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A Brief Historical and Legal Description of Religious Liberty
The state of Israel, founded in 1948 and a member of the United Nations in 1949, is a parliamentary democracy with a multiparty political system based not on a constitution, but on a series of nine basic laws that govern state institutions. Although Israel is officially secular, it was founded as a homeland for Jews and has strong religious connections. Unlike other Western democracies, the Israeli government encourages religious as well as secular values. Facts about Israel reports that "Religious-secular tensions surface frequently because, although there is no state religion, there is little separation of religion and state."1
Israel's tradition of supporting religious values is well-established. In its Declaration of Independence, the state of Israel acknowledged its obligation to guarantee "freedom of religion and conscience."2 Although the Declaration is not legally binding, the High Court has often ruled that legislation must comport with the Declaration's fundamental principles.3 The basic law of the first Israeli government guarantees freedom of religion, conscience, speech, education, and culture. The state covenanted to provide for the public religious needs of its inhabitants but refrained from interfering in matters of religion.4 A June 1947 "status quo" agreement ensured that the Sabbath is the official day of rest for Jews, that institutional kitchens intended for Jews follow Jewish dietary laws, that Jewish law has jurisdiction over matters of personal status "in order to prevent the house of Israel from splitting asunder," and that religious education is fully autonomous.5 To this day, the state grants every recognized religious community legal authority through religious courts over its members in matters of marriage and divorce.6 The state also observes Muslim, Christian, and Jewish holy days.7 Author Sharfman contends that, because Israel supports religious values, controversy over religion does not concern freedom of religion per se, but freedom of the citizen in matters of religion.8 Such a distinction, while analytically helpful, makes little practical difference to citizens who are unable to practice their religion freely.
Israel is 84% Jewish, 13% Muslim, 2.3% Christian, and 1.3% Druze.9 Among the Jewish population, there are four main divisions: 45% Non-Observant, 35% Traditional (mostly immigrants from Muslim countries), 15% Orthodox, and 5% Haredim.10 Twenty percent of the population fulfills all religious precepts, 60% keeps some combination of the laws, according to their personal wishes and ethnic traditions, and 20% is non-observant.11 In their map of "Suppression of Religious Liberty around the World," Christian Solidarity International states that Israel commits "some violations, medium severity, of basic religious liberties."
Since Israel's founding, the High Court of Justice has defended civil rights in Israel and the territories, but it tends to accept the arguments of the state whenever the issue of security arises: the High Court views civil rights as subordinate to, and in conflict with, security. Sharfman states, "In the rare instances in which the justices ruled in favor of the petitioners, it was because the state's security arguments were not grounded in evidence." The High Court in recent years has developed a more critical approach to the claims advanced by the government.12 In addition, the Court distinguishes between secular interference with religious needs, and secular offense to religious convictions. The Court holds that the state can regulate the first, but that it cannot regulate the second.13
Constitutional Provisions and Legislation Relating to Religious Liberty
Israel has no written constitution, and instead abides by a series of Basic Laws. Advocates of a written Israeli constitution argue that the lack of a constitution impedes the realization of civil liberties in Israel. Sharfman states, "the convenient popular myth that security problems were the reasons for any Israeli failing in the area of civil rights was not all there was to tell."14 Many believe that leaders at the time of Israel's independence planned to write a constitution; indeed, the Declaration of Independence of the state of Israel explicitly states that the Constituent Assembly should draft a constitution.15 Despite such intentions, however, Israel has not adopted a written constitution. The following laws relate to religious liberty:
The Declaration of the Establishment of the State of Israel (1949): The State of Israel will be open for Jewish immigration and for the Ingathering of the Exiles; it will foster the development of the country for the benefit of all inhabitants; it will be based on freedom, justice and peace as envisioned by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the Charter of the United Nations.16Article 83 of the Mandatory Palestine Order in Council, 1922, the primary source of authority for the jurisdiction of Muslim and Christian religious courts, secures for all persons "full liberty of conscience, and the free exercise of their forms of worship, subject only to the maintenance of public order and morals."17
Until the 1977 victory of the right-wing Likud party of Begin and Shamir,18 winning over Labor and establishing a majority coalition of right-wing and religious parties,19 the law prohibited abortions for nonmedical reasons in accordance with Article 175 of the Mandate Criminal Law of 1936, adopted by the state of Israel. The statute provided for imprisonment of up to 14 years for the performer of the abortion and up to seven years for the woman who aborted. In 1966, the statute reduced the penalty for the person who performed it to 5 years, and abolished the penalty for women who aborted.20
Although Israel does have a 1977 antiproselytizing law which prohibits the offering and receiving of material benefits "as an inducement to conversion," the Justice Ministry states that the law has not been applied for several years. Therefore, missionaries are allowed to work in Israel.21
