Explainer: The Supreme Court hearing on (non) recruitment of ultra-Orthodox men and budgeting of yeshivas

What is the connection between the expiration of the conscription law and the budgets for yeshivas? What exactly was discussed in the Supreme Court and is the state in violation of the law? Bottom line, will the ultra-Orthodox be recruited, or not?

Photo by Chaim Goldberg/Flash90

What exactly was discussed in Israel's Supreme Court? After all, no law has yet been passed in the Knesset to regulate the recruitment of Haredim

There is no conscription law in the Knesset yet, but this is precisely the reason for the High Court hearing. The main question discussed concerns the status of Haredi (ultra-Orhtodox) yeshiva students whose conscription was deferred due to the absence of a conscription law. The last time a law was enacted stipulating the exemption of yeshiva and "kollel" (yeshiva for married men) students from military service was in 2015, as part of Amendment 21 to the Defense Service Law. This amendment was legislated upon the ultra-Orthodox parties' return to the government coalition after the third Netanyahu government (2013-2015) and repealed the service quotas imposed on the ultra-Orthodox in the previous government along with the accompanying criminal sanctions.[1] The arrangement set out in the law was defined as a temporary arrangement that will expire at the end of June 2023. This amendment was invalidated in 2017 by an expanded composition of the Supreme Court due to a disproportionate violation of the equality principle, and the government was given a year to legislate a law whose violation of equality in the burden of service would be proportionate. Since then, 6.5 years have passed in which the government repeatedly asks (and receives) extensions from the Supreme Court to enact a law which has yet to be enacted. Upon arrival of the deadline prescribed by law, the relevant section of the law expired. Therefore, as of July 1, 2023, there is no legal arrangement exempting ultra-Orthodox yeshiva students from conscription, and the Security Service Law applies to them as to any other Jewish citizen. Since nothing has changed in the conscription of Haredi youth in recent months, petitions have been filed to the Supreme Court for their conscription by the "Movement for the Quality of Government" et al., "Brothers in Arms" et al., and Ayelet Hashachar Seidof, representing "Mothers at the Front" (Imahot Bahazit) et al. [2]

If so, is the state in violation of the law? Does the state admit that it is supposed to recruit the Haredim?

Not exactly. And this is the core of the contention before the court. The government, seeing that the set deadline of the end of June was approaching, made a decision (Decision 682 dated June 25, 2023) which determined that during the interim period between the expiration of the current arrangement and legislation of a new one, "no steps shall be taken for the recruitment of yeshiva students... until March 31, 2024." In other words, the government instructed the army not to effectively enforce the recruitment of yeshiva students for an additional period until the end of March, about a month from the date of this hearing. After that date, the state admits that the law should ostensibly be enforced. However, during the Supreme Court hearing, the state hinted that it intends to extend the deadline from March 2024 to June 2024 (a year from the expiration of the previous law) since, as stated, there is still no legislative framework on the table.

Explaining the reasons for the government's decision, the state's counsel said it was merely a temporary policy directive for the enforcement agencies, a "bridging loan," and not a new decision. He noted that given the imminent enactment of a new law by the Knesset, it would be inappropriate to present it with a fait accompli. He also noted that the military should not invest significant resources in preparing for Haredi recruitment and screening Haredi candidates for service when it is still uncertain whether they will once again qualify for exemption. In the state's remarks it was emphasized that anyone who received a deferment before the relevant section of the law expired at the end of June 2023, their deferment remains valid until June 2024, despite the fact that the section of the law by which it was given no longer exists.[3] The state's decision is also based on Section 20(b) of the Defense Service Law, which allows the army to call up conscripts with service deferrals to serve within a year of the end of the deferral period. In contrast to the petitioners, who see this clause as a specific technical solution that allows the army to distribute conscription over the year (certainly not the authority to postpone group service), the state saw it as a de facto extension of the deferral by another year. The Yeshivas Union, whose petition was also attached to the case, added and claimed that since the students were not called up for actual service by the state, and until the state does not change its actions, they cannot be adversely affected in terms of their deferment and support conditions until the state changes its actions.

If there is a government decision that extends the validity of the law, then what is the legal problem?

The question brought before the court is whether the government has the authority to make the decision it made. In Rubinstein v. The Minister of Defense (1998), the court ruled that decisions on dramatic matters affecting equality such as the non-conscription of Haredi men cannot be made at the sole discretion of the Minister of Defense but rather determined by primary legislation, i.e., initial legislation of the Knesset: "he [the Minister of Defense] has the authority to grant service deferrals; however, these deferrals should be granted as part of a national decision, made by the Knesset, regarding the State of Israel's position on the controversial social issue. [...] the decision in principle should be made by the parliament and not the Minister of Defense" (ibid, paragraph 35). The petitioners in this case sought to broaden the scope. They quoted former President Barak who said that "discrimination against the most precious of all – life itself – is the most severe form of discrimination." They argued that it is inconceivable that some of Israel's ethnic or religious groups have only duties ("Druze and Circassians"), others have duties and rights (the majority of the Jewish population) and others only rights (the Haredim who do not serve). They also argued that not only is the government's decision lacking authority, it is also influenced by extraneous considerations, lacking in good faith, extremely unreasonable, and contrary to the public interest. They sought to add to their claim the challenges of war and the increased burden on the general public (including the early conscription of some pre-military school students and service year members) that exacerbate the "discrimination between blood and blood." However, the court saw no need for all these arguments and sent them back to what Judge Sohlberg called "Administrative Law 101" – the simple question of whether the state had the authority to make the decision it made in a situation where the clause authorizing the Minister of Defense to grant exemption from conscription to yeshiva students no longer exists since this section of the law has expired. 

