Israel: Two Case Studies in Politics and Freedom of Religion

Author
Alon Harel

April 9, 2015

Two recent debates in Israel have drawn a lot of attention, raising questions about freedom of religion in cases in which the religious practices of one group directly impacts other groups.

The first is a debate concerning the desire of Women of the Wall to pray near the Wailing Wall. The second is a debate concerning the desire of Jewish Temple Mount activists to pray on the Temple Mount near the Dome of the Rock, a Muslim shrine.

The first debate involves Women of the Wall, a multi-denominational feminist organization based in Israel whose goal is to secure the rights of women to pray at the Western Wall, a remnant of the ancient wall that surrounded the Jewish Temple's courtyard (also called the Wailing Wall, see Sightings May 9, 2013 in Resources below).

The participating women conduct rituals which are according to prevailing view among orthodox Jews reserved for men. For instance the women read aloud from the Torah and use religious garments traditionally worn by men such as tallit, Tefillin and kippah.

While Women of the Wall also includes orthodox women their activities are considered offensive by Ultra-Orthodox groups who protest against the women and, at times, use violence against them.

The women regard their right to conduct these rituals near the Wailing Wall as part of their religious freedom while opposing orthodox groups argue against this right on the grounds that the Wailing Wall is a holy site and it cannot be used by groups who violate the rules of the Jewish religion as understood by them. 

The second debate involves Temple Mount activists— groups consisting of nationalist and orthodox Jews who wish to conduct prayers on Temple Mount which is also a holy site to Muslims.

Some members of these Jewish groups are extremists who wish to destroy the mosques on Temple Mount and re-build in their place the Jewish Temple which had stood in that location until it was destroyed in 70 CE. Others simply urge the government to allow Jews to pray on Temple Mount while conceding also the rights of Muslims to conduct their religious practices there.

While most orthodox Jews believe it is a grave sin to pray on Temple Mount (as it is a Muslim holy site), Temple Mount activists regard praying there as a fundamental right.

Both cases raise similar questions.

It is evident that Women of the Wall has an interest in conducting their rituals in the place which is among the holiest places to Jews. Yet it is also evident that the Wall is also holy to orthodox communities who regard these rituals as a grave sin.

The Ultra-Orthodox community claims that while no one may prohibit these rituals when they are conducted in Israel or the city of Jerusalem, performing them near the Wall should not be allowed since these religious rituals, for them, are no different than opening a night club or a brothel.

Similarly Muslims argue that Jewish prayers on Temple Mount disrupt their own rituals and is detrimental to their religious practices. The recent riots and violence in Jerusalem, including the attempt to murder a prominent Temple Mount activist (Yehuda Glick), are attributed by some observers to the recent efforts of Jews to pray on Temple Mount.
  
But while both cases raise similar questions the political forces that support the one group oppose the other. Women of the Wall is a group that is supported by liberal (including secular) forces in Israeli society. They want to challenge the control that orthodox Jews have over the Wailing Wall.

In contrast Temple Mount activists are supported by national extremists including extremists who are secular.

I find this state of affairs to be a regrettable one. I do not deny that there may be major distinctions between the cases that may justify a differential approach. Yet the public debate concerning the right of both groups to pray has similarities which ought not to be ignored.

A serious public debate concerning the right of each of these groups ought not to be subject to the positive or negative feelings one has towards one group or another.

The right to religious freedom is not only the right of leftist liberals to conduct feminist rituals nor is it only the right of extremist nationalists. It is not a political right but a religious one.

While it is evident that both Women of the Wall and Temple Mount activists have, in addition to their religious convictions, political and nationalist agendas, this does not justify treating the conflict as a political rather than religious conflict.

Ultimately the state of Israel and its political and legal institutions will have to address the conflict. The courts have an important role to play since some of the issues raise legal questions as well as questions that affect constitutional rights.

Religious leaders will also participate and their voices will inevitably be heard by the Israeli political establishment.

Lastly, the risks of violence and disruptions will also play a major role in guiding decision-makers. The issue is a thorny one and has a potential to trigger violence on a large scale. This fact is well known to political leaders.

My recommendations?

I would consider the possibility of setting up temporary arrangements that would be subject to review every ten years with the hope that there would be greater trust between the groups in the future. I would also favor pragmatic decisions even when pragmatism conflicts with some of my moral and political convictions.

