Abstract
The extent of public sector involvement in providing religious services is an important factor in determining the scope of legitimate regulation of relevant religious activities. However, I argue that the existence of a government role is not a sufficient justification for such regulation. Participation in the supply of religious services does not exempt the government from the constraints of its duty to respect freedom of religion. I point to two main considerations in this respect. First, in certain cases, accomplishing the purpose of government involvement — securing reasonable access to religious services — entails government intervention in religious activities. Second, more extensive regulation can be justified when involvement of the public authority intensifies the harm that the relevant religious practice imposes on other interests. These and related arguments are illustrated through a case-study — the Israeli experience of almost six decades of intensive involvement of a democratic state in supplying religious services.
Among other things, I explore the issue of regulating practices in holy sites, by comparing two decisions of the Israeli Supreme Court: The decision not to intervene in conflicts regarding religious rituals in the Church of the Holy Sepulcher, and the decision to impose “secular” norms of tolerance and impartial balance of interests in the case of the Western Wall Plaza in Jerusalem. Other issues discussed are the qualifications necessary to serve in state-run religious institutions; issuing kosher food certificates and regulating the activities of Jewish burial societies.
The discussion demonstrates the important role of government involvement in supplying religious services and in regulating religious activity as a means of enhancing — rather than restricting — religious freedom. The Israeli case is useful in illustrating the potential benefits of supplying religious services by the government, as well as in understanding the limits of this policy.
I am grateful to David Enoch, Yigal Mersel, Gidon Sapir, and participants in the symposium on Religious Symbols, Constitutional Law, and Human Rights, held in Heidelberg University, Germany (July 2005) for their thoughtful comments and suggestions.
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References
See, e.g., K. M. Sullivan, Religion and Liberal Democracy, U. Chicago. L. Rev. 59 (1992), 195; Paul E. Salamanca, Civil Rights: Looking Back — Looking Forward: The Liberal Policy and Illiberalism in Religious Traditions, Barry L. Rev. 4 (2003), 97; M. Mutua, Human Rights: A Political and Cultural Critique, 2002 (The establishments of Christianity and Islam in Africa perpetrated major human rights violations).
This is the underlying premise of the view that the Establishment Clause of the US Constitution does not prohibit government aid of religion if the aid is “neutral” and there is “genuine and independent private choice.” See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (Upholding the constitutionality of school vouchers program that included religious schools); R. L. Cord, Separation of Church and State: Historical Fact and Current Fiction, 1982; M.M. McConnell, Religious Freedom at a Crossroads, U. Chi. L. Rev. 59 (1992), 115.
McConnell offers a related classification between three possible purposes of the Religious Clauses: (1) the “separationist ideal,” under which “religion is deemed to be irrelevant to determination of the citizens’ civic obligations”; (2) the “ideal of neutrality,” under which “religion is understood as one form of voluntary association... neither feared nor favored”; and (3) the “ideal of religious liberty,” according to which “the Establishment Clause protects against government action that may coerce, induce or... even endorse religion.” See M. W. McConnell, Neutrality, Separation and Accommodation: Tensions in American First Amendment Doctrine, in: R. J. Ahdar (ed.), Law and Religion, 2000, 63 (64). Clearly, the Establishment Clause may serve multiple functions. See, e.g., S. H. Shiffrin, Liberalism and the Establishment Clause, Chi.-Kent. L. Rev. 78 (2003), 717.
Everson v. Board of Education, 330 U.S. 1, 27 (1947) (Jackson J., dissenting). See also, e.g., G. Ivers, Redefining The First Freedom — The Supreme Court and The Consolidation of State Power, 1993, 133 (“[The Establishment Clause was created] to ensure robust protection for religious freedom... The separation of church and state is a necessary predicate for religious free exercise.”); L. W. Levy, The Establishment Clause — Religion and the First Amendment, 1986, 174 (“The same authority that can incidentally benefit religion by the exercise of legitimate powers may also injure religion. A power to help is also a power to hinder or harm... Those who clamor for additional government support of religion should beware of the risks to religion from government entanglements.”); J. E. Wood, Jr., Government Intervention in Religious Affairs: An Introduction, in: J. E. Wood, Jr./D. Davis (eds.), The Role Of Government in Monitoring and Regulating Religion in Public Life, 1993, 1 (5) (“while the concern of the Founding Fathers was primarily over the possible domination of the state by the church, today there is increasing concern... over the domination of the church by the state.”); I. C. Lupu/R. W. Tuttle, Historic Preservation Grants to Houses of Worship: A Case Study in the Survival of Separationism, B.C. L. Rev. 43 (2002), 1139 (Invoking a principle of Religion Clause symmetry — what the government may regulate it may also subsidize and vice-versa).
