The Hametz Law May Infringe on Privacy and Freedom of Religion and Might Alienate Jews from their Judaism

The proposed amendment to the Patients’ Rights Law provides the hospitals with tools to prevent bringing hametz (leavened products) into hospitals on Passover. It is problematic especially because many alternatives exist that are more respectful of those who are meticulous in their observance of the holiday, but are less harmful to the secular and Arab sectors.

 

The bill seeks to enshrine in law a practice of recent years, which the High Court of Justice ruled illegal in 2020-that is, that the director of a medical institution that represents itself as respecting the laws of kashrut may instruct workers to ban visitors from bringing in or possessing food in the hospital for the duration of the holiday. The only exceptions were fresh fruits and vegetables and packaged goods bearing the “kosher for Passover” seal of a recognized authority.

Let's consider this in the context of Israel's dual identify—a state which is both Jewish and democratic.

One of the characteristics of Israel as a Jewish state and an expression of the dreams and aspirations of many generations is the celebration of Jewish festivals in the public space. The stringency of the halakhic prohibition on hametz on Passover, the fear of misleading the kashrut-observant, and the short duration of the ban are grounds for giving special consideration to the rights of the observant to freedom of religion in the sense of maintaining hametz-free spaces.

On the other hand, it is essential to balance these values and rights in a way that does no more than proportionate and limited damage to the rights of others—Jews who do not observe all the Passover food restrictions and Arabs—to autonomy, freedom from religion, privacy, dignity, freedom of movement, and religious and national self-determination that does not lead to discrimination. This is chiefly because of the nature of a hospital as an institution whose patients cannot choose to leave it, for which there are no alternatives, where living space is restricted, where patients may be on a restricted diet because of their illness, and where patients are in any case weak and vulnerable and have only limited autonomy and mobility.

The majority opinion in the High Court of Justice (HCJ 1550/18): The Secular Forum vs. the Minister of Health, handed down in April 2020, held that a blanket ban on bringing food into a hospital is a major infringement of a fundamental right and consequently requires explicit statutory sanction. The court also held that enforcement of the ban by security guards (the practice against which the petition was filed) goes beyond the authority they hold to safeguard the public’s security against terrorist activity and violence, pursuant to the Authorization to Safeguard Public Safety Law 5765-2005. Inherent to such enforcement is an obvious power disparity between security guards, who are seen as holding authority, and citizens—a disparity that is not justified in a context that does not relate to security concerns. It is important to note that everyone agrees, including in this High Court decision, to the meticulous observance of kashrut on Passover in hospital kitchens, utensils, and public spaces.

Even though the proposed amendment would grant explicit sanction to an infringement of rights, it seems that the balance between the rights of those who are meticulous about the ban on hametz on Passover and the rights of those who are not, and of Arabs, is insufficient. In addition, it should be possible to find less sweeping alternatives that would deal less of a blow to the dignity of patients and their families, to their privacy and their freedom from religion, while still preserving the amendment’s purpose of protecting freedom of religion and expressing the character of Passover in the public space.

For example, during the High Court hearings on the petition, a number of alternatives were suggested but not discussed in full, such as establishing “hametz zones” on the hospital grounds near the hospitalization building (thereby providing a partial solution for mobile patients); or the use of disposable dishes and utensils (as is the practice in kosher hotels). Other solutions might be proposed that distinguish hametz-free public areas from patients’ personal space; separating rooms where there is full compliance with Passover kashrut from rooms to which visitors could bring home-cooked food; distinguishing the avoidance of bread and bread products (a more common practice among Jews on Passover) from foods that are not kosher for Passover but are also not unequivocally hametz; and certainly a distinction between a order/request not to bring hametz into the hospital and enforcements of the ban by inspection of visitors’ bags—a practice that invades their private space, singles them out, and harshly violates their privacy, dignity, and autonomy.

Jewish religious law interprets the biblical dictum, “no leavened bread shall be found with you, and no leaven shall be found in all your territory” (Exodus 13:7) as applying to individuals who observe these precepts. It is not their responsibility to be concerned about hametz that is not on their own premises and certainly not hametz owned by non-Jews, as stated explicitly by the Talmud in tractate Pesaḥim: “It is /said, ‘no leaven shall be found that belongs to you’: you may not see your own, but you may see what belongs to others.” Of course halakhah permits non-Jews to eat and own hametz openly; in fact, the Chief Rabbinate sells (symbolically) all the hametz found in Jews’ homes and business to a non-Jew for the duration of the holiday. Those ruling on Halakhic matters, never disagreed that hametz belonging to a non-Jew can be in a Jew’s home, but only about what sort of clear separation or barrier is required to mark it off. Elsewhere in the world, observant Jews do not refrain from entering hospitals and other public institutions on Passover. In the modern state of Israel as well, the Chief Rabbinate should not be interested in getting involved with hospital visitors personal dishes towards the goal of preventing non-Jews or non-observant Jews from introducing hametz into public institutions on Passover. The harm that would result from the proposed amendment is especially worrisome with regard to the country’s Arab citizens—21% of the population—who would require the Chief Rabbinate’s consent to bring their hospitalized relatives food and drink on Passover.

The establishment of Israel as a Jewish state made it possible to expand the sense of “your territory” to public spaces—but not at the expense of infringing on the autonomy and freedom of those who do not choose to observe the precepts at all, or those who wish to observe Passover in a different fashion; and certainly not on the freedom of non-Jews. Any infringement of freedom and human rights of the sort the amendment would impose, must be “to an extent that does not exceed what is required” (§8 of the Basic Law: Human Freedom and Dignity), by a means that minimizes the damage (the test of need) and in the absence of any other means to achieve the goal with a lesser injury. In the present circumstances, it would also be appropriate to adopt a minimal interpretation of halakhah, in the spirit of the mishnah in tractate Pesaḥim: “One need not fear that a rat may have dragged [hametz] from house to house, or from place to place, or from courtyard to courtyard or from town to town: for if so, there is no end to the matter.”

Because the proposed amendment does not comply with the principle of proportionality and because there are less harmful ways to achieve its purpose, it creates constitutional difficulties and should not be passed in its current form.

I would like to conclude with a more general note on legislation on matters of religion and state. The authors of this and similar laws ostensibly wish to enhance the country’s Jewish identity by compelling its citizens to comply with the precepts of the Jewish religion according to their most rigid interpretation. But these are precisely the circumstances that are liable to push secular and traditional Jews farther away from their culture and belief. Belief, and a bond to culture, tradition, and history cannot be achieved by compulsion, but only through love. Just as the outcome of the Western Wall Plaza bill (currently frozen) alienated many from that site and even provoked the extreme protest of a woman appearing in a bathing suit there, so the result of the proposed hametz law may be to estrange the public from observance of Passover, and perhaps even incite protesters to deliberately bring hametz into the public space.