The Labor Exchange Law prohibits discrimination on the basis of race, religion, political beliefs, and age.22
Recent Reported Cases of Religious Intolerance
The Israeli government, in the words of the U.S. Department of State, "respects freedom of religion and protects the rights of citizens of all creeds to worship freely."23 It allows all faiths to administrate schools and institutions, and permits religious publications to circulate subject to state security interests.24 In addition, the autonomy of religious education is strengthened because religion in Israel is generally not viewed as a "compartmentalized set of beliefs and actions," but rather as "a total way of life that determines all aspects of a person's existence."25
Still, freedom of religion is far from complete in Israel. Although Israel usually protects free speech, it prohibits public expressions of support for Muslim extremist groups.26 Non-Jewish religious courts and religious educational institutions usually receive less state support than do their Jewish counterparts. The government protects Jewish religious sites, but does not provide protection for Muslim or Christian churches, cemeteries, or mosques.27 It often interferes with Palestinians' right to worship freely.28 Since the Palestinian uprising in December 1987, the government limits the number of Muslims allowed into the Temple Mount. Israeli forces enforce regulations against Muslims very strictly on Muslim Holy Days.29 The State Department reports that Israeli Arabs, 18 percent of the population, do not have the same quality of education, housing and social services as Israeli Jews.30 In addition, immigration to Israel is easier for Jews than for non-Jews.31
DENIAL OF ISRAELI CITIZENSHIP TO MESSIANIC JEWS
News Network International reports the Israeli Interior Ministry responded to an Israeli Supreme Court ruling in September 1992 which held that "openly-professed belief in Jesus is enough to render a born-Jew 'a member of another religion,' and thus not eligible under Israel's immigration law for automatic citizenship in the Jewish state" by ordering Messianic Jews to leave Israel by January 1994.32 Parliament introduced legislation to "grant permanent residency to anyone whose first-degree relative is already an Israeli citizen."33 Perhaps prodded by the bill, Interior officials issued tourist visas to Messianic Jews currently residing in Israel until Parliament develops a legislative solution to the crisis.34
Avi Granot, head of the Department of Church and Ethnic Affairs for the Israeli Embassy, admitted in a Network News International article that "the major conflict with the Messianic Jews is in us viewing them as Christians, while they view themselves as Jews."35 Although 4,000 Messianic Jews currently live in Israel, support the government and serve in the Israeli Armed Forces, Israel refuses to grant Messianic Jews "automatic Israeli citizenship under the Law of Return."36 Granot argues that the reason for Israel's policy is that "Judaism views itself as a separate religion from Christianity, not the source of Christianity, but a separate religion, both stemming from the same root, but two independent trees."37
GOVERNMENT PROTECTION OF HOLY PLACES
In January 1992, the Orthodox Jewish community halted an archeological dig at St. Stephens monastery, contending that the archeologists were defiling Jewish graves. When the archeologists revealed that the site was Christian instead of Jewish, members of the Orthodox community forced entry into St. Stephens at night, threw paint on a rare mosaic, and filled the grave area with rocks.38 Several other Christian places of worship have been buried under newly constructed highways.39 Later the same month, bulldozers flattened an ancient Muslim cemetery to prepare for construction.40
In late 1993, Arabs in the city of Jaffa attempted to prevent the construction of housing units over a Muslim cemetery. "The High Court turned down an appeal by Jaffa's supreme Islamic committee which had argued that the land in question had been illegally acquired by a joint government municipality building company."41
FREEDOM OF TRAVEL AND WORSHIP
The U.S. Department of State reports, "In 1993 the Government allowed Libyan pilgrims to visit Jerusalem and encouraged the attendance of Syrian and Lebanese Druze at the funeral of the sect's religious leader in northern Israel."42
In March 1993, the government sealed off the occupied territories. Consequently, Muslim and Christian Palestinians who desired to visit or attend services at Holy Places in Jerusalem were often prohibited from doing so because they could not obtain a permit to travel into the city.43 In April, many Palestinian Christians protested the closure of Jerusalem which prevented them from attending Easter Services at the Church of the Holy Sepulcher. Some Christians refused to apply for permits to attend church, saying that application would set a negative precedent for state control of religious activities. Others who did apply for permits to worship at the Church were denied.44 According to News Network International, Israeli soldiers "teargassed, beat and arrested" worshippers, injuring more than 100 of the Palestinian Christians who observed Orthodox Easter on the West Bank.45
In 1994, Israel allowed over 4,000 Israeli Muslims to make the pilgrimage to Mecca, although it forbid, for reasons of security, the journey of males under 30 years old.46 The government maintains that, because Saudi Arabia is formally at war with Israel, travel is a privilege rather than a right.47
In January 1995, 2,000 Palestinian Christians celebrating Epiphany were blocked by Israeli security personnel from following the route they believe Jesus took to the Jordan River for His baptism.48 Soldiers wanted Christians to bypass a military checkpoint by veering off the traditional route.49
ENDNOTES 1. Facts about Israel (Israel Information Center, 1992): 119.2. Daphna Sharfman, Living Without a Constitution (Armonk, NY: M.E. Sharpe, 1993): 73.
