The Shabbat Wars: A Guide for the Perplexed on the 'Status Quo' … and a Possible Solution
A series of recent struggles from the Israel Railways operating on Shabbat to the battle over opening businesses on Shabbat in Tel Aviv are setting off yet another round in the ongoing Shabbat Wars, threatening the stability of the government coalition.
However, these troubles are nothing new.
This short document aims to provide a summary of the legal situation in Israel regarding Shabbat observance, explain how Shabbat is actually observed by average Israelis, and demonstrate the irrelevance of the “status quo,” in order to outline the principles for a solution that is acceptable to a majority of Israelis – one that was proposed over a decade ago by the Israel Democracy Institute.
In Israel, the term status quo refers to official relations between religion and state. It purports to describe a complex web of de jure and de facto arrangements on issues where there are conflicting views, points of friction and even outright clashes between religion and state in Israel. Primary examples include conversion, marriage and divorce, Shabbat, kashrut and religious services. The use of the status quo concept to describe the arrangements on religion and state in Israel has become so accepted that most of the coalition agreements signed between parties that formed Israel’s governments in recent decades, including the current government, contain a section declaring that the status quo on issues of religion and state will be maintained.
This state of affairs was created by the status quo letter in 1947. Faced with the threat of the Haredi Agudat Yisrael party opposing the establishment of the State of Israel, then Prime Minister David Ben-Gurion vowed that the fledgling state would take Jewish religious concerns into account on three issues: Shabbat, kashrut and matrimonial law. With regards to Shabbat and matrimonial law, the letter contains only general and vague commitments, despites the issues’ complexities. Of course, the letter in and of itself had no legal value, having been issued prior to the establishment of the state.
Of the various issues related to religion and state, the status quo regarding Shabbat is one of the most charged and complicated. From the genesis of the Zionist movement, this question had concerned religious Zionist leaders and members of other religious parties. One example of this preoccupation with Shabbat laws dates back to Mandatory Palestine, when the city of Tel Aviv passed a municipal bylaw banning the operation of businesses on Shabbat.
The status quo letter states that “it is clear that the legal day of rest in the Jewish state will be Shabbat.” Nothing can be inferred from this about what the character of Shabbat will be, or the extent to which it will be observed, even in the most general terms.
Since then, the State of Israel has witnessed hundreds of struggles over Shabbat observance, both on a national and municipal level. When a Friday afternoon ceremony celebrating the arrival of F-15 warplanes ran into Shabbat, this transgression brought the demise of the first Yitzhak Rabin government in 1977.
Israel has no “Shabbat Law.” However, the issue is addressed in three main sources: The Hours of Work and Rest Law, municipal bylaws and transportation regulations.
Working on Shabbat—Hours of Work and Rest Law
The first law to regulate work and rest on Shabbat was the 1951 Hours of Work and Rest Law, which forms the basis of Shabbat regulation in Israel until the present day. The law was passed by the first Knesset, despite the opposition of religious parties who had favored a Shabbat Law. Had the religious parties had their way, the Shabbat Law would have included a declaration by the Jewish state of the sanctity of the Sabbath and clearly delineated the official form of Shabbat observance. Instead, the law that passed is very much socially-oriented, and is concerned with the number of weekly work hours permitted, as well as workers’ right to a weekly rest.
The law’s section 7 states:
(a) The worker’s weekly rest period shall consist of at least 36 consecutive hours.
(b) The weekly rest period shall consist of:
i. For Jews—the day of Shabbat;
The implication of this section, and of the law’s other sections, is that it is forbidden to employ a Jewish worker on Shabbat. Another section also forbids Jews from working in their businesses on Shabbat. In addition, there is a separate source for the preclusion of operating businesses.
Alongside the prohibition of working on Shabbat, the law defines two kinds of exemptions: general permits granted to certain market sectors, for which work on Shabbat is essential, and special permits granted to workers whose employment on Shabbat is essential. Most of the general permits are granted to a limited number of sectors, such as water supply, the hospitality industry, lifeguards on beaches and at swimming pools, etc. These permits can only be granted by a committee comprised of the Minister of Labor, Minister of Religion and the Prime Minister.
Special permits are issued by the Minister of Labor in cases in which not employing workers on Shabbat might “cause great harm to the economy, to the process of work, or to the supply of needs that are, in the opinion of the Minister of Labor, essential to the entire public or part of it.” As is evident, the section provides a broad definition of the needs for which working on Shabbat is permissible and thus the Minister of Labor enjoys considerable discretion in the application of permits. The number of permits granted by the Minister of the Economy (and recently, once again, the Minister of Labor) has varied over time and is also dependent on ministerial policy. However, several hundred permits account for the employment of thousands or more workers. There were around 350 permits in place at the end of 2015. These include permits for public institutions such as the Israel Broadcasting Authority and the Israel Airports Authority.
