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Enhancing Freedom of Religion Through Public Provision of Religious Services: The Israeli Experience

Published online by Cambridge University Press:  04 July 2014

Barak Medina
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Abstract

This Article challenges the premise that the separation of state and religion is a necessary predicate for religious free exercise. The state's duty to treat people as equals requires it to ensure that all citizens enjoy reasonable access to religious services. Public supply of religious services thus enhances the exercise of freedom of religion. The extent of public involvement in the provision of a religious service is not by itself a sufficient justification for the regulation of the relevant activity. In certain cases, the intervention is justified by reasons that are unrelated to the scope of government involvement. A prominent example is the case of competition between different religious congregations over limited resources, such as space and time at a holy site. Regulation of activity is then required in order to ensure reasonable access. In other cases, the government enhances the powers of religious bodies, and thus generates a concern of religious coercion. In these cases the governmental role may well result in an infringement of religious freedom. However, such a conclusion is not self-evident, and a detailed assessment of the over all effect of the government involvement is required in order to determine whether the involvement—and what type of involvement—is desirable.

These and related arguments are demonstrated through a discussion of the Israeli experience of almost six decades of intensive involvement of a democratic state in supplying religious services. The Israeli case can serve as a thought-provoking hypothetical on the consequences—and thus of the desirability—of adopting a model of extensive establishment of religion(s) by a democratic state.

Type
Research Article
Information
Israel Law Review , Volume 39 , Issue 2 , Summer 2006 , pp. 127 - 157
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2006

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Footnotes

*

Joseph H. & Belle R. Braun Senior Lecturer in Law, Faculty of Law, Hebrew University of Jerusalem. I am grateful to David Enoch, Yigal Mersel, Gidon Sapir, and participants in the symposium on Religious Symbols, Constitutional Law, and Human Rights, held in Heidelberg University, Germany (July 2005) for their thoughtful comments and suggestions, and to Mike Dacks and Michele Manspeizer for superb editorial work.

References

1 See, e.g., Sullivan, Kathleen M., Religion and Liberal Democracy, 59 U. Chi. L. Rev. 195 (1992)CrossRefGoogle Scholar; Salamanca, Paul E., Civil Rights: Looking Back—Looking Forward: The Liberal Policy and Liberalism in Religious Traditions, 4 Barry L. Rev. 97 (2003)Google Scholar; Mutua, Makau, Human Rights: A Political And Cultural Critique (2002)Google Scholar (The establishments of Christianity and Islam in Africa perpetrated major human rights violations).

2 This is the underlying premise of the view that the Establishment Clause of the US Constitution does not prohibit government aid of religion if the aid is “neutral” and there is “genuine and independent private choice.” See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (Upholding the constitutionality of school vouchers program that included religious schools); Cord, Robert L., Separation Of Church And State: Historical Fact And Current Fiction (1982)Google Scholar; McConnell, Michael M., Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115 (1992)CrossRefGoogle Scholar.

3 McConnell offers a related classification between three possible purposes of the Religious Clauses: (1) the “separationist ideal,” under which “religion is deemed to be irrelevant to determination of the citizens' civic obligations”; (2) the “ideal of neutrality,” under which “religion is understood as one form of voluntary association…neither feared nor favored”; and (3) the “ideal of religious liberty,” according to which “the Establishment Clause protects against government action that may coerce, induce, or…even endorse religion.” See McConnell, Michael W., Neutrality, Separation and Accommodation: Tensions in American First Amendment Doctrine, in Law And Religion, 63, 64 (Ahdar, Rex J. ed., 2000)Google Scholar. Clearly, the Establishment Clause may serve multiple functions. See, e.g., Shiffrin, Steven H., Liberalism and the Establishment Clause, 78 Chi. Kent. L. Rev. 717 (2003)Google Scholar.

