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What We Can Learn About Equality and Religion From a Recent Israeli Supreme Court Decision on Military Service

Last month, the Supreme Court of Israel ruled that a law exempting ultra-Orthodox Jews from military service unconstitutionally denies equality of treatment to other Israelis, who must serve in the military (or perform alternative service if they are conscientious objectors).  The case is doubly important in Israel, as it touches on two of the country’s major sources of political contention: military matters, and the growing conflict between ultra-Orthodox and other citizens.

But the ruling is also instructive here in the United States because analysis of the lead opinion holds potential lessons that are relevant to two legal issues that have lately been much in the news:  How should courts evaluate laws that confer special benefits on minorities?  And when should people and institutions be exempted from legal requirements based on religious objections?

In this column, I shall describe the ruling and then explore its implications for U.S. debates.

Ultra-Orthodox Jews and Military Service in Israel

Although some number of Jews have lived in what we now call Israel for millennia, the modern State owes its existence chiefly to the Zionist movement of the Nineteenth Century.  That movement was basically secular, aiming to create a national homeland for a persecuted, stateless people.  But the waves of Jews who came to British Mandate Palestine and, after 1948, to Israel, brought with them their religious beliefs and customs.  Some were secular; others were religious; and a relatively small number were extremely religious.

Ultra-orthodox Jews—also called “haredim”—are not forbidden by their religion from performing military service, but for most of its existence, Israel nonetheless exempted them from such service, for several reasons.

Haredi women typically marry and have children at an early age and for cultural, if not strictly religious, reasons, do not understand military service as appropriate to their sex.

Meanwhile, ultra-orthodox men observe religious and cultural rituals that create challenges for integrating them into ordinary military units, even units that include other religiously observant (but not ultra-orthodox) soldiers. In addition, haredi men believe that studying religious texts is a better, Godlier, use of their time than performing military or alternative service. They sometimes say that by studying and praying, they contribute to the national defense by ensuring Divine protection.

So long as the haredi community in Israel was small, exempting them from military service was relatively costless.  It was also seen by some Israeli political leaders—including David Ben Gurion, the first Prime Minister—as a fitting means to rebuild a community that had been nearly wiped out by the Nazis.

But now, with a birth rate much higher than the rest of the country, the haredi population in Israel has grown to over half a million.  Most haredim do not work, instead spending their time in religious studies, while living on government subsidies.  As the demands for government aid have increased, secular and other non-haredi Israelis have come to question a set of legal arrangements that gives haredim substantial benefits while exempting them from a basic obligation that most other Israelis must shoulder.

The Tal Law and the Court’s Decision

In response to growing concern about the haredi exemption from military service, in 2002 the Knesset, Israel’s parliament, passed the Tal Law (named for the Supreme Court Justice who chaired the committee that proposed it).  The Tal Law gave 22-year-old haredi men the option of continuing their religious studies or performing a shortened version of military or alternative service.  The law sunsetted after five years but was renewed, even though the Israeli Supreme Court had already found that it violated the principle of equality.  However, the Court delayed implementing that 2006 decision, in the hope that, over time, the Tal Law might be implemented in a way that comported with equality.

Last month’s ruling in the Ressler case dropped the other shoe.  There does not appear to be an official English-language version of the full opinion, but the Israeli Supreme Court did release an official English summary.  The Court divided 6-3, with the lead opinion written by Court President (Israel’s equivalent of Chief Justice) Beinisch, in one of her very last official acts before retiring.

Israel does not have a full constitution, but since the Israeli Supreme Court’s decision in the pathbreaking Mizrahi Bank case, the Court has reviewed laws passed by the Knesset for conformity with the country’s Basic Laws.  The most important such Basic Law protects human dignity, which, the Court has said, includes an element of equality.  Accordingly, the issue in the Ressler case was whether the continued exemption of most haredim from military service, under the Tal Law, was consistent with equality.

The Court said it was not.  Israeli constitutional law—like the constitutional law and human rights law of most of the democratic world—asks judges to determine whether a law that infringes on a right is “proportional” to proper government objectives.  In Ressler, President Beinisch concluded for the Court that the small number of haredim electing to perform military or alternative service showed that the Tal Law had failed in its objective of using voluntary means to substantially increase haredi contributions to national defense.  Thus, the Court held that the law failed the proportionality test, and the Knesset will now need to draft a new law that more aggressively recruits haredim into the military.

Implications for American Debates Over Affirmative Action

The Ressler decision is important in its own right, of course, but it also holds potential lessons for Americans.  One such lesson concerns the judicial evaluation of laws that benefit minority groups.  Israeli Supreme Court Justice Grunis, dissenting, argued that the Court should not strike down the Tal Law because it was an instance of the non-haredi majority’s enacting legislation that favored the haredi minority.  The point of judicial review, Justice Grunis implied, is to protect minorities against the tyranny of the majority.  In contrast, if a law is seen to unfairly advantage a minority, the majority can use the political process to correct that perceived unfairness.  Thus, judicial intervention is unnecessary.

President Beinisch offered two main responses to Justice Grunis’s point.  First, she observed that the principle of equality protects individuals, not groups.  A majority of non-haredi Israelis could think it appropriate to exempt haredim from military service, but that exemption might still be unfair to the remaining non-haredim who resent and oppose the difference in treatment, and who must serve in the military when haredim need not do so.  In this regard, President Beinisch’s response echoed the argument that our own Supreme Court has made in subjecting race-based affirmative action programs to exacting judicial scrutiny: The right to equal protection of the laws is an individual right, the Justices have often said.