The law gives the Minister of Labor executive power to enforce the law, including administrative fines to employers who break the law and pursuing criminal charges.
The Work and Rest Hours Law is a cornerstone of the Shabbat status quo. Yet, as can be seen from its provisions, the law says nothing about observing or desecrating Shabbat in the religious (“halakhic”) meaning of these terms. The general permits, issued to such sectors as the hospitality industry and public beaches, are the result of the need to sustain entire market sectors. And the discretion afforded the Minister of Labor to issue special permits is far broader than any halakhic range of options for permitting work on Shabbat, which mainly relate to life-threatening circumstances.
Today, the large majority of municipalities have municipal bylaws in place that forbid opening businesses on Shabbat
Opening and Closing Businesses—The Municipality Ordinance and Municipal Bylaws
The main sources for arrangements regarding the opening or closing of businesses on Shabbat are municipal bylaws. These are set according to the Municipality Ordinance, which states that local authorities are empowered to regulate the opening and closing of stores, workshops, restaurants, cafes, bars, cinemas, theaters and other places of public leisure. In addition, it allows local authorities to oversee these establishments’ opening and closing times and days. This power can also be applied to rest days, “in consideration of the claims of religious tradition” (the Law of Empowerment).
Today, the large majority of municipalities have municipal bylaws in place that forbid opening businesses on Shabbat, but most of the regional councils do not. The broad powers given to local authorities to determine opening or closing of businesses on Shabbat allow for flexibility in their application to different types of business. For example, in some municipalities, the bylaws permit cultural and leisure activities, while forbidding commerce. Most of the municipalities that have these kinds of bylaws do in fact outlaw the opening of businesses.
For municipal bylaws to become effective, the Municipality Ordinance requires the signature of the Minister of the Interior. This also has implications for Shabbat observance. Recently, when Tel Aviv sought to change its bylaws to allow many more businesses to operate on Shabbat, the Minister of the Interior refused to authorize the change, and so prevented it from being enacted.
As with any other bylaw, the local authority is charged with enforcement related to operating businesses on Shabbat and it can issue fines or take other steps against transgressors.
Public Transport—The Transportation Ordinance
With the exception of Haifa, Eilat and specific routes in other locations, a status quo took hold in Israel in the very earliest days of the state, and even prior to the country's establishment. According to this status quo, public transportation does not operate on Shabbat. This was formalized in 1991 with the Transportation Ordinance, which prohibits “operating public bus routes on rest days; in this regard, the minister will take into consideration as much as possible Jewish tradition relating to the prohibition of the use of motor vehicles on rest days.”
This rule also has an exception, and the Ministry of Transport has the power to allow certain routes to operate on Shabbat, which serve specific needs as defined in the regulations: “those bringing passengers to hospitals; those bringing passengers to outlying settlements; those bringing passengers to settlements whose residents are not Jewish; those which are essential, in the view of the authority, for public security; and those which are essential, in the view of the authority, for maintaining public transportation services.”
Israel has no Shabbat Law that regulates Shabbat observance in the country in a coherent manner along halakhic lines, despite repeated efforts since the establishment of the state to pass such legislation. Beyond the determination that Shabbat is the weekly day of rest in Israel, and the reference in the Municipalities Ordinance to Shabbat in Jewish tradition, the rest of the relevant legislation is societal, not religious, in nature. The principles, boundaries and exemptions they contain were driven by considerations of economic benefit or social value, rather than religious motivations.
The network of laws that regulate the nature of Shabbat in Israel leaves many gaps and creates legal irregularities. For example, although many businesses operate on Shabbat legally, such as restaurants in cities where it is allowed, they cannot employ Jews on Shabbat. In addition, the Work and Rest Hours Law is imprecise regarding the scope of its prohibitions. It mentions only “stores,” “factories” and “workshops.”
Yes … and no.
Because Shabbat long ago ceased being a day of rest, the status quo has practically speaking been dead for quite a while. The accepted concept of the status quo is that the network of arrangements it forms generally prevents economic activity from taking place on Shabbat. This is why the religious parties cling to it. On the other hand, what was true during the first decades of the state began to change in the 1980s and these changes have accelerated in recent years.
