CA 6024/97 Fredrika Shavit v. Rishon Lezion Jewish Burial Society The Supreme Court sitting as the Court of Civil Appeals [July 6, 1999] Before Court President A. Barak, Justices M. Cheshin, I. Englard. Facts: Petitioner challenged the refusal of a Jewish burial society to allow an inscription on her mother's tombstone recording the dates of birth and death according to the Gregorian, as well as the Hebrew, calendar. The district court held that the recently-passed Alternative Burial Law permitted Jews to bury their loved ones in civilian cemeteries, not according to Jewish religious law, had the effect of overturning previous court rulings requiring Jewish burial societies to permit non-Hebrew characters and dates on tombstones. Sites have yet to be established for alternative burial. Held: Jewish burial societies have a public, as well as a private, character, and as such are subject to public law. The Alternative Burial Law did not have the effect of overruling previous holdings requiring Jewish burial societies to permit non-Hebrew lettering. This is particularly true because the statute has yet to be implemented. Barring family members from recording the names of their deceased loved ones in the language of their choice harms the sensibilities of the relatives and the human dignity of the deceased. It outweighs the potential harm to the sensibilities of religious visitors to the cemetery who may be offended by the non-Hebrew lettering, particularly considering that the Jewish law prohibition against inscribing non-Hebrew calendar dates and letters is not sweeping and comprehensive. Furthermore, the weight accorded to the sensibilities of religious people offended by practices that violate religious law decreases in the public domain, like a cemetery, as compared to the weight such harm is accorded in the private domain, like the home. Basic Laws cited: Basic Law: Human Dignity and Liberty, ss.1a, 8. Legislation cited: Right to Alternative Civil Burial Law, 1996 – ss. 2, 3, 4, 4A, 5, 6. Standard Contracts Law, 1964 s.14. Standard Contracts Law, 1982. Contracts Law (General Section), 1973, s.30. King’s Order in Council on the Land of Israel (Holy Places), 1924. Regulations cited: Right to Alternative Civilian Burial Regulations (Licensing Burial Cooperatives and Establishing Burial Procedures) 1998. Bills cited: Right to Alternative Civilian Burial Bill. Israeli Supreme Court cases cited: [1] CA 280/71 Gideon v. Jewish Burial Society, IsrSC 27(1) 10. [2] HCJ 532/74 Ben-Ze’ev v. Public Council for the Memorialization of the Soldier, IsrSC 30(1) 305. [3] CA 492/79 Moses v. Jerusalem Community Jewish Burial Society, IsrSC 35 (4) 157. [4] HCJ 556/83 Best v. Defense Minister, 38(1) 177. [5] HCJ 1438/91 Ginossar v. Defense Minister, 45(2) 807. [6] CA 294/91 Jerusalem Community Jewish Burial Society v. Kestenbaum, 46(2) 464. [7] HCJ 5688/92 Wechselbaum v. Defense Minister, 47(2) 812. Shavit v. Rishon Letzion Jewish Burial Society CA 6024/97 A [8] )CJ1) 8299/98 Wechselbaum v. Defense Minister, 49:2) 95. [9] )CJ 8807/96 Bargur v. Defense Minister, :not reported). [ 0] )CJ 5848/97 Bargur v. Defense Minister, 52:2) 462. [ ] CA 795/98 Egged Members’ Pension Fund v. Ya’acov, 5 :5) 488. [ 2] -CA 5768/94 ASHIR Import, Manufacture and Distribution v. Forum Accessories and Consumables, 52:4) 289. [ 8] CA 682 /98 United Mizrachi Bank v. Migdal Agricultural Cooperative, 49:4) 22 . [ 4] )CJ 887/8 Miterani v. Minister of Transportation, 0srSC 87 :8) 887. [ 5] )CJ 50 6/96 Horev v. Minister of Transportation, 0srSC 5 :4) B[ 997] 0sr- 49C.. [ 6] )CJ 8648/97 Stemaka v. Minister of the Interior, 0srSC 58:2) 728. [ 7] CA 84 4/98 On v. Diamond Exchange Industries (1965), 0srSC 49:8) 96. [ 8] )CJ 248 /98 Dayan v. Jerusalem District Commander, 0srSC 48:2) 456. [ 9] )CJ 8872/98 Meatrael v. The Prime Minister and Minister of Religious Affairs, 0srSC 47:5) 485. [20] )CJ1) 70 5/94 Attorney General v. Anonymous, 0srSC 50: ) 48. [2 ] )CJ 826 /98 Manning v. Minister of Justice, 0srSC 47:8) 282. [22] EA /65 Yardor v. Chairman of the Central Election Committee for the Sixth Knesset, 0srSC 9:8) 865. [28] EA 2/84 Neiman v. Chairman of the Central Election Committee for the Eleventh Knesset, 0srSC 89:2) 225. [24] )CJ 78/58 Kol Ha’Am v. Minister of the Interior, 0srSC 7 87 . [25] )CJ 48/79 Sa’ar v. Minister of the Interior and of Police, 0srSC 84:2) 69. [26] CA 05/92 Re’em Engineers v. The Municipality of Upper Nazareth, 0srSC 47:5) 89. [27] )CJ 85 /72 Keinan v. The Film and Play Review Board, 0srSC 26:2) 8 . [28])CJ 806/88 Universal City Studios v. The Film and Play Review Board, 0srSC 48:2) 