Title VII of the federal Civil Rights Acts explicitly allows religious organizations to discriminate on religious grounds in employment (42 U.S.C. 2000e-2(e)(1)(§702(e)(2))). See, e.g., Corp. of the Presiding Bishop of the Church of Jesus Christ v. Amos, 483 U.S. 327 (1987) (“Section 702 served a permissible secular purpose by minimizing government interference with a religion’s decision-making process.”).
A prominent example is the French Article 1 of the Act on the Application of the Principle of Laicisim of March 15 2004 (amending the Code of Education): “In public schools, colleges and high schools the wearing of insignia or dresses by which the students manifest their adherence to a religion is prohibited.” In the US, applying the view that the Establishment Clause does not prohibit government aid to religion if the aid is “neutral” (see note 2 supra) mitigates — but not eliminates the — the harm to freedom of religion that results from the church-state separation.
See S. D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the “No Endorsement Test,” Mich. L. Rev. 86 (1987), 266 (277) (“government might acknowledge that many individual citizens care deeply about religion and that the religious concerns of such citizens merit respect and accommodation by government.”); M. S. Paulsen, Religion, Equality, and the constitution: An Equal Protection Approach to Establishment Clause Adjudication, ND L. Rev. 61 (1986), 311 (Denying financial benefits to religious institutions is accounted as disparaging them); J. Edelstein, Zelman, Davey and the Case for Mandatory Government Funding for Religious Education, Ariz. L. Rev. 46 (2004), 151 (The government should be mandated to fund religious schools equally with public schools); G. Sapir, Religion and State — A Fresh Theoretical Start, Notre Dame L. Rev. 75 (1999), 579 (State support of religious activity is justified based on the important role of religion as an all-encompassing culture).
For a review of the scope of supplying religious services by the state in Israel see G. Sapir, Religion and State in Israel: The Case for Reevaluation and Constitutional Entrenchment, Hastings Int’l & Comp. L. Rev. 22 (1999), 617 (620–625); C. S. Liebman/E. Don-Yehiya, Religion and Politics in Israel, 1984; I. Englard, Law and Religious in Israel, Am. J. Comp. L. 35 (1987), 185; S. Shetreet, State and Religion: Funding of Religious Institutions — The Case of Israel in Comparative Perspective, ND J. L. Ethics & Pub. Pol’y 13 (1999), 421 (435–443); F. Raday, Religion, Multiculturalism and Equality: The Israeli Case, Israel Yearbook on Human Rights 25 (1995), 193.
For a discussion of the reality of internal cultural fissures in recent years see, e.g., M. Sunder, Cultural Dissent, Stan. L. Rev. 54 (2001–2002), 495 (Arguing that an approach which recognizes dissent within culture would prevent law from becoming complicit in the backlash project of suppressing internal cultural reform); A. Shachar, Multiculturalism Jurisdictions — Cultural Differences and Women’s Rights, 2001; S. Moller Okin, Is Multiculturalism Bad For Women? in: J. Cohen/M. Howard (eds.), Is Multiculturalism Bad for Women?, 1999 (“When liberal arguments are made for the rights of groups, special care must be taken to look at within-group inequalities... Moreover, policies aiming to respond to the needs and claims of cultural minority groups must take seriously the need for adequate representation of less powerful members of such groups.”); Raday (note 8) supra (A legal deference to discriminatory religious practices cannot be justified based on multiculturalism); G. Stopler, The Free Exercise of Discrimination: Religious Liberty, Civic Community and Women’s Equality, Wm. & Mary J. of Women & L. 10 (2004), 459.
