A Sharp, Unequivocal, and Unanimous Supreme Court Decision to Draft Haredim

The Supreme Court ruling on June 25th addresses the question of whether the government is operating in accordance with the law. It determined that the state must act in accordance with the law and act to draft ultra-Orthodox. It also connects between the issue of exemptions and the criteria for eligibility for yeshiva budget funds.

Photo by Yonatan Sindel/Flash90

Let us begin with what today's ruling out of Israel's Supreme Court does not do: it does not address the "Draft Law" (or more accurately, the draft exemption law). It does not discuss whether the law that 63 Knesset members voted on about two weeks ago, which effectively exempts yeshiva students from military service, severely and disproportionately violates the principle of equality. The ruling does not examine the broader questions of the issue of drafting Haredim. No—this ruling addresses a far simpler and more fundamental issue: whether the Israeli government is operating in accordance with the law.

The ruling spans 42 pages and was written solely by Acting Supreme Court President Justice Vogelman. There are no dissenting opinions, no individual opinions, and no comments from other justices. It can be assumed that reaching a verdict acceptable to all the justices is too tall of an order. Yet as it turns out, on a simple question like the rule of law, there are no disagreements among the justices. 9-0. Conservatives and liberals alike. The message is sharp and unequivocal: the government is subject to the law, just like all Israelis. Government decisions that are contrary to the law are void.

Regarding the substance, the first question the justices addressed is whether the state can avoid enforcing the provisions of the Defense Service Law on yeshiva students. In other words, with no law granting service exemption, do they need to be drafted now, and if so, why now?

Recall that about six months ago, on June 30, 2023, the Defense Service Law, which allowed the deferment of yeshiva students' service, expired. The government then made a decision (known as Decision 682 from June 25, 2023) stating that in the meantime, until new legislation is enacted, "the government instructs the Defense Minister to direct the IDF... not to take steps to draft yeshiva students... until March 31, 2024." In other words, the government instructed the army not to enforce the conscription of yeshiva students until the end of March 2024. The Attorney General supported this temporary decision.

However, today the Supreme Court justices determined that the government's decision, which expired on April 1, was illegal. This is because, according to Israeli jurisprudence (since a case in 1988 known as the Rubinstein Case), such a dramatic decision as not drafting Haredim, which harms the principle of equality, cannot be made by government decision but must be legislated by Knesset.

But as of today, there is no law to this effect. Therefore, the current legal situation does not allow an exemption from the draft for yeshiva students. Accordingly, the Supreme Court justices ruled that "the state must act to draft them, in accordance with the provisions of the law."

The Attorney General stated that in her opinion, the IDF could draft about 3,000 soldiers from the Haredi community in the upcoming conscription cycle (this, in addition to the number of Haredi soldiers who would have enlisted in previous years). But the ruling does not specify the number or scope of draftees required, nor do the justices express an opinion on how the Defense Service Law should be enforced. They do not state that 3,000 is the correct number, or a reasonable number, or a number that upholds the principle of equality. The ruling establishes general principles, not draft numbers. No distinction can be made between a yeshiva student and other conscripts: "Violation of the principle of equality in this context will amount to selective enforcement." Additionally, the enlisting officer must consider the challenges facing the IDF and the security needs at this time. His decision must reflect the current security reality.

There are no numbers, no extents, no determinations on what constitutes a gradual draft, but the ruling establishes a clear obligation: "The state must act to draft them, in accordance with the provisions of the law."

The second issue addressed by the ruling concerns the continued funding of yeshivas and Torah study institutions. The support received by the institutions where yeshiva students of draft age study, who are required to enlist.

It should be recalled that an interim order issued by the Supreme Court stipulated that as of April 1, 2024, there is no authority to transfer funds to yeshivas and Haredi educational institutions. In this context, the justices unequivocally state that there is a connection between the issue of draft exemptions and the criteria for support based on which the budget is transferred to yeshivas: if there is no normative framework for a draft exemption, then it is not possible to continue transferring funds to yeshivas and Torah study institutions for students who did not receive an exemption, or whose service has not been deferred according to the law.

Since the court ruled that the government's decision from over a year ago was made without authority and is therefore void, there was theoretically no basis for transferring budgets a year ago. However, the Supreme Court justices take into account the harm that would be caused to yeshivas and Torah institutions if they were required to return such finds and determine that the date from which funds can no longer be transferred is April 1, 2024. Therefore, the Torah institutions will not be required to return the funds transferred to them by the Ministry of Education before this date.

During the hearing in the Supreme Court, the justices referred to the war and the security situation. This could not be ignored in the ruling. The ruling recounts the story of the exemption for yeshiva students, from Ben-Gurion's time to the present. From an exemption for 400 yeshiva students to 63,000 students today. As Acting President Vogelman stated:

"The difficulty in this situation is sharpened given the ongoing war in which the State of Israel finds itself, which affects the IDF's need for manpower required to meet its essential duties... In this situation, the non-enforcement of the Defense Service Law creates severe discrimination between those required to serve and those who are not subject to drafting procedures. As stated in another case, 'Discrimination regarding the most precious thing – life itself – is the harshest form of discrimination.'"

The unanimous stance of the full panel of justices on both issues carries a special weight. It is a sharp and clear statement that the state is obligated to draft yeshiva students. When it comes to a violation of the law, the decision is unanimous.

MK Moshe Gafni, from the United Torah Judaism Party, said this morning, even before the ruling was published, that "there is no justice who understands the value of Torah study." But the ruling does not address the question of the importance of this value at all. This is purely a decision about authority and essentially, the limits of the executive branch's power.

 

This article was published on the Times of Israel.