What is the connection between the expiration of the law and the funding of yeshiva students?

This was the subject of the second pair of petitions submitted to the court, by the Ayalon Forum for Human Rights, Social Rights and Equal Growth et al. and the Civil Democratic Movement et al. In these petitions, it is claimed that in the absence of a law granting yeshiva students deferral of service and exemption from service, the state does not have authority to support them and transfer funds for them to finance yeshivas either. Ministry of Education criteria for support of yeshivas by which support is provided ("criteria for allocating funds by the Ministry of Education to support yeshivas") refer to students whose service has been deferred or those legally exempt from service (having reached 26, the "exemption age" when the service deferral becomes permanent). If no such deferrals exist, the state should conscript them and not support them since support helps them remain "defectors." In the state's response to the petition, the attorney general too assumed a causal connection between deferral of service and state support for yeshiva students. Since the Supreme Court hearing, it's been reported that her position is opposed by government officials, who have already stated that they shall seek outside counsel if the attorney general sticks to her guns.

Is there a precedent for such a discussion threatening the budget of the yeshivas?

There is precedent for a judicial decision on the issue at hand. An interim order was issued exactly ten years ago, in February 2014, in High Court of Justice 6101/12 Hiddush – for Religious Freedom and Equality v. the Government of Israel. The petitioners were similar, as were the respondents: the government, the minister of education, the minister of finance and his ministry's accountant. The order was given by then-President A. Grunis, prohibiting the transfer of support funds to religious institutions for students liable for conscription without a valid deferment or exemption. The decision at the time stressed that the problem with the Minister of Defense's decision lies in the deferment's generality and sectoral nature, which was not made based on personal merit or individual consideration of a specific candidate. Nevertheless, the interim order never became permanent, the appeal was dismissed, and the ruling became irrelevant and wasn't given, as the Knesset successfully passed the Defense Service Law (Amendment No. 19) of 2014, which was already in its first reading in the deliberation period.

How many students are we talking about?

There are two types of yeshivas relevant to our case: the high yeshiva intended for 18-23-year-olds and the "kollel" yeshiva intended for married men. According to Ministry of Education data for the year 2023, 46,146 students study in high yeshivas and 110,333 students in "kollel" yeshivas,[4] of which 20,638 have not yet reached the age of 26 (that confers exemption) and are in "deferred service" status. Together, there are 66,784 students with "deferred service" status. In the summer, about 13,000 boys will be added, who are graduates of the Haredi education system from the next cohort. Among all of the above, there are candidates for service whose deferral of service expired during the last nine months since the authorizing section of the law expired. According to the figures presented in court, these constitute about half of the men, about 33,000. In addition to these, there are those who hold valid deferrals of service for a few more months, and others who will reach the age of 26 and receive a full exemption from military service within their of their deferral period; thus, from month to month, the status of more and more service deferrals will be called into question.

How much money is involved?

Total support for yeshivas in 2023 stood at about NIS 1.7 billion, following the cutbacks made in the coalition agreements due to the war. Most of it, about NIS 1.4 billion, goes to "kollels," whose number of students is higher, and their support is also higher since they have families. In addition, about NIS 330 million are allocated to the high yeshivas (including reduced support for foreign passport holders). The total support for service deferrals attending both types of yeshivas is approximately NIS 550 million per year. According to the data presented by the petitioners in court, out of this amount, the cost of support for about 33,000 yeshiva students whose deferral of service is no longer valid is NIS 21 million per month. Of course, the number of men moving from the "service deferral" category to the conscript categories increases daily as more service deferments expire.

What's the bottom line – will they be recruited or not?

On the evening following the hearing on February 26, 2024, the court issued two conditional orders to the state. The first order requires the state to explain by March 24, 2024, why the relevant clause in the government's decision— not to enforce the conscription of yeshiva students—should not be revoked, and thus have the military immediately conscript them. The second order requires the state to explain by March 31, 2024, why, despite the expiration of the conscription law, support can still be allocated to the yeshiva students. The significance of the orders is to shift the burden of explanation and justification from the petitioners to the state. Only after the state's response and further deliberation in the Supreme Court will a decision be made whether to make the orders absolute. In addition, the Supreme Court issued an interim order that freezes the existing state of affairs in terms of counting the days of deferral and exemption for yeshiva students; thus, the days until the final decision cannot change the students' status from service deferral to permanent exemption and new candidates for service will not enter the status of service deferral. In addition, the court set deadlines for the state in mid-March to provide data on the numbers of student and their status, data that the court was critical of not being provided for the present hearing.[5] The fact that the court decided to issue orders and transfer the burden to the state, within a very short time frame, poses a challenge to the Knesset to complete and legislate a new arrangement concerning the conscription and exemption granted to Haredim. The ball is thus returned to the political court, albeit with a short timeframe set by the court.

 

[1]  It was determined that the government could set goals at its discretion; however, they will not be in legislation.

[2] Two more petitions were filed regarding the funding of the yeshivas, which will be discussed later.

[3] By virtue of Section 22 of the Interpretation Law, 1981.

[4] Excluding foreign students with foreign passports, about 6,000 in high yeshivas and 5,000 in "kollel" yeshivas.

[5] The court refused to hear and issue orders on a related issue—the conscription of 1,300 young people studying in pre-military academies and yeshivas, as well as service year members in the March-April 2024 draft—due to the IDF's urgent need for soldiers. The petitioners argued inequality in that the military cancels the service deferrals of those who would enlist anyway instead of calling on the Haredim to serve. In addition, they pointed out unfair distribution among students of pre-military schools and service year members called up in the middle of their first year, whereas students of the Zionist yeshivas are called up in a later year.