• Published 00:00 23.10.07
  • Latest update 00:00 23.10.07

Friedmann opposes constitution that compromises on religious matters

Laws on religion would be exempt from requirements such as equality; jurists deny consitution will harm minority rights.

By Yuval Yoaz

Justice Minister Daniel Friedmann is opposed to introducing a constitution if it includes a compromise on matters of religion and state, which would preclude the High Court of Justice intervening in these areas.

Haaretz has learned that Friedmann intends to object to the initiative of the Knesset's Constitution, Law and Justice Committee to introduce a constitution that includes compromises with the religious parties on religious issues, and that he claims it would be better not to pass a constitution at all rather than include such compromises.

"If you want to present an entire constitution by removing the High Court of Justice from matters of religion and state, then I am opposed to such a constitution," Friedmann told Haaretz on Monday.

Under the proposed compromise, religious legislation would be protected from invalidation by the court, and would not be subject to constitutional principles such as the principle of equality.

At issue are five main areas: Rabbinical court jurisdiction regarding marriage, divorce and intimacy, as it stands pre-constitution; conversion to Judaism and other religions; the Jewish nature of the Sabbath and Jewish holidays in the public domain; observing kashrut (Jewish dietary laws) at state institutions; and granting Israeli citizenship to the relatives of anyone eligible to immigrate to Israel.

Thus, it would be possible to legislate that women cannot serve as rabbinical court judges and that there are Jews who are barred from marrying, while it would not be possible to nullify these laws for infringing on constitutional rights.

Friedmann's position is that the only issue that makes a constitution necessary, that justifies the High Court's intervention, and in which its activism is beneficial, is the religious issue.

Under the political compromise being forged by the Knesset Constitution Committee, the constitution would stipulate that on certain matters of religion and state - including marriage and divorce - the High Court would be barred from exercising "judicial oversight" and nullifying laws on religion and state matters that violate the basic rights set down in the constitution.

A similar proposal, revoking the court's authority to exercise judicial oversight on religion and state matters, was presented in the Israel Democracy Institute's draft for a proposed constitution.

Friedmann's stance puts him on a collision course with Prime Minister Ehud Olmert and the chair of the Knesset Constitution Committee, Menahem Ben-Sasson. Olmert devoted his speech at the opening session of the Knesset's winter term two weeks ago to his intention to bring Israel a "constitution by consensus" in its 60th year.

"The constitution will be the greatest gift the Knesset can give the state for the 60th-anniversary celebrations," Olmert said. "The constitutional drive we are leading is destined to order the mores of civil life in Israel, including the ongoing conflict between religious and secular."

Jurists say draft constitution could not harm rights of minoritiesSeveral jurists expressed outrage Monday over Knesset Constitution Committee Chairman Menahem Ben-Sasson's recent statement that the draft constitution currently being prepared by his committee is liable to harm the rights of minorities such as homosexuals.

Ben-Sasson (Kadima) made the comment in a closed meeting with members of the Israel Bar Association's national council a week ago. It was reported in Haaretz earlier this week.

"I am shocked by this statement," said Professor Mordechai Kremnitzer of the Israel Democracy Institute. "One of a constitution's main functions is to protect the weak and minorities, and if a constitution does not succeed in doing this, or if it worsens their situation and opens a door for them to be harmed, that is a good reason not to support such a constitution."

But Kremnitzer added that his understanding of the political consensus that has been emerging is that "it does not include any desire to harm the homosexual minority; on the contrary. Even according to the text that has a political majority in the Knesset, it will be forbidden to discriminate against this minority, and if an attempt is made to discriminate against it, the constitution will help it."

Professor Yedidya Stern, also a senior fellow at IDI, said that "both the IDI's draft constitution and that of the Constitution Committee declare equality to be a supreme value, and clearly for those who today do not enjoy equality - and they are always minorities: homosexuals, Arabs, ultra-Orthodox - equality is meant to raise up those who are down ... The constitution is first and foremost for the benefit of minorities, although it is impossible to include explicit protection of every minority group in the constitution, since that would harm anyone we forgot."

Ben-Sasson, however, told last week's meeting that "the current willingness of a large majority of the Knesset to arrive at a constitution will definitely be at the expense of those who have found succor in the court ... In our status quo, these minorities - liberals, religious minorities and ethnic minorities - feel more comfortable with the court, and as a result, I fear that they are likely to feel less comfortable with the constitution."

