Haredi Conscription: Battle between the Knesset and the Supreme Court continues

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. 

Source: Two new Supreme Court justices named

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.

Three Groups in Religious Nationalist States

Carlo Strenger wrote an interesting article about Israel in which he talked about Israeli society having no center (Israel today: A society without a center).  He argues that there are three groups in Israel, each powerful and trying to attract Israelis to its vision. However, there are not many overlaps among these groups and as they fight, it is clear that there is no common denominator of the Israeli society. Moreover, the differences between them are based on sacred values so no one is ready to compromise. The three groups, he identifies, are liberal Zionists, ultra-Orthodox and romantic nationalism.   

Liberal Zionists believe that Jews have a right to a state of their own but they also believe that now that this state has been established it should be a liberal democracy, with no discrimination based on gender, religion or ethnicity. For ultra-Orthodox or Haredim, religion is the most important thing and while a Jewish state helps, it is not necessary or central to their ideals. Romantic nationalists, as defined by Strenger, are those that link the religion with the land. Holy land was and always will be for the Jewish people and if somebody's rights are trampled because of this special link, then so be it.    

Strenger writes,

'The bitterness and the violent rhetoric of Israel’s political culture are largely due to this clash of three sacred values, with sometimes extreme consequences. The settler movement has already shown that it is capable of extreme violence when the two-state solution is about to be implemented. Haredim have proven that they are willing to go to prison to avoid what they see as fatal infringements on their way of life.'

Looking at other states that are based on religious nationalism, we can find these three groups in all of them. To make their titles more broad and applicable to other states, we can call the three groups: liberals, other-worldly religious and holyland religious.

Liberals do not contest the formation of state on the basis of religion but now want a liberal democracy. Their eventual aim maybe to move closer to a civic nationalism.

Other-worldly religious are more interested in their place in the next world than this world. They are trying to be part of a heavenly kingdom and not very interested in making a kingdom here. For them, if state helps in observing/practicing their religion than it is good but as power and focus on this world invariably corrupts so they always keep a distance from state affairs.

    

Holyland-religious group is focused on holyland. Land is holy because of religion but it is almost as important. This group believes that a specific land is for a specific religion or its adherents. So, in this land, a particular religion should reign supreme. For them, minorities will always remain second-class citizens.

Many of the religious nationalists states are ruled by this last group as it employs power of both religion and nationalism while other groups use only one. Holyland-religious is also more ready to use violence as compared to other two groups to achieve its objectives.   

Is studying religion a service to the state? Will the 'praying division' of the Israeli military disband?

Studying religion may be accorded as much importance as military service in states based on religious nationalism. At the time of Israel's formation, to unify all groups behind the national cause, the secular political leadership made a deal with the Ultra-Orthodox Jewish (Haredi) leadership under which Haredi religious students, studying Torah, would be temporarily exempted from the compulsory military service. The special arrangement came to be known as Torato Omanuto arrangement. 

This arrangement was not an issue when the number of yeshiva (religious school) students asking for exemption using this arrangement was small. However, when the number grew almost exponentially (from less than a thousand in 1968 to more than forty thousand in 2005), secular and other Jewish religious groups started complaining. A case was filed against the exemption in the 1990s. The court decided that the arrangement was illegal as it had only been based on the orders of a defense minister. A law had to be passed to continue Torato Omanuto arrangement.

Students at Jerusalem’s Mir Yeshiva, the largest Jewish seminary in Israel

Source: Jerusalem - Israel Finance Ministry Cuts Yeshiva Funds After Court Ruling, Angers Ultra-Orthodox Jews

Israeli government formed a committee in 1999 under former Supreme Court Justice Tzvi Tal to come up with an agreed version of a bill that would be passed by the Knesset. Report of Tal committee resulted in Tal law (Deferral of Military Service for Yeshiva Students Law) which had to be renewed after every five years. Under this law, getting exemption became a bit more difficult and Israeli military (IDF) was asked to increase the number of Orthodox units (units where certain military rules are relaxed to ease the sensibilities of religious Jews) to make it easier for yeshiva students to serve. However, it did not result in much change and yeshiva students continued to avoid enlistment in large numbers as before. Although government admitted to the Supreme Court that there was a very small increase in enlistments by yeshiva students, it extended the law in 2007. The situation did not improve even after efforts by government and in 2012 the court declared Tal law unconstitutional. Prime Minister Netanyahu tried halfheartedly to come up with a compromise and a new law but talks failed and Knesset was dissolved. 

After the elections, Netanyahu formed a new government in March 2013 without ultra-religious parties and promised equal burden-sharing arrangement but due to the pressure of right wing parties from outside and conservative members of his own party, there was no progress on the issue. It was in these circumstances that court issued an interim injunction in February 2014 to compel the government to act by freezing part of the funding to yeshiva students and questioning the authority of the defense minister to keep issuing exemptions (Funding cuts for Haredi draft-dodgers finally puts an end to Knesset foot-dragging).

This issue brings into focus the Jewish character of Israeli nationalism. Yeshiva students claim to be doing at least as important national service (keeping Jewish tradition alive and praying for the Israeli people) as military personnel and they have been called 'praying division' of the Israeli military. Obviously, yeshiva students and their supporters believe in Jewish nationalism and are enraged at the attempts of other Israelis to belittle Torah study. Other Israelis, however, find it difficult to understand why yeshiva students would not bear an equal burden in the defense of a state in which they (yeshiva students) have such a privileged position.

It is important to note, however, that despite the reluctance of ultra-orthodox Jews to join the Israeli military, the Israeli military is gradually becoming more religious as there are many types of religious Jews in Israel. Most of the new recruits come from the settlements and are very religious. The Israeli governments and military have given various concessions to the religious sections of the society (such as some segregation of sexes in the military, separate units etc) and later have enlisted in large numbers. This development has implications for future peace with Palestinians as many 'settler-soldiers' join the military not to defend national boundaries of Israel but the biblical boundaries of Israel and Biblical Israel included the West Bank, Gaza, and other areas. The refusal of many Israeli soldiers to uproot settlers from Gaza in 2005 is an indicator of what problems Israel can face, if Israel makes a peace deal with the Palestinians and agrees to withdraw from these areas.