4 Everson v. Board of Education, 330 U.S. 1, 27 (1947) (Jackson J., dissenting). See also, e.g., Ivers, Gregg, Redefining The First Freedom—The Supreme Court And The Consolidation Of State Power 133 (1993)Google Scholar (“[The Establishment Clause was created] to ensure robust protection for religious freedom… The separation of church and state is a necessary predicate for religious free exercise.”); Levy, Leonard W., The Establishment Clause—Religion And The First Amendment 174 (1986)Google Scholar (“The same authority that can incidentally benefit religion by the exercise of legitimate powers may also injure religion. A power to help is also a power to hinder or harm… Those who clamor for additional government support of religion should beware of the risks to religion from government entanglements.”); Wood, James E. Jr., Government Intervention in Religious Affairs: An introduction, in The Role Of Government In Monitoring And Regulating Religion In Public Life I, 5 (Wood, James E. Jr., & Davis, Derek eds., 1993)Google Scholar (“[w]hile the concern of the Founding Fathers was primarily over the possible domination of the state by the church, today there is increasing concern…over the domination of the church by the state.”); Lupu, Ira C. & Turtle, Robert W., Historic Preservation Grants to Houses of Worship: A Case Study in the Survival of Separationism, 43 B.C. L. Rev. 1139 (2002)Google Scholar (Invoking a principle of Religion Clause symmetry—what the government may regulate it may also subsidize and vice-versa).

5 Title VII of the federal Civil Rights Act explicitly allows religious organizations to discriminate on religious grounds in employment (42 U.S.C. 2000e-2(e)(1)(§702(e)(2))). See, e.g., Corp. of the Presiding Bishop of the Church of Jesus Christ v. Amos, 483 U.S. 327 (1987). (“Section 702 serves a permissible secular purpose by minimizing government interference with a religion's decisionmaking process.”).

6 A prominent example is the French Article 1 of the Act on the Application of the Principle of Laicisim of March 15 2004 (amending the Code of Education): “In public schools, colleges and high schools the wearing of insignia or dresses by which the students manifest their adherence to a religion is prohibited.” In the U.S., applying the view that the Establishment Clause does not prohibit government aid to religion if the aid is “neutral” (see supra note 2) mitigates—but not eliminates—the harm to freedom of religion that results from the church-state separation.

7 See Smith, Steven D., Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the “No Endorsement” Test, 86 Mich. L. Rev. 266, 277 (1987)CrossRefGoogle Scholar (“government might acknowledge that many individual citizens care deeply about religion and that the religious concerns of such citizens merit respect and accommodation by government.”); Paulsen, Michael S., Religion, Equality, and the constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L. Rev. 311 (1986)Google Scholar (Denying financial benefits from religious institutions is accounted as disparaging them); Edelstein, Joshua, Zelman, Davey, and the Case for Mandatory Government Funding for Religious Education, 46 Ariz. L. Rev. 151 (2004)Google Scholar (The government should be mandated to fund religious schools equally with public schools); Sapir, Gidon, Religion and State—A Fresh Theoretical Start, 75 Notre Dame L. Rev. 579 (1999)Google Scholar (State support of religious activity is justified based on the important role of religion as an all-encompassing culture).

8 For a review of the scope of supplying religious services by the state in Israel, see Sapir, Gidon, Religion and State in Israel: The Case for Revaluation and Constitutional Entrenchment, 22 Hastings Int'l & Comp. L. Rev. 617, 620–625 (1999)Google Scholar; Liebman, Charles S. & Don-Yehiya, Eliezer, Religion And Politics In Israel (1984)Google Scholar; Englard, Izhak, Law and Religious in Israel, 35 Am. J. Comp. L. 185 (1987)CrossRefGoogle Scholar; Shetreet, Shimon, State and Religion: Funding of Religious Institutions—The Case of Israel in Comparative Perspective, 13 Notre Dame J. L. Ethics & Pub. Pol'y 421, 435–443 (1999)Google Scholar; Raday, Frances, Religion, Multiculturalism and Equality: The Israeli Case, 25 Isr. Y.B. H.R. 193 (1995)Google Scholar.