Justice Minister Daniel Friedmann. (Archives)

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    This story is by: Yuval Yoaz
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  • 17. 0 0
    To Ani Neged Dat, In fact BG helped create and invited NRP
    • David Turner
    • 24.10.07
    • 17:56

    into pol process early not as a coalition gesture (BG was unchallenged, but since the rise of Right-Left competition with Begin coalition politics ensures Shas a place at the table) but as an identity-reinforcing act. For better or worse (and the Who is a Jew controversy, and its impact on Ben-Sasson compromising the Law of Return, definitely bodes worse for anyone not Orthodox, for anyone threatened by Shoah II in the Diaspora)that decision both created Orthodoxy as a political party (although originally Zionist first, religious second)and enshrined an Orthodox involvement in Israeli politics. Again, for better or worse.

  • 16. 0 0
    To Peter #15- freedom from religion
    • Ani Neged Dat
    • 24.10.07
    • 16:03

    Peter- good points, EXCEPT- In Israel the religious have been forcing their laws on the seculars. Why should I not be able to live my lifestyle free of their religious laws? The secular politicians got into bed w/the religious in order to preserve their coalitions, and thus, many laws are religious based, thus forcing themselves on the seculars. I say- be religious, but only as long as you do not interfere w/my life style.

  • 15. 0 0
    freedom from fairy tales
    • peter
    • 23.10.07
    • 21:18

    talk of having religion shoved down the throat, the separation of religion from state, liberty or death...all nice slogans but where does the morality and rationality come into play? At what point do we recognize that secularism is it's own religion. When do we admit that our "ways" and "morality" are based on religious law? We like the 10 commandments but want to follow them for "different" reasons. We believe in a "day off" but refuse to admit the the day....was designated the sabbath. I don't pretend to have the answer but secular and anti-religion feelings deny our heritage, deny the Jewish State of Israel. A Jew must be able to live like a Jew at home, does it not make sense for that to be a priority?

  • 14. 0 0
    Friedmann
    • Steve
    • 23.10.07
    • 21:09

    The man sounds like a voice of reason in a sea of religious/ethnic nonsense and bigotry.

  • 13. 0 0
    Courts should stop trying to create laws
    • Gili
    • 23.10.07
    • 18:26

    The courts are there to enforce laws, not create them. Politicians are there to create laws, not enforce them. The two should keep their nose out of the other's jurisdiction. This is even more relevant when you consider the fact that politicians are voted into office whereas judges are nominated (by their own). Judges must either be voted into office directly by the people or stop trying to create laws. The people never gave them a mandate to do this.

  • 12. 0 0
    Compromise Law of Return and risk rupture with Diaspora, 2
    • David Turner
    • 23.10.07
    • 18:04

    In terms of the Law of Return I am not referring to the political struggle by the Rabbinate over Who is a Jew. In practice this issue simply represents a potential inconvenience to all but the Orthodox, an internal Israel political issue. It was never, and must remain separate from the instrument that governs sanctuary for the Diaspora. Europes destruction of the Jews was according to a simple rule: the offspring of a single Jewish grandparent defines Jew for murder. This precedent will remain the basis for any future Shoah. The Law of Return addresses precisely this definition. Should Israel adopt an amended version of the Law consistent with a constitutionally protected definition of Who is a Jew according to Halacha she will, for all intents and purposes, cut the bond between State and Diaspora. Think this through before a long overdue Constitution becomes the instrument of Israel losing its mission, and making concrete a divorce with Israel worldwide.

  • 11. 0 0
    Compromise Law of Return and risk rupture with Diaspora, 1
    • David Turner
    • 23.10.07
    • 18:03

    Is Israel losing all understanding of its existence? How can the state even consider changing the Law of Return and the Grandparent Clause as a compromise plum to a political constituency? The Law was written not for Israelis resident in the Jewish State, but for the Jewish People living in constant danger in the Diaspora. The Law was the reason Zionism created a Jewish state, the very mission it bequeaths to Israel, refuge and guardian of the Diaspora. It is not, should never be available as a political football, part of Israeli political games. Shas, the Rabbinate and Tora, etc have their understanding of what it is to be a Jew. But Israel is not the state of any one political/religious bloc. And certainly not a minority bloc at that. Israel is the state of all Jews, including those born of a Jewish mother who elect to be Reform, or Conservative or, for that matter Atheist. We are all Jews and Israel is responsible to us all.

