BEFORE THE TRIBUNAL OF

THE AMERICAN ZIONIST MOVEMENT

MERCAZ USA,

Complainant,

v.

THE COORDINATING COMMITTEE

FOR THE JEWISH HOMELAND/ERETZ HAKODESH,

Respondents.

REPLY OF MERCAZ USA TO THE RESPONSE FILED BY CCJH/ERETZ HAKODESH

I. THE ERETZ HA-KODESH RESPONSE RESTS ON A MIS- STATEMENT OF THE PREMISES OF MERCAZ USA’S COMPLAINT.

While the Eretz HaKodesh response prefers to ignore it, the Complaint before the Tribunal is narrowly-focused, based on (1) specific facts pertaining to the fundamental principles of Zionism as defined in the World Zionist Organization (WZO) Constitution which includes the terms and details of “The Jerusalem Program;” (2) Eretz HaKodesh’s divergence from the rules established by the AZM Area Elections Committee; and (3) the organizational conduct of Eretz HaKodesh as the organization putting forward a slate in the Zionist elections. In particular:

• The Jerusalem Program, in definitive language adopted as part of the WZO Constitution, states that “The foundations of Zionism” include “strengthening Israel as a Jewish, Zionist

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and democratic state…marked by mutual respect for the multi- faceted Jewish people,” “furthering Jewish, Hebrew and Zionist education,” teaching Hebrew as the national language,” and “representing the national Zionist interests of the Jewish people” (emphasis added.) Individuals, and organizations, may have different versions of Zionism, but for candidacy, voting and participation as a delegate to the Congress, it is acceptance of the Jerusalem Program that is required by both the WZO and the AZM. • Despite Eretz HaKodesh’s statements to the contrary, those who affirm that they accept that foundation as expressed in the Jerusalem Program are being asked to affirm that -- for all purposes within the WZO--, they are Zionists, and recognize that “Zionism” -- throughout the history of the WZO -- is grounded on its role as is “the national liberation movement of the Jewish people [that] brought about the establishment of the State of Israel;” an accomplishment and ongoing common responsibility of the Jewish people through their own actions.1 • The World Zionist Congress is a legislative body of individuals who meet the established qualifications. It is composed of individuals who declare that they are, in fact, Zionists, as defined in the WZO Constitution by the Jerusalem Program.2 • In applying to put forward a “new slate,” CCJH-Eretz HaKodesh stated that ”The CCJH-Eretz HaKodesh expresses its full acceptance of and compliance with the WZO Constitution, the Jerusalem Program and the AZM

1 These principles do not deny that the relationship between Jews and Israel can also (and simultaneously) be seen through the lens of religious principles, However, they do demand adherence to the foundational principles of the WZO as stated in the Jerusalem Program. 2 Organizations that wish to participate in elections must have confirmed that they are Zionist bodies accepting the Jerusalem Program ;all proposed delegates must confirm that they are Zionists within the meaning of the Jerusalem Program; and the same qualification applies to all voters in the AZM sponsored elections..

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Constitution.” “Full acceptance” means without qualification or equivocation. Its proposed Congress delegates, by registering to vote in the Zionist elections similarly stated that they each accepted the Jerusalem program.3 • However, in its statements, postings and campaign materials, Eretz HaKodesh misrepresented the qualifications required of delegates and voters in a manner that permitted, if not also encouraged, individuals listed on its slate and voters to ignore the terms of the Jerusalem Program, or treat it as a nullity, or interpret the words to alter the meaning of clear elements of the Program, thereby misrepresenting themselves as Zionists within the meaning of the WZO Constitution and the Jerusalem Program.

From the very beginning of its Response, Eretz HaKodesh disregards those specifics and attempts to replace them with a multitude of words and argumentative “strawmen” that they then attempt to knock down.

MERCAZ USA did not assert that “the vision for Zionism offered by Eretz HaKodesh is illegitimate.” The issue presented does not turn on the variations in defining Zionism that various individuals or organizations may focus on for their own purposes. It does not call for measurements of the number of times someone has visited Israel, or their financial support for institutions in Israel, or the number of family members who have made aliyah, or individual involvement in organizational Jewish life.

