This week's Comics, Caricatures and Animation Festival at the Tel Aviv Cinematheque included a special session - entitled "God on the Line" - that focused on the question of whether it is permissible to laugh at God or at least include him in caricatures. "I was shocked when I saw the topic of the gathering," says Yoni Gerstein, the caricaturist for the Yeted Ne'eman ultra-Orthodox newspaper, "God is not a subject for jokes."
The people at Yeted Ne'eman are not the only ones who feel this way. Even the law may consider such humor a criminal offense, in accordance with the prohibition on "offending religious sensitivities" in section 173 of the criminal code, which requires a jail term for anyone who "publishes an advertisement that may blatantly offend the faith or religious sensitivities of others," or "states in public and within range of a given person a word or sound that may blatantly offend his faith or religious sensitivities."
As is the case with broad and vague prohibitions, minus a few rare exceptions, this section is almost never applied. And now, a study released by the Israel Democracy Institute (IDI) proposes excising it from the law books.
The researchers, Prof. Mordechai Kremnitzer, Shahar Goldman and Eran Tamir, explain: "The main reason why we object to this crime is the damage that it causes to the principle of freedom of expression." They suggest making the prohibition applicable only in cases intended to prevent racism, violence, public disturbances or damage to religious sites.
The historical origin of the prohibition is the 1929 riots. Believing the riots had a religious backdrop, the British High Commission rushed to enact The Abuse and Vilification (religious invective) Order No. 43 of 1929," which states: "Any person who utters a word or sound in public or within earshot of any other person that may be or is intended to offend his religious sensitivities or faith can expect to be found guilty and eligible for a one-year jail sentence."
In Kremnitzer's view, broadening the criminal violation to protect religious sensitivities is unnecessary. According to him, "The conscious choice of the vague linguistic term `religious sensitivities' as the heading for broadening the Mandate-era criminal violation, and as a principle, highlights the vagueness. Even though it is clear, primarily based on the historical context, that the primary value that requires protection is public welfare and security - and, in essence, human life - there is no mention of this in the fundamentals of the crime."
This law, which has undergone numerous revisions, remains to this day in the law books. The first amendment was required in 1964, when the Supreme Court rejected an appeal against the attorney general's decision not to indict Judge Haim Cohen. At a conference on religious-secular relations, the appellant, Aryeh Wagner, heard Cohen say, "Because of an ancient Talmudic rule, Nazi-racist principles have been transformed into the law of the State of Israel." Wagner argued that his religious sensitivities were offended and therefore Cohen should be put on trial.
The Supreme Court felt there was no public interest in the matter and ruled: "It is a great principle in our system of judgment that no person is punished at all for an opinion he has, nor for expressing it."
The study reviews the situation around the world, noting: "In Anglo-American law, we see that in its beginnings, restricting anti-religious expression was explained by virtue of protecting religion and its symbols, as part of the ruling authority or having a special status among the institutions of state. At later stages and in different places, there was a substantial reduction of the reasoning that attributes importance to these particular considerations and an explanation was provided that attributes importance to the protection necessary for public welfare. In other words, there was a transition from protection for religion to protecting people from violence."
Jesus isn't gay
The latest ruling involving this criminal violation was a case heard by the English House of Lords in 1979. In it, one of the homosexual community's newspapers and its editor were accused of using expressions to mock religion. The indictment was issued after the publication of a poem that attributed homosexual tendencies to Jesus Christ and included a description of sexual relations between the him and other men, including some of the apostles.
Incidentally, the religion being protected by the law is Christianity only. In England, in 1991, an appeal against the decision not to indict author Salman Rushdie for offending the religious sensitivities of Muslims following the publication of his book, "The Satanic Verses," was rejected. The reason given for this rejection was that the law prohibiting contempt of religions does not apply to symbols that are not Christian.
In 1997, Tatiana Soskin was convicted by the Jerusalem District Court of offending religious sensitivities and sentenced to two years in jail and a one-year suspended sentence. Soskin was apprehended in Hebron while carrying a flyer depicting a pig wrapped in a kaffiyeh treading on an open book. The word, "Mohammed," was written on the pig and "Koran" was written on the book.
Supreme Court Justice Theodor Or rejected Soskin's appeal despite the ostensible blow to freedom of expression, ruling that , "a position whereby every expression that has the potential to offend religious sensitivities will be considered a crime according to this law undermines the basic right to freedom of expression."
