Religion and State in Israel: The Case for Reevaluation and Constitutional Entrenchment

תקציר

From the establishment of the State of Israel until very recently, the issue of religion and state was handled in Israel according to the doctrine of status quo. As a result of this policy, matters of religion and state have changed little from the time the State of Israel was established. Underlying the status quo doctrine—viewed as an informal ‘gag rule’—was the perception that it served as a necessary condition for the emergence, maintenance and stability of democracy in Israel. Yet on many occasions over the past several years, once-latent disagreements over matters of religion and state have become a major source of political and cultural tensions in Israeli society.<br><br>Drawing on political and constitutional theory, this essay advocates that Israel abandon the status quo doctrine and in its stead adopt an entrenched, formal gag rule. Although concerned with gag rules in Israel, this paper has broader relevance; it analyzes and evaluates various types of gag rules, and thus, may contribute to a better understanding of the effectiveness of gag rules, especially in the form of constitutions, and the specific conditions required to secure their effectiveness.<br><br>The first part of this essay addresses a preliminary question: Is it wise to open this issue to discussion at all? Some Israelis, most of them Orthodox, believe that the best way to handle problems of religion and state in Israel is to strictly preserve the status quo and not to open it to reevaluation. I intend to demonstrate why reevaluating religion and state in Israel is essential. I will even suggest that it is in the interest of the Jewish Orthodoxy to support the reevaluation of this issue.<br><br>One of the major obstacles to reevaluating the status quo doctrine is the concern of the Orthodox leadership that substantive reevaluation will also involve a shift in power. They do not oppose a reevaluation of the issue as much as they resent the idea that judges, whom they do not trust, will be empowered to interpret and enforce the arrangement. It is possible that a reevaluation of the status quo doctrine will result in constitutional entrenchment of the new arrangement. The second part of this essay focuses, therefore, on the question of whether the issue of religion and state should be framed as a constitutional question. I hope to illustrate why constitutionalizing the issue of religion-state better serves the interests of all sides of the dispute—including the Orthodox camp—and to describe the conditions necessary to make it work. This essay will also illustrate how Israeli legislators and judges ignore the necessity of these conditions.