Abstract
The Women of the Wall, known as WoW, are religious Jewish women who wear the ceremonial prayer shawl (tallit), as do men; pray from the Torah Scroll, as do men; and pray aloud in a group (tfila), as do men. They have called it the three T’s: tallit, Torah, tfila. I will present here the story of their struggle against religious violence and the public veto of their prayer at the site of the Western Wall in Jerusalem. This is a struggle which has led them to appeal three times and respond once over the past fifteen years to the Supreme Court, in the last two of which proceedings I represented them as counsel. The WoW are committed to redefining their identities as religious women, claiming equality rather than exit as a feminist strategy in confronting the patriarchy of Judaism.1 Their struggle against silencing at the site of the Western Wall is highly symbolic in its attempt to redefine public space, designated as subject to patriarchal custom by religious authorities with governmental ascent and collusion. The narrative of the Supreme Court litigation provides the material for a unique exploration of the potential and the limits of law in providing a path to equal religious personhood for women.
This article is an expression of my respect for the Women of the Wall. My warmest appreciation goes to Adv. Nira Azriel who was my “sister in law” and to Adv. Jonathan Misheiker who contributed to the struggle during the 10 years in which we fought for the rights of the WoW before the High Court of Justice. I want to thank Trudy Deutsch for her helpful research assistance.
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References
For an anthology of writings of the experiences of the spiritual leaders of the WoW, see P. Chesler/ R. Haut, Women of the Wall — Claiming Sacred Ground at Judaism’s Holy Site, 2003.
BBC News (18 March 2005), available at http://news.bbc.co.uk/go/pr/fr/-/2/hi/americas/4361931.stm.
HCJ 257/89 Anat Hoffman v. Western Wall Commissioner, 48(2) PD 265 (Hereinafter: Hoffman I, 1994). See judgment of Justice Elon, at 349; Expert opinion of Eliav Schochetman submitted to the court in Hoffman I, on file with the author.
Expert opinion of Shmuel Shiloh submitted to the court in Hoffman I, on file with the author; A. Weiss, Women at Prayer — A Halackhic Analysis of Women’s Prayer Groups, 1990, 43–56.
Chesler/Haut R. Haut Women of the Wall — Claiming Sacred Ground at Judaism’s Holy Site, 2003. (note 1) supra, at xxvii
Letter by J. Labehnson, on file with the author.
C. P. Christ, The Laughter of Aphrodite: Reflections on a Journey to the Goddess, 1987, 59–60; in R. M. Gross, Feminism and Religion — An Introduction (1996). Gross says: “It’s too broken to be fixed: the feminist case against theological transformation of traditional religions,” at 140–146.
For full discussion elsewhere of the issue of consent to patriarchy, see F. Raday, Culture, Religion and Gender, I.Con, International Constitutional Law Journal 1(4) (2003), 663. The preparedness of these women to face violence and to pursue legal remedies would suggest that this is not a case of coerced consent to a patriarchal culture or religion but of genuine choice. The choice of hermeneutics rather than exit by women in other situations may not be the result of genuine choice. Thus, for instance, in many Moslem communities, exit is not an option: law, community and family will combine to prevent and heavily punish any such attempt.
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See judgment of President Shamgar in Hoffman I, at 353.
D. Storper-Perez/ H. Goldberg, The Kotel: Towards an Ethnographic Portrait, Religion, 24(4) (1994), 309. Taken from Shakdiel (note 22) infra, at 144.
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I have discussed the issues of the rights of the Jewish and Palestinian peoples to self-determination elsewhere: F. Raday, Determination and Minority Rights, Fordham Int’l L. J 26 (2003), 453.
Shakdiel (note 22) supra, at 150–151.
Ibid., at 129.
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For my fuller discussion of this issue, see F. Raday, On Equality — Judicial Profiles, Isr. L. Rev. 35 (2003), 380.
See A. Harel/ A. Shenrech, Separation between the Sexes on Public Transportation, Academic College of Law L. Rev. 1 (2003) [in Hebrew]; for an opposing view see N. Rimault, The Separation between Men and Women as Sexual Discrimination, Academic College of Law L. Rev. 1 (2003), 112 [in Hebrew]. See also M. Halberthal/A. Margelit, Liberalism and Cultural Rights, in: M. Mautner (ed.), Multiculturalism in a Democratic Jewish State: Memorial Book for Ariel Rozen-Zvi, 1998, 93–104 [in Hebrew]; for an opposing view see J. Brunner/Y. Peled, Autonomy, Capability and Democracy: A Critique of Multiculturalism, in: M. Mautner (ed.), ibid, 107–131[in Hebrew].