MERCAZ USA did not assert that it is impossible for all who describe themselves as Haredi or Frum to consciously come to the good faith belief that acceptance of the terms of the Jerusalem Program described above, consistent with their religious beliefs,

3 The assertion that it was necessary for the AEC to add those four additional words, like many of the arguments advanced by Eretz HaKodesh, simply reflects the lack of substance in the position being asserted.

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and their assertions that the MERCAZ USA complaint would challenge the status of Mizrachi or other Orthodox Jews who have determined that the Jerusalem Program is consistent with their religious principles, is nothing less than demagoguery.

MERCAZ USA did not assert that slates cannot enlarge on the Jerusalem Program by adding explanations or commentary on each of its six points that are wholly consistent with the Jerusalem Program. Neither the Constitution nor the election rules prohibit such commentary. What is prohibited are statements and conduct that are inconsistent with and explicitly or implicitly reject and undermine the role of the Jerusalem Program.

The “personal thinking” of individuals who voted for (or agreed to be slated by) Eretz HaKodesh is not an element of the MERCAZ USA complaint. Just the opposite: it is the admitted organizational activities of Eretz HaKodesh -- urging individuals who do not accept those elements to disregard them, or interpret them out of existence so as to achieve goals that are contrary to the Jerusalem Program -- that evidences the misrepresentation in their statement that they “fully accept and support” the Jerusalem Program; calls its voter support into question; and provides the evidence that precludes the Tribunal from applying a presumption that all individual participants can be assumed to meet the WZO and AZM criteria and “have done so properly.” Presumptions are used in the absence of evidence, not to override or substitute for evidence to the contrary, and the issues presented by the MERCAZ USA complaint do not turn on inquiry into individual “personal thinking.”

Nor is the issue before the Tribunal to be determined by allegations being levied against other slates. Those allegations, even if supported, do not establish a justification for Eretz HaKodesh. A claim that “Others have acted improperly, so we can as well” is not a defense. Indeed, the response filed by Eretz

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HaKodesh takes that argument to the point of absurdity, by arguing that if the language of the Jerusalem Program makes some individuals “uncomfortable,” and requires them to consider whether they in fact accept its terms, then anyone who is supporting the Eretz HaKodesh slate has the unrestricted right to adopt any interpretation of the Jerusalem Program to fit their own beliefs--even if they are direct contradiction to principles of the Program. The assertion proves too much: it reflects a concession that this has been the position and message of Eretz HaKodesh from the start. Moreover, it underscores the fact that they have created the situation which creates a cloud over the results of their organizational activity.

The simple and conclusive fact is that the Eretz HaKodesh response is an attempt to deflect attention from the issues actually presented and substitute “issues” that are irrelevant and without merit, along with arguments that do not meet the standards of law, applicable rules, or logic. The fundamentals of Zionism governing WZO participation are not a function of visits to Israel, or investments in its economy, or whether children have attended “full day Jewish day school through seminary, yeshiva or kollel,” or levels observance, or any of the other 14 colorful pie charts presented in their response. They are not defined by whether an individual believes that developments in Judea and Samaria should, or should not be supported (a topic of dispute and/or nuanced qualification within Israeli society, the Knesset, and participants in the World Zionist Congress), or similar measurements. Basing arguments on assertions that various organizations or individuals are “allies,” or a reference to a view held by someone associated with another group who may have questioned the timing of moving the US Embassy to Jerusalem , claiming that it constitutes support of BDS, have no probative value; they are little more than “sound and fury, signifying nothing.”

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We believe that the matters detailed above are themselves sufficient for the Tribunal to conclude that the Eretz HaKodesh response should be disregarded. However, out of an excess of caution, this reply will briefly highlight additional grounds for rejecting the assertions put forward by Eretz HaKodesh and the “counterclaim” appended to that document.

II. ERETZ HAKODESH HAS ADMITTED, OR FAILED TO RESPOND TO, KEY ELEMENTS OF THE COMPLAINT.

The Eretz HaKodesh submission ignores, or acknowledges, and then attempts to explain away, the foundations of the MERCAZ USA Complaint. In doing so, it “proves too much” -- demonstrating instead the validity of the challenge to its organizational position and message.

