Analysis

High Court Shows Military Service Is at the Heart of Israeli Consensus by Nixing ultra-Orthodox Exemption

The ruling is the latest in a string of challenges the High Court has made to the government, showing it has more moxie than some have thought

Haredim protesting against drafting yeshiva students at a demonstration in Jerusalem, March 28, 2017.
Olivier Fitoussi

The High Court ruling that voided the law exempting ultra-Orthodox Jews from compulsory military service is quite an activist, clear-cut ruling compared to the usual dry-as-dust rulings justices have been handing down. But there were really no choices. High Court President Miriam Naor clarified at the start of her comments that the law the court voided doesn’t even pass the first of three tests of constitutionality, which is that the law has to have reasonable sensible connection with the goals it aspires to promote.

The majority opinion on the judicial panel was extraordinarily acidic regarding how obvious the so-called Draft Law is unconstitutional.

Justice Elyakim Rubinstein’s ruling opens with the word “Despair”: “I can find no other word for the issue at stake. The ludicrousness – laughingstock – created by the ping-pong between the authorities on the issue goes to the root of basic human equality and fairness, while the all-important study of Torah is not impaired by one whit, which begs the question of whether we should laugh or cry a river.”

In 2011, the same Rubinstein allowed segregation between men and women in buses. That ruling, in contrast to this one, recognized the ultra-Orthodox right to cultural autonomy. But being drafted into the Israeli army is one of the most outstanding components of the Israeli consensus. People who are not drafted are outside this consensus, and on Tuesday the High Court spelled out that it is deep within that consensus

“The law discriminates between one person and another, between blood and blood, between lifeblood and lifeblood,” wrote Justice Yitzchak Amit. “A young Haredi has the option not to be drafted at all if the quota is filled. He has the possibility of deferring the draft, and can choose national service instead of military service. The young Haredi is not required to risk his life. It is though his blood is redder than that of a young person not studying in yeshiva.”

This language bears comparison to other recent High Court rulings, like the one validating the law regulating the World Zionist Organization's Settlement Division – even if the Arab minority suffers. Like the ruling that voided the law taxing ownership of a third home, the High Court is again protecting the rights of the majority – the male-secular public. Arabs, LGBTQs or women do not enjoy this protection with the same firmness.

The same message is conveyed by a second ruling the High Court handed down on Tuesday, that businesses may claim to keep kosher even if they don’t have kashrut certification from the Rabbinate. 

In fact the court has already spoken out twice about the Tal Law, enacted in 2002 to lay down rules for drafting and exempting ultra-Orthodox teens. Its purpose was to encourage the draft of Haredi yeshiva students.

The new law is not materially different from the Tal Law, and Justice Hanan Meltzer criticized the conduct of the Knesset in failing to honor the High Court. Therefore, in disagreement with Justice Noam Solberg, he does not believe the court should sit back and wait to see how the law is implemented, as had been decided in the past about the Tal Law. “Once burned, twice shy,” he wrote. “The extensions granted time and again to study how the Tal Law is implemented did not help achieve its underlying goals.”

The Tuesday ruling may attest that eulogies for the court’s self-confidence were premature. Rulings handed down in recent months, such as the one forcing the prime minister to disclose his conversations with Israel Hayom owner Sheldon Adelson and editor-in-chief Amos Regev, the ruling forbidding the Knesset to enact two-year budgets, and the ruling forbidding the jailing of asylum seekers for more than two months attest that the justices are less cowed than some think. Which is a good thing.