Religion and the High Court of Justice (Part 1)

This position paper is the first in a series of publications examining the role of the Supreme Court in Israel's legal and public spheres. Critics of the Court's output, especially when sitting as High Court of Justice, argue that it has escalated its degree of activism and intensified its involvement in decision-making at the political level. The authors of the series aim to provide a comprehensive framework for examining these arguments and for clarifying the Supreme Court's proper role in Israel's public arena. Within this framework, the authors critically examine several assumptions on the Court's output, common to both supporters and opponents of its actions. The series of publications will examine these issues on both the theoretical and empirical-quantitative levels.

This paper forcuses on a short publication by 'Manof: The Center for Jewish Information', which identifies itself with the ultra-orthodox sector, and purports to analyze the judiciary's role in issues of religion and state. The publication seeks to prove, through a database of rulings, that since the 1990s there has been a "sharp rise in the number of anti-Jewish and anti-religious rulings", claiming that it has risen in recent years up to 100 percent. The number of errors in the publication and the level of their severity, as well as the manner in which the argument regarding the Supreme Court justices' background is made, justify a more comprehensive examination of the report and a presentation of its actual value. Such correction is important for the maintenance of a continuing discussion on religion and state, based on accurate data.

Manof's report has two sections. The first is a quantitative study of 160 decisions, and supplies statistical conclusions about the nature of judicial output in this field. As stated… a first error that reveals the quality of the research.

Manof's authors summarise their findings as follows:

• A sharp rise in the number of anti-Jewish and anti-religious decisions since Aharon Barak assumed a position of power.
• In recent years nearly100 percent of the rulings have been anti-religious.
• Most applications to change the status quo were successful.
• A strong correlation was found between personal judicial attitudes and decisions on religious issues.
• There is a sharp decrease in participation of religious judges in judicial issues whose background is religious/ value-oriented.

An examination of the publication reveals several fundamental faults.

A. Manof's Database of High Court of Justice's Decisions on 'Religion and State'

1. The publication purports to focus, supposedly, only on "High Court decisions on religious matters" (p. 4 of the publication). However, its database includes decisions that clearly deviate from religious issues, such as the rights of homosexuals and lesbians, appointment of a senior official at the National Insurance Institute and a mother's conviction for child abuse.
2. The "anti-Jewish and anti-religious decision" in fact covers any decision that would be critically received by a specific sector, which may be defined as ultra-Orthodox. This applies even to cases that were decided solely on the basis of principles of legality. Thus, for example, the database includes an order nisi on collection of water-debts incurred by synagogues; decisions that does not uphold a Rabbinical court ruling, regardless of relevant statute and case law; and a decision that "educating children by beating amounts to an assault". In fact the publication seeks (while making severe methodological errors) to examine the extent to which the High Court of Justice's decision matches the views of a single sector. There is no underlying assumption here required in the context of the State of Israel's social and political structure, according to which its citizens are free to choose from a wide range of ideologies and to live by them, with the judiciary ensuring these freedoms to an optimum.
3. The publication is based on a database of 160 rulings that supposedly express, or at least reflect, judicial action on subjects connected with the ultra-Orthodox sector A number of serious errors were found here:
   
