Protecting the secular minority

After a decade of foot-dragging on the part of politicians, the High Court of Justice on Thursday backed a Tel Aviv Municipality decision to allow a limited number of businesses (about 160) operating in predominantly secular neighborhoods to remain open on Shabbat.

The decision was a victory for those who favor the empowerment of local government over the heavy-handed meddling of the Knesset and the cabinet. It was a recognition that the State of Israel is a mosaic of very diverse communities – some religious some not, some Jewish some not – that have a right to determine for themselves how their day or rest is observed on the municipal level. They also are empowered to decide whether or not pork can be sold or how to decorate local streets on Hanukka or Christmas.

These are decisions best left to municipalities because they depend on the local character of cities and towns across the nation. Municipalities pass bylaws that reflect their unique demographics and cultures.

Towns with large haredi populations are, and should be, different from more secular towns with large secular populations. Bnei Brak or Betar Illit are not Beersheba, Nazareth is not Moshav Nahalal.

Yet many of the haredi and Modern Orthodox politicians who attacked the High Court for empowering local government claimed to be speaking for the “majority.” Moshe Gafni (United Torah Judaism), chairman of the powerful Knesset Finance Committee, echoed the sentiments of Shas lawmakers such as Interior Minister Arye Deri and MK Michael Malkieli when he said that the High Court was “out of touch with the people.”

We ask, which people? Gafni, Deri and Malkieli surely are not the representatives of the average resident of Tel Aviv, who might respect Shabbat as a Jewish symbol but who is probably not committed to Orthodox Jewish laws governing what can and cannot be done on the day of rest.

Shas and UTJ enjoy the support of the rapidly growing haredi population or, in Shas’s case, large swaths of Israelis who might not be Orthodox in practice, but who accept Orthodoxy as the only legitimate expression of Judaism.

Even less convincing was the claim put forward by Health Minister Ya’acov Litzman (UTJ) that the court decision discriminated against the haredi population or, as Agriculture Minister Uri Ariel of the Tekuma faction in Bayit Yehudi would have us believe, that it heralded a domino effect in which the Shabbat would be trampled across the nation.

Rather the decision, which was handed down as Supreme Court President Miriam Naor prepares to step down, was an affirmation of what Naor referred to as a “live and let live” approach based on geography. It was a decision that was handed down only after Interior Minister Deri refused to take a stand on the opening of businesses in Tel Aviv. Deri, the politician par excellence, knew that no matter what he did he would lose: backing the municipality would make him complicit in Shabbat desecrations in the eyes of his constituents; opposing the municipality would expose him to charges of religious coercion against Tel Aviv, the bastion of secularism.

Naor’s decision is a recognition that Israel is diverse and that the unique character of Tel Aviv should be reflected in its bylaws as determined by local government officials voted into power in democratic elections.

Haredi and religious lawmakers are not listening to reason, however. They are using Naor’s purported “anti-religious” decision as an opportunity to undermine the judicial branch. Taken together with populist forces on the Right, who oppose the Supreme Court’s interference on issues such as immigration and settlements, the offensive on the judicial branch represents a formidable threat to the rule of law and the democratic balance of powers. As long as the State of Israel lacks a constitution that protects minority rights, a strong High Court is essential in order to prevent the tyranny of the majority.

The government is a reflection of the majority in Israel, which is becoming increasingly right-wing and religious. But this majority should not be dictating to the Tel Aviv Municipality how to observe Shabbat. Tel Aviv has a secular majority that enjoys secular cultural pursuits, and its rights should be respected. The High Court was right to step in to protect this minority by reaffirming the autonomy of local government.