Suzanne Last Stone, a former research fellow of the Hartman Institute’s iEngage Project, is University Professor of Jewish Law and Contemporary Civilization, Professor of Law, and Director of the Center for Jewish Law and Contemporary Civilization at Benjamin N. Cardozo School of Law, Yeshiva University. She has held the Gruss Visiting Chair in Talmudic Civil Law at both the Harvard and University of Pennsylvania Law Schools, and also has visited at Princeton, Columbia Law, Hebrew
By SUZANNE LAST STONE
When all is said and done, High Courts are not solely articulators of the law; they are guardians of their nations’ history and future. And, occasionally, a Supreme Court renders a decision that comes to be seen as a defining moment in the life of the nation. In the United States, Brown v Board of Education was just such a decision. It is much too early to tell whether the Israeli Supreme Court’s recent decision overturning the Tal Law could be such a decision, but it is certainly a candidate.
Both decisions rested on critical understandings of the principle of equality, shaped in light of the history and character of their respective nations. The Brown Court declared emphatically that ‘separate but equal’ is not equal. The Israeli High Court declared emphatically that the principle of equality requires equal sharing of the burdens of defending and maintaining a state. The Tal law, by permitting yeshiva students to defer service until age 23, merely perpetuated a wholesale exemption of the haredi community from army and national service.
In the wake of the decision, the Israeli public sphere has been vigorously debating whether the haredi exemption should be continued or whether the haredi sector should be compelled to serve and, if the latter, under what terms. Should they be required to do full military service? Should they serve in special brigades, such as the Nahal Haredi? Or should they be compelled only to do national service?
To be sure, some of the arguments rehearse old battles over the soul of the state as secular or religious. But, reading between the lines, the debate is far less about religion versus secularism per se and far more about the political vision of the state. What are the values that should inform a Jewish national culture?
Three distinct sorts of arguments are in the air – divided along the themes of assimilation, segregation, and accommodation. The assimilationists argue that drafting the haredi population is essential in order to integrate them into Israeli society as quickly as possible. The army, in this view, is an instrument of nation-building: a path to assimilating individuals from minority cultures into the dominant national culture, much as the public schools are seen in the United States.
Genuine integration implies that no special accommodations to haredi sensitivities should be granted. For the assimilationists, the religious objections to military service articulated by the haredi sector are not all that weighty because they rest on what is seen as ‘way of life’ claims rather than religion per se. For, after all, religious Jews serve in the Israeli army and armed forces elsewhere. Accordingly, haredim should serve in military units alongside the rest of the citizenry and under the same conditions.
By being forced to serve in such a pluralistic setting, it is often further claimed, the haredi population also will learn to be more tolerant of other life paths, whether religious or secular. In other words, they will assimilate into a majority culture that aspires to promote pluralism as a national value. This last bit of the argument is deeply paradoxical, of course. For, in the name of the value of pluralism, a different way of life – the haredi one – has to be suppressed.
In contrast, several voices in the public sphere argue strongly for continuing the exemption. They point to the special political character of Israel as a state that has always valued the rights of distinct sub-groups. Indeed, Israel generally has organized itself to make room for a certain amount of subgroup autonomy, given the vastly disparate ethnic and religious groups residing as citizens within its borders.
Those who argue in favor of continuing the haredi exemption are, in one sense, more sensitive to the harm inherent in forced assimilation. After all, the modern crisis of Judaism began with the assimilation of Jews into Europe’s nation-states and the refusal to grant them the status of a sub-group within the nation.
But such exemptions from compliance with the basic laws and organization of the nation-state invariably come with a price: the exempted group is seen as essentially an outsider, permitted to pursue their way of life only so long as they continue to segregate themselves from the majority. In the United States, for example, only once has the Supreme Court recognized a group’s right to preserve a comprehensive way of life.
The Court granted the Amish an exemption from a state law requiring school attendance through age 16. It was precisely the marginality of the Amish that accounted for the decision. Their total isolation made it possible to view them as essentially a separate political formation outside the order of the civil state and hence no threat to its sovereignty and homogeneity.
The initial haredi exemption granted to a tiny group assumed on the verge of extinction, reflected this logic. The haredi sector is no longer a marginal group, however. Yet, among those who espouse continuing the exemption, marginalizing the haredi sector de jure, if not de facto, plays a role. For, increasingly voices are heard arguing that the price the haredi sector must pay for pursuing its way of life is precisely segregation, including living in separate spaces from the rest of the population.
The High Court’s decision offers yet a different model of the character and commitments of the state and its deepest values. The Court stressed the importance of equality: the equal sharing of burdens. This argument appeals to social justice. Indeed, the High Court’s decision seems to be a direct outgrowth of the cry for social justice heard at the summer protests.
The summer cry for social justice may have been formulated originally in economic terms – lower prices on food, affordable housing, and the like – but the underlying issue generating the protests was and is the disproportionate burdens placed on one segment of the population to carry the full burdens of citizenship: army service, productive work, and payment of taxes.
An argument resting on equal sharing of burdens, however, is fully compatible with accommodation to the religious sensitivities of the haredi sector. Performing acts of service are fully compatible with the haredi vision of itself. Indeed, the haredi sector often points to organizations such as Zaka, Yad Eliezer, and Yad Sarah as models of its service to the general population.
To design haredi army and national service that is not merely symbolic and does not, in turn, require further sacrifice from those who already serve is no easy task. But it is not impossible. The haredi brigade established by the Tal law itself was an important step in that direction.
Among the many antinomies the Jewish tradition struggles over, the co-existence of Jewish unity with Jewish diversity is perhaps the most vivid and historically persistent. Lo titgodedu – the command not to form sects – and the exhortation not to allow disputes to split the nation is in obvious tension with the value of the pursuit of halakhic truth through vigorous controversy and dissent.
Unified practice – for the sake of Jewish unity – can take precedence even over an opinion vouchsafed by a divine voice, as the famous story of the Oven of Akhnai affirms. Requiring the haredi sector to perfrom acts of service to the nation while at the same time pursuing solutions that accommodate its distinctive vision of Judaism respects this longstanding Jewish struggle.
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