Liberalizing the Law in the Land of the Lord: Limits to the Americanization of Israeli Religious Jurisprudence

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ABSTRACT

This Note presents an analysis of American and Israeli constitutional jurisprudence concerning matters of religion. Recently, there has been a shift in Israel's High Court of Justice toward implementing values of individual rights and religious pluralism. Some have analogized this shift in focus to the role played by the U.S. Supreme Court. However, fundamental differences remain between the American and Israeli approaches, stemming from divergent conceptions of national identity encapsulated in the states" respective foundational legal documents.

This Note examines the interplay of national identity and religious jurisprudence and its effect on individuals" legal rights. In doing so, it demonstrates how the legal entwinement of religion and state will prevent Israel from fully implementing American norms regarding matters of religion.

TABLE OF CONTENTS

I.   INTRODUCTION
II.  ORTHODOX JUDAISM IN ISRAELI SOCIETY
     A. Orthodox Judaism 's Privileged Position
        in Israel
     B. The Erosion of Orthodox Judaism's
        Privileged Position
III. THE TANGLED WEB OF LAW, RELIGION, AND
     IDENTITY
     A. Conceptions of National Identity
        1. American National Identity
        2. Israeli National Identity
     B. National Identity as a Reflection of Social
        Conditions
        1. American Pluralism
        2. Israeli Pluralism
IV. RELIGIOUS JURISPRUDENCE AS A REFLECTION OF
    NATIONAL IDENTITY
    A. American Separation of Religion and State
       1. Free Exercise Clause
       2. Establishment Clause

     B. Israeli Entwinement of Religion and State
V.   LIMITS TO LIBERALIZING THE LAW IN ISRAEL
VI.  CONCLUSION

I. INTRODUCTION

In July 2012, Israel's largest coalition government in recent history fell apart over the failure of Israel's Parliament, the Knesset, to enact an alternative to the Tal Law, which granted military draft deferments to Orthodox Jews (1) enrolled full time as yeshiva (religious school) students. (2) The controversy over military service stemmed from a decision by the High Court of Justice (3) (the High Court) that found the deferment arrangement illegal and gave the Knesset twelve months to fix the situation. (4) The decision sparked a divisive national debate about the place of religion in Israeli society, as well as the proper role of the High Court over religious issues. (5) Orthodox leaders voiced vehement opposition to the Israeli legal system. Rabbi Ovadia Yosef, spiritual leader of the Orthodox political party Shas, claimed that Israeli judges "hate the Torah." (6)

Clashes between Orthodox Jews and the High Court did not begin with the Tal Law. Orthodox animosity stems from the judicial system's role as a mechanism for changing the relationship between religion and state within Israel. (7) Beginning in the 1980s, the High Court became increasingly willing to intervene in matters not previously considered appropriate for judicial review and began deciding issues on the basis of individual rights, including freedom of religion. (8) Numerous High Court cases helped to erode the privileged position occupied by the Orthodox establishment by virtue of its status as the sole official religion of Israel's Jewish population. (9)

In its promotion of liberal individualistic values, the High Court increasingly utilized American precedent. (10) This led a number of commentators to refer to the "Americanization" of Israeli law. (11) However, the High Court faces severe limitations in its ability to adopt an American approach to matters of religion. This Note compares American and Israeli judicial approaches to the matter of religion and state in order to illustrate the means through which the High Court can change the religious status quo and the many impediments to it doing so.

Examining American and Israeli religious jurisprudence demonstrates how the two nations differ with respect to the relationship between religion and state and how that relationship affects and is affected by divergent conceptions of national identity. …