Second, President Beinisch challenged the assumption that haredim lack political power, relative to non-haredim.  She noted that in Israel’s parliamentary system of government, relatively small minority groups that vote as a bloc can leverage their position to take part in governing coalitions. And, as a result, a majority on any given issue may not, in fact, be able to eliminate a preference for a politically savvy, cohesive minority.

In the United States, this observation has sometimes been offered as a critique of the Supreme Court’s equal protection case law, which treats “discrete and insular minorities” as especially vulnerable in the political process.  Sometimes such minorities are, indeed vulnerable, but even in our separation-of-powers system, well-organized minorities—often derogatorily called “special interest groups”—may be very good at using the political process to their advantage, and to the disadvantage of diffuse majorities.

Thus, President Beinisch’s opinion may be seen as broadly sympathetic with American Supreme Court opinions and legal commentary that are skeptical of race-based affirmative action.  She offers a pair of rationales that tend to cut against the idea that equality jurisprudence should draw any sharp distinctions between laws that advantage majorities at the expense of minorities and laws that do the opposite.  Her opinion, in other words, seems to lend support for the position that goes under the banner of “color-blindness” in the United States.

Yet President Beinisch’s opinion in Ressler does distinguish between minority-advantaging and minority-disadvantaging legislation.  She says that both sorts of inequality must be scrutinized by the courts, but that the direction of the discrimination should properly affect the character of judicial scrutiny.  In that respect, her approach is closer to the approach taken by those American Justices who would subject affirmative action programs to less rigorous scrutiny than they would apply to laws disadvantaging minorities.

The real point, however, is not that the Ressler case supports one or the other side in an American debate.  The real value of reading the case is the understanding that always comes from comparative law: By seeing how different arguments fit into a different legal system, one can come to see the contingency of one’s own convictions.  Here in the U.S., we tend to view the argument that minorities sometimes exercise substantial political power as having a conservative valence, but that is mostly an accident of our own history.  In contemporary Israel, the same argument is being used by the more liberal members of the Supreme Court.

Implications for the Debate Over Religious Exemptions

The Ressler decision also sheds light on the current American debate about religious exemptions.  Lately, political conservatives have been arguing that religiously-affiliated institutions and individuals ought to be permitted to opt out of legal requirements that conflict with their religious values.  The issue has arisen in a number of contexts, but most recently, it has been raised when people claimed religious objections to taking any actions that might appear to condone same-sex marriage; and when certain religiously-affiliated institutions sought an exemption from the obligation to offer employees health insurance that covers contraception.

Interestingly, the Ressler case illustrates the extreme nature of the “religious freedom” position in the contemporary American debate.

Under the 1990 Supreme Court ruling in Employment Division v. Smith, Americans have no federal constitutional right to be exempted from general laws.  For example, if a law forbids peyote use (as the law in the Smith case did), or forbids discrimination against same-sex couples who are seeking to marry, or mandates insurance coverage for contraception, no one may successfully claim a Free Exercise Clause violation if he or she uses peyote for a religious sacrament or believes, on religious grounds, that same-sex marriage or contraception is immoral.

But even though the U.S. Supreme Court in Smith ruled that religion-based exemptions from general laws are not constitutionally required, no Supreme Court case has ever held that such exemptions are forbidden.  Thus, state constitutions, and state and federal statutes, offer religious persons, institutions, and activities numerous exemptions from general laws—and nearly all of these exemptions will readily survive any constitutional challenge.

By contrast, the Ressler case holds that a religious exemption from a general law (Israel’s military service law) is unconstitutional.  In principle, therefore, the Supreme Court of Israel appears to be enforcing a substantially more robust separation of church (or synagogue) and state than we see in the United States.

Accordingly, American conservative politicians who complain that President Obama and others are conducting a “war on religion” are making a seriously exaggerated claim.  American laws routinely grant religious exemptions, including exemptions from laws involving same-sex marriage and contraception insurance; these exemptions simply happen to be less generous than some religious conservatives would like.

Meanwhile, American constitutional law does not scrutinize religious exemptions as closely as Israeli constitutional law does—even though Israel is officially less secular than the United States.  Israel is a “Jewish state” not only in the sense that it is a homeland for Jews, but also in the sense that Jewish religious authorities exercise government power in various matters such as family law.  Even Christian and Muslim religious authorities exercise some state power over Israeli Christians and Muslims, respectively.

Hence, the Ressler case belies the notion—now touted by a number of Republican presidential candidates—that the United States has become hostile to religion.  In fact, U.S. law—which enjoys broad bipartisan support on this point—is friendlier to the notion of religious exemptions than even the law of Israel, a country that does not even officially require the separation of church (or synagogue or mosque) and state.

Michael C. DorfMichael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at DorfonLaw.org.
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  • http://www.facebook.com/profile.php?id=1445770875 Kathryn Jean Stevens

    I like fair and equal treatment for all, but in this case the minorityshould understand their lives are in danger  too, they should willing to do their share or they might die/Then who will pray for their country/ Religion and safty have to be 2 great goals ( My Father once said, Pray like it all depends on God, and work like it all depends on me (a thought) good luck

  • http://www.facebook.com/profile.php?id=1445770875 Kathryn Jean Stevens

    I like fair and equal treatment for all, but in this case the minorityshould understand their lives are in danger  too, they should willing to do their share or they might die/Then who will pray for their country/ Religion and safty have to be 2 great goals ( My Father once said, Pray like it all depends on God, and work like it all depends on me (a thought) good luck

  • Anonymous

    This piece is very well argued.  I’m not a legal professional and this exercise in comparative constitutional law is my first foray.  I’d love to see more international legal discussion of this sort.

  • Anonymous

    This piece is very well argued.  I’m not a legal professional and this exercise in comparative constitutional law is my first foray.  I’d love to see more international legal discussion of this sort.

 

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