9 For a discussion of the reality of internal cultural fissures in recent years see, e.g., Sunder, Madhavi, Cultural Dissent, 54 Stan. L. Rev. 495 (2001–2002)CrossRefGoogle Scholar (Arguing that an approach which recognizes dissent within culture would prevent law from becoming complicit in the backlash project of suppressing internal cultural reform); Shachar, Ayelet, Multiculturalism Jurisdictions—Cultural Differences And Women's Rights (2001)CrossRefGoogle Scholar; Okin, Susan Moller, Is Multiculturalism Bad for Women?, Is Multiculturalism Bad For Women? (1999)Google Scholar (“When liberal arguments are made for the rights of groups, special care must be taken to look at within-group inequalities… Moreover, policies aiming to respond to the needs and claims of cultural minority groups must take seriously the need for adequate representation of less powerful members of such groups.”); Raday, supra note 8 (A legal deference to discriminatory religious practices cannot be justified based on multiculturalism); Stopler, Gila, The Free Exercise of Discrimination: Religious Liberty, Civic Community and Women's Equality, 10 Wm. & Mary J. Of Women & L. 459 (2004)Google Scholar.

10 See Zander, Walter, On the Settlement of Disputes about the Christian Holy Places, 8 Isr. L.Rev. 331 (1973)CrossRefGoogle Scholar.

11 The members of the group wear ceremonial prayer shawls, read aloud from the Torah Scroll and pray aloud in a group, practices that are traditionally conducted only by men. See Women Of The Wall: Claiming Sacred Ground At Judaism's Holy Site (Chesler, Phyllis & Haut, Rivka ed., 2003)Google Scholar.

12 See HCJ 633/05 The Armenian-Patriarchy of Jerusalem v. The Government of Israel [21.4.05] (unpublished). The Court stated that the Government should mediate between the parties but rejected the petition to order the Government to implement a particular solution. The Court issued a similar decision in another conflict, which dealt with the Parvis of the Church of the Holy Sepulcher: HCJ 188/77 The Orthodox Coptic Patriarchate v. The Government of Israel [1978] IsrSC 33(1) 225.

13 This view is supported by an Act that was enacted during the British Mandate over Palestine, which is still valid in Israel—Section 2 of the Palestine (Holy Places) Order, 1924—that explicitly classify such conflicts as non-justiciable: “…[N]o cause or matter in connection with the Holy Places or religious buildings or sites in Palestine or the rights or claims relating to the different religious communities in Palestine shall be heard or determined by any Court in Palestine.” This provision was implicitly qualified by Section 1 of the Protection of Holy Sites Act, 1967, as discussed below.

14 HCJ 257/89 Hoffman v. The Rabbi in-Charge of the Western Wall [1994] IsrSC 48(2) 265; HCJ 3358/95 Hoffman v. The General Manager of the Prime-Minister's Office [2000] IsrSC 54(2) 345; FHCJ 4128/00 The General Manager of the Prime-Minister's Office v. Hoffman [2003] IsrSC 57(3) 289. The Court based its decision to adjudicate the case by classifying it as referring to the petitioners' freedom of access to the Wall Plaza, and thus subject to Section 1 of the Protection of Holy Sites Act, 1967 and not to Section 2 of the Palestine (Holy Places) Order, 1924 (see id.).

15 The area designated for the prayers of the WoW lies adjacent to and is technically part of the Western Wall, but has not traditionally been a prayer site. Thus, the Court's decision results in an actual exclusion of the WoW from the shared public sanctified space.

16 The Protection of Jewish Holy Sites By-Law, 1981.

17 This provision is repeated in Basic Law: Jerusalem, Capital of Israel, Section 3.

18 A dispute regarding the interpretation of the religious norms of behavior in the site may indeed be viewed as non-justiciable. See, e.g., Greenawalt, Kent, Hands Off! Civil Court Involvement in Conflicts over Religious Property, 98 Colum. L. Rev. 1843 (1998)CrossRefGoogle Scholar (Courts may settle disputes over church property, so long as they employ standards of interpretation that do not call for religious judgments.); Gerstenblith, Patty, Civil Court Resolution of Property Disputes Among Religious Organization, 39 Am. U. L. Rev. 513 (1990)Google Scholar (In the resolution of internal religious disputes courts must apply a “truly neutral” set of legal principles); Roberts, Bernard, The Common Law Sovereignty of Religious Lawfinders and the Free Exercise Clause, 101 Yale L.J. 211, 226 (1991)CrossRefGoogle Scholar. (“The model of a religious question doctrine …help to illuminate the civil courts' habit of refraining from inquiry into matters of religious law.”) Compare Goldstein, Jared A., Is There a “Religious Question” Doctrine? Judicial Authority to Examine Religious Practices and Beliefs, 54 Cato. U.L. Rev. 497 (2005)Google Scholar

Courts are barred from resolving normative questions about religion, such as the validity or truth of religious beliefs or the wisdom or efficacy of religious practices, but… [are allowed to resolve] positive religious questions, such as assessments of the content of religious doctrine…[Courts] may determine, in the sense of making factual findings, what beliefs people hold and what practices they engage in.