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There was subsequently much controversy as to the bottom line of Justice Shamgar’s judgment, with the State claiming that he had not recognised this right and that he had given a majority opinion rejecting the right together with Justice Elon. The majority opinions in Hoffman II (infra note 39) and III (infra note 40) held that Justice Shamgar had, together with Justice Levine, recognised this right. The interpretation quoted here is from the judgment of Justice Cheshin in Hoffman III.
HCJ 3358/95 Anat Hoffman v. Prime Minister Office, Tak-Al 2000(2) 846 (Hereinafter: Hoffman II, 2000).
HCJ 4128/00 Prime Minister Office v. Anat Hoffman, P.D. 57(3), 289 (Hereinafter: Hoffman III, 2003).
For full discussion of the international law regulation of the clash between cultural and religious tradition and the right of women to equality, see F. Raday, Culture, Religion and CEDAW’s Article 5(a), in: Beate Schopp Schilling/ Cees Flinterman (eds), The Circle of Empowerment: 25 Years of the UN Committee on the Elimination of Discrimination against Women, Feminist Press (forthcoming).
The right of exit is beyond the scope of discussion in the present article. For fuller discussion, see Raday (note 9) supra.
A. Sharma/ K. K. Young (eds.), Feminism and World Religions, 1999, 18–22.
For a fuller exploration of certain aspects of the hierarchy of values, see F. Raday, Religion, Multiculturalism and Equality — The Israeli Case, Isr. Y.B. Hum. Rts. 25 (1995), 193.
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In his discussion of the changing meaning of child sacrifices, Peter Winch writes, “it would be no more open to anyone to propose the rejection of the Second Law of Thermodynamics in physics. My point is not just that no one would listen to such a proposal but that no one would understand what was being proposed. What made child sacrifice what it was, was the role it played in the life of the society in which it was practised; there is a logical absurdity in supposing that the very same practice could be instituted in our own very different society.” P. Winch, Nature and Convention, in: Beehler/Drengson A. Drengson (eds.), The Philosophy of Society, 1978 (note 47) supra, at 15–16.
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See ibid.
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Ibid.
Okin, supra (note 53), at 62–73.
In John Cook’s words: “[Cultural relativism] amounts to the view that the code of any culture really does create moral obligations for its members, that we really are obligated by the code of our culture — whatever it may be. In other words, Herskovits’s interpretation turns relativism into an endorsement of tyranny.” J. Cook, Cultural Relativism as an Ethnocentric Notion, in: Beehler/Drengson A. Drengson (eds.), The Philosophy of Society, 1978 (47) supra, at 289 (296).
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C. Taylor, Philosophical Arguments, 1995 249; P. Horowitz, The Sources and Limits of Freedom of Religion in a Liberal Democracy: Section 2(a) and Beyond, U. Toronto Fac. L. Rev 54 (1996), 1 (14).
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But see M. C. Nussbaum, Women and Human Development: The Capabilities Approach, 2000, 229–30. Joel Feinberg, in reviewing the writings of John Stuart Mill on the issue of polygamy, concentrates on the impact of the voluntary decision of the woman to marry on her future autonomy, stating: “... but it would be an autonomously chosen life in any case, and to interfere with its choice would be to infringe the chooser’s autonomy at the time he makes the choice.” Feinberg (note 68) supra, at 78.
Compare Wisconsin v. Yoder, 406 U.S. 205 (1972) with Re State in Interest of Lack, 283 P. 2d 887 (1955).
See Okin (note 53) supra, at 137. The liberal notion of freedom of religion includes the right of each individual to change his religion at will; people have a basic interest in their capacity to form and to revise their concept of the good. See W. Kymlicka, Two Models of Pluralism and Tolerance, 1993 (unpublished manuscript). This is especially so where the revised concept of the good that is being chosen is the fundamental human right to equality.
See F. H. 22/82, Beit Yules v. Raviv, 43(l) P.D. 441, 460–64. Consent to inequality may be held contrary to public policy.
M. Nussbaum, Sex and Social Justice, 1999, 39.
Nussbaum (note 70) supra, at 105.
Ibid. at 202.
Ibid. at 79.
Ibid. at 96–101.
Ibid. at 192.
Okin (note 53) supra, at 22–23.
This conclusion is based on research into comparative constitutional and international legal regulation of the clash between religion and culture and women’s right to equality: Raday (note 9) supra.
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© 2007 Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V., to be exercised by Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht, Heidelberg
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Raday, F. (2007). Claiming Equal Religious Personhood: Women of the Wall’s Constitutional Saga. In: Brugger, W., Karayanni, M. (eds) Religion in the Public Sphere: A Comparative Analysis of German, Israeli, American and International Law. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol 190. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-73357-7_8
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