Bill Barring non-Orthodox From Ritual Baths Is Unconstitutional, Israel's Attorney General Says

Bill, which bypasses a High Court ruling, passed its first Knesset reading last week; AG Mendelblit says bill violates the rights to freedom of religion, human dignity and equality.

Sharon Pulwer
Sharon Pulwer
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A mikveh in Elad.
A mikveh in Elad.Credit: Nir Keidar
Sharon Pulwer
Sharon Pulwer

A bill that would bar the non-Orthodox movements from using state-run ritual baths is unconstitutional, Attorney General Avichai Mendelblit said Sunday.

In a legal opinion submitted to the government, he said that the bill violates the rights to freedom of religion, human dignity and equality.

The bill, sponsored by MK Moshe Gafni (United Torah Judaism), passed its preliminary reading in the Knesset last week. It was drafted in response to a High Court of Justice ruling last month which stated that all converts must be allowed to immerse themselves in state-run mikvehs (ritual baths), even if they didn’t convert through the state conversion system. Though there are also Orthodox conversion courts that don’t belong to the state system, the High Court case was filed by the Reform and Conservative movements.

Attorney General Avichai Mendelblit.Credit: Mark Israel Salem

The bill would require all mikvehs to be run in accordance with Jewish law as understood by the Chief Rabbinate, which is controlled by the ultra-Orthodox. But Mendelblit said the use of public mikvehs could not be restricted to those who follow a particular interpretation of Jewish law, as doing so would violate the core of religious freedom and constitute unacceptable discrimination.

That, essentially, was also the High Court’s rationale for ruling that non-Orthodox converts must be allowed to use public mikvehs.

But the ultra-Orthodox parties argued that the ruling altered the religious status quo, and therefore demanded that the Knesset pass legislation to overturn it.

UTJ has previously threatened that it might quit the coalition – and thereby bring down the government – if the bill isn’t passed. But with the attorney general having deemed it unconstitutional, the bill has no chance of passing, and would certainly be struck down by the High Court even if it did.

Thus the fact that Mendelblit has ruled the bill unconstitutional is expected to make it easier for the ultra-Orthodox MKs to agree to significant changes in the bill.

Even before Mendelblit’s ruling, the bill’s chances of passage in its current format were slim. The coalition had already agreed that the legislation wouldn’t move forward until all coalition parties had agreed on its wording, and two parties, Habayit Hayehudi and Kulanu, were demanding major changes. The former, an Orthodox but not ultra-Orthodox party, demanded inter alia that the legislation guarantee women the right to immerse in the mikveh without a mikveh attendant present.

The coalition had agreed to the bill’s passage in preliminary reading primarily so that the ultra-Orthodox parties, UTJ and Shas, could show their communities that they were doing something about the High Court decision, which outraged many ultra-Orthodox rabbis.

Attorney Yizhar Hess, executive director of the Masorti (Conservative) Movement, welcomed Mendelblit’s decision. Not only is the bill unconstitutional, he said, “but it’s also an anti-Jewish and anti-Zionist bill. This is a bill that, if it were passed, would have put an end to the State of Israel’s being the national home of the Jewish people.

Rabbi Gilad Kariv, head of the Israel Movement for Reform and Progressive Judaism, thought the attorney-general's ruling "lends legal support to the feeling of most of the Israeli public that is sick of the rabbinical establishment's aggressive conduct.

"For many long years the haredi parties have rejected all pragmatic solutions to the issue of the mikvehs and they have led the way to the High Court's decision. The bill is a direct continuation of the same aggressive conduct and we have no doubt that despite the political pressure being put by haredi parties on the prime minister, the ritual baths bill will not win approval in the end."

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