19 See Zander, supra note 10.

20 See, e.g., Lahav, Pnina, Up Against the Wall: The Case of Women's Struggle to Pray At the Western Wall in Jerusalem, 16 Isr. Stud. Bull. 19 (2000)Google Scholar (Suggesting that the case of the WoW is an expression of Israel's public general hostility to feminist causes).

21 Sapir, supra note 7 (Religion has an important role as an all-encompassing culture); Carmella, Angela C., The Religion Clauses and Acculturated Religious Conduct: Boundaries for the Regulation of Religion, in The Role Of Government In Monitoring And Regulating Religion In Public Life 21, 31-33 (Wood, Jr., & Davis, Derek eds., 1993)Google Scholar (“virtually all churches…engage in acculturated religious conduct.”)

22 See, e.g., Saban, Ilan, Minority Rights in Deeply Divided Societies: A Framework for Analysis and the Case of the Arab-Palestinian Minority in Israel, 36 N.Y.U.J. Int'l L. & Pol. 885 (2004)Google Scholar.

23 The status of non-Jewish religious entities (with the exception of the Druze) is mostly based on practices which were set under the British Mandate. See, e.g., Englard, supra note 8, at 189-190; Rubin-Peled, Alisa, Debating Islam In The Jewish State—The Development Of Policy Toward Islamic Institutions In Israel (2001)Google Scholar; HCJ 963/04 Loyfer v. The Government of Israel [2004] IsrSC 58(1) 326 (The Government is not involved in the choice of the Patriarch of a Christian congregation). See also HCJ 7351/95 Nevoani v. The Minister of Religious Affairs [1996] IsrSC 50(4) 89; HCJ 282/61 El Saroji v. The Minister of Religious Affairs [1961] IsrSC 17(1) 188, an English translation of this judgment is available at www.court.gov.il (last visited May 15, 2006).

24 The Government did not always keep this obligation, and in several occasions was compelled by the Supreme Court to supply equal support to non-Jewish religious activities. See, e.g., HCJ 200/83 Wattad v. Minister of Finance [1984] IsrSC 38(3) 13 (The Court upheld a policy of supporting only Jewish religious studies); HCJ 240/98 Adala v. The Minister of Religious Affairs [1998] IsrSC 52(5) 167 (The Court recognized the State's duty to supply equal support to all religious activities); HCJ 1113/99 Adala v. The Minister of Religious Affairs [2000] IsrSC 54(2) 164 (The Court compelled the Government to supply equal public funds to maintain Jewish and non-Jewish cemeteries).

25 These include, among others, the right to establish “religious councils” (Section 2 of the Religious Congregations Act), and to impose levies on the members of the religious congregation. In addition, religious courts, who apply religious norms, hold exclusive jurisdiction in matters of personal status (marriage and divorce) of the members of the religion.

26 See Zander, supra note 10; Zander, Walter, Jurisdiction and Holiness: Reflections on the Coptic-Ethiopian Case, 17 Isr. L. Rev. 245 (1982)CrossRefGoogle Scholar.

27 See, e.g., HCJ 5070/95 Na'amat v. The Minister of Interior [2002] IsrSC 56(2) 721, 752 (President Barak): “The Jews in Israel are not considered as members of one religious congregation… Considering the Jews as a ‘religious congregation’ is a Mandatory-Colonial approach. It is invalid in the.State of Israel. Israel is not the state of the ‘Jewish congregation.’ It is the state of the Jewish people.”

28 For this reason, recognizing a group right of religious Jews—such as, the right to be exempted from military service based on religious beliefs—can be classified as negatively influencing the “Jewishness” of the State rather than enhancing it.

