Israel's High Court Strikes Down Exemption of ultra-Orthodox From Military Service

The High Court ruled that the law exempting yeshiva students will be cancelled within a year, providing the time to study the implications of the change

Ultra-Orthodox protesting army drafting in Jerusalem, March 2017
Ultra-Orthodox protesting army drafting in Jerusalem, March 2017. Gil Cohen-Magen

The High Court of Justice on Tuesday struck down the law exempting ultra-Orthodox Jews from compulsory military service while they are studying in yeshiva. The court said the ruling would take effect within a year.

>>The Israeli army needs to draft the ultra-Orthodox, for its own sake and society’s | Analysis ■ Could forcing ultra-Orthodox Jews to enlist in the Israeli army lead to Netanyahu's collapse?

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An expanded nine-justice panel of the court headed by outgoing Supreme Court President Miriam Naor ruled eight to one, with Justice Noam Sohlberg dissenting. The decisive majority of justices agreed with the position of the petitioners, the Movement for Quality Government, that the law perpetuates inequality between secular youths who are required to enlist in the army and religious youth who are exempt. 

The justices examined the data on the draft, and their analysis shows that the rate of yeshiva students enlisting in the military or doing civilian national service was lower in those years when the present legal arrangement for exemptions was in force. The number of Haredi yeshiva students enlisting was extremely small and did not exhibit any significant change, as required by the law, said the justices.

The hope of meeting the enlistment targets set by existing the law are growing less and likely every year, said the court. As a result, the law’s goal of reducing inequality in the burden of military service is not being met, wrote Naor. Not only do the data not change the conclusions about the failure of the law to reduce inequality they only validate and strengthen the claims against the law, she added.

Sohlberg wrote in his lone dissent: “The delicate standards this court has delineated concerning the constitutional examination of the draft exemption agreements for yeshiva students lead to the conclusion that the time is not yet ripe to reach the clear conclusion that the draft arrangement is not constitutional and must be struck down.”  

The Movement for Quality Government said it hoped that after a battle for 17 years for equality in military service, the draft law would now be applied equally to all Israeli citizens, without discrimination. The movement called on the Knesset to enact a new law with equality for all.

MK Menachem Eliezer Moses (United Torah Judaism) said: “The High Court of Justice once again proves how cut off the it is from Jewish tradition and how deep is its hatred for anything dear to those who study Torah and the guardians of religion. The High court continues time after time to intervene scandalously in the Knesset’s decisions.  We have had enough and the time has come to return [the High Court] to its natural proportions.”

Moses, who is the leader of the United Torah Judaism Knesset faction, said the party’s MKs would consult with the party’s rabbinical leadership and act to legislate a new law “to protect us from the arrogant rulings of the High Court.”

Interior Minister Arye Dery, head of the ultra-Orthodox Shas party, was swift to condemn the ruling, saying it “again proves the serious disconnect between the Supreme Court and the Jewish people, who have known through all generations that what holds us together against persecution and evil decrees was Torah study.

"The yeshiva students will continue, even after the High Court ruling, to diligently study like the tribe of Levi [whose study was supported by tithes from the other tribes of Israel] and protect the rights of the inhabitants of Israel. We will act with all our strength to amend the law in a way that will enable the continuation of the existing arrangement."

Opposition lawmaker Tzipi Livni of the Zionist Union party welcomed the ruling, tweeting: "Equality, gentlemen, equality. Miltary, national or civilian service for all, without schticks and tricks. You can keep the yeshiva world without granting full exemptions to everyone." 

The present case is based on a different High Court decision in the late 1990s. The High Court then ruled the defense minister did not have the authority to grant across-the-board exemptions from IDF service to yeshiva students, which had been the practice, without explicit legislation passed by the Knesset granting him such authority.

As a result, the government established a comission known  the “Tal Committee,” which set criteria for exemptions, and in 2002 the Knesset passed the “Tal Law” that set the new rules for drafting and exempting ultra-Orthodox youths – and was meant to encourage enlistment of Haredi yeshiva students.  

In 2006, the High Court ruled that despite its good intentions, the Tal law did not meet the requirements of equality before the law and its goal was not being achieved, so a reexamination of the issue was necessary.  As a result, the law was extended for five more years, and in 2012 the High Court ruled the law had not achieved its goals and was unconstitutional – and could no longer be extended.

Even though the law was no longer valid, yeshiva students were still not drafted and the government established another committee to examine the issue. After a new government was installed in 2013, Yair Lapid’s Yesh Atid party and Naftali Bennet’s Habayit Heyhudi pushed through an amendment to the law saying that though 2017, all yeshiva students would continue to receive exemptions, but afterward minimum enlistment quotas would be set and criminal sanctions would be imposed if the enlistment targets were not met.

When the present government came into power in 2015, the Haredi parties succeeded in removing the sanctions and instead amended the law to provide an “adjustment period” until 2020, with an additional three years in which the enlistment quotas would exist but would not be mandatory and gave the defense minister the authority to exempt yeshiva students from the draft.

In addition, the criteria for determining who met the conditions for an exemption were expanded so that any person who studied between age 14 to 18 for at least two years in a Haredi educational institution would be included in the “Haredi population”  for purposes of calculating the enlistment quotas. This meant that many youths who had left the Haredi community and were later drafted would still be considered as Haredim for meeting the quotas.

During the High Court hearings, the justices criticized the present law, mostly because the defense minister did not have any true authority to enforce it – and the drafting of yeshiva students remained dependent on changes that Haredi society was undergoing anyway. In other words, the new law still discriminates between nonreligious and religious young men eligible for military service.

The extremist wing of the country's ultra-Orthodox community has been protesting at intersections throughout the country in recent months to oppose the arrest of some Haredi Jews who had not been exempted by the existing law.