See W. Zander, On the Settlement of Disputes about the Christian Holy Places, Is. L. Rev. 8 (1973), 331.
The members of the group wear ceremonial prayer shawls, read aloud from the Torah Scroll and pray aloud in a group, practices that are traditionally conducted only by men. See P. Chesler/ R. Haut (eds.), Women of the Wall: Claiming Sacred Ground at Judaism’s Holy Site, 2003.
See HCJ 633/05 The Armenian-Patriarchy of Jerusalem v. The Government of Israel. The Court stated that the Government should mediate between the parties but rejected the petition to order the Government to implement a particular solution. The Court issued a similar decision in another conflict, which dealt with the Parvis of the Church of the Holy Sepulcher: HCJ 188/77 The Orthodox Coptic Patriarchate v. The Government of Israel, 33(1) P.D. 225.
HCJ 257/89 Hoffman v. The Rabbi in Charge of the Western Wall, 48(2) P.D. 265; HCJ 3358/95 Hoffman v. The General Manager of the Prime-Minister’s Office, 54(2) P.D. 345; FHCJ 4128/00 The General Manager of the Prime-Minister’s Office v. Hoffman, 57(3) P.D. 289. The Court based its decision to adjudicate the case by classifying it as referring to the petitioners’ freedom of access to the Wall Plaza, and thus subject to Section 1 of the Protection of Holy Sites Act, 1967 and not to Section 2 of the Palestine (Holy Places) Order, 1924 (see note 13 supra).
The Protection of Jewish Holy Sites By-Law, 1981.
A dispute regarding the interpretation of the religious norms of behavior in the site may indeed be viewed as non-justiciable. See, e.g., K. Greenawalt, Hands Off! Civil Court Involvement in Conflicts over Religious Property, Colum. L. Rev. 98 (1998), 1843 (Courts may settle disputes over church property, so long as they employ standards of interpretation that do not call for religious judgments.); P. Gerstenblith, Civil Court Resolution of Property Disputes Among Religious Organization, Am. U.L. Rev. 39 (1990), 513 (In the resolution of internal religious disputes courts must apply a “truly neutral” set of legal principles); B. Roberts, The Common Law Sovereignty of Religious Lawfinders and the Free Exercise Clause, Yale L.J. 101 (1991), 211 (226) (“The model of a religious question doctrine,... help to illuminate the civil courts’ habit of refraining from inquiry into matters of religious law.”). Compare J. A. Goldstein, Is there a “Religious Question” Doctrine? Judicial Authority to Examine Religious Practices and Beliefs, Cath. U.L. Rev. 54 (2005), 497 (“Courts are barred from resolving normative questions about religion, such as the validity or truth of religious beliefs or the wisdom or efficacy of religious practices, but... [are allowed to resolve] positive religious questions, such as assessments of the content of religious doctrine.... [Courts] may determine, in the sense of making factual findings, what beliefs people hold and what practices they engage in.”).
See Zander (note 10) supra.
See, e.g., P. Lahav, Up Against the Wall: The Case of Women’s Struggle to Pray At the Western Wall in Jerusalem, Israel Stud. Bull. 16 (2000), 19 (Suggesting that the case of the WoW is an expression of Israel’s public general hostility to feminist causes).
Sapir (note 7) supra (Religion has an important role as an all-encompassing culture); A. C. Carmella, The Religion Clauses and Acculturated Religious Conduct: Boundaries for the Regulation of Religion, in: J. E. Wood, Jr./D. Davis (eds.) The Role of Government in Monitoring and Regulating Religion in Public Life, 1993, 21 (31–33) (“virtually all churches... engage in acculturated religious conduct.”)
See, e.g., I. Saban, Minority Rights in Deeply Divided Societies: A Framework for Analysis and the Case of the Arab-Palestinian Minority in Israel, N.Y.U. J. Int’l L. & Pol. 36 (2004), 885.