3. See Peretz v. Kfar Shmaryahu Local Council, 16 Piskei Din 2101, 2113 (1962), trans. in 4 Selected Judgments of the Supreme Court of Israel, 191 (1961-1962), protecting the freedom of religion.
4. Sharfman, 71.
5. U. Milstein, The Religious Argument in the Legislative Process in Israel (Jerusalem: pamphlet, 1972), (Hebrew), 28 in Daphna Sharfman, Living Without a Constitution, 70.
6. U.S. Department of State, Country Reports on Human Rights Practices for 1993 (Washington, D.C.: United States Government Printing Office, 1994): 1197.
7. ibid, 1210.
8. Sharfman, 73.
9. Edward H. Lawson, ed. The Encyclopedia of Human Rights (New York: Taylor & Francis, Inc., 1991): 991.
10. ibid.
11. Facts about Israel, 116.
12. Sharfman, 110.
13. See "Belly Dancer's Appeal Sways Israeli Court." New York Times (May 29, 1990): A3, col. 1. in which the Court held that the government could not revoke the kosher licenses of institutions where belly dancers perform.
14. Sharfman, vii.
15. ibid, 38.
16. Phina Lahav & Phyllis M. Blaustein, "Israel," in Albert P. Blaustein & Gisbert H. Flanz, eds., Constitutions of the Countries of the World (Dobbs Ferry, NY: Oceana Publications, Inc., 1988): 55.
17. Donna E. Artz, "Religious Freedom in a Religious State: The Case of Israel in Comparative Constitutional Perspective." Wisconsin International Law Journal 9 (Fall 1991): 30.
18. Artz, 18.
19. Bernard Susser,"Toward a Constitution for Israel." Saint Louis University Law Journal, Vol. 37, No. 4 (Summer 1993): 941.
20. Sharfman, 84.
21. U.S. Department of State (1993): 1197.
22. ibid, 1198.
23. ibid, 1199.
24. ibid, 1210.
25. Stephen Goldstein, "Israel: A Secular or a Religious State?" Saint Louis University Law Journal, Vol. 36, No. 1 (Fall 1992): 153.
26. U.S. Department of State (1993): 1209.
27. ibid, 1199.
28. "Israel." News Network International: Special Edition (May 26, 1993): 4.
29. David Dolan, "Struggle Intensifies over Control of Jerusalem Holy Sites," News Network International (September 7, 1994): 24.
30. U.S. Department of State (1993): 1198.
31. ibid.
32. David Dolan, "Messianics Granted Reprieve in Israel." News Network International (April 26, 1993): 37.
33. ibid, 38.
34. ibid, 38.
35. Kim A. Lawton, "Peace Process Enhances Israeli Relations with Christians Abroad, but Internal Document Recommends Continued Avoidance of Relationship with Messianic Jews." News Network International (June 14, 1994): 29.
36. Dolan, 38.
37. Lawton, 30-31.
38. Frank Collins, "Israelis Bulldozing Christian and Muslim Graves and Archaeological Sites." Jerusalem Journal, Vol. X, No. 8, (March 1992): 23.
39. ibid.
40. ibid.
41. ibid.
42. U.S. Department of State (1993): 1199.
43. ibid.
44. ibid.
45. "Israel," News Network International: Special Edition (May 26, 1993): 4.
46. U.S. Department of State (1994): 1197.
47. ibid.
48. Brittney A. Lindsey, "U.S. Church Leaders Push for Discussion over Future of Jerusalem." News Network International (March 24, 1995): 11.
49. Lindsey, 11.
Other Sources:
Fax from Debbie Lincoln, Embassy of Israel Press Office (August 25, 1995).
Letter from Warren Adelman, Chief of Public Affairs, Embassy of Israel (June 23, 1995).
David Novak, Religious Human Rights in Judaic Texts. Prepared for conference on "Religious Human Rights in the World Today: Legal and Religious Perspectives." Emory University, Atlanta, Georgia (7 October 1994).
Asher Maoz, The State of Religious Human Rights in the World - A Comparative Religious and
Legal Study. Part Six, Religious Human Rights in Regional and National Perspective. Chapter 41: Israel (Draft).
Francis Edward Rojas, Evangelism in Israel: Is It Theologically and Legally Justifiable? (Thesis submitted in partial fulfillment of the Master of Arts Degree in Middle Eastern Studies, Institute of Holy Land Studies (June 1990).
Scott C. Austin, Religious Discrimination in Israel's Law of Return. (Unpublished Manuscript) (October 11, 1993).
Source: Handbook on Religious Liberty Around the World, Pedro C. Moreno, Editor. Charlottesville, VA: The Rutherford Institute. This report is reprinted here by special arrangement with the Rutherford Institute and may not be reproduced or mirrored on another webside without written permission of the Rutherford Institute.
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