  • 10. 0 0
    Freedom
    • Ani Neged Dat
    • 23.10.07
    • 16:18

    Finally they are going to deal with this issue, but, my fear is that our whorish politicians with their need for coalitions w/the religious parasites, will not vote to have a constitution like all democracies are supposed to have. Enough of the taliban religious- we want Freedom FROM religion, not just Of religion.Those who want to believe in fairy tales (read: bible) can do so, but do not shove it down our throats with the religious laws...

  • 9. 0 0
    Rich #8: Funny
    • Polybios
    • 23.10.07
    • 15:32

    Hi Rick, You really in Miami? Doesn't the Iraqi Constitution require the President to be a Muslim? I agree that the Olmert govt. is to corrupt to make a Constitution. But Friedmann seems to be pretty much independent of the Olmert gang, even fighting with Olmert's buddies on the Supreme Court. Either way, I approve of the Friedmann's stand on this issue.

  • 8. 0 0
    Friedman and the Constitution
    • Rich
    • 23.10.07
    • 14:36

    A corrupt government cannot put forward a legitimate constitution. Israel needs to restore faith in its government and institutions before engaging in such a formidable task- unless they want to borrow the Iraqi Constitution.

  • 7. 0 0
    Israel's Constitution.
    • sandra chitayat
    • 23.10.07
    • 14:26

    If I read through some of the articles in Haaretz and jpost.com, I see that a lot of people are driven to terrible crimes, either because they feel they have more rights, a husband over his wife, or vice versa. So it is absolutely important that the Supreme Court be able to rectify what would be an inhumane, stict and rigid interpretation of religious law. This is the twenty-first century after all, we are no longer in the shtetl, or the Middle Ages. So I would support Mr. Friedmann's position. Why is it that a man could remarry and the woman that he "discards", may not?

  • 6. 0 0
    "Give me liberty or give me death!"
    • Yonatan
    • 23.10.07
    • 13:19

    "...This is no time for ceremony. The questing before the House is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfill the great responsibility which we hold to God and our country...I know not what course others may take; but as for me, give me liberty or give me death!" - Patrick Henry, March 13, 1775

  • 5. 0 0
    For once I support Friedmann
    • Yonatan
    • 23.10.07
    • 13:13

    The kind of constitution advocated by the Knesset's Constitution, Law and Justice Committee, if adopted, is the kind that may spark a revolt. There must be no compromise on the matter of religion and state, and all freedom-loving Israelis will eventually understand that imprisonment or even death is better than a constitution that enshrines theocracy.

  • 4. 0 0
    the final judge on religion will be the supreme court ?
    • progress
    • 23.10.07
    • 13:11

    Will the the anti religious supreme court judge on religion? Is this rational?

  • 3. 0 0
    Separation of Religion and State
    • Ehud
    • 23.10.07
    • 12:41

    The whole idea of a democratic constitution is the to codify basic rights, including equality of all of its citizens before the Law, minority protection, to protect the citizen from governmental institutions, or any other institutions, such as relgious ones from interfering in his or her life - all safeguarded by a watchful Constitutional Court. If the religious establishment desires a constitution "by consensus" to enshrine their antidemocratic privileges - they should go to Iran. Here, this won't pass.

  • 2. 0 0
    NO RELIGION IN POLITICS - FRIEDMANN CORRECT
    • B'Galil
    • 23.10.07
    • 09:31

    The only national legislation with religious influence should be what days are national holidays for the Haggim, etc.... This will be better for Israeli society and better for religion as neither will get in the way of the other (as it should be.) For secular Israelis, it might even bring many of them closer to religious life if they didn't feel (as many now do) that their lives are being controlled by people who try to pressure them by regulating their lives. You catch more flies with honey.....

  • 1. 0 0
    rationality
    • Michael
    • 23.10.07
    • 09:01

    This is the first rational step taken by Friedmann, ever since assuming the post of Minister of Justice