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Yizhar Hess
The last High Court appeal?
Op-ed: We never dreamed of giving up on the things we did as we hoped a spot would be allocated for our liberal prayer services at the Kotel. We have done everything we can. It is time for the Jewish people to look to the courts.

There is a good chance that the High Court of Justice (“Bagatz”) deliberation that will take place at the Supreme Court on the Last day of August will be the capstone to more than 30 years—thirty years!—of Supreme Court discussions on the very same topic, the Western Wall. The panel of judges will be led by Chief Justice Naor. It is not my place to rate her performance, but in a very wise move, she agreed, over the objection of the Attorney General, to go beyond the letter of the law and permit the Chief Rabbinate to file an independent brief, as if the State Rabbinate is not one of the arms of government represented by the State Prosecutor’s office but rather a separate entity free to interpret the law as it sees fit.

 

 

The Chief Justice even agreed to delay the urgent session by a month. However, she added an interesting sentence to the decision to grant the delay: “Should any of the parties have additional requests (and this should not be construed as encouragement to file such requests), they should take care to file them within 7 days of this date.” Chief Justice Naor, it would appear, was looking to head off any future argument on anyone’s part that s/he would like to request an ‘additional hearing’ because his or her voice had not been heard. She is signaling to all of us that the Supreme Court will soon have its say and that its decision will be, so I hope, clear-cut. And unambiguous. And final.

 

Photo: Amit Shabi (Photo: Amit Shabi)
Photo: Amit Shabi

 

It has cost the State Rabbinate (i.e., us) tens of thousands of shekels to obtain that lengthy, overwrought legal brief it has submitted to the Court, a brief which has nothing in common with our system of jurisprudence. The State Rabbinate has gone so far as to argue that the Supreme Court of the State of Israel has no authority to adjudicate matters related to the Western Wall. That, the Rabbinate claims is extraterritorial, a sort of mini-Vatican, where the Chief Rabbinate alone may exert authority.

 

This legal argument rests on a 1924 “King’s Order in Council,” the instrument through which the British ruled their colonies, among them Mandate Palestine. In the face of decades of High Court decisions and a panoply of precedents, this legal argumentation might be more appropriate for a paper in a first year law school course in constitutional law, but not only did it cost us dearly, it is also infuriating from a Zionist perspective. I imagine that the court will remind the honorable Chief Rabbis that their salary is no longer paid by King George V but rather by the State of Israel.

 

Photo: Amit Shabi (Photo: Amit Shabi)
Photo: Amit Shabi

 

The Chief Rabbinate’s position ultimately will be just a footnote. It is the position adopted by the government that is so painful. I don’t envy those who will present it in court. In the last deliberation on this matter a few months ago, before the government rescinded its agreement to the compromise plan, the justices entered the courtroom, turned straightaway to the State Prosecutor’s counsel, and asked, “Nu? What will be?” He was asked this question by Chief Justice Naor, and he understood just how much this blunt, direct question, requiring no prefaces or niceties, was both spot-on and all-encompassing. He responded, deftly weaving, absorbing the judges’ anger at the government’s foot-dragging, but he promised that any moment now things would be moving along. He spoke in praise of compromise, but he explained that its implementation was coming along slowly. It will be interesting to hear what he has to say now.

 

We did everything possible not to be in court again. Honestly, we have been dragged there. We conducted a negotiation in good faith. We gave in on things we never dreamt that we would forgo. In order to settle the dispute once and for all, we even convinced ourselves to accept the discredited, perhaps anti-democratic principle of “separate but equal.” OK, you take the old familiar Western Wall, we said, and we will take the less well-known section, which is nonetheless not “the Kotel,” and we will lovingly tend to its development. We gave in on the matter of recognition, too, accepting only a certain amount of representation on the management council of the mixed-gender site.

 

We gave in on not having explicit reference to those “abhorrent” terms, Reform and Conservative, in the by-laws for that sacred place in order to placate the Haredi ministers. And the list goes on from there. I am even embarrassed about some of the things we gave in on. But we never imagined that the Government of Israel would treat us this way. We never thought we would be taken for a ride like this.

 

We come before the court with clean hands. We have tried. We have done our best. We have sought peace and pursued it. But on the other side there is no partner. It is not only the government of Israel that needs the court to pull the chestnuts out of the fire. The entire Jewish people looks now to that court.

 

Yizhar Hess is the CEO of the Masorti Movement.

 

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