The status of non-Jewish religious entities (with the exception of the Druze) is mostly based on practices which were set under the British Mandate. See, e.g., Englard (note 8) supra, at 189–190; A. Rubin-Peled, Debating Islam in the Jewish State — The Development of Policy Toward Islamic Institutions in Israel, 2001; HCJ 963/04 Loyfer v. The Government of Israel, 58(1) P.D. 326 (The Government is not involved in the choice of the Patriarch of a Christian congregation). See also HCJ 7351/95 Nevoani v. The Minister of Religious Affairs 50(4) P.D. 89; HCJ 282/61 El Saroji v. The Minister of Religious Affairs, 17(1) P.D. 188 (An English translation of this judgment is available at www.court.gov.il).
The Government did not always keep this obligation, and on several occasions was compelled by the Supreme Court to supply equal support to non-Jewish religious activities. See, e.g., HCJ 200/83 Wattad v. Minister of Finance, 38(3) P.D. 113 (The Court upheld a policy of supporting only Jewish religious studies); HCJ 240/98 Adala v. The Minister of Religious Affairs, 52(5) P.D. 167 (The Court recognized the State’s duty to supply equal support to all religious activities); HCJ 1113/99 Adala v. The Minister of Religious Affairs, 54(2) P.D. 164 (The Court compelled the government to supply equal public funds to maintain Jewish and non-Jewish cemeteries).
See Zander (note 10) supra; W. Zander, Jurisdiction and Holiness: Reflections on the Coptic-Ethiopian Case, Isr. L. Rev. 17 (1982), 245.
See, e.g., HCJ 5070/95 Na’amat v. The Minister of Interior, 56(2) P.D. 721 (752) (President Barak): “The Jews in Israel are not considered as members of one religious congregation.... Considering the Jews as a ‘religious congregatio is a Mandatory-Colonial approach. It is invalid in the State of Israel. Israel is not the state of the ‘Jewish congregation.’ It is the state of the Jewish people.”
Indeed, Section 2 of the Palestine (Holy Places) Order, 1924, that classifies conflicts over practices in sacred sites as non-justiciable (see note 13 supra), does not include an explicit exclusion for Jewish sites. In an early case the Court explicitly rejected the argument that this provision does not apply in the case of Jewish sacred sites: HCJ 222/68 Hoogim Leomyim v. The Minister of the Police, 24(2) P.D. 141. For this reason, Judge Englard decided, in a dissenting opinion, that the petition against the Rabbi in Charge of the Wall should be dismissed, as non-justiciable: FHCJ 4128/00 The General Manager of the Prime-Minister’s Office v. Hoffman, 57(3) P.D. 289 (330).
It should be noted that the Court’s decision in the case of the WoW generated fierce reactions from many Orthodox Jews in Israel, challenging the legitimacy of regulating freedom of religion for Jews through government intervention (see, e.g., Lahav, note 20 supra). However, these reactions did not translate into official decisions — such as changing the scope of government involvement in administering Jewish holy sites — and it is doubtful whether they signify any substantial shift in the prevailing perception regarding the level of trust in the government in this respect.
An interesting question is who should decide — the relevant religious congregation(s) or the government? The decision may (indirectly) affect the scope of government intervention in religious practices, in order to enhance the interests of some, who are typically the minority (or otherwise subaltern) among the members of the religion, at the expense of the majority. See, e.g., Okin M. Howard (eds.), Is Multiculturalism Bad for Women?, 1999 (note 9) supra (Accentuating the importance of adequate representation of less powerful members of minority groups).
See F. Raday, The fight against Being Silenced, in: P. Chesler/ R. Haut (eds.), Women of The Wall: Claiming Sacred Ground at Judaism’s Holy Site, 2003, 115 (Arguing that the “furious opposition and fanatical violence” against the attempt of the WoW to pray in their manner is based on “the desire of the Orthodox Jewish establishment to preserve religious patriarchal hegemony against the challenge of religious feminism.”); Lahav (note 20) supra (The position to the struggle of the WoW is another expression of the Israeli public’s general hostility to any feminist cause). See also L. Shakdiel, Women of the Wall: Radical Feminism as an Opportunity for a New Discourse in Israel, Journal of Israeli History 21 (2002), 126; R. Hirschl, Toward Juristocracy: The Origins and the Consequences of the New Constitutionalism, 2004, 67–68 (Classifying the case as a contest for cultural hegemony between a secularist-liberal elite and the Ultra-Orthodox community).