Eretz HaKodesh acknowledges the ads, flyers, videos and interviews of its leadership referenced in the pending Complaint, asserting that they “were entirely truthful and accurate.” While it tries to characterize them by referencing portions of the material rather than the content in context, the documents “speak for themselves.” If their ”truthful and accurate” statements that “participation in the election is not an endorsement of anything the WZO was or is,” or that “you don’t have to pledge allegiance to anything that the World Zionist Organization is based on,” they have stretched the meaning of those terms, and the Jerusalem Program, beyond their elastic limit, reducing it to an irrelevancy.

Eretz HaKodesh does not deny that it claims that the Jerusalem Program should be seen as a “loose document” and can be interpreted so that it is limited to one particular Torah-based meaning, and that it supported that approach.

Similarly, when referring to a Rabbi’s claim of “Ani Tzioni,” based on his acceptance of a prayer in the Amidah rather than any

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of the elements of the Jerusalem Program, Eretz HaKodesh acknowledges that expression of belief, but criticizes MERCAZ USA for failing to note that the speaker said “You have a different definition? OK, let’s start a conversation.” The admission and the criticism simply confirm the fact that in their view acceptance of the Jerusalem Program is not a requirement but simply an invitation to a debate. The definition of Zionism embodied in the Jerusalem Program is not a “conversation starter.” It is a legislative enactment, adopted as part of the WZO Constitution by a super-majority vote.

Eretz HaKodesh acknowledges that it believes that it can interpret the Jerusalem Program principle of respecting the multi- faceted Jewish people as being satisfied by respect for various elements of the Orthodox Jewish world, because in the course of Congress negotiations “pluralistic” was replaced with “multi- faceted.” But it acknowledges that the negotiation made the provision broader than originally proposed. Admitting the breadth of “multi-faceted,” those words cannot be twisted to exclude other Jewish religious traditions (such as Conservative/Masorti or Reform) that are also “pluralistic.” They then assert that “one cannot be religious unless one is frum” --which they endorse as part of their “entirely truthful and accurate” materials. The position put forward is simply a declaration nullifying the plain meaning of the words that were adopted through the democratic process. In the same vein, Eretz HaKodesh acknowledges, but ignores, their position that Israeli schoolchildren must not be taught that Orthodoxy may not be the only option for living a Jewish religious life. The position is wholly contrary to teaching respect for the Jewish people.

Eretz HaKodesh admits that elements of the Jerusalem Program that they see as inconsistent with their vision, such as the principle that “The foundations of Zionism” for all purposes within the WZO, include “strengthening Israel as a Jewish, Zionist and

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democratic state…marked by mutual respect for the multi-faceted Jewish people,” “furthering Jewish, Hebrew and Zionist education,” teaching Hebrew as the national language,” and “representing the national Zionist interests of the Jewish people,” were not part of its message. Linking to the document, while simultaneously undermining its impact, is not fully accepting and complying with the WZO Constitution, or the Jerusalem Program, or the AZM Constitution. Here again, Eretz HaKodesh’s explanation that they rely on their “unique Zionist vision,” proves too much. It demonstrates that its approach has been based on ignoring and re- interpreting the Jerusalem Program and going to war against other segments of the Jewish people and the democratic process. It is underscored by their failure to address their acknowledged assertion that “It is like they are shooting our grandchildren…we are in a battle, and when you are in a battle, you have to do what you need to do to win the battle.”

III. THE PRINCIPAL ARGUMENTS PRESENTED BY ERETZ HAKODESH, DO NOT ADDRESS THE ISSUES RAISED BY MERCAZ USA, AND ARE WITHOUT PROBATIVE VALUE.

The Eretz HaKodesh response is devoted to an exposition of Zionist thought over the ages and claims concerning other Zionist parties that are members of AZM.

The essay on multiple definitions of “Zionism” and the rhetorical questions about Maimonides or Rav Yosef Karo or the Ba’al Shem Tov may have historical and academic significance, but they are not directed to the issues before the Tribunal that would properly inform its decision. Of course, the “Zionist Idea” can be described in many ways. Some are fully consistent with the Jerusalem Program, whose general language is designed to incorporate and respect a range of ideas. Some, however, are not (as shown above), while other definitions may fall within a broad

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survey of Zionism, but do not address the foundation and principles of Zionism as defined in the Jerusalem Program that apply to the WZO. It is the latter that establishes the framework within which Zionist parties and their members operate when engaged in WZO activity. That is the framework for today.

