The issues of cinemas being open in Jerusalem on Shabbat and enforcement of the Tel Aviv bylaw banning businesses from being open on Shabbat have lately reentered the public debate. The appropriate solution to both these issues is related to the values at the core of Shabbat and how they are implemented in a Jewish and democratic state.
Shabbat embodies a combination of social, national and religious values. Socially, it is intended to ensure that every worker gets a day of rest during the week. For Jews, this day of rest is Saturday. Shabbat is a national-social value that has characterized the Jewish people throughout history. It also has a religious aspect that takes its holiness from Torah law.
From time immemorial, there has been a question as to the relationship between, on one hand, the fundamental right of the individual to occupational freedom and autonomy in determining how to spend the day of rest and, on the other hand, the uniqueness of Shabbat as a social, national and religious value. This question touches on what the proper relationship is between Israel's democratic character, which protects the fundamental right of the individual, and its Jewish identity, which seeks to express the holiness of Shabbat in society. In determining this relationship, neither of the opposing values should be given overwhelming weight. The way to reconcile them is to find balance, compromise and mutual concessions as required in a pluralistic society with interwoven Jewish and democratic values.
The prohibition against Jews working on Shabbat (except in special extenuating circumstances) – today implemented via national legislation and municipal bylaws – is intended to preserve Shabbat's unique character as a day of rest in Jewish society. General permission to work and routinely open businesses on Shabbat would strike at the roots of the day's character as a national and social value – not just as a religious one. The damage this would cause to business owners' freedom of occupation and consumers' personal freedom is consistent with the values of the state on the national and social – and not just religious – level. The prohibition against regular work and commerce sits well with Shabbat's character as society's general day of rest in Israel. It has a proper purpose and a constitutional sense of proportionality. Needless to say, the enforcement of the prohibition needs to be real and sincere.
This is not the case with existing prohibitions on theaters, eating establishments and centers of leisure, recreation and culture being open on Shabbat. These prohibitions are not necessary to maintain the national and social value of Shabbat. They are intended to address the religious aspect of Shabbat alone. But at the same time, they seriously harm the freedom of members of the secular public to act according to their own wishes and lifestyles on Shabbat.
Restricting secular people's ability to use the day of rest for leisure culture is likely to be constitutionally problematic when their behavior does nothing to disturb the religious public's ability to live according to its beliefs. This kind of restriction is likely to be found disproportionate and in violation of the required balanced between the state's Jewishness and its democratic role as a protector of citizens' rights.
Jerusalem nowadays places myriad prohibitions on its secular residents on Shabbat. As a result, these residents' feelings of personal freedom are severely impaired. A sign of this is the mass migration from Jerusalem to central Israel of people – starting with the city's youth and followed by its elderly population – who seek to breathe free air. Human existence is possible under prohibitions and restrictions that harm quality of life, but over time, a choking feeling, enforcement and depravation intensify and seek outlet and redress.
The Jerusalem municipality would do well to work to remove the ban on screening movies on Saturdays at the Cinema City multiplex located at the edge of the government compound in the city's Givat Ram neighborhood. The state and local authorities would do well to invest in the development of centers of culture and leisure on Saturday for the enjoyment of the secular public. Likewise, they should permit public transportation to enable mobility by people without private vehicles. All of this should be done with consideration for the locations of religious neighborhoods in the community. To make these things possible, it would also it would also be justified to provide permits to work and conduct business on Saturday.
The authorities would do well to allow true pluralism within the unique framework of Shabbat without harming its uniqueness. In these ways, it would be possible to reconcile individual freedom and the Jewish character of Israeli society on this complex issue.
The writer is an emeritus Supreme Court justice.
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