Israel’s High Court Sends Clear Message to Government: Reconsider 'Frozen' Western Wall Deal

Chief justice slams government's behavior on egalitarian prayer space at Jerusalem holy site: 'There was a deal, and now the government says it doesn't exist. What happened here?'

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

Israel's Supreme Court sent a clear message to the government on Thursday that it wants it to reconsider its decision to suspend a plan to create a new egalitarian prayer space at the Western Wall. 

"What happened here? What happened here?" Supreme Court President Miriam Naor asked the attorney representing the state at a hearing in a landmark case involving the status of non-Orthodox Jews at Jerusalem’s Western Wall, one of Judaism’s holiest sites.

“There was a deal, people worked on it, and then the government comes and says it doesn't exist. This raises some questions." 

An agreement that is "frozen," she added, "can also be thawed." 

The Supreme Court said it would give the state up until September 14 to respond to the following two questions: Would the government be willing to revisit its decision to suspend the Western Wall agreement, and if not, do the state’s attorneys believe the Supreme Court has the authority to impose the agreement on the government?

The supreme court said it would give the petitioners until September 28 to comment on the state responses.

At the opening of the hearing, Naor noted that the Western Wall deal was "accepted, agreed upon, respectful and appropriate." She said she did not understand what the government meant when it decided to "freeze" it. 

"What does 'to freeze' mean?" she asked the attorney representing the state.

This was the first hearing held in 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 them with a new space at the Wall’s southern expanse, the petitioners demand that it re-divide the existing gender-segregated prayer area on the northern side to make room for them.

The three justices presiding over the case, sitting as the High Court of Justice, are Naor, Yoram Danziger and Hanan Melcer.  

Legal experts speculated on Thursday that government might try to prevent the Supreme Court from forcing its hand by passing a new law that prohibits egalitarian prayer at the Western Wall. The Supreme Court tends to refrain from declaring laws unconstitutional, they noted.

The two-and-a-half hour hearing was held in a packed courtroom attended, among others, by a group of former paratroopers who had conquered the Western Wall during the 1967 Six-Day War. They came to show support for Women of the Wall.

“This is a good beginning,” said Rabbi Gilad Kariv, executive director of the Reform movement in Israel, at the conclusion of the session, “but there are definitely signs of difficulty ahead.”

Anat Hoffman, chairwoman of Women of the Wall, said the justices appeared to be trying to salvage the Western Wall agreement, which was approved by the government in January 2016 following three years of negotiations. “Once again, we see the Supreme Court is acting as the responsible adult, and sometimes responsible adults have to force us to do things that are good for us that we’re afraid to do.”

Yizhar Hess, executive director of the Conservative-Masorti movement in Israel, said he was encouraged by the tone of the justices. “The government should take its cue, and when it convenes for its weekly meeting on Sunday, announce that the Western Wall agreement is alive and kicking,” he said.

Matti Dan, a leader of Ateret Cohanim, a yeshiva located in the Muslim quarter of Jerusalem’s Old City, accused the petitioners of trying to undermine the authority of the Chief Rabbinate in Israel, which effectively runs the Western Wall today. “Their attempts to scare us that Israel’s relations with Diaspora Jewry will suffer if it doesn’t fulfill the agreement are cynical and simply fake news,” he told Haaretz. 

In a statement issued following the Supreme Court session, the Chief Rabbinate said: “It is the Chief Rabbinate that has the legal authority to determine Halakhic rules at the Western Wall, and any attempt to undermine this authority will jeopardize the rule of law and the sovereignty of the State of Israel and cause a rift in the nation.”

The plan for an egalitarian space at the Western Wall was never implemented, 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 at the time, 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.

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.”

The justices devoted little to no time on Thursday to the other two petitions related to the Western Wall. One 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 into 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.

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.

The 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.