   
   • A random search found 28 decisions clearly relevant to the issues analyzed in the publication, that are absent from the database. Some of these are important, even landmark, decisions, for example the Mitrael decision (import of non-Kosher meat and the 'Meat Law'), Manning (extradition), Der'i and Pinchasi (criminal investigation/ indictment of ultra-Orthodox leaders – an issue generally included in 'Manof's study). Nearly two-thirds of these randomly-located decisions would be classified in 'Manof's publication as 'positive' according to ultra-Orthodox positions.
   • Substantial errors in citation of decisions. Not one of the decisions is named by applicant / appellant, nor is publication citation supplied – two necessary components of any legal or academic citation. At most, each case is identified by the date that it was given and the case's serial number. Thirty-six cases are identified only by date, lacking even a serial case number. Moreover, the publication states that "in the event that there is no noting of the ruling due to non-publication or difficulties in locating it, the date of the decision is noted according to publication sources in the press and elsewhere." The aforesaid gives rise to an assumption that, at least in some cases, the database relied on secondary sources and not on the full text of the decision. Clearly, a study of attitudes must examine the original text.
   • Eleven cases were cited erroneously – case numbers and dates were incorrect.
   • Nine are not final decisions at all, but rather different types of interim and auxiliary decisions, such as decisions to grant an order nisi or an interim order, a decision regarding a motion to award court costs, etc. These decisions are made in the course of hearing the case, and are not of any major legal significance.
   • Three decisions are cited twice, and one cited three times.
   • In several cases, the description of the facts of the decision does not match the citation. Other issues were discussed.
   • In other cases, the decision is described incorrectly, sometimes contradictory to the actual decision. For example, the case numbered 7873/98 (identified with difficulty, since it appears in the database as numbered 7373/98) is cited as deciding that "the Chief Rabbinate's decision, to remove Kashrut certificate from a place that holds New Year party, was annulled", although in this case the Chief Rabbinate explicitly announced that it did not oppose granting kashrut certification and that it does not limit it by any condition of this sort. The Horev decision (regarding closure of Bar-Ilan Road in Sabbath) is described as "a petition to revoke the Minister of Transport's decision to close the road was approved", although in fact the court ruled that the Minister was to reconsider the matter, taking into account the secular residents in the area.
     
     A thorough search for errors in 'Manof's first 45 items shows that 60 percent are incorrect (this figure includes 10 cases that cited by date only, even not by serial number; omitting these, the error rate is still about 37 percent).
     
     
4. These findings cast significant doubt over the accuracy of the study and its conclusions. It is common knowledge that some of the case-law does not satisfy members of the ultra-Orthodox community. As this discussion paper notes, the very existence of this study, and its findings, indicate a genuine difficulty in understanding the work of the Supreme Court. Hostility and feelings of prosecution are only exacerbated by incorrect depictions of the judiciary. The debate would greatly benefit fromamendment of such portrayals.
5. As for the level of participation by justices defined as "religious justices" in subjects related to issues of religion and state: Research currently being conducted at the Israel Democracy Institute, based on more than 200 important rulings, indicates that there has indeed been a decrease in the level of this participation over the decades, although Manof's findings appear to be exaggerated. 'Manof's findings, based, as stated above, on partial and erroneous data, supposedly indicate a 12-24% participation rate of 'religious' justices. The parallel IDI research shows that during the 1990s, 'religious' justices sat on 33% of the panels ruling on issues of religion and state.

B. On the Composition of the Supreme Court

As for "finding a strong correlation between personal judicial attitudes and decisions on religious issues": in the summary, 'Manof's researchers simply state the following: "since the personal attitudes of the justices on this subject are known, it is easy to discern the personal attitudes and identified lifestyle vis-a-vis the judicial decisions." In addition, the authors offer a table that supplies some personal information about residing justices, intending to prove insufficient representation of 'religious' communities. A considerable number of the aforesaid arguments receive no substantiation in this two-page part of the publication. Moreover, the publication does not grapple at all with the serious issues involved. It does not discuss methods of identifying different social groups, nor does it rely on theories of the judiciary. In fact, only two criteria seem to be relevant: a person's religiousness/ secularity and his ethnic origin. Even these two criteria are not well developed, as the authors ignore the multiple social structure of Israeli society (for example, mixed ethnic origins and new immigrants). It is unfitting to assess a person's suitability for a position solely on the basis of these two criteria, while ignoring requirements of education and expertise. In any case, the writers' exaggerated determinations have no basis in reality.

The representation issue is not a simple one. However, it would seem that this isnot the issue that disturbs the authors. Had the Supreme Court justice to come from among their social group, or, alternatively, had the Court fully supported the authors' views, it is safe to assume that no objection would have been raised. This part of the publication, besides being rife with blatant factual errors, is deficient in oversimplifying the issue and presenting it in crude lines that ignore the richness and complexity of Israeli social reality, especially in light of the aspiration to maintain a strictly professional court.

In conclusion, the publication analyzed in this position paper was shown to possess significan deficiencies, which render it an unreliable source for further discussion of the important issue it approaches. We chose to deal with it, despite its errors, since it is currently being used in the public debate. Genuine dialogue between sectors can exist only on the basis of a correct reading of the facts, and we hope that further analyses will proceed in this fashion.