Resources:

Hirschhorn, Sara. “Women of the Wall Prevail.” Sightings, May 9, 2013. https://divinity.uchicago.edu/sightings/women-wall-prevail-sara-hirschhorn.

Women of the Wall. http://womenofthewall.org.il.

Chabin, Michele. “Jewish girls want to read from the Torah at the Western Wall, new bus ads proclaim.” Religion News Service, October 13, 2014. http://www.religionnews.com/2014/10/13/jewish-girls-want-read-torah-western-wall-new-bus-ads-proclaim/.

Goldenberg, Tia. “Ultra-Orthodox Jews Attack Jerusalem Buses Over Women Of The Wall Ad.” AP Huffington Post, October 23, 2014, Huffpost Live/Religion. http://www.huffingtonpost.com/2014/10/23/ultra-orthodox-jerusalem-bus-ad_n_6036936.html.

Sharon, Jeremy. “Women of the Wall smuggle tiny Torah scroll to Western Wall for Bat Mitzva.” Jerusalem Post, October 24, 2014, Israel News. http://www.jpost.com/Israel-News/Women-of-the-Wall-smuggle-tiny-Torah-scroll-to-Western-Wall-for-Bat-Mitzva-379719.

Times of Israel staff. “New bill would allow Jews to pray at Temple Mount: Likud, Labor lawmakers behind controversial initiative; regulations currently permit only Muslim worship in compound.” Times of Israel, May 19, 2014, Israel & the Region. http://www.timesofisrael.com/mks-propose-law-allowing-jews-to-pray-at-temple-mount/.

JTA. “Despite confiscations, Women of the Wall light Hanukkah candles.” Times of Israel, December 19, 2014, Jewish Times. http://www.timesofisrael.com/despite-confiscations-women-of-the-wall-light-hanukkah-candles/.

Eisenbud, Daniel K. “Jerusalem’s Temple Mount closes to all visitors after shooting of Yehuda Glick: Prominent right-wing activist evacuated to capital’s Shaare Zedek Medical Center for surgery; police searching for suspect.” Jerusalem Post, October 30, 2014, Israel News. http://www.jpost.com/Israel-News/Unknown-assailant-shots-seriously-wounds-known-right-wing-activist-in-Jerusalem-380210.

JPost.com Staff. “Chief Rabbi: Jewish prayer on Temple Mount is crime punishable by death.” Jerusalem Post, November 7, 2014, Arab-Israeli Conflict. http://www.jpost.com/Arab-Israeli-Conflict/Chief-Rabbi-Jewish-prayer-on-Temple-Mount-is-crime-punishable-by-death-381106.

Margalit, Ruth. “The Politics of Prayer at the Temple Mount.” New Yorker, November 5, 2014, News. http://www.newyorker.com/news/news-desk/furor-temple-mount.

Yashar, Ari. “Netanyahu Assures EU: No Jewish Prayer on Temple Mount.” Arutz Sheva Israel National News, November 7, 2014, Inside Israel.
http://www.israelnationalnews.com/News/News.aspx/187176#.VPOxk1ouxbk.

Israel Today Staff. “Muslim Cleric Says Jews Should Prayer on Temple Mount.” Israel Today, December 23, 2014, News. http://www.israeltoday.co.il/NewsItem/tabid/178/nid/25699/Default.aspx.

Image: On the right, the Western Wall, a remnant of the ancient wall that surrounded the Jewish Temple's courtyard in Jerusalem, Israel. On the left, the Dome of the Rock, a Muslim Shrine located on Temple Mount; Credit: Sean Pavone / shutterstock.com creative commons.


738bc01c-941e-4763-a9e6-f8870e202e89.jpgAuthor, Alon Harel, (D.Phil. Oxford University) is Phillip P. Mizock & Estelle Mizock Chair in Administrative and Criminal Law at Hebrew University of Jerusalem. In 2014, Harel was Visiting Professor at the University of Chicago Law School. He specializes in political philosophy, jurisprudence, criminal law, constitutional law, and law and economics. He is a leading advocate of Israeli human rights in Israel. Harel is the founder and editor, with David Enoch, of the journal, Jerusalem Review of Legal Studies. He is the author of the monograph, Why Law Matters, Oxford Legal Philosophy (2014)
 


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Comments:

Rachel's Tomb1.  Paul Parker (Baltzer Distinguished Professor of Religion and Chair of the Religious Studies Department at Elmhurst College, Illinois):

Religious freedom is so crucial that any genuine cry for it must be taken very seriously. Alon Harel’s April 9, 2015 appeal for the freedom of religion in Israel appears to be such a plea (Sightings, “Israel: Two Case Studies in Politics and Freedom of Religion”), but his call for a “pragmatic decision” to have a state imposed arrangement on al-Haram al Sharif/Temple Mount is troubling because it misrepresents Islam, assumes that the Jewish State of Israel has the right to occupy the State of Palestine, and assumes that the Jewish State of Israel has the authority to determine the religious practice of Muslims.