29 Indeed, Section 2 of the Palestine (Holy Places) Order, 1924, that classifies conflicts over practices in sacred sites as non-justiciable (see supra note 13), does not include an explicit exclusion for Jewish sites. In an early case the Court explicitly rejected the argument that this provision does not apply in the case of Jewish sacred sites: HCJ 222/68 Hoogim Leomyim v. The Minister of the Police [1968] IsrSC 24(2) 141. For this reason, Judge Englard decided, in a dissenting opinion, that the petition against the Rabbi-in-Chief of the Wall should be dismissed, as non-justiciable: The General Manager of the Prime-Minister's Office v. Hoffman, supra note 14, at 289, 330.

30 It should be noted that the Court's decision in the case of the WoW generated fierce reactions from many Orthodox Jews in Israel, challenging the legitimacy of regulating freedom of religion for Jews through government intervention (see, e.g., Lahav, supra note 20). However, these reactions did not translate into official decisions—such as, changing the scope of government involvement in administering Jewish holy sites—and it is doubtful whether they signify any substantial shift in the prevailing perception regarding the level of trust in the government in this respect.

31 An interesting question is who should decide—the relevant religious congregation(s) or the government? The decision may (indirectly) affect the scope of government intervention in religious practices, in order to enhance the interests of some, who are typically the minority (or otherwise dominated) among the members of the religion, at the expense of the majority. See, e.g., Okin, supra note 9 (Accentuating the importance of adequate representation of less powerful members of minority groups).

32 See Raday, Frances, The Fight against Being Silenced, in Women Of The Wall: Claiming Sacred Ground At Judaism's Holy Site, 115 (Chesler, Phyllis & Haut, Rivka eds., 2003)Google Scholar (Arguing that the “furious opposition and fanatical violence” against the attempt of the WoW to pray in their manner is based on “the desire of the Orthodox Jewish establishment to preserve religious patriarchal hegemony against the challenge of religious feminism.”); Lahav, supra note 20 (The opposition to the struggle of the WoW is another expression of the Israeli public's general hostility to any feminist cause). See also Shakdiel, Leah, Women of the Wall: Radical Feminism as an Opportunity for a New Discourse in Israel, 21 J. Isr. History 126 (2002)CrossRefGoogle Scholar; Hirschl, Ran, Toward Juristocracy: The Origins And The Consequences Of The New Constitutionalism 67–68 (2004)Google Scholar (Classifying the case as a contest for cultural hegemony between a secularist-liberal elite and the Ultra-Orthodox community).

33 See Gavison, Ruth, Feminism and the Public/Private Distinction, 45 Stan L. Rev. 1 (1992)CrossRefGoogle Scholar (Arguing that the relevant distinction is not the public/private one, but a distinction between cases in which government intervention is justified and those in which it is not).

34 As indicated in supra note 5, in the US, Title VII of the federal Civil Rights Acts allows religious organizations to discriminate on religious grounds in employment, even for non-leadership positions. By contrast, Article VI of the US Constitution states that “no religious Test shall ever be required as a Qualification to any Office or public Trust.”

35 The Supreme Court was willing to strike down the Chief Rabbinate decisions in this respect only when they are based on non-religious considerations, such as political ones: HCJ 47/82 The Progressive Jewish Movement in Israel v. The Minister of Religions [1989] IsrSC 43(2) 661.

36 Such marriages are not legally forbidden, but they are not formally recognized by the state.

37 For a similar view see Neuberger, Benyamin, Israel—A Liberal Democracy with Four Flaws, in The State Of Israel: Between Judaism And Democracy, 361, 365–376 (David, Juseph E. ed., 2003)Google Scholar. See also Raday, supra note 8, at 227-230 (“the Court's rhetoric puts the balancing of religion and equality beyond the reach of secular rationality and subjects it to a religious analysis which silences…the very group whose rights are at issue.”).

38 For cases referring to women see, e.g., HCJ 953/87 Poraz v. The Mayor of Tel-Aviv [1988] IsrSC 42(2) 309; HCJ 153/87 Shakdiel v. The Minister of Religious Affairs [1988] IsrSC 42(2) 221 (An English translation of this judgment is available at http://elyon1.court.gov.il/eng/verdict/framesetSrch.html (last visited May 5, 2006)). For cases referring to non-Orthodox Jews see HCJ 4733/94 Naot v. The Municipal Council of Haifa [1996] IsrSC 49(1) 111; HCJ 699/89 Hofman v. The Municipal Council of Jerusalem [1994] IsrSC 48(1) 678; HCJ 3551/97 Brenner v. The Committee of Ministers [1997] IsrSC 51(5) 754.

