A Historic Supreme Court Hearing on Haredi Conscription and Yeshiva Funding

Israel's Supreme Court convened to hear arguments on the issue of drafting ultra-Orthodox yeshiva students who no longer are exempt from military service, and the legality of providing funding for yeshivas that enroll them as long as no new law has been legislated on this issue.

Photo by Amit Shabi/POOL

On Sunday, June 2, 2024, at 9:30 AM, Israel's Supreme Court convened with an expanded panel of nine justices to discuss the issue of drafting Haredi (ultra-Orthodox) yeshiva students who do not have an exemption or deferment from military service, and the legality of providing funding for yeshivas. This hearing took place against the backdrop of the ongoing “Swords of Iron” war and the country’s need for more combat soldiers, as well as the growing public concern regarding this issue. The hearing occurred as warnings from economists and tech professionals about the existential threat to the Israeli economy and society surface in the media, including: an economic crisis, increased taxes, emigration of the high-tech industry professionals, and businesses relocating abroad. There are also serious concerns about the collapse of the People’s Army model and a societal crisis relating to the gap in the civic duties and obligations of different population groups.

Petitions

Six petitions were filed against various respondents, including the Government of Israel; the Ministers of Defense, Education, and Finance; the IDF and the Chief of Staff; the Attorney General, the Accountant General at the Ministry of Finance, the Union of Yeshivas, and the leaders of the Haredi parties, Ministers Aryeh Deri, Yehudah Glick, and Moshe Gafni. Three of the petitions demanded immediate drafting of yeshiva students (the Movement for Quality Government, Brothers in Arms, and Mothers on the Frontline), while two petitions seeks to convert an interim order that freezes public support for draft-evading yeshivas, issued in February 2024, into a final order (the Ayalon Forum for Human Rights and the Civil Democracy Movement). These five petitions are continuations of the case held on them about three months ago. The sixth petition, a new one, challenges the government's decision to adopt separate consultation before Israel’s Supreme Court for the ministries of defense, education, and finance, and for the IDF, not through the Attorney General, after she approved separate and detailed representation for the government but not for the ministries and the IDF.

Panel of Justices

Heading the panel was the Acting President of the Supreme Court, Justice Uzi Vogelman, alongside Justices Yitzhak Amit, Noam Solberg, Daphne Barak-Erez, David Mintz, Yael Willner, Ofer Grosskopf, Alex Stein, and Gila Canfy-Steinitz. The panel of justices was balanced and may have even leaned in a conservative direction, following the conventional distribution of justices between conservatives and liberals, as customary during the time of the judicial overhaul legislation era prior to the war. However, the conscription issue breaks through all the usual political-religious divisions both in public opinion and in the analytical division between 'conservatives' and 'liberals. ' Moreover, as Justice Solberg expressed during the hearing in February, when he asked the attorneys to be concise in describing the history of the issue, the legal issue is not complex but rather "an issue of administrative law 101."

Legal Representation

The government was not be represented by the Attorney General's Office, as was the case in the February 2024 hearing, but by a private attorney, Adv. Doron Taubman, a partner at Ram Caspi Law Firm (Taubman represents, among others, the Chief Rabbis in the Supreme Court on the Western Wall, which has been pending since 2016). This development occurred after the Attorney General accepted the connection made by some petitioners between the conscription issue and the issue of funding for yeshivas for draft dodgers, a connection rejected by the government. The government requested and received the Attorney General’s approval for separate representation but chose to expand this representation to include the government ministries responding to the petitions—the ministries of defense, education, and finance—and the IDF. This expansion contradicted the Attorney General’s position, which framed it as an illegal attempt to prevent legal representation from overseeing the legality of handling yeshiva student conscription and the compliance with court orders not to transfer excessive financial support to yeshivas.

Possible outcomes of the hearing

Over the years, Israel’s Supreme Court has refrained from making a decision regarding the enlistment of Yeshiva students and has sent the decision back to Knesset to adopt a law with an arrangement that is, on the one hand, the result of the political power structure and, on the other hand, will not harm equality to an extent that exceeds what is required. It is likely that even now the court does not want to take on this matter, however, in the absence of a law regulating the issue, it did not have a choice.

One possible outcome of the hearing is that the court will be convinced that the government is making a sincere effort to enact a proper Haredi enlistment law in the foreseeable future and will extend the deadline for doing so even further, as it has done for the past seven years. At the same time, it will be difficult to convince the court that the coalition will agree to the wording of the law when the ultra-Orthodox are not ready to approve a law that requires the conscription of even some of the ultra-Orthodox youth. The opposite possibility is that the court would not be convinced that the legislation before it is a serious proposal that is acceptable to the coalition and could feasibly pass, or that it would consider that no true effort has been made to reduce the harm to the principle of equality. In such a case, the court would turn the interim orders into final orders, ordering the issuing of conscription orders to the ultra-Orthodox youth and the permanent cessation of support for the yeshivas for draft dodgers. Such a provision would exacerbate the political crisis and may even lead to the withdrawal of the ultra-Orthodox from the coalition, thereby dissolving the government.