See R. Gavison, Feminism and the Public/Private Distinction, Stan L. Rev. 45 (1992), 1 (Arguing that the relevant distinction is not the public/private one, but a distinction between cases in which government intervention is justified and those in which it is not).
As indicated in note 5 supra, in the US, Title VII of the federal Civil Rights Acts allows religious organizations to discriminate on religious grounds in employment, even for non-leadership positions. By contrast, Article VI of the US Constitution states that “no religious Test shall ever be required as a Qualification to any Office or public Trust.”
The Supreme Court was willing to strike down the Chief Rabbinate decisions in this respect only when they were based on non-religious considerations, such as political ones: HCJ 47/82 The Progressive Jewish Movement in Israel v. The Minister of Religions, 43(2) P.D. 661.
For a similar view see B. Neuberger, Israel — A Liberal Democracy with Four Flaws, in: J. E. David (ed.), The State of Israel: Between Judaism and Democracy, 2003, 361 (365–376). See also Raday (note 8) supra at 227–230 (“...the Court’s rhetoric puts the balancing of religion and equality beyond the reach of secular rationality and subjects it to a religious analysis which silences... the very group whose rights are at issue.”)
For cases referring to women see, e.g. HCJ 953/87 Poraz v. The Mayor of Tel-Aviv, 42(2) P.D. 309; HCJ 153/87 Shakdiel v. The Minister of Religious Affairs, 42(2) P.D. 221 (An English translation of this judgment is available at www.court.gov.il). For cases referring to non-Orthodox Jews see HCJ 4733/94 Naot v. The Municipal Council of Haifa, 49(1) P.D. 111; HCJ 699/89 Hofman v. The Municipal Council of Jerusalem, 48(1) P.D. 678; HCJ 3551/97 Brenner v. The Committee of Ministers, 51(5) P.D. 754.
See, e.g., HCJ 4247/97 Meretz v. The Minister of Religious Affairs, 52(5) P.D. 241.
See, e.g., F. Raday, Israel — The Incorporation of Religious Patriarchy in a Modern State, International Review of Comparative Public Policy: Family Law and Gender Bias — Comparative Perspectives 4 (1992), 209; Raday (note 8) supra; Shetreet (note 8) supra; Neuberger (note 37) supra.
See HCJ 10296/02 Teachers’ Association v. The Minister of Education, in which the Supreme Court forced the government to implement the law that compelled every school that is publicly financed to comply with a plan of “core studies,” set by the state, aiming at ensuring a sufficient level of studies in areas such as democracy and tolerance, as well as mathematics, English, etc. See also S. Goldstein, The Teaching of Religion in Government Funded Schools in Israel, Is. L. Rev. 26 (1992), 36. Cf., E. A. DeGroff, State Regulation of Nonpublic Schools: Does the Tie Still Bind?, BYU Educ. & L. J. 2003 (2003), 363 (Whereas the states have well established authority to reasonably regulate nonpublic education, including religious education, the tendency is to de-regulate private schools or significantly lessen their level of oversight).
The “writ of refusal” (ktav seruv) does not have any formal status, but in certain religious communities it might trigger social excommunication. The Israeli Supreme Court ruled that the Rabbinical Courts are not authorized to issue such an order: HCJ 3269/95 Katz v. The Rabbinical Court of Jerusalem, 50(4) P.D. 590. This case reflects a fundamental dilemma in multi-culturalism and communitarianism. The competition that minority groups face from the dominant culture in general, and the forces of secularization in the case of religious groups in particular, may pose an existential threat to the minority’s culture and traditions. Thus, preserving the minority’s culture may justify legitimizing a limited coercion by the group towards its members. However, the community’s interest in preserving its culture must be weighted against the individual rights of the members of the community, which are reflected in recognizing the importance of ensuring a reasonable level of a right to exit from the communal coercion. The practice of social excommunication which is triggered by issuing a “writ of refusal” by the Rabbinical Courts substantially exceeds the limits of reasonable social pressure.