39 See, e.g., HCJ 4247/97 Meretz v. The Minister of Religious Affairs [1998] IsrSC 52(5) 241.

40 Section 6A of the Jewish Religious Services Act, as amended in 1999.

41 See, e.g., Raday, Frances, Israel—The Incorporation of Religious Patriarchy in a Modern State, in 4 International Review Of Comparative Public Policy: Family Law And Gender Bias—Comparative Perspectives. 209 (1992)Google Scholar; Raday, supra note 8; Shetreet, supra note 8; Neuberger, supra note 37.

42 See HCJ 10296/02 Teachers'Association v. The Minister of Education [15.12.04] (not yet published) in which the Supreme Court forced the government to implement the law that compelled every school that is publicly financed to comply with a plan of “core studies,” set by the state, aiming at insuring a sufficient level of studies in areas such as democracy and tolerance, as well as mathematics, English, etc. See also Goldstein, Stephen, The Teaching of Religion in Government Funded Schools in Israel, 26 Isr. L. Rev. 36 (1992)CrossRefGoogle Scholar. Cf. DeGroff, Eric A., State Regulation of Nonpublic Schools: Does the Tie Still Bind?, 2003 BYU Educ. & L. J. 363 (2003)Google Scholar (Whereas the states have well established authority to reasonably regulate nonpublic, including religious education, the tendency is to de regulate private schools or significantly lessen their level of oversight).

43 “Writ of refusal” (Ktav Seruv) does not have any formal status, but in certain religious communities it might trigger social excommunication. The Israeli Supreme Court ruled that the Rabbinical Courts are not authorized to issue such an order: HCJ 3269/95 Katz v. The Rabbinical Court of Jerusalem [1996] IsrSC 50(4). This case reflects a fundamental dilemma in multi-culturalism and communitarianism. The competition that minority groups face from the dominant culture in general, and the forces of secularization in the case of religious groups in particular, may pose an existential threat to the minority's culture and traditions. Thus, preserving the minority's culture may justify legitimizing a limited coercion by the group towards its members. However, the community's interest in preserving its culture must be weighted against the individual rights of the members of the community, which are reflected in recognizing the importance of ensuring a reasonable level of a right to exit from the communal coercion. The practice of social excommunication which is triggered by issuing a “writ of refusal” by the Rabbinical Courts substantially exceeds the limits of reasonable social pressure.

44 It is disputed whether a right to freedom from religion should be established, or does it suffice to recognize a person's right that her freedoms are not infringed, regardless whether the “border-crossing” is based on religious or on “secular” norms. See, e.g., Sullivan, supra note 1, at 197 (“The right to free exercise of religion implies the right to free exercise of non-religion”); Troper, Michel, Religion and Constitutional Rights: French Secularism, or Laicite, 21 Cardozo L. Rev. 1267 (2000)Google Scholar (“One cannot speak of the freedom of secularism…Because secularism is a characteristic of the state, one can say that freedoms are better guaranteed if the state is secular… It is, therefore, to be treated not as a civil right, but as a public freedom.”); Statman, Daniel and Sapir, Gidon, Why Freedom of Religion does not Include Freedom from Religion, 24 L. & Phil. 467 (2005)Google Scholar. (“Restrictions on liberty motivated by religious considerations do not violate, per se, any separate right beyond the regular rights granted in a liberal democracy.”). The term “freedom from religion” is used here to describe a person's interest that her freedom is not infringed based on religious norms.

45 This issue is undecided. In several cases the Court rejected this assumption, based on an inquiry into the norms of the religious Jewish law: HCJ 6111/94 Ha'Vaad Leshomrey Masoret v. The Council of the Chief Rabbinate of Israel [1995] IsrSC 49(5) 94, 101; HCJ 5009/94 Meatrael v. The Council of the Chief Rabbinate of Israel [1994] IsrSC 48(5) 617, 627-628; HCJ 359/66 Gitia v. The Council of the Chief Rabbinate of Israel [1968] IsrSC 22(1) 290, 297-298; HCJ 44/86 The Butcheries Section in Jerusalem v. The Council of the Chief Rabbinate of Israel [1986] IsrSC 40(1) 4,6.

