Two previous blog posts document the fight of the mainly secular Israelis to force Haredi Israelis to serve in the military. In the first blog post ( See Is studying religion a service to the state?), the history of the conflict is traced from the independence of Israel to 2012. In the second blog post (See Going to jail for studying Torah), the passage of the 2014 law, which was a compromise, was discussed.
The March 2014 law made room for multiple but opposing perspectives. Neither secularists nor Haredi liked it. Secularists did not like it because it did not have strict penalties for forcing the Haredi youth to serve in the military. The Haredi were unhappy because it had some weak injunctions for people who refuse to serve:
The new legislation sets annual quotas for drafting yeshiva students for military or national service, and mandates criminal penalties against draft evaders. However, the law doesn’t entail complete Haredi conscription, instead calling for a gradual annual increase in the number of ultra-Orthodox 18-year-olds drafted, and still allowing for small numbers of exemptions until 2017. (See Israel passes ultra-Orthodox draft law)
The Haredi parties vowed to change the 2014 law whenever they had the power to do so. In late 2014, there were policy disagreements within the government and elections were held in March 2015. The Likud Party won big in the elections and Netanyahu decided to form a government with primarily religious-right parties and not with centrist Yesh Atid, who was the main force behind the 2014 law.
In November 2015, the ruling coalition, including Haredi parties Shas and United Torah Judaism, passed amendments to the 2014 law. These amendments diluted the original law and gave Haredi students more exemptions besides delaying the implementation of the law:
The amendment to the law for Haredi (ultra-Orthodox) conscription that was passed yesterday postpones the implementation of obligatory enlistment for full-time yeshiva students until 2020, though it was originally supposed to come into effect in 2017. It also gives the Defense Minister the authority to exempt yeshiva students after that date if he so wishes, “while bearing in mind” goals established by the government under the 2014 law. (See Analysis: Haredi parties wipe out Lapid's IDF draft law - but for how long?)The crucial question was, however, will the Supreme Court accept it? Unlikely:
In this regard, it is worth looking back at the Tal Law, which provided a legal framework for haredi men to indefinitely postpone their military service until they reached the age of exemption, and at the reasons why the High Court declared it incommensurate with Israel’s basic laws.
The court said in 2012, that while there had been an increase in the number of haredi men enlisting to military or civilian service, the rate of increase was insufficient given the legal inequalities the Tal Law generated.
“Legislation that perpetuates the gaps and flaws of the lack of equality, to the extent which they currently exist, cannot be upheld,” wrote then-Supreme Court president Dorit Beinisch in the 2012 ruling.
In 2011, the last full year for which the High Court could see haredi enlistment statistics for their 2012 ruling, 1,282 ultra-Orthodox men enlisted to the IDF and 1,089 enlisted to the civilian service, totaling 2,371 haredi military or civilian service recruits.
This was just under 30% of the potential draft.
Bearing in mind the 30% rate of haredi enlistment in 2012 when the Tal Law was declared unconstitutional and the 33% rate of enlistment today, it seems highly unlikely that the High Court will deem the new amendment – which to all intents and purposes removes the legal obligation for haredi men to perform national service – commensurate with the requirements of equality before the law. (See Analysis: Haredi parties wipe out Lapid's IDF draft law - but for how long?)
In September 2017, the inevitable happened and the Supreme Court stuck down the law as unconstitutional and unreasonable.
The dramatic ruling on Tuesday set a one-year deadline to implement a different framework for handling the ultra-Orthodox draft.
The court was responding to four separate appeals — three of which claimed the current arrangement discriminated against non-Haredi Jews, and a fourth that argued it discriminated against Haredi Jews, who are being asked to increase their military draft rate while other minorities, especially Israeli Arabs, are not required to serve at all.
Eight justices, led by Chief Justice Miriam Naor, ruled that the current arrangement was increasing the inequality in the “draft burden,” rather than reducing it, which was the law’s stated purpose and the grounds for its constitutionality. That made it an “unconstitutional law,” the justices ruled.
One dissenter, Justice Noam Solberg, argued that the law had not been in effect long enough to determine its effect on the military draft, and therefore no determination could yet be made about its constitutionality. (See High Court strikes down law that postponed ultra-Orthodox draft)
The Haredi parties' leaders are furious and calling this decision unacceptable and dictatorial. Ya’acov Litzman, Israel's health minister and United Torah Judaism chairman said that the decision was "the worst and most wretched decision in the history of terrible decisions in the Jewish world." One of his party members, Yisrael Eichler, called it "part of an all-out war on Judaism"(See Israel’s religious military exemption law is unconstitutional – Supreme Court and High Court strikes down the law that postponed ultra-Orthodox draft)). Religious Affairs Minister David Azulai and Shas party member claimed that the Supreme Court was fighting with the Jewish people, "In the Supreme Court ruling yesterday, the court said in effect that it wants to continue the dispute with the Jewish people. It chose to say it precisely a few days before Rosh Hashanah." The religious parties are now calling for passing a law to limit Supreme Court jurisdiction:
The time has come to make a legislative change and tell the High Court of Justice that you are not elected, but nominated" he said. Stop making disagreements with the Jewish people and ruling against the Knesset. (See Haredi MKs focus their rage on the Supreme Court)
Another way for religious parties to resolve this issue is to change the composition of the Supreme Court. The Justice minister, Ayelet Shaked, though not a member of a Haredi party, is working on making the court more conservative and more nationalist. She was able to bring two conservative judges on the Supreme Court in 2017. However, the change can take a long time. This means the issue will continue to bedevil Israeli leadership in the next few years.
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