical Episcopal Church in Israel.46 In addition to these, there is the Baha’i Community – a religious group recognized since 1971.47 As a result of the recognition granted to them, each religious community has its own religious court (with the exception of the Baha’i and some of the Christian communities) and applies its own norms in matters of marriage and divorce and certain other personal status issues of their members. In the same status quo letter discussed earlier, Ben-Gurion and his colleagues in the Jewish agency wrote: “In the Jewish state there will also be non-Jews – Christians and Muslims, and it is clear that it will be necessary to retrospectively guarantee complete equal rights to all citizens and the absence of religious coercion or discrimination in matters of religion as well as in other matters.” In fact, the jurisdictional authority of the Islamic shari’a court was and to a large extent still is the broadest of all religious courts. This made the shari’a courts and the shari’a as enforced by these courts more pervasive among Muslims than rabbinical courts and the Jewish halakha are among Jewish citizens, when it comes to governance over family law matters. The recognition accorded to Palestinian-Arab religious communities has been studied in the scholarly literature, but only within the conﬁnes of discussing the status of the Palestinian-Arabs as a national minority in Israel48

46 See R. Gottschalk, “Personal Status and Religious Law in Israel,” International Law Quarterly 4 (1951): 454–61, 455. The Evangelical Episcopal Church was recognized in 1970, see Order of Recognition of a Religious Community (Evangelical Episcopal Church in Israel), 1970,KT 2557,p.1564. However, some of these Christian courts represent small communities, such as the Armenian Catholic, Syrian Catholic, Chaldean Uniate, and Syrian Orthodox, and do not maintain a court of their own but utilize the services of the other Christian courts that share a close theological outlook. See Isaac S. Shiloh, “Marriage and Divorce in Israel,” Israel Law Review 5 (1970): 479–98, 482 n. 7; Aharon M. K. Rabinowicz, “Human Rights in Israel,” Howard Law Journal 11 (1965): 300–15, 304. 47 Order of Religious Community (The Bahai Faith), 1971,KT2673,p.628. 48 See, e.g., Ilan Peleg and Dov Waxman, Israel’s Palestinians: The Conﬂict Within (Cambridge: Cambridge University Press, 2011), 22, 30; Laurence Louër, To Be an Arab in Israel (New York: Columbia University Press, 2007), 133–50; Ghanem, The Palestinian-Arab Minority in Israel, 21–22; Jacob M. Landau, The Arab Minority in Israel, 1967–1991: Political Aspects (Oxford: Clarendon Press, 1993), 24–47; Liebman and Don-Yehiya, Religion and Politics in Israel, 16, 19.

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or within specialized studies on one of these communities, such as Muslims,49 Christians,50 and Druze.51 Consequently, these studies do not purport to discuss the peculiarities of the Israeli religion-and-state conﬂict in respect to the Palestinian-Arab minority. The scholarly literature suggests an explanation as to why the Israeli religion-and-state debate precludes the Palestinian-Arabs: it is because this community acquiesces to its religious conservative nature as opposed to consistent resistance to religious jurisdiction among the Jews in Israel. According to this explanation, Palestinian-Arabs, unlike Jewish citizens, rarely challenge the jurisdictional authority of their respective religious communities.52 This is the case, so the argument goes, because the Palestinian-Arab community is relatively traditional in its social norms and interactions and is thus more comfortable with the conservative nature of the family law norms as perse- vered and applied by their respective religious communities.53 Justice Zvi

49 See Muhammad Al-Atawneh and Nohad Ali, Islam in Israel: Muslim Communities in Non- Muslim States (Cambridge: Cambridge University Press, 2018); Alisa Rubin Peled, Debating Islam in the Jewish State: The Development of Policy toward Islamic Institutions in Israel (Albany: State University of New York Press, 2001); Robert H. Eisenman, Islamic Law in Palestine and Israel: A History of the Survival of Tanzimat and Shari’a in the British Mandate and the Jewish State (Leiden: Brill, 1978); Aharon Layish, Women and Islamic Law in a Non- Muslim State: A Study Based on Decisions of the Shari’a Court in Israel (Jerusalem: Israel Universities Press, 1975). 50 See Una McGahern, Palestinian Christians in Israel: State Attitudes towards Non-Muslims in a Jewish State (Oxford: Routledge, 2011); Uri Bialer, Cross on the Star of David: The Christian World in Israel’s Foreign Policy, 1948–1967 (Bloomington: Indiana University Press, 2005); Daphne Tsimhoni, Christian Communities in Jerusalem and the West Bank since 1948:An Historical, Social, and Political Study (Westport: Praeger, 1993), 37; Saul P. Colbi, A History of the Christian Presence in the Holy Land (Lanham: University Press of America, 1988), 343. 51 Kais M. Firro, The Druzes in the Jewish State: A Brief History (Leiden: Brill, 1999); Aharon Layish, Marriage, Divorce and Succession in the Druze Family: A Study Based on Decisions of Druze Arbitrators and Religious Courts in Israel and the Golan Heights (Leiden: Brill, 1982). 52 See Avishalom Westreich and Pinhas Shifman, A Civil Legal Framework for Marriage and Divorce in Israel (Jerusalem: Metsilah Center, 2013), 42 (“Even the basic conﬂict concerning the relationship between state and religion occupies the Israeli Jewish population to a much greater extent than it does members of other religions.”); Ravitch, “Religious Freedom and Israeli Law,” 889 (“While non-Jewish communities are important players in many of the civil and human rights issues facing Israel, they are not major players in Israel’s internal culture wars.”). See also Amnon Rubinstein, Shivtei Medinat Yisra’el: Be-Yahad u-Lehud – Liberalism ve-Rav-Tarbutiyut be-Yisra’el [Tribes of the State of Israel: Together and Apart – Liberalism and Multiculturalism in the Jewish State] (Hevel Modi’in: Zmora-Bitan Publishing House, 2017), 215 (in Hebrew). 53 See Barak-Erez, “Law and Religion under the Status Quo Model,” 2496 n. 1; Amnon Rubinstein, “The Decline, but Not Demise, of Multiculturalism,” Israel Law Review 40 (2007): 763–810, 794; Ruth Lapidoth, “Freedom of Religion and of Conscience in Israel,” Catholic University Law Review 47 (1998): 441–465, 463; Shiloh, “Marriage and Divorce in Israel,” 481.