'Live and Let Live': Israel's Top Court Allows Tel Aviv Stores to Operate on Shabbat in Landmark Ruling

Supreme Court says businesses can operate during Jewish day of rest, but a new bill by ultra-Orthodox lawmakers seeks to prevent cities from circumnavigating religious law

File photo: Victory grocery store in Tel Aviv on August 29, 2011
Oren Ziv

Stores in Tel Aviv may open on Shabbat, an expanded panel of justices ruled on Thursday, based on the legal principle of "live and let live."

A majority of five justices to two rejected the motion by a merchants' group against Shabbat business and ratified the Tel Aviv municipal bylaw allowing 164 groceries and kiosks to operate on Shabbat and holiday. Supreme Court President Miriam Naor read out the ruling as part of her retirement ceremony, and with that, put an end to a legal story that lasted a decade.

"The ruling is based on live and let live," Naor read out. "My ruling does not reflect a ruling of value on the desirable character of the Shabbat. This is not a secular or a religious ruling. This ruling reflects the correct interpretation of the law."

The other justices supporting Naor’s position were Esther Hayut, Yoram Danziger, Isaac Amit and Daphne Barak-Erez. The dissenting minority justices were Noam Sohlberg and Neal Hendel, both of whom are religiously observant.

The merchants had argued that the Tel Aviv bylaw invalidated the legal allowance for a weekly day of rest for employees, which was designed specifically to protecting the weaker segments of society.

Naor agreed that while the bylaw does impair the rights of the merchants, it also protects other rights. The balance isn’t about one worldview over another, she said, noting that the bylaw does not impair the status and importance of Shabbat as national property of the Jewish people in any way, nor does it detract from the values of the State of Israel as a democratic, Jewish state.

She stated that while protecting the unique nature of Shabbat, every person should be entitled to shape and experience his Shabbat as he wishes, based on his own beliefs. She added that there’s good reason the Israeli legislator left it up to local authorities to find that balance.

Conference of Jerusalem-based haredim in Ramat Eshkol, June 2016
Lior Mizrahi

The job of finding the balance is no trivial thing, Naor wrote, but it is necessary in the case of a variegated society sharing a space. Municipal bylaws enabling businesses to open on Shabbat were designed to reflect the unique balance that suits Tel Aviv, she wrote, factoring in the special status of Shabbat, the composition of the population in each neighborhood, how it lives and the character of the city.

The incoming president, Justice Hayut, added that the heart of every Jew has a special spot for Shabbat, even if they don't personally keep it. "However, the State of Israel etched on its flag, upon its establishment, Jewish and democratic values alike," she wrote.

At the start of his minority opinion, Justice Hendel wrote, "Again, the Shabbat, the queen for whom the State of Israel requires the court to define the boundaries of her kingdom. ... It would be a sad irony if the State of Israel is the one to impair the socio-spiritual component of rest on Shabbat, which had been anchored in the law governing hours of work and rest.."

Battle of bills

Supreme Court President Miriam Naor is retiring on Thursday.
Oren Ben Hakoon

Ultra-Orthodox parties didn’t wait for the High Court of Justice’s decision, and have already started advancing legislation that would prevent local authorities from changing the status quo and allowing businesses to open on Shabbat.

The Interior Ministry, lead by Interior Minister Arye Dery and controlled by Shas, distributed a bill on Wednesday requiring his approval of any new municipal bylaw regarding the opening of stores or entertainment centers on Shabbat. This bill is to be brought for government and Knesset approval in a matter of weeks.

In parallel, the Ministerial Committee for Legislation is expected on Sunday to discuss a bill, co-sponsored by lawmakers from Shas, Habayit Hayehudi and United Torah Judaism to retroactively prevent the approval of municipal bylaws, dating back to January 2014, allowing businesses to operate on Shabbat, unless the interior minister approved them.

Ministers will also debate the Shabbat bill put together by coalition and opposition lawmakers, among them Miki Zohar (Likud) and Rachel Azaria (Kulanu), calling on the implementation of the Gavison-Medan covenant – an informal religious-secular agreement about religion and state in Israel – and restricting commercial activity on Shabbat in city centers alongside operating limited public transportation in secular areas on weekends. UTJ opposes the bill as violating the status quo. Coalition parties have the right to veto advancing legislation that would change the status quo on religion and the state.

Sources familiar with the bills asserted the Zohar-Azaria bill was submitted to subvert Gafni’s bill. It is too early to tell how the ministers will grapple with the flood of bills on the issue. They speak of four scenarios: killing both bills, postponing debate, approving a preliminary reading and conditioning their advancement on establishing a team to formulate a coalition-based agreement regarding them.

“Gafni is introducing a bill that tries to force closure of everything everywhere,” said Azaria. “Our bill introduces a consensus in the spirit of Gavison-Medan regarding the scope of commercial activity and public transportation on Shabbat.”

The Interior Ministry refused to comment on Wednesday about the timing of the issuing of the government bill giving the interior minister exclusive power to approve bylaws concerning business on Shabbat. Dery initiated the bill following the High Court ruling upholding a Tel Aviv bylaw on supermarkets.

The ministry’s bill would not allow the minister to retroactively undo already approved bylaws. The memorandum about the bill was sent on Wednesday to various government ministries to receive their comments on its formulation ahead of it being brought before the Knesset for a vote in the coming weeks.

Gafni is advancing his bill, which includes the retroactive provision, along with lawmakers Israel Eichler (UTJ) and Bezalel Smotrich (Habayit Hayehudi). They wrote in the preamble to the bill that Tel Aviv decided to allow supermarkets to operate on Shabbat despite the objection of operators of competing businesses who said they were forced to operate on Shabbat to compete with the major chains.

“Commercial activity on Shabbat hurts small business owners who cannot compete with major commercial entities operating on Shabbat,” they stated. “Approving the opening of businesses on Shabbat, provides a way for greedy tycoons to get rich on the day of rest at the expense of their junior employees, who are forced to give up their one day a week to enjoy rest in the company of their families, to work in the wealthy chains.”

The Shabbat bill, introduced by Zohar, Azaria, Elazar Stern (Yesh Atid) and former lawmaker Manuel Trajtenberg, permits limited public transportation on Shabbat while reducing Shabbat business activity. The wording of the bill is expected to allow opening certain commercial centers and stores starting Shabbat afternoon and permitting local authorities to operate reduced public transportation service on Friday nights to entertainment spots and on Saturdays.