Or decided to apply the section banning offending religious sensitivities, but limited it. He ruled that not every serious offense is to be considered prohibited, rather only one that causes damage to the "interests of the members of that particular religion as a whole, as opposed to damage to the religious sensitivities of a given individual or another."
Before us, we have a double limiting of the law: Freedom of expression was determined to be overriding the offense to religious sensitivities, and only the public interest - as opposed to offending an individual - was recognized as eligible for legal protection.
The issue of offending religious sensitivities has hardly occupied the courts in the criminal aspect. On the other hand, the matter was discussed at length in different administrative appeals on censorship issues, opening sex shops and transportation in religious neighborhoods.
One case in which freedom of expression deferred to religious sensitivities occurred in 1972, when the Supreme Court approved the revocation of Amos Keinan's play, "Haverim Mesaprim Al Yeshu" (Friends talk about Jesus). The court ruled that it was "a repulsive mix of desecration of the Christian faith" and added that the criminal prohibition indeed permits "a writer or playwright to lash out to his heart's content at fallen religious figures through the use of criticism or satire, but that portraying God himself on stage in a way that is contemptuous of believers' faith is beyond the bounds of what is legally permissible here."
Endangering public welfare
Offending religious sensitivities clashes not only with freedom of expression but also with freedom of occupation and freedom of movement. Regarding freedom of occupation: In 1973, the court disqualified a decision of the Jerusalem Municipality not to issue a business license to Eros, a store that sold sex accessories, because it feared extreme offense to the sensitivities of the religious public to the point of endangering public welfare, and allowed the store to open.
On the other hand, closing roads to vehicular traffic on Shabbat in religious neighborhoods is a common occurrence. The secular public, as a rule, accepts this restriction as long as it relates to clearly religious neighborhoods such as Mea Shearim or Bnei Brak, or roads adjacent to large synagogues. However, there was considerable furor over then transportation minister Yitzhak Levy's 1996 decision to close Jerusalem's Bar Ilan Street, a major traffic artery, during synagogue prayer times. The Supreme Court, by a majority of four versus three, approved the road closure. Supreme Court President Justice Aharon Barak struck a balance between freedom of movement and offending religious sensitivities, ruling that religious sensitivities are included in the value of public order, which a democratic country may and even must favor over other interests.
At the heart of the prohibition on offending religious sensitivities, two questions arise: Why are sensitivities worthy of protection? And why, in particular, does this apply to religious sensitivities?
The play, "Malkat Ha'ambatya" (Queen of the Bathtub), closed due to public protests on the part of bereaved families who were offended by it. Why then are religious sensitivities the only ones protected, whereas the sensitivities of bereaved families or Holocaust survivors do not merit such protection in the criminal law code? And one might also ask: Why is there no protection for Maccabi Tel Aviv fans, whose sensitivities were severely offended following the dismissal of Avi Nimni from the team?
Kremnitzer believes that an attempt to provide legal protection for sensitivities in the criminal law code will affect freedom. According to him, "Life serves up countless situations with real potential to offend various sensitivities, especially in heterogeneous and multicultural societies. An attempt to include protection in the criminal law code against such offenses will necessarily lead to a severe curtailing of freedom. Therefore, there is no place for a prohibition on offending basic sensitivities that does not entail additional harm to a related important and vital social interest."
Such interests can relate to fights against racism, violence and public disturbances. At the "God on the Line" conference, caricaturist Shlomo Cohen spoke about shocking intervention on the part of the attorney general. Around two years ago, Cohen drew an image of Rabbi Kedouri for Sylvie Keshet's column in Yedioth Ahronoth. Kedouri, as it happens, has a large nose, and it was featured in the illustration. An irate reader, who presented himself as a child of a Holocaust survivor, wrote a letter to the attorney general protesting against and denouncing the ostensibly anti-Semitic caricature.
Cohen related that he was amazed to find that the attorney general sent a harsh letter to the paper and sided with the argument against the caricature. "He even went further; and at the conclusion of the letter, he asked the editor what he intended to do about the matter," he added.
Cohen responded with a letter of his own to the attorney general. He says that the attorney general responded "and in his response, it seemed to me that he admitted his mistake in writing the letter."
This story shows how sensitive Israelis are; they even see fit to share with the whole world their anger over offenses to their sensitivities. Specifically because of this, it may be a good idea to remove the criminal violation that hovers overhead, even though the law, the researchers note, does not stipulate which religion it is whose believers' sensitivities warrant protection. The law also does not define what is a religion. Is every handful of people that holds a religious belief entitled to complain to the police that their sensitivities have been offended?