No Rest for Judges on Sabbath Rulings

“Israbluff” − the pejorative slang word for shenanigans by Israeli officialdom − was how Supreme Court Justice Elyakim Rubinstein described the way Tel Aviv enforces its bylaw prohibiting supermarkets from operating on Saturdays. It seems, however, that judicial rulings connected with the operation of businesses on Saturday are in themselves a form of Israbluff.

The main decision handed down on Tuesday by Deputy Supreme Court President Miriam Naor focuses on the efficiency of municipal bylaw enforcement rather than the holiness of the Sabbath. Supreme Court President Asher Grunis signed his consent.

Afterwards, Rubinstein realized that the question concerns the Sabbath. It’s as if this isn’t an explosive public issue, as if we’ve forgotten the demonstrations on Bar-Ilan Street in Jerusalem, as if this isn’t the secular Tel Aviv bubble here, as if the Supreme Court is sitting in Switzerland.

The Tel Aviv bylaw imposes a fine on anyone operating a business on Saturday illegally. The law also permits the municipality to take steps towards shutting down the business by turning to the courts. The Tel Aviv municipality deliberately makes do with a fine. The court petitioners are proprietors of small businesses who claim that the law doesn’t deter large chains like Tiv Ta’am, which absorb the cost of the fines and continue operating. It’s only small businesses that feel the pinch and therefore observe the law.

The petitioners insisted that the municipality also make use of other means provided by law to make its enforcement more equitable.

The municipal bylaw has two purposes: The social purpose is to allow every person a day of rest. The religious purpose is for keeping the Sabbath.

Attorney Eran Gelbard, in a thesis written for his master’s degree under the guidance of Prof. Amnon Rubinstein, points to a large gap between the wording of municipal bylaws and how they are actually enforced. Gelbard claims local authorities are content with “minimal punishment and enforcement that doesn’t deter businesses from opening for business on Saturdays, and certainly not the big chains.”

The courts share responsibility for the ambiguity. They themselves have conveyed their lack of uniformity. In many cases, courts, including the Supreme Court, have ruled in a way that allowed the operation of businesses on Saturdays. In one case the Supreme Court ruled that a gas station in Ramat Gan wasn’t a “store” and was therefore permitted to remain open on Saturdays. In another case a court ruled that a cooperative had no religion, so therefore its day of rest couldn’t be determined and it could conduct business on Saturdays.

Evading explosive issue

As in other cases, the court this time again avoided dealing with the explosive matter. The unique character of the current case made things easy for the court. The petitioners claimed that in this case their livelihoods were harmed as the result of ineffective municipal enforcement in Tel Aviv. They didn’t focus at all on desecration of the Sabbath. Justice Naor, therefore, didn’t focus on desecration of the Sabbath, either.

In his thesis Gelbard points out the status quo existing in Tel Aviv whereby the bylaw does forbid operating businesses on Saturdays, but enforcement is limited and everyone comes out happy. City life continues 24/7, businesses prosper and the religious don’t complain as long as there’s still a minimum level of enforcement. If so, then the problem is commercial and not of a religious nature.

The fine imposed by the Tel Aviv municipality deters small businesses but isn’t efficient with the large ones. So what’s new here?

Every day we witness situations where those with financial muscle violate the law while those who can’t afford to are deterred. Someone who can afford to will park his jeep on the sidewalk. Someone who isn’t afraid of paying a fine won’t refrain from using a cellphone while driving. Why doesn’t the Supreme Court require police to lock up anyone caught driving with a cellphone in his hand? Isn’t the enforcement of traffic laws at least as important as honoring the Sabbath?

By the way, the same logic also applies to bankruptcy law: Whoever misses their mortgage payments has their home taken away. But what happens to someone who doesn’t repay NIS 7 billion in loans? You already know the answer.

In Justice Naor’s opinion the law must be enforced as effectively as possible. This means the city must take steps to shut down businesses violating the law. The court instructed the municipality to consider what can be done.

But the ruling left a loophole: In Naor’s opinion the city needs to consider using other means of enforcement in addition to fines, but the court doesn’t say it needs to act.

There are possible reasons to avoid taking extreme measures like closing down businesses. For instance, if the problem relates to competition against small businesses that are closed on Saturdays, the city can enforce the law only in places where there’s a competitor who shuts his doors on Saturdays. On the other hand, fines could be sufficient against supermarkets in areas without any nearby small competitors, as well as markets located in gas stations whose customers are able to travel and shop elsewhere.

However you look at it, the court has given itself plenty of work. On the one hand Naor laid down an infrastructure for petitioning against any authority displaying laxity in enforcing a law, and there are many areas where enforcement is lax. On the other hand, even if Tel Aviv does something to shut supermarkets, it will need to turn to the courts to do so and the big chains will doubtlessly appeal. So the ruling isn’t the end of a chapter but just the beginning.