Today, Shabbat is not the day of rest it once was. True, most Israelis don’t work on Shabbat, but hundreds of thousands of Israelis do, most of them illegally. Entire sectors are active, mainly in the fields of culture and leisure, sanctioned by municipal bylaws.
In addition, there are now more and more businesses and stores operating illegally on Shabbat. Thus, the great majority of cinemas, the majority of museums, and around half of Israel’s cultural institutions are open on Shabbat, mostly in line with municipal bylaws, as are most sports clubs and swimming pools (in season).
But it would seem that what causes the greatest difficulty, and is at the heart of the issue of Shabbat observance, and is also “killing” the status quo, is the activity of commercial businesses. There is insufficient data regarding kiosks and corner stores, but the greatest volume of activity is to be found in malls and in out-of-town shopping centers. It is estimated that some 20 percent of malls in Israel are open for business on Shabbat, representing a huge volume of commerce.
The death of the status quo regarding Shabbat can also be seen in the noticeable lack of enforcement of the laws regulating the closing of businesses. On a national scale, the Work and Rest Hours Law lacks consistent enforcement. The data provided by the Ministry of the Economy about the law does not reflect the extent to which it is enforced (or not). It can be deduced that it is not being optimally enforced, based on the actual number of reports versus the number of Jewish employed on the Sabbath.
At the local level, enforcement is also inconsistent, with many local authorities choosing to ignore offenders either because of ideological reasons or economic considerations, among other reasons.
The lack of enforcement of local Shabbat laws renders them practically worthless. A prime example is in Tel Aviv, where even after the High Court of Justice ruled that it must act to enforce its municipal bylaw and fine businesses that open on Shabbat, the municipality has been lackadaisical about enforcing this law, therefore many businesses continue to operate unhindered.
On the other hand, from a purely legal perspective, very little has changed in the decades since the state was established. The Work and Rest Hours Law, which is the main basis for regulating Shabbat as a rest day, has not been significantly amended for years. Neither has legislation regarding public transportation. Over the years, various local bylaws have been passed that either forbid or permit the opening of businesses on Shabbat, but they have been few and far between.
Religious politicians cling to the status quo rather than opening it up to change, for fear the cost of change would come at a high political price.
The current situation is a social, cultural and religious tragedy.
For a great many Israelis, Shabbat is an important cultural and religious value. The gift of the Jewish people to the world, Shabbat is for many an integral part of Jewish heritage or tradition, as well as of the Jewish state.
Surveys show that most Israeli citizens believe Shabbat should have a unique character from other days of the week and that Shabbat should give expression to Jewish tradition and heritage. Moreover, mass non-observance of Shabbat is immensely harmful to the weakest members of the labor market: single mothers forced to work on the only day they can spend with their family, service sector workers who find themselves bound to the workplace on the seventh day, and business owners who face the cruel choice of operating on Shabbat, sometimes against the dictates of their own conscience, or going bust.
Absolutely.
To get people from across the political-religious-ideological spectrum in Israel to agree on the nature of Shabbat seems insurmountable. The differences between Haredim and other members of the Orthodox Jewish community on the one hand, and the ideological secular on the other, are great. Neither side is willing to make even the slightest compromise on the character it desires for Shabbat within the Israeli public space. The religious camp is not prepared to desecrate the Sabbath, while the secular camp believes that the Israeli public space should be entirely free of restrictions connected to Judaism or halacha.
However, there is one idea that could be acceptable to both a majority of the public and politicians. This is a solution proposed back in the late 1990s by then MK Nahum Langenthal. Subsequently, it was revisited by MKs Yossi Beilin and Alex Lubovsky, and then further developed through research conducted by the Israel Democracy Institute. The findings and recommendations of this research were later incorporated by Rabbi Yaakov Medan and Prof. Ruth Gavison into the “Gavison-Medan Covenant.
The primary contours of the solution are: (1) shutting down commerce on Shabbat; (2) allowing cultural activity; and (3) permitting a limited scope of public transportation, as well as essential services such as those that currently operate on Shabbat.
This proposal offers the outline of a solution, while acknowledging that there is some variation possible in how it might be implemented. The precise balance between the components of the solution should be the subject of national and local public debate.
Surveys show that a sizeable majority of the Israeli public, including secular Israelis, support this proposal, and it can be assumed that a majority of Knesset members would vote for it if devoid of political backlash.
While it appears that today the issue has seemingly hit a dead end, the Israel Democracy Institute is a leading partner in the new “Israeli Shabbat Coalition.” This group is comprised of more than 20 organizations from across the religious and political spectrum, and is aimed at advancing the components of the solution proposed by the Israel Democracy Institute first on the local level and then nationally.