Harel, the Mizock Professor of Law at Hebrew University in Jerusalem, must surely know that nothing in Islam disallows Jews or Christians from praying on the Temple Mount/Haram al Sharif (or Noble Sanctuary in English). They have all prayed there previously and will again in the days to come—one hopes.

However, the first of the two core problems with Harel’s argument is not its misrepresentation of Islam, but the unquestioned assumption that the State of Israel has the legal authority to determine anything about the Noble Sanctuary/Temple Mount. The entire 35 acre holy site is inside the Old City which itself is in East Jerusalem, part of the West Bank of the State of Palestine. The religious conflict that Harel and we all deplore is embedded within the political conflict of Israel’s continued disregard for broad international agreement that its military occupation of Gaza and the West Bank of Palestine is illegal and must end. End the occupation and much of the conflict wilts away. 

The problem with Jews and Christians praying on the Temple Mount/Noble Sanctuary is not theological or religious but political. The Jewish State of Israel gives special rights and privileges to Jewish citizens that it withholds from non-Jewish citizens and from all Palestinians in the occupied State of Palestine. And the daily presence of the heavily armed Israeli National Police on the Noble Sanctuary/Temple Mount convincingly illustrates the kind of Jewish/Muslim arrangement that the Jewish State of Israel anticipates for Muslims.

An example of Jewish State of Israel imposing ‘religious freedom’ on holy sites is Rachel’s Tomb in the West Bank Palestinian town of Bethlehem. Israel built its eight-meter high wall deep into the West Bank (“wall” is the term used by the UN’s International Court of Justice) to isolate Rachel’s Tomb from Palestinian Muslims who now can only access the shrine with special government permits. What once was an interreligious holy site is now an exclusively Jewish shrine.

The second core problem with Harel’s essay is its assumption that the Jewish narrative is the only authoritative history. His article refers to the “Temple Mount” ten times, but never once to al-Haram al-Sharif or the Noble Sanctuary. The site is not only holy to Jews and Israel, but also to Muslims and Palestinians. The essay’s bias for Judaism and Israel signifies some of the basic problems with sharing the Temple Mount/Noble Sanctuary with Israeli Jews even those who champion human rights.

Such assumptions run throughout the essay: Should members of one religion (Judaism) really dictate the interreligious relationship with members of another religion (Islam) at a site considered sacred by both?

By following Harel’s recommendation to have the government and the courts impose the conditions of interfaith relations, would religious freedom from state control actually be more strongly secured? Aren’t state imposed conditions on the practice of religion the opposite of religious freedom? Although some might reply that Israel is not a special case, every religiously diverse state experiences the same tension, for example, France, India and the United States.

Moreover, religious freedom is impossible in a state that is militarily occupied (Palestine) and in a state (Israel) that legally discriminates against the adherents of non-majority religions. If one objects that these are not issues of religious freedom because to be a Jew is ethnic not religious, then one must deal with state sanctioned preferential treatment according to ethnicity rather than state sanctioned preferential treatment according to religion—both unattractive options.

The U.S. Office of International Religious Freedom, led by Ambassador at-Large David Saperstein, issues annual reports on religious freedom for every country. The latest report on Israel states, “Legal and policy restrictions on religious freedom continued.” While it is true that Israel’s Declaration of Establishment affirms equality and religious freedom for all citizens, Israel’s laws, judicial decisions, and social practices have consistently fallen short.

If Harel is really concerned about the freedom of religion, he could start by recommending that Israel: end its military occupation of Palestine; remove its troops and police from all holy sites; allow all Muslims to pray at Al Aqsa, not just those over the age of 50; not restrict Christian worship on Easter and Christmas; open Rachel’s Tomb to all devotees; stop paying Israeli rabbis and other religious leaders with public tax money; fund Christian schools at the same rate as Jewish schools, or don’t fund either; allow interreligious weddings; explicitly make religious discrimination illegal in Israel’s Basic Laws; and grant non-Jewish citizens of Israel the same civil rights as Jewish citizens in employment, education and housing. If Harel is really interested in the freedom of religion, he’s got plenty of work to do in the Jewish State of Israel.

