If the High Court cannot judge religious matters - Haaretz

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Thu., October 25, 2007 ,

Israel Time: 02:56 (EST+7)

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If the High Court cannot judge religious matters

By Haaretz Editorial

If the "Consensual Constitution" that Prime Minister Ehud Olmert promised to pass this year, along with the compromise that prevents the High Court of Justice from intervening in matters of religion, are both accepted, then the courts will be unable to save the country from examples of blatant religious coercion, as it did yesterday.

In a ruling written by Supreme Court Justice Eliakim Rubinstein, the High Court of Justice ordered the Chief Rabbinate yesterday to replace the rabbis who are not willing to accept the heter mechira, or sale permit, arrangement. That arrangement - which has been accepted in the Land of Israel for the past 120 years - allows the sale of the land to a non-Jew during the shmita, or sabbatical, year in order to permit the sale of produce grown in Israel.

This is an excellent example of the High Court of Justice's contribution to allowing normal life in Israel, and also shows that there is no chance to separate religion from the state in the foreseeable future.

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Every attempt to prevent the Supreme Court from handling matters of kashrut, Shabbat, marriages, personal matters, citizenship and the authority of religious courts - and to declare in a future constitution that they are matters outside the court's purview - will interfere with the possibility to live modern, secular lives here in Israel; and most citizens - including quite a few religious ones - do not want to live their lives according to strict religious norms.

Yesterday's court decision will prevent municipal rabbis from exploiting their authority to impose their stricter version of the laws of shmita on the entire population. It is an important ruling not just for this specific case, but for the principle it embodies: "The test of reasonableness" - the principle that the High Court justices use when they examine every government decision - applies also to the Rabbinate.

The Chief Rabbinate may have thought that the justices would be reluctant to rule against them on a matter of religious law, particularly at a time when the High Court is being attacked not only by representatives of the religious public, but also by non-religious public officials. It is good that the High Court was not reluctant to act.

This is even more appropriate when the issue is the complete reversal of a policy that had been in effect for decades. The court's ruling does not dare to decide if heter mechira - the legal fiction of selling the land to a non-Jew to allow the cultivation of land in Israel during the shmita year - is acceptable to Jewish religious law. The ruling says that it is not acceptable to use the Chief Rabbinate's administrative power to enforce a strict interpretation of shmita on the entire public that wants to eat kosher food.

Therefore, in places where the local rabbis do not agree to grant kashrut certification for heter mechira produce, the Rabbinate will now have to issue the certificates through another rabbi.

In its decision, the High Court of Justice proves that there is a place for de facto cooperation, even if it is not direct and public, between High Court justices and the moderate religious community, including moderate Orthodox rabbis.

The court's authority allows these same moderate rabbis to implement the policies they demanded in a short time without any need for a drawn-out public struggle.

On the other side, these rabbis' stance grants the High Court ruling important public support, and rules out the claim that this is just another "anti-religious ruling."

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