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July/August 2008-Opinion
The Failure of Religious Zionism
Marshall Breger
The goal of [Israel’s] rabbinate should be to serve the needs of the entire population, not merely already committed Orthodox Jews.
A recent ruling by a panel of Israel’s Supreme Rabbinic Court upheld a lower court decision retroactively annulling a conversion to Judaism 15 years ago. The court’s argument was that since the convert no longer followed Orthodox practices, she must not have meant to do so at the time of her conversion. This decision underscores the urgent need to reopen the question of the relationship between “synagogue and state” in Israel.
In 1947, David Ben-Gurion formulated a historic compact with the ultra-Orthodox party Agudath Yisroel guaranteeing that the future Jewish state would preserve four important Jewish practices: Maintain Shabbat as the official day of rest, observe kashrut in state establishments (including the army), entrench the jurisdiction of the rabbinical courts over personal status (i.e., marriage and divorce) and ensure a separate system of religious schools run by the state. In addition, Ben-Gurion later agreed to defer all yeshiva students from the draft.
This compact did not mean that Israel became a theocratic state. Both freedom of religion and freedom for irreligion were protected. Indeed the basis of Israeli legal statutes passed after 1948 was not Jewish law, as many rabbis desired, but English law. When faced with the need to fill gaps in the law, the Knesset instructed judges to seek solutions in English common law. By the 1980s, however, the Knesset shifted ground, and judges were directed to Moreshet Yisrael—“the traditions of Israel”—to fill these lacunae.
Nonetheless, the historic 1947 compact meant that Israel would maintain Jewish symbols and that they would be Orthodox symbols. Thus, in a country where most of the population is secular, the normative definition of Judaism remains Orthodox. This would matter less if the rabbis understood their responsibility to act with concern for all of the citizens of the state.
In the state’s early years, the chief rabbis advocated an avowedly Zionist approach to their decision-making. Thus, the first chief rabbis responded affirmatively to the need to regularize the status of refugees reaching Israel from war-torn Europe; they responded vigorously to solve the tragedy of agunot—women whose husbands refuse to give them a get, or Jewish divorce—or those whose husbands vanished in the Shoah.
However, in recent years they have failed to show compassion for agunot. Often, out of spite, their husbands extort money or trade a woman’s alimony or child support for the get. Lacking a civil divorce, such women have no way out.
Today the rabbinate shows no sensitivity to the needs of Israeli society and in many cases acts in ways that undercut historical arrangements made by prior chief rabbis.
An example is the current dispute over the heter mechira, the legal fiction that gives Jews in Israel permission to purchase vegetables and fruits grown there during the shmita or sabbatical year. Biblical law requires that every seventh year agricultural land in Israel must lie fallow. When the early Zionists arrived at the end of the 19th century, their goal was to develop Jewish agriculture, and they needed a solution to the issue of shmita if they were to make a go of their aliyah and develop Jewish agriculture. In response, Rabbi Yitzchak Elkanon Spector conceived heter mechira in the mid 1880s. If a Jewish farmer sold his land in trust to a non-Jew with a reversion arrangement after the sabbatical year, then the Jewish farmer could till the land during the sabbatical year. The chief rabbis permanently adopted the heter mechira in the 1920s, but the ultra-Orthodox or haredi community never accepted it.
Sadly, in this 2007-2008 shmita year, the chief rabbis left it up to local rabbis whether to accept the heter mechira; many of them rejected it. The result has been the weakening of a main plank of the Zionist enterprise: Jewish agriculture in Israel.
The conversion decision is especially bizarre because the rabbinical court retroactively overturned a conversion approved by a prominent and well-respected rabbi charged by the state with overseeing conversion of Russian immigrants and others living in Israel. And they did so even over the objection of Sephardic Chief Rabbi Shlomo Amar. From a jurisprudential point of view, this conduct is unheard of and flouts normal standards of fairness. If a duly authorized judge performs a legally appropriate act, the fact that the person who had converted no longer upholds every jot and tittle of orthodoxy is no ground to annul the conversion. There have also been cases of retroactive get invalidation, where a get is canceled years after it was given, with disastrous consequences for women.
The actions of the Chief Rabbinate reflect a failure of religious Zionism, and we see a growing split between Israel’s secular and religious communities. The “public sphere” has become increasingly secularized: More and more shops, restaurants and places of entertainment are open on the Sabbath. At the same time, the religious have become more parochial and insular, demanding, for example, separate seating in buses that serve religious areas and even, in some instances, separate sidewalks for men and women.
Even more striking, many young people in Israel choose to have their marriage ceremonies performed by Reform or Conservative rabbis and others go to Cyprus for a civil ceremony. This means that even couples who approach marriage from a religious perspective do not want to start their lives together catering to the rabbinate’s marriage requirements.
The goal of the state rabbinate should be to serve the needs of the entire population, not merely already committed Orthodox Jews. If the rabbinate continues to fail in this awesome responsibility, the question of the relation of synagogue and state will, of necessity, remain open, and disestablishment will be a real possibility.
Marshall Breger is a professor of law at the Catholic University of America.