It is disputed whether a right to freedom from religion should be established, or does it suffice to recognize a person’s right that her freedoms are not infringed, regardless whether the “border-crossing” is based on religious or on “secular” norms. See, e.g., Sullivan (note 1) supra, at 197 (“The right to free exercise of religion implies the right to free exercise of non-religion”); M. Troper, Religion and Constitutional Rights: French Secularism, or Laicite, Cardozo L. Rev. 21 (2000), 1267 (“One cannot speak of the freedom of secularism... Because secularism is a characteristic of the state, one can say that freedoms are better guaranteed if the state is secular... It is, therefore, to be treated not as a civil right, but as a public freedom.”); D. Statman/G. Sapir, Why Freedom of Religion does not Include Freedom from Religion, Law and Philosophy (forth-coming) (“restrictions on liberty motivated by religious considerations do not violate, per se, any separate right beyond the regular rights granted in a liberal democracy.”). The term “freedom from religion” is used here to describe a person’s interest that her freedom is not infringed based on religious norms.
This issue is undecided. In several cases the Court rejected this assumption, based on an inquiry into the norms of the religious Jewish law: HCJ 6111/94 Ha’Vaad Leshomrey Masoret v. The Council of the Chief Rabbinate of Israel, 49(5) P.D. 94 (101); HCJ 5009/94 Meatrael v. The Council of the Chief Rabbinate of Israel, 48(5) 617 (627–628); HCJ 359/66 Gitia v. The Council of the Chief Rabbinate of Israel, 22(1) P.D. 290 (297–298); HCJ 44/86 The Butcheries Section in Jerusalem v. The Council of the Chief Rabbinate of Israel, 40(1) P.D. 4 (6).
HCJ 465/89 Raskin v. The Religious Council of Jerusalem, 44(2) P.D. 673 (Presenting “indecent” shows is irrelevant in deciding whether to issue kosher food certificate); HCJ 509/88 Machlof Bros. v. The Council of the Chief Rabbinate of Israel, 44(4) P.D. 617 (The scope of observance of Jewish law norms by the owners of the business is irrelevant in considering an application to issue a kosher food certificate); HCJ 5009/94 Meatrael Ltd. v. The Council of the Chief Rabbinate of Israel, 48(5) P.D. 617 (625); HCJ 7203/00 Aviv Osoblansky Ltd. v. The Council of the Chief Rabbinate of Israel, 56(2) 196 (Selling the nonkosher by-product of the business’ activity to other businesses is irrelevant); HCJ 3944/92 Marbek v. The Chief Rabbinate of Israel, 49(1) P.D. 278.
HCJ 77/02 Aviv Osoblansky Ltd. v. The Council of the Chief Rabbinate of Israel, 56(6) 249. See also HCJ 195/64 The South Company Ltd v. The Council of the Chief Rabbinate of Israel, 18(2) P.D. 324 (332).
It seems that this concern is unsubstantiated. In Israel, private issuers of kosher food certificates are considered by some congregations to be more reliable than the Chief Rabbinate certificate. For the practice in the U.S. see S.M. Sigman, Kosher without Law: The Role of Non-Legal Sanctions in Overcoming Fraud within the Kosher Food Industry, Fl. St. U. L. Rev. 31 (2004), 509.
According to a recent study, about two thirds of the Jewish population in Israel always eats kosher food: S. Levy, H. Levinsohn & E. Katz, Beliefs, Observances and Social Interaction among Israeli Jews, in C. S. Liebman & E. Katz (eds.), The Jewishness of Israelis, (1997), 3.
See, e.g., G. Sapir, Two Learned Scholars Among Us, Tel-Aviv U. L. Rev. 25 (2001), 189 (197–198) [in Hebrew].