The fact that Eretz HaKodesh attempts to divert attention from the Complaint by devoting the overwhelming part of their argument to claims about the AZM Reform movement party, ARZA, and another liberal party, Hatikvah, boldly asserting that MERCAZ USA is a party to their views or statements, is a further illustration of their inability to counter the factual bases of the Complaint. While there are certainly specific responses to the list of attacks put forward against these organizations, responding to all of these matters (1) is not within the obligations of MERCAZ USA; (2) involves information and policy statements (including matters needed to correct possible misstatements by Eretz HaKodesh) that are in the hands of those organizations; and (3) is plainly intended to draw MERCAZ USA into an extended discussion which will create a misleading and confusing record, without contributing to a reasoned decision. We respectfully decline their invitation to take those steps.

IV. ARGUMENTS PRESENTED BY ERETZ HAKODESH, DIRECTED AT MERCAZ USA, ARE ERRONEOUS AND DO NOT ESTABLISH A BASIS FOR A DECISION IN ITS FAVOR, AND

In contrast to the matters stated immediately above, this Reply has endeavored to focus on and respond to claims made more directly against MERCAZ USA. Many have already been addressed in Sections I and II above. Some additional matters are highlighted below.

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MERCAZ USA does not, and has never, asserted that Mizrachi, or others within Orthodox Judaism, are not “true Zionists.” The claim is simply nonsense. Jews of all streams of religious observance and those who describe themselves as secular, can all fit within the Jerusalem Program without contradicting its fundamental principles. MERCAZ USA has never questioned Rabbi Lerner’s personal, individual commitment. The suggestion, however, that his personal qualities can excuse the incorrect statement of his organization or the statements and activities described in the Complaint cannot be accepted.

The Jerusalem Program, and its predecessor, has been a central element of MERCAZ USA’s activity and message on a continual basis. Its simple references to the Jerusalem Program, and recognition that within the express terms of the Jerusalem Program there is room for additional ideas, is fully appropriate, inasmuch as its leaders, members and adherents are already familiar with the subject. Unlike Eretz HaKodesh, MERCAZ USA has not promoted interpretations that are contrary to those principles or lead people to ignore them. It is that context that makes Eretz HaKodesh’s reliance on a website link and the absence of discussion of the Jerusalem Program in the bulk of the Eretz HaKodesh materials, coupled with messages that point away from its principles, evidence of something less than “full acceptance and support.”

MERCAZ USA applies the “plain meaning” rule to the matters at hand. When a representation states “fully accepts and supports,” it means without equivocation or interpretation of the stated principles that seeks to change or eradicate their plain meaning. When an individual signs the acknowledgement of candidacy or application to vote in the Zionist elections, and those documents include a statement accepting the Jerusalem Program, that is ”stating, in writing.” Challenges of this type, made by Eretz HaKodesh are simply semantic gamesmanship without substance.

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MERCAZ USA’s quotation of Rabbi Nechemia Malinowitz, who spoke on a podcast immediately following Rabbi Pesach Lerner4, did not assert that he was a delegate or official of Eretz HaKodesh. It appears that he simply took on the role of a spokesperson on the issue. But after Rabbi Malinowitz said, “We are talking about battling Zionism. we don’t want to be part of them” and went on to focus on the Jerusalem Program, Rabbi Malinowitz told the podcast listeners that “it is not an essential part of the World Zionist Organization;” that you can lie; that you can treat it as “shtoos” (silliness); that it can be interpreted in other way;” that it doesn’t mean anything anymore--the Congress is not Zionist; that the Jerusalem Program is not a definition of the WZO; that the whole thing is not an essential part of what we are doing; and finally, ”Don’t read it. Don’t look at it.” The silence of Rabbi Lerner and Eretz HaKodesh in the face of these statements, is evidence of their adoption and demonstrates how the messages being put forward by Eretz HaKodesh were understood.

