Israel’s High Court to Hold Critical Hearing Thursday on Western Wall Crisis

Non-Orthodox movements have rejected the government’s plan to upgrade a separate prayer plaza and create 'second-class Jews'

Women of the Wall pray at the Western Wall in Jerusalem's Old City. 4 November 2013
Tali Mayer

All eyes in the Jewish religious world will be on the High Court of Justice Thursday when it holds its first hearing in a landmark case involving the status of non-Orthodox Jews at Jerusalem’s Western Wall, one of Judaism’s holiest sites. The outcome could determine the future of Israel’s relationship with Diaspora Jewry.

The High Court will hear three separate cases that concern prayer rights and prohibitions at the Wall. The most significant is a petition by the Reform and Conservative movements, along with the feminist prayer group Women of the Wall, against the government for reneging on its commitment to allot these groups a proper space at the Wall for holding egalitarian prayer services.

That petition was filed in October, before the government announced two months ago that it had decided to suspend this agreement.

If the government is unwilling to provide these groups with a new space at the Wall’s southern expanse, the petitioners demand that it redivide the existing gender-segregated prayer area on the northern side to make room for them.

The judges are unlikely to issue a ruling Thursday, though they could send out important signals, sources familiar with the case say. The three justices who will hear the case are High Court President Miriam Naor, Yoram Danziger and Hanan Melcer.

"Whatever is decided, it will have a significant impact, both in the short and long term, on relations between Israel and the Diaspora,” Jerry Silverman, the president and chief executive of the Jewish Federations of North America, told Haaretz. “Although a few months have passed, passions are still running high over the government’s decision to suspend the deal over the Kotel. It has become a defining moment over whether or not Israel is truly the nation-state of the Jewish people.”

A second petition that will be heard was submitted by the Center for Women’s Justice on behalf of a small group known as Original Women of the Wall, which split from Women of the Wall after it agreed to enter talks with the government on a plan that would have forced the multidenominational group to move its prayer service out of the Western Wall’s women’s section, where it has been held for the past 28 years.

Original Women of the Wall is challenging the ban against women reading from a Torah scroll in the Western Wall’s women’s section. This ban was imposed by the Western Wall Heritage Foundation, the organization responsible for prayer protocol at the Wall, and its director Rabbi Shmuel Rabinowitz, who also serves as the site’s chief custodian.

Smuggling Torah scrolls

According to the existing regulations, worshippers are not allowed to bring their own Torah scrolls onto the premises. The Western Wall Heritage Foundation has dozen of Torah scrolls available for use in the men’s section, but it has consistently rejected requests by women to gain access to them.

Over the past year, feminist activists have managed to smuggle Torah scrolls into the women’s section. The Western Wall Heritage Foundation has responded by subjecting women to controversial strip searches when they arrive at the site for their traditional monthly gathering. Last week, two rabbinical students from the United States were stopped and asked to lift their skirts and shirts during such a search.

A third petition was submitted by Liba, an Orthodox right-wing group that opposes the allocation of any space to the Reform and Conservative movements at the Western Wall. In its suit, the group claims that the government does not have the authority to make such a decision.

The High Court decided several months ago to hear all three cases together since they all concern prayer at the Western Wall.

The government had approved the plan for an egalitarian space in January 2016, following three years of negotiations. The plan was never implemented, however, because of opposition from the ultra-Orthodox parties that are part of the governing coalition.

The government’s reversal of its commitment to build a new prayer plaza sparked a major crisis with Diaspora Jewry. After the decision was announced, the Jewish Agency Board of Governors, which was convening in Jerusalem, canceled a dinner that had been scheduled with Prime Minister Benjamin Netanyahu in protest. A delegation of leaders from the Reform movement also canceled a meeting that had been planned with Netanyahu.

Multimillion-dollar overhaul

Last week, the Chief Rabbinate presented the High Court with a document articulating its own position on the Western Wall. According to this document, the court does not have the authority to determine prayer practices at the site, since the Western Wall comes under the jurisdiction of the Chief Rabbinate.

After numerous delays, the government finally responded to the High Court petitions last month. The government insisted that it had not reneged on its original commitment since it had recently drafted plans for a multimillion-dollar overhaul of the Wall’s southern section to accommodate egalitarian prayer services.

According to the response, in late June, officials in the Prime Minister’s Office had agreed to pay the Israel Antiquities Authority 19.2 million shekels ($5.3 million) to upgrade the prayer plaza routinely used by Conservative and Reform worshippers near the archaeological excavation site known as Robinson’s Arch. The agreement was reached a few days before the cabinet met to vote on suspending the Western Wall deal.

The Reform and Conservative movements have expressed a willingness to use the prayer plaza near Robinson’s Arch until a more permanent solution is reached. But they do not consider the existing prayer plaza, or even an upgraded version of it, an acceptable solution in the long term because it is hidden and out of the way.

On Monday, the non-Orthodox movements and Women of the Wall presented a summation of their arguments to the High Court in which they rejected the new government plan, noting that Robinson’s Arch is not officially part of the Western Wall. “Right now, [the state] is offering the petitioners such a whittled-down proposal that it contains nothing of the original plan and will further entrench the severe and immeasurable harm to the rights of the petitioners,” they wrote.

The petitioners argued that the government was proposing to create a new category of “second-class Jews” relegated to pray outside the Western Wall area. They said they were not willing to pray in an area “which the state does everything it can to hide from the public and to insist is not part of the national and religious site.”

Rabbi Gilad Kariv, executive director of the Reform movement in Israel, said the positions presented by the opposing sides ahead of Thursday’s hearing “show clearly which side is interested in a historic compromise and in peace among the Jewish people and which side is interested in further entrenching the rampant monopoly of the rabbinic establishment.”

Yizhar Hess, executive director of the Conservative movement in Israel, said that among the various solutions possible, he preferred that the High Court would order the government to redivide the Western Wall’s gender-segregated area to include a mixed-gender area. “That has always been the ideal solution for us,” he said.

The Center for Women’s Justice, which is representing Original Women of the Wall, also submitted the key arguments in its case Monday. When the government forbids women from reading from the Torah, the organization wrote in its submission, “it violates their civil rights and basic rights” to freedom of movement, access to holy and public places, equality and freedom of religion and conscience.