Under a regime of non-Establishment of religion, such judicial involvement raises other concerns as well. In the U.S., the Courts invalidated kosher fraud statutes that require the State to refer to “Orthodox Hebrew religious requirements,” since such laws excessively entangle state and religion, and since these laws have the impermissible effect of advancing Orthodox Judaism. See, e.g., Commack Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415 (2nd Cir. 2002); Ran-Dav’s County Kosher Inc. v. New Jersey, 608 A.2d 1353 (N.J. 1992), cert. denied, 507 U.S. 952 (1993); Barghout v. Bureau of Kosher Meat & Food Control, 66 F.ed 1337 (4th Cir. 1995). For a discussion see, e.g., K. Greenawalt, Religious Law and Civil Law: Using Secular Law to Assure Observance of Practices with Religious Significance, S. Cal. L. Rev. 71 (1998), 781 (The state can be involved in enforcement against fraudulent assertions of selling kosher food only if there are no disagreements about religious standards); K. R. Lavy Lindsay, Can Kosher Fraud Statutes Pass the Lemon Test?: The Constitutionality of Current and Proposed Statutes, Dayton L. Rev. 23 (1998), 337 (Kosher fraud statutes are valid only if they require vendors of kosher products to display the basis for their assertion that the products are kosher, such that the government removes itself from having to determine whether the product is kosher); G. F. Masoudi, Kosher Food Regulation and the Religion Clauses of the First Amendment, U. Chi. L. Rev. 60 (1993), 667.
CA 294/91 Jerusalem Community Jewish Burial Society v. Kestenbaum, 46(2) P.D. 464; CA 6024/97 Shavit v. Rishon Lezion Jewish Burial Society, 53(3) P.D. 600 (An English translation of this judgment is available at www.court.gov.il).
Shavit (note 55) supra, para. 21.
Ibid., para. 17.
Englard, supra note 8, at 197. See also I. Englard, Law and Religion in Israel — the Historical-Philosophical Background, Tel-Aviv U. L. Rev. 19 (1995), 741 (757) [in Hebrew]; G. Sapir, The Boundaries of Establishment of Religion, Mishpat Umimshal 8 (2005), 155 [in Hebrew] (Arguing that whereas the state should support religious activities, a functional separation between the state and the supply of religious services must be maintained, in order to prevent state intervention in religious practices).
This view is supported by the historic research: Z. Zameret, Yes to a Jewish State, No to a Clericalist State: The Mapai Leadership and Its Attitude to Religion and Religious Jews, in: Z. Zmeret/ M. Bar-On (eds.), On Both Sides of the Bridge — Religion and State in the Early Years of Israel, 2002, 175 [in Hebrew].
I. Englard, Law and Religion in Israel — The Historic-Ideological Background, Tel-Aviv U. L. Rev. 19 (1995), 741 (758) [in Hebrew] (Quoting a revealing moment in the debate between Yishayahu Leibovitz with David Ben-Gurion in the 1950s, in which the then Prime Minister of Israel explicitly argued “you demand a separation of state and religion in order to revive religion as an independent element, with which the state should compete. I oppose such a separation — I want the state to keep the religion tight.”)
For instance, one of the explanations offered for the relative decline of religion in Europe and its flourishing in the US is the institutionalized nature of religion in many countries in Europe as opposed to the institutional separation in the US. See, e.g., G. Davie, Europe: The Exception that Proves the Rule?, in: P. L. Berger (ed.), The Desecularization of the World: Resurgent Religion and World Politics, 1999, 65 (78–79). For an opposing view see McConnell (note 2) supra (Arguing that religion has been “shoved to the margins of public life” in the US, as a result of, among other things, the Supreme Court’s policy of “too often excluding religion from public programs in the name of preventing establishment.”).
For a discussion of the proper scope of tolerance toward religious practices see, e.g., J, R. Beattie, Jr., Taking Liberalism and Religious Liberty Seriously: Shifting Our Notion of Toleration from Locke to Mill, Catholic Law 43 (2004), 367 (Intolerance toward intolerant religious practices is justified only when there is imminent harm to others); P. Schuck, Diversity in America: Keeping Government at a Safe Distance, 2003 (Supporting a greater legal deference to religious practices); M. A. Hamilton, Religious Institutions, the No-Harm Doctrine, and the Public Good, B.Y.U.L. Rev. 2004 (2004), 1099 (Religious conduct that harms others must be capable of being regulated). See also J. Habermas, Intolerance and Discrimination, Int’l J. of Con. Law 1 (2003), 2 (Tolerance based on mutual recognition and mutual acceptance of divergent worldviews allows religions and democracy to coexist in a pluralistic environment).
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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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Medina, B. (2007). Does the Establishment of Religion Justify Regulating Religious Activities? — The Israeli Experience. 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_9
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