46 The Chief Rabbinate is allowed to indirectly account for other aspects of the activity in the business as far as these elements seriously obstruct the Chief Rabbinate's supervisors' ability to conduct their work. Based on this rule it is allowed to disqualify businesses that operate during Shabbat from getting the certificate. In several cases the Court has strictly scrutinized attempts to rely on such argument, in order to verify that it is not served as pretext to bypass the Court's interpretation of the term “kosher food norms.”

47 HCJ 465/89 Raskin v. The Religious Council of Jerusalem [1990] IsrSC 44(2) 673 (Presenting “indecent” shows is irrelevant in deciding whether to issue kosher food certificates); HCJ 509/88 Machlof Bros. v. The Council of the Chief Rabbinate of Israel [1990] IsrSC 44(4) 617 (The scope of observance of Jewish law norms by the owners of the business is irrelevant in considering an application to issue kosher food certificate); HCJ 5009/94 Meatrael Ltd. v. The Council of the Chief Rabbinate of Israel [1994] IsrSC 48(5) 617, 625; HCJ 7203/00 Aviv Osoblansky Ltd. v. The Council of the Chief Rabbinate of Israel [2001] IsrSC 56(2) 192 (Selling the non-kosher by-product of the business' activity to other businesses is irrelevant); HCJ 3944/92 Marbek v. The Chief Rabbinate of Israel [1995] IsrSC 49(1) 278.

48 HCJ 77/02 Aviv Osoblansky Ltd. v. The Council of the Chief Rabbinate of Israel [2002] IsrSC 56(6) 249. See also HCJ 195/64 The South Company Ltd v. The Council of the Chief Rabbinate of Israel [1964] IsrSC 18(2) 324, 332.

49 It seems that this concern is unsubstantiated. In Israel, private issuers of kosher food certificate are considered by some congregations as more reliable than the Chief Rabbinate certificate. For the practice in the U.S. see Sigman, S.M., Kosher without Law: The Role of Non-Legal Sanctions in Overcoming Fraud within the Kosher Food Industry, 31 Fl. St. U. L. Rev. 509 (2004)Google Scholar.

50 According to a recent study, about two thirds of the Jewish population in Israel always eats kosher food: Levy, Shlomit, Levinsohn, Hanna & Katz, Elihu, Beliefs, Observances and Social Interaction among Israeli Jews, in The Jewishness Of Israelis 3 (Liebman, Charles S. & Katz, Elihu eds., 1997)Google Scholar.

51 See, e.g., Sapir, Gidon, Two Learned Scholars Among Us, 25 T. A. U. L. Rev. 189, 197–198 (2001) [in Hebrew]Google Scholar.

52 Under a regime of no-Establishment of religion, such judicial involvement raises other concerns as well. In the U.S., the Courts invalidated kosher fraud statutes that require the State to refer to “Orthodox Hebrew religious requirements,” since such laws excessively entangle the state and religion, and since these laws have the impermissible effect of advancing Orthodox Judaism. See, e.g., Commack Self-Service Kosher Meats, Inc. v. Weiss, 294 F.3d 415 (2nd Cir. 2002); Ran-Dav's County Kosher Inc. v. New Jersey, 608 A.2d 1353 (N.J. 1992), cert. denied, 507 U.S. 952 (1993); Barghout v. Bureau of Kosher Meat & Food Control, 66 F.ed 1337 (4th Cir. 1995). For a discussion see, e.g., Greenawalt, Kent, Religious Law and Civil Law: Using Secular Law to Assure Observance of Practices with Religious Significance, 71 S. Cal. L. Rev. 781 (1998)Google Scholar (The state can be involved in enforcement against fraudulent assertions of selling kosher food only if there is no disagreements about religious standards); Lindsay, Karen Ruth Lavy, Can Kosher Fraud Statutes Pass the Lemon Test?: The Constitutionality of Current and Proposed Statutes, 23 Dayton L. Rev. 337 (1998)Google Scholar (Kosher fraud statutes are valid only if they require vendors of kosher products to display the basis for their assertion that the products are kosher, such that the government removes itself from having to determine whether the product is kosher); Masoudi, Gerald F., Kosher Food Regulation and the Religion Clauses of the First Amendment, 60 U. Chi. L. Rev. 667 (1993)CrossRefGoogle Scholar.