Democracy is messy and dangerous, including the freedom of religion, but worth the risk.

Resources:

Adalah, the first Palestinian-Arab legal center in Israel, promotes and defend the human rights of Palestinian-Arab citizens of Israel and Palestinian. Two recent reports are the “Discriminatory Laws Database,” http://www.adalah.org/en/content/view/7771; and the “Inequality Report: The Palestinian Arab Minority in Israel,” March 2011, http://www.adalah.org/en/content/view/7404

B’Tselem, The Israeli Information Center for Human Rights in the Occupied Territories, publishes scores of reports on Israel’s belligerent occupation of Palestine, for example, http://www.btselem.org/topic/settlements

Nissim Leon, “Why religious Jews are divided over the Temple Mount,” +972, November 22, 2014. http://972mag.com/why-religious-jews-are-divided-over-the-temple-mount/99090/.

In UN Security Council Resolutions 242 (1967) and 338 (1973), the entire international community called Israel to relinquish the land it had conquered. The United Nations continues to affirm these Resolutions. http://www.un.org/Depts/dpi/palestine/ch3.pdf

Summary of the Advisory Opinion of 9 July 2004, International Court of Justice. http://www.icj-cij.org/docket/files/131/1677.pdf

The U.S. 2013 International Religious Freedom Report for 2013: Israel and The Occupied Territories. http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm#sectioniilegalpolicyframework

Image: Rachel's Tomb, formerly an interreligious site, is now an exclusively Jewish shrine divided into a men's and a women's section. Photo taken by Prof. Paul Parker and used with his permission.

2.  Alon Harel (responding to Paul Parker's comment above):

I am grateful to Professor Parker for his response to my comments. Many of Professor Parker's comments are valuable although irrelevant while some of his comments are inaccurate. Let me point out some inaccuracies and turn then to establish why most of his (sound) claims are irrelevant.

Professor Parker argues that: "nothing in Islam disallows Jews or Christians from praying on the Temple Mount/Haram al Sharif (or Noble Sanctuary in English). They have all prayed there previously and will again in the days to come—one hopes."

I am not an expert on Islam, so I will dare not make any assertions about Islam. But it is no secret that the Muslim leadership did its best to prevent prayers of Jews in the Wailing Wall (the western part of Temple Mount/Haram al Sharif). In September 1928 the British police removed forcefully a screen that was used to separate men and women during the prayer. The British acted on the request of the Supreme Muslim Council. In 1929 a large group of Arabs attacked the Wailing Wall and burnt prayer books. This riot spread and later on culminated in the brutal murder of the Jewish community in Hebron. The armistice agreement between Israel and Jordan from 1949 required "free access to the Holy Places and cultural institutions and use of the cemetery on the Mount of Olives." Needless to say that despite persistent requests from Israel Jordan failed to honor its obligations under this agreement. To the extent that Islam welcomes Jews to pray on Haram al Sharif, there is an unbridgeable gap between the theory and practice of Islam.

I agree with many of the concerns raised by Professor Parker with respect to Israel. I believe that I am as opposed to the occupation as he is; I condemn discrimination of Israeli Arabs which is unfortunately prevalent in Israel. I also condemn the absence of civil marriage in Israel and many other practices as vehemently as Professor Parker probably condemns wrongs committed by the US government. I fail however to see the relevance of these observations to the issue at stake. Professor Parker argues that Israel has no rights to make any determinations concerning Haram Al Sharif because it occupies it illegally. In other words under his view, Israel is not allowed to prevent Jews from praying in the mosques and disrupt Muslim prayers because it occupies illegally these mosques.

I find this view unintelligible. It is evident that as long as Israel occupies the territories it has the obligation to honor the rights of all and protect their religious freedoms. Professor Parker himself condemns the treatment of Muslims in Rachel's tomb. The fact that Israel occupies Rachel's tomb illegally does not detract from its duties to protect religious freedoms. Under the assumptions of Professor Parker the occupation and perhaps other wrongs committed by Israel exempt it from its duties to protect religious freedom. I, on the other hand believe that as long as Israel has control over the holy places it has the duty to protect religious freedoms. One wrong committed by Israel namely the occupation does not exempt it from its duties to prevent other wrongs such as restricting religious freedoms.

See all articles by Alon Harel