‘Game Of Chicken’ On Kotel Deal

Jerusalem — During a much-anticipated Aug. 31 hearing, Israel’s Supreme Court sharply criticized the government for failing to implement its January 2016 deal with the non-Orthodox streams and Women of the Wall to create a pluralistic prayer space at the Kotel.

“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,” Chief Justice Miriam Naor told the government’s lawyers. “There is legal process, it’s not a matter of doing whatever you want whenever you want.”

Naor warned the government that “an agreement that is frozen can be thawed.”

The court also gave the government just two weeks to justify why it hasn’t implemented the deal.

Although the court’s words were biting, no one expects it to order the government to implement the deal — made with the Women of the Wall advocacy group and the Reform and Conservative movements, and approved by the cabinet — anytime soon.

That includes Anat Hoffman, Women of the Wall’s chairperson, who has petitioned the high court several times.

“This is like a Rorschach test,” Hoffman told The Jewish Week. “Some people are saying that the two-week deadline is a good indication the court is impatient with the government. But I can say from experience that the government will ask for another extension and then another and then another.”

Rabbi Seth Farber, whose ITIM organization also has a lot of experience with religion-state high court petitions, couldn’t agree more.

“The court is stalling. We’re in a huge game of chicken. The court is throwing the issue back into the prime minister’s lap, but the prime minister doesn’t want to make a decision that will endanger his coalition.”

Prime Minister Benjamin Netanyahu personally brokered the prayer space deal only to quash it after his ultra-Orthodox coalition partners threatened to bolt the government and force new elections.

Farber said the High Court is also reluctant to force the issue “because it doesn’t want any more flak for intervening in religion-state issues.”

Many Israelis, including charedi and right-wing lawmakers, felt the High Court was overly interventionist, especially in religion-state matters, during the reign of Chief Justice Aharon Barak, and the current court is bending over backwards to appear balanced, Farber theorized.   

Even so, the court is still signaling that cancelling the agreement was “unacceptable,” Rabbi Farber said. “It’s like being in a classroom and the teacher tells a student, ‘you might want to rethink that answer because it’s not the best answer.’”

While the court and the government see who can drag their feet longer, the stalemate “is deepening the divide between North American Jewry,” Farber said.

Uri Regev, a Reform rabbi and CEO of Hiddush, one of the petitioners in the court case, also doubts the court will order the deal’s implementation, at least not in the current political climate.

“The court realizes that whatever it decides will anger significant circles within Israel and world Jewry” and spur Israel’s charedi and right-wing parties to make good on their threats to try to weaken the High Court through legislation. 

Already, Regev said, the government has nullified mandatory IDF service for charedim and is prepared to legislate that only the ultra-Orthodox Chief Rabbinate can perform Israel-based conversions. 

Netanyahu is equally unwilling to go against his charedi coalition partners, even though he supported the prayer space.

Regev, who is often critical of Netanyahu’s policies, believes the prime minister “genuinely wanted the Kotel agreement carried out.” What he didn’t count on was the huge backlash the three charedi politicians — MKs Aryeh Deri, Yaakov Litzman and Moshe Gafni — who reluctantly agreed to the deal, experienced once it became public.

Some of this backlash came from the “young Turks” in their political parties, and the rest came from rabbinical leaders who wanted to challenge the parties’ existing rabbinical leaders.

While Netanyahu “doesn’t care” about the status of non-Orthodox Jews in Israel or Women of the Wall, Regev asserted, Netanyahu feels the need to convince American Jews that he cares about them.

“He’s one of the only Israeli leaders who understands the importance of American Jewry to Israel’s strategic interests. Four years ago, when Anat Hoffman was detained by the police, the American Jewish leadership complained to Israel’s U.S. ambassador, to the counsel generals. It became an international incident. There’s a fire here Netanyahu knows he needs to contain.”

On Monday, Malcolm Hoenlein, executive vice president of the Conference of Major American Jewish Organizations, told the Times of Israel that “if we care about the U.S.-Israel relationship, if we care about the relationship of the Jewish community to Israel, the internal support, then we cannot afford to alienate and lose significant portions of the American Jewish community.”

Hoffman couldn’t agree more, and hopes the High Court will eventually bring the government to its senses.

“I think the court will go out on a limb but will make sure it’s a thick limb,” Hoffman said. “First, it will give the government as long as it needs to provide an answer, and that may take a long time. Second, they will enlarge the panel of judges from the current three to seven or more” as a way of showing the public that the issue is a serious one.

If and when the court does make a ruling, Hoffman predicted that it will rule on the principal that “the holiest site of the Jewish people cannot fund and be run by only one faction of the Jewish people.”

In the meantime, she said, the court “will drag its feet” and “test our patience to the utmost.”