53 As indicated above, the Prohibition of Fraud in Kosher Food Act, 1983 does not prohibit issuing private, unregulated kosher food certificates.

54 In fact, this aim is explicitly enumerated in Section 2(2) of the Chief Rabbinate of Israel Act, 1980, which provides that one of the roles of the Chief Rabbinate is to initiate “activities for exposing the population to the values of the Torah.” Obviously, this provision does not authorize the Chief Rabbinate to achieve this aim through coercion.

55 CA 294/91 Jerusalem Community Jewish Burial Society v. Kestenbaum [1992] 46(2) 464; CA 6024/97 Shavit v. Rishon Lezion Jewish Burial Society [1999] 53(3) 600 (An English translation of this judgment is available at http://elyon1.court.gov.il/eng/verdict/framesetSrch.html) (last visited May 5, 2006).

36 Shavit, Rishon Lezion Jewish Burial Society, id. at para. 21.

57 Id. at para. 17.

58 Indeed, in recent years the Government has started to implement a new policy of funding secular burial societies as well.

59 Englard, supra note 8, at 197. See also Englard, Itzhak, Law and Religion in Israel—the Historical-Philosophical Background, 19 T. A. U. L. Rev. 741, 755 (1995) [in Hebrew]Google Scholar; Sapir, Gidon, The Boundaries of Establishment of Religion, 8 Mishpat Umemshal 155 (2005)Google Scholar [in Hebrew] (Arguing that whereas the state should support religious activities, a functional separation between the state and the supply of religious services must be maintained, in order to prevent a state intervention in religious practices).

60 This view is supported by the historic research: Zameret, Zvi, Yes to a Jewish State, No to a Clericalist State: The Mapai Leadership and Its Attitude to Religion and Religious Jews, in On Both Sides Of The Bridge—Religion And State In The Early Years Of Israel 175 (Zameret, Zvi & Bar-On, Mordehai eds., 2002) [in Hebrew]Google Scholar.

61 Englard, supra note 59, at 758 (Quoting a conversation of Yishayahu Leibovitz with David Ben-Gurion in the 1950's, in which the then Prime Minister of Israel explicitly argued “you demand a separation of state and religion in order to revive the religion as an independent element, with which the state should compete. I oppose such a separation—I want the state to keep the religion tight.”)

62 For instance, one of the explanations offered for the relative decline of religion in Europe and its flourishing in the US is the institutionalized nature of religion in many countries in Europe as opposed to the institutional separation in the US. See, e.g., Davie, Grace, Europe: The Exception that Proves the Rule?, in The Desecularization Of The World: Resurgent Religion And World Politics, 65, 78-79 (Berger, Peter L. ed., 1999)Google Scholar. Cf. McConnell, supra note 2 (Arguing that religion has been “shoved to the margins of public life” in the US, as a result of, among other things, the Supreme Court's policy of “too often excluding religion from public programs in the name of preventing establishment.”)

63 For a discussion of the proper scope of tolerance toward religious practices see, e.g., Beattie, James R. Jr., Taking Liberalism and Religious Liberty Seriously: Shifting Our Notion of Toleration from Locke to Mill, 43 Cath. L. 367 (2004)Google Scholar (intolerance toward intolerant religious practices is justified only when there is imminent harm to others); Schuck, Peter, Diversity In America: Keeping Government At A Safe Distance (2003)Google Scholar (supporting a greater legal deference to religious practices); Hamilton, Marci A., Religious Institutions, the No-Harm Doctrine, and the Public Good, 2004 B.Y.U.L. Rev. 1099 Google Scholar (Religious conduct that harms others must be capable of being regulated). See also Habermas, Jürgen, Intolerance and Discrimination, 1 Int'l J. of Con. Law 2 (2003)Google Scholar. (Tolerance based on mutual recognition and mutual acceptance of divergent worldviews allows religions and democracy to coexist in a pluralistic environment.)