Similarly, MERCAZ USA’s reference to the views of Rav Yosef Braun are completely distorted by Eretz HaKodesh--omitting the portion that MERCAZ USA actually highlighted to show Rav Braun’s assessment of what Eretz HaKodesh was trying to accomplish: “It would be very hard to argue that in signing up to become a member one intends a different meaning in the terms used in the platform. This would be tantamount to falsehood or at least deception.”

V. A CONCLUDING STATEMENT IN REPLY.

We respectfully submit that what is at stake here is nothing less than the integrity of the American Zionist

4 The Podcast (correctly identified as #260 in the footnotes to the Complaint), is mistakenly described in the text of the Complaint as #250).

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Movement and the World Zionist Organization, and the very legitimacy of the Congress. The World Zionist Congress has been -- and must remain --the legislative body composed of of men and women from Israel and the rest of the world who stand up and affirm that they are Zionists committed to the principles and challenges of the Zionist movement. It is not just a gathering of lobbyists for people’s pursuit of their own political and economic self-interest. It is not a body ruled only by “anything goes,” nor is it open to anyone who has a point of view which they want to advance. Its credibility derives from a commitment to engage in Zionist activity, and seek support for change, within the framework of the established principles of the World Zionist Organization and the established rules of both the WZO and the American Zionist Movement. Sanctioning efforts to disregard, and ultimately to destroy, that framework and its rules, undermines the mission and future of the Zionist movement.

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RESPONSE TO THE ERETZ HA-KODESH “COUNTERCLAIM”

The “Counterclaim” appended to Eretz HaKodesh’s response is without substance or merit. MERCAZ USA therefore respectfully submits that it be rejected without need for further proceedings.

The Counterclaim asserts that MERCAZ USA has “demeaned and denigrated” Eretz HaKodesh and its candidates in its 2020 campaign materials. The claim rests on 16 counterclaim exhibits and two additional items.. Of the counterclaim exhibits, only five--CC Exhibits A, J ,K, L and M are materials from MERCAZ USA. CC Exhibits J and K are from the 2015 election and do not mention Eretz HaKodesh; Exhibit A is a 2016MERCAZ USA newsletter which also does not mention Eretz HaKodesh and is not part of any “campaign material.” Only two, CC Exhibits L and M are items from the 2020 Zionist election just concluded.

CC Exhibit M is cited by Eretz HaKodesh as proof that MERCAZ USA claimed that Eretz HaKodesh was planting seeds of derision and division. To begin with, as they recognize (but then ignore), under Election Rule VI (4), commentary regarding positions, issues, advocacy or statements of other slates is permissible, and does not violate the election rules. More importantly, examination of the document reveals the absence of merit in the claim. It states “pluralism is under attack.” It notes that while some slates seek support through derision and division, voters should stand with a slate that fights for equality and diversity” . Its proof text is an ad by Eretz HaKodesh calling on “70,000 other Yidden who care about their Yiddishkeit” to act to insure that “Eretz Hakodesh Stays Kodesh” by preventing support for egalitarian prayer at the Kotel; teaching Israeli public schoolchildren about pluralistic Judaism; absorbing halachically

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non-Jewish olim from Russia (who enter Israel under the terms of the Law of Return) into Israeli society, and modifying the absolute controls over marriage, divorce and conversion (to accommodate other religious and secular sensibilities). These messages may be permitted campaign for Eretz HaKodesh --but they are plainly an attack on pluralism that uses derision and division to rally voters against others. Using truthful statements to call attention to what is being employed, does not demean or denigrate Eretz HaKodesh. They are the ones who elected to employ these tactics. The response simply lets others know what they are doing and how it differs from the MERCAZ USA platform.

