The Court’s hearing was more complicated than has been indicated, but it offered real hope for women and the non-Orthodox.
“You conducted negotiations, you reached an agreement for an outline – but then during the legal proceedings, you made a fuss and said, ‘It’s being frozen,’” said Justice Miriam Naor, President of Israel’s Supreme Court, castigating the state’s attorneys.
Heading a three-justice panel on Thursday, August 31, Naor was referring to the government’s June 2017 decision to “freeze” its plan to create a new egalitarian space at the area known as Robinson’s Arch, to the south of the main Western Wall Plaza. The hearing was convened in response to petitions by three different groups regarding the status of women and non-Orthodox Jews at the Western Wall, or Kotel.
The courtroom was jam-packed, mostly with supporters of the liberal movements and Women of the Wall, along with a group of 10 representatives of the paratroopers who fought at the Kotel during the 1967 Six Day War. While maintaining decorum, they could barely contain their excitement as the justices repeatedly directed their questions to the state.
Throughout the two-and-a-half-hour session, the justices clearly indicated that they were not pleased that the issue was back in court. “You must explain why you have backtracked on the approved agreement,” Justice Hanan Meltzer said impatiently.
Moreover, the judges put the state on a tight schedule, demanding that it answer two questions by September 14: Whether the government is willing to revisit its decision, and whether the attorneys believe that the Supreme Court has the authority to impose the agreement on the government. The petitioners will then have until September 28 to comment.
The background to this hearing goes back nearly three decades, when the group that is now known as Women of the Wall, backed strongly by the Reform and Conservative movements in Israel and abroad, began holding monthly women’s prayers in the women’s section of the Western Wall plaza while wearing tallit and t’fillin, reading from the Torah and singing out loud. Over the years, they have been met with increasing objections from Rabbi Shmuel Rabinovitch, a civil servant who serves as rabbi for the Wall. They have also encountered vicious verbal, and often physical, abuse from ultra-Orthodox men and women.
In 2002, Women of the Wall petitioned Israel’s Supreme Court and, in 2003, a nine-member panel gave the state 12 months to properly prepare the Robinson’s Arch area for prayer or, alternatively, allow Women of the Wall to continue to pray, according to their customs, in the main plaza.
Facing objections from the ultra-Orthodox parties, the state did nothing to implement the Court’s decision. In 2013, in response to yet another petition, a district court ruled that women do, indeed, have the right to pray out loud and read from the Torah while wearing t’fillin and tallit. Rabinovitch, however, continued to enforce his objections and, on his order, security guards continued to confiscate religious items, occasionally arresting women who resisted; the ultra-Orthodox continued to harass; and the women continued their struggle, including various appeals to the courts.
Finally, on 31 January 2016, the government approved a resolution, hammered out with the liberal movements and Women of the Wall, to allocate the egalitarian space, thus formalising Robinson’s Arch as a holy site that is an integral part of the Western Wall. Furthermore, they agreed to create a new entrance to the entire area, to be used by all who come to the site.
Upping the ante, on 23 August 2017, Rabinovitch ordered body searches of women entering the plaza, and four female rabbinical students were told to lift their shirts and skirts to ensure that they were not “smuggling in” Torah scrolls or other religious items.
But in June 2017, the government, caving in to pressure from its ultra-Orthodox coalition partners, announced that it was “freezing” the agreement indefinitely. The decision was met with rage by Diaspora Jewry and the local progressive movements, who responded with a serious of protest-prayers, a massive media campaign, and extensive lobbying of elected officials.
Upping the ante, on 23 August 2017, Rabinovitch ordered body searches of women entering the plaza, and four female rabbinical students were told to lift their shirts and skirts to ensure that they were not “smuggling in” Torah scrolls or other religious items. This was in clear defiance of a January 2017 ruling by the High Court of Justice that women are not to be subjected to intrusive searches when entering the Western Wall Plaza.
In its response to the petitions, the government insisted that it had not reneged on the deal since it had committed funds to overhaul the area of Robinson’s Arch. However, Rabbi Gilad Kariv, Executive Director of the Israel Movement for Reform and Progressive Judaism, noted that the allocation was actually made before the deal was suspended.
Furthermore, Kariv noted, Robinson’s Arch is located several flights down from the main plaza. “What the state is offering,” he said, “is a pathetic, whittled-down proposal that is creating a category of second-class Jews, hidden from the public.”
The liberal movements have made it clear that, should the government keep the deal frozen, they will demand that the entire plaza be re-divided into a “tri-hitza” – that is, into three spaces, one for men, one for women, and one for egalitarian, mixed, prayer.
In a statement following the Supreme Court session, the Chief Rabbinate declared that it alone “has the legal authority to determine Halakhic rules at the Western Wall, and any attempt to undermine this authority will jeopardize the rule of law and the sovereignty of the State and cause a rift in the nation”.
Although the court had determined that it would hear all three petitions at the same time, the judges devoted almost all of their attention to the petition regarding the government’s reversal, which was presented by Reform and Conservative movements in Israel, along with Women of the Wall.
The second petition was presented by a group that refers to itself as the “Original Women of the Wall”, which split off from Women of the Wall after it accepted the government’s proposal with regard to Robinson’s Arch. They are demanding that women be permitted to pray out loud, read from the Torah, and wear tallit and t’fillin within the women’s section, in a women-only prayer group.
While liberal groups framed their position in terms of the rights of the non-Orthodox, men and women alike, at the Western Wall, the Original Women of the Wall framed their petition in terms of freedom of conscience, the rule of law, and the preservation of civil space. Shulamit Magnus, a professor of Jewish history at Oberlin College and the lead plaintiff for the group, said, “For those of us who are religious, without these values, we can never practice our convictions.”
The third petition was presented by Liba, an Orthodox right-wing group, which opposes allocation of any space to the Reform and Conservative movements at the Western Wall and claims that the government does not have the authority to make such a decision.
In their questions and comments, however, the justices did not relate to these legally and socially complex issues.
Anat Hoffman, leader of Women of the Wall and Executive Director of the Israel Religious Action Center, which is part of the Reform Movement, said, “The court is acting like ‘the responsible adult’.
According to the progressive movements and Women of the Wall, during the hearing the judges delivered a clear message: the government must reconsider its decision to suspend a plan to create a new egalitarian prayer space at the Western Wall.
Anat Hoffman, leader of Women of the Wall and Executive Director of the Israel Religious Action Center, which is part of the Reform Movement, said, “The court is acting like ‘the responsible adult’. The Kotel Agreement is the feasible solution and the court is searching for legal apparatuses to compel the State to implement the agreement.”
But these declarations ignore the second question that the justices posed to the state, which indicate that the court itself may be ambivalent or unclear about its authority. Furthermore, in its written decision at the conclusion of the hearing, the court may have indicated that it doesn’t want to be the one to solve the problem. “Without making any determination on this matter, we are aware that the implementation of the Western Wall framework did not make all petitions unnecessary. It is quite possible that during the proceedings, interim decisions will be given and not a final ruling which deals with all the claims that were raised,” the decision reads.