22. [29] CrimA 2 7/68 Izramax Ltd. v. State of Israel, 0srSC 22:2) 848. [80] )CJ 7 28/96 Temple Mount Faithful Movement v. The Government of Israel, 0srSC 5 :2) 509. [8 ] )CJ 292/88 Temple Mount Faithful Association v. Jerusalem District Police Commander, 0srSC 88:2) 449. [82] )CJ 257/89Hoffman v. Appointee over the Western Wall, 0srSC 48:2) 265. [88] )CJ 248/8 Yeki Yosha v. The Film and Play Review Board, 0srSC 85:8) 42 . [84] CA 2 4/89 Avneri v. Sharipa, 0srSC 48:8) 840. [85] )CJ 465/89 Ruskin v. Jerusalem Religious Council, 0srSC 44:2) 678. [86] )CJ 47/82 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs, 0srSC 48:2) 66 . [87] )CJ 8944/92 Marbek Slaughterhouses v. Chief Rabbinate of Netanya, 0srSC 49: ) 278. [88] )CJ 000/92 Bavli v. The Great Rabbinical Court, 0srSC 48:2) 22 . [89] )CJ 6 68/92 Eizenberg v. Minister of Construction and Housing, 0srSC 47:2) 229. [40] )CJ 985/89 Ganor v. Attorney-General, 0srSC 44:2) 485. [4 ] )CJ1) 460 /95 Sarrousy v. National Labor Court, 0srSC 52:4) 8 7. Israeli District Court Cases Cited: [42] )D :TA) 752/94 Burgman v. Rishon Lezion Jewish Burial Society :unpublished). [48] )D :TA) 275/98 Kagan v. Rishon Lezion Jewish Burial Society :unpublished). [44] )D :TA) 200585/98 Sasson v. Herzliya Jewish Burial Society :unpublished). Israeli Books Cited: [45] Denachem Elon, Jewish -aw :8d ed. 987). [46] See 8 A. ,ara2, Parshanut Bimishpat [Interpretation in Law] Parshanut Chukatit [Constitutiona] [47] Aharon ,ara2, Judicial 4iscretion : 986). Israeli Articles Cited: [48] E. ,envenisti, Tchulat Hamishpat Haminhali al Gufim Pratiim [Administrative Law, Private Bodies] Dishpat E'Dimshal 2 : 994-95) . Shavit v. Rishon -etzion Jewish ,urial Society CA 6024/97 A [49] A. 4ayan-Orbach, Hamodel Hademocrati shel Chofesh Habitoi [Freedom of Expression], 0yunei Dishpat 20 : 996-97) 877. Jewish Law Sources Cited: [50] ,abylonian Talmud, Tractate Baba Metzia, 80,. [5 ] ,abylonian Talmud, Tractate Yoma, 9,. [52] Etz Fosef, Ein Fa’a2ov, Tractate Baba Metzia 80. [58] Rabbi Shmuel Eliezer Edels :Daharsha), Baba Metzia, 80. [54] Shulchan Aruch, Choshen Hamishpat, 2,. [55] Rabbi Doshe 0sserlis :Rama), Shulchan Aruch, Choshen Hamishpat, 2,. [56] ,abylonian Talmud, Tractate Sanhedrin 74A-,. [57] Rabbi Doshe ben Daimon :Daimonides), Basic Laws of the Torah, ch.5, laws 2-4. [58] Responsa Tzitz Eliezer, part 9, 4, ch. 00,. [59] Responsa Yabia Omer, part 7, Yoreh Deah, 82, ch. 00,. Appeal of the decision of the Tel Aviv/Jaffa 4istrict Court :Judge. F. Geft) from 22.7. 997 in 4C 657/97. The appeal was granted by ma/ority opinion, with Justice 0. Englard dissenting. (ali ,ar-El, Eri Regev 7 for the appellantH Fair Shilo 7 for the respondent. JUDGMENT Justice M. Cheshin . Regarding gravestones, what should be inscribed upon themI What should an epitaph recordI Who should decide these thingsI After all, it is only family and friends who will visit the grave. They are the ones who will remember the deceasedH it is they who will come to cry and grieve. ,ut are they the ones who should decide how the deceased should be memorialized on his or her gravestone, or is that the role of another party, for example, the Jewish burial societyI Perhaps it should be decided by the municipal rabbi 7 each rabbi for his own municipalityI Or perhaps another authority should ma2e this decisionI The courts have dealt with these .uestions several times regarding both civilian and military cemeteries. The first time was in CA 280/7 Gideon v. Jewish Burial Society :hereinafter 7 Gideon [ ]), followed by )CJ 582/74 Ben-Ze’ev v. Public Council for the Memorialization of the Soldier [2], CA 492/79 Moses v. Jerusalem Community Jewish Burial Society [8], )CJ 556/88 Best v. Defense Minister [4], and )CJ 488/9 Ginossar v. Defense Minister [5]. After these, came CA 294/9 Jerusalem Community Jewish Burial Society v. Kestenbaum :hereinafter 7 Kestenbaum [6]) which was followed by WechselbaumH first in the )igh Court of Justice :)CJ 5688/92 Wechselbaum v. Defense Minister [7]) and then in a further hearing :)CJ1) 8299/98 Wechselbaum v. Defense Minister [8]). After Wechselbaum [7] [8] came Bargur, which was also heard twice :HCJ 3807/96 Bargur v. Defense Minister [9] and HCJ 5843/97 Bargur v. Defense Minister [ 0]). The district courts have also addressed this .uestion more than once :in addition to those cases that came before the Supreme Court on appeal). See e.g. )D :TA) 752/94 Burgman v. Rishon Lezion Jewish Burial Society :the Burgman case) [42])H )D :TA) 275/98 Kagan v. Rishon Lezion Jewish Burial Society [48]H )D :TA) 200585/98 Sasson v. Herzliya Jewish Burial Society [44] and others.