CC Exhibit L is a brief one-page explanation by a young man active in United Synagogue Youth (USY). It puts forward positive arguments without any content that demeans the Haredi community or Eretz HaKodesh or their candidates for election. It simply has a factual statement: that “Conservative Jews are not equal in the eyes of the ultra-Orthodox controlled rabbinate” in Israel . Not only does it come within the scope of positive campaigning without demeaning or denigrating another slate but, the statement uses the words “ultra-Orthodox” in describing the attitude of the Israeli official Rabbinate. That is a phrasing that Eretz HaKodesh points to in this very counterclaim as a usage that appeared in 2015 election materials and is not problematic! In all events, it must also be noted that this phrasing, appearing in two MERCAZ USA campaign materials in the context of promoting respect for the multi-faceted Jewish people,” is simply not a sufficient foundation for the conclusory allegations of the Eretz HaKodesh complaint. (The broader claim--that use of “ultra-“ necessarily demeans and denigrates all Haredi men and women and the Eretz HaKodesh slate--is discussed separately below).

Two additional items are put forward by Eretz HaKodesh. Neither one violates election rules.

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One is a video which was part of the MERCAZ USA website, www.mercaz2020.org/materials. Entitled ”Elections Have Consequences,” it highlights the positive program of MERCAZ USA in support of pluralism, equality and diversity in Jewish practice in Israel noting that “some religious zealots” --again, in Israel -- seek to deny those rights. It neither mentions Eretz HaKodesh or their contrary message, even though that is permitted under the rules.. To say that the brief reference quoted above distorts the position of a party that is not mentioned, and does so “in denigrating and demeaning fashion” and “demeans traditional women” is an extraordinary departure from the obligation of all advocates to maintain fidelity to fact in putting forth charges. It does not deserve, and should not receive, credence.

The second item (Exhibit E to the Eretz HaKodesh response to the complaint), is a two page print message similar to the ”Elections Have Consequences” video. It asks those who “care about the continued growth of the Conservative/Masorti movement in Israel, a more open Israeli society” and “preserving Israel as a homeland that is welcome to all Jews.” As part of the description of the objectives of MERCAZ USA, it references objection “to the ultra-Orthodox monopoly on religious life” in Israel. While MERCAZ USA opposes all monopoly control over religious life in Israel, it is not “Orthodoxy” in general that holds that monopoly in Israel today. Had the message stated that the monopoly over religious practice in Israel was being exercised today by “all Orthodox” without qualification, it would be inaccurate,. The objection is not to the right of the Haredi community or any other group to practice Judaism as they see fit; it is to the control which prevents others to base their own Jewish practice in Israel in a manner that reflects pluralism, equality and diversity.

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The manner in which these two items are used in the Eretz HaKodesh counterclaim is nothing short of mind-boggling. Eretz HaKodesh argues that “certain American groups” are against religious freedom and are trying to force “millions of Israelis…to change their own understanding of what constitutes Jewish religious practice.” That assertion turns the facts and democratic principles upside down and demonstrates that the Eretz HaKodesh counterclaim is based on the belief that if a person’s views regarding their own right to practice Judaism do not match those of Eretz HaKodesh, that amounts to demeaning and denigrating Eretz HaKodesh. It is not worthy of serious consideration.

At bottom, the counterclaim is constructed on a false proposition--namely, that the term “ultra-Orthodox,” whenever and however it is used, and without regard to the context in which it is used, always means that it is an effort to demean and humiliate others. With all respect to the complainant’s sensitivities, the assumption is absolutely wrong. Of course, depending on the context and intent, the prefix “ultra-“ can be used as a pejorative term, to deride rather than inform. That is true of many other words; consider, for example, describing groups of people as moneyed, lazy, smart, or even New Yorkers. But it is also used to mean “very” or “beyond” or to signify a distinction between the intended subject of a statement and a larger group --so that the reader or listener does not think that the comment or description is applicable to all of the larger group. In context, it is patent that the reference to ultra-Orthodox in connection with the Israeli Rabbinate’s attitude toward religious pluralism, insures that the reader does not think that the author is referring to all Israeli Orthodox Rabbis, and the video reference to the attitude of “some religious zealots” or the reference to the “ultra-Orthodox monopoly on religious life” in Israel makes clear that not all religious Israelis have the same attitude. These are not demeaning or denigrating

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usages, and are insufficient to support a claim that seeks to characterize an improper campaign against Eretz HaKodesh or its slate in the United States election.

For all of the foregoing reasons, the counterclaim does not present a cognizable complaint and should be rejected.

June 10, 2020

Respectfully submitted,

MERCAZ USA

Dr. Marilyn L. Wind, President

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