Landmark ruling to allow non-Orthodox converts access to all mikva’ot
The recent unanimous ruling of the Supreme Court is an important addition to the chain of rulings that uphold the principles of religious freedom and equality. Its importance is not only to the matter at hand, ordering the public mikva’ot, or ritual baths, to allow immersion for non-Orthodox converts, but also for future litigation over matters of religious freedom and equality.
On the other hand, a close look at the ruling reveals that it is far more complex than caught the attention of the press.
Also, while the legal saga is over (10 years after it commenced!), a new front, far more vicious and perilous, has emerged. The Chief Rabbinate and ultra-Orthodox politicians are gearing up to fight back and prevent the implementation of this ruling, as they launch a campaign to further undermine the Supreme Court and demonize the non-Orthodox movements.
1. The state could have avoided this ruling
The ruling orders the Beersheba Religious Council to allow prospective Reform and Conservative converts access for ritual immersion. Similar access should be allowed, stipulates the ruling, at all public mikva’ot where immersion of converts is conducted, but it would not have taken much for the court to have decided differently. In the course of the deliberations the justices repeatedly urged the state to offer a pragmatic solution, but the state’s and religious authorities’ uncompromising mindset and obfuscation of the facts led the court to hand down such a strong ruling.
The media’s reporting focused on the principles of equality and religious freedom, as reiterated in the ruling. Such statements included: “We state the fundamentals – the principle of equality is one of the core principles of our legal system – its roots are deeply embedded in our identity as Jewish and democratic state... once the state has established public mikva’ot and made them available to the public... it cannot practice discriminatory policy in using them...,” etc. This is praiseworthy, but the justices would not have refrained from severely limiting these principles if the state’s religious authorities had just made the mikva’ot in Modi’in and Omer available, in addition to the Conservative mikva at Kibbutz Hannaton.
Chief Justice Naor wrote: “We held that it would be desirable to find a pragmatic solution to answer the problem raised by the appellants. A solution that would render a legal decision unnecessary in matters that tend to split the public. At times there are many advantages to pragmatic solutions that do not require that ‘justice pierce the mountain.’ ...[I]f mikva’ot were available within a reasonable driving distance, it might have been sufficient.”
This is much like the Kotel compromise, in which the haredi (ultra-Orthodox) rabbinic and political leadership feared the court might allow the Women of the Wall to pray in the space of the traditional Kotel plaza. The “alternative Kotel” compromise exempted the Orthodox authorities from accommodating the women and non-Orthodox movements. In the case of the Kotel, Prime Minister Benjamin Netanyahu and Attorney-General Avichai Mandelblit could come up with an alternative, never controlled by the Orthodox rabbinate, but in the case of the mikva’ot all locations are controlled by the rabbinic establishment, and they weren’t willing to make any compromises.
2. Counter-legislation already in the works, but will it do the trick?
The haredi politicians are already gearing up to pass counter-legislation that will explicitly subject the function of the mikva’ot to the Chief Rabbinate. Their assumption is that this could block the ruling’s implementation. However, will it do the trick, and at what price to the erosion of Israel’s core democratic principles? The state had already argued, in trying to justify the discrimination, that the law requires Religious Councils to abide “by the rulings of the rabbinate.” But the court rejected this argument, stating that the law “cannot make kosher” the exclusion of non-Orthodox converts from public mikva’ot, because “the rabbinate is not authorized to establish a discriminatory policy....”
3. This ruling has nothing to do with whether the Supreme Court accepts non-Orthodox conversions
While some may interpret the ruling as giving credence to further legal acceptance of non-Orthodox conversions, the ruling explicitly makes a distinction between legal recognition of non-Orthodox conversions, which has been pending before the Court for some years, and the exercise of religious freedom. Rubinstein alludes to his preference for universal conversion norms in Israel that would be acceptable to all, namely Orthodox ones! He writes, “When a person wishes to immerse... why deny him that, so long as there is no – unfortunately, as far as I am concerned – state conversion acceptable to all?” In conclusion A careful review of this landmark ruling’s details reveals its complexity and the court’s reluctance to pursue all-encompassing principles when pragmatic solutions can be found. The state’s and religious establishment’s obstinacy and truth-withholding forced the court “to do the right thing.” Yet the ruling itself hints to the uncertainty lying ahead, as to the substantive recognition of non-Orthodox conversions performed in Israel. This is becoming the battleground for a larger state/religion clash, which reflects the Orthodox establishment’s animosity toward non-Orthodox Judaism and its deeply rooted rejection of the rule of law and democracy, as articulated by MK Rabbi Moshe Gafni: “The Supreme Court declared war on the Torah. It will not cease and will not rest until it destroys and decimates Judaism in the country such that, God forbid, nothing will be left. We will put up a battle and fight against it.”
This battle, to undo the Supreme Court ruling in the desire to undermine the Supreme Court and block religious pluralism, has now been publicly waged jointly not only by the haredi Shas and United Torah Judaism parties, but also together with the Zionist Orthodox Bayit Yehudi Party!
Israeli policymakers and Diaspora leadership should understand this as a test of Israel’s democratic character, for we cannot afford to lose this battle, and, for the sake of ensuring Israel’s future, it cannot be avoided. Such was also the conclusion of Israel’s first president Chaim Weitzman, as he stated: “There will be a great struggle. I foresee something which will be perhaps reminiscent of the Kulturkampf in Germany, but we must be firm if we are to survive.”
The author, a rabbi and attorney, heads Hiddush – Freedom of Religion for Israel, an Israel-Diaspora partnership for religious freedom and equality.