In a move that could have far-reaching consequences for the future of state and religious relations in Israel and on the standing of the Chief Rabbinate, the Supreme Court ruled 2-1 yesterday that the rabbinate has no legal right to determine state policy. The ruling stemmed from the controversy between religious and secular groups over the archaeological excavations at the City of David.
Twelve days ago the court issued an interim injunction overturning Education Minister Zevulun Hammer’s suspension of the dig. Hammer was accused by some political and academic circles as having capitulated to the Chief Rabbinate, which had demanded that the dig be halted permanently. Hammer ordered the dig be halted for two weeks, pending the outcome of the Supreme Court ruling. Ashkenazic Chief Rabbi Shlomo Goren had warned that unless Hammer ordered a permanent halt to the dig he would be excommunicated.
BASIS FOR COURT RULING
In making public the basis for the court’s ruling yesterday, Supreme Court President, Justice Moshe Landau, said that according to the law of the land and Israel’s democratic and non-theocratic character, the halachic rulings of the Chief Rabbinate are not binding in any way regarding state officials fulfilling their legal authority. The court ruled:
“Whatever the importance of a rabbinical halachic ruling to a religious person, the Chief Rabbis and the Supreme Rabbinical Council are not by law empowered to determine facts necessary to the implementation of the law … nor is the enforcer of that law … (properly) subordinate to the rabbinical rulings.”
The halachic ruling referred to by the three-justice court was handed down by Goren and Sephardic Chief Rabbi Ovadia Yosef Aug. 19. They proclaimed the dig area as the site of an ancient Jewish cemetery and prohibited archaeological excavations there. Their ruling was subsequently reinforced by a resolution issued at a joint session of the Supreme Rabbinical Council and the Supreme Rabbinical Council Court Aug. 26.
JUSTICES CRITICIZE HAMMER
In its decision, the Supreme Court strongly criticized Hammer’s suspension of the dig. Religious pressure and “demonstrations by ultra-Orthodox elements who do not recognize the State” should not have been taken into account by Hammer, an observant Jew, in his decision to suspend the dig, the justices said. Hammer is a leader of the National Religious Party.
The justices added, however, that if a halachic ruling is based on proven facts, it could serve as material in the framework of considerations by a government policy maker. But, they said, under no condition should such a ruling serve as a binding guideline for decision making. Although Hammer did not state that his ruling was influenced by the rabbinate’s prohibition, it is apparent that the rabbinate’s stand did influence Hammer’s consideration, the court said.
The justices pointed to what they said were some of the considerations in Hammer’s decision. On July 16 his Ministry’s director wrote a letter supporting the continuation of the dig “as it has been clarified that there is no cemetery at the site.” But on Sept. 1 Hammer suspended the dig before he even received the opinion of the Attorney General whose view he sought and without consulting the responsible archaeological authorities. Therefore, the court ruled, Hammer had no legitimate basis for suspending the dig.
The court’s majority ruling was issued by Justices Landau and Shlomo Levin. Justice Yitzhak Kahan, while supporting the interim injunction overturning Hammer’s suspension order, submitted a minority view stating that he “had doubts” about the majority’s reasoning. He said that in his view there was room for consideration of the belief of part of the public since this is a subject of special sensitivity in this country.
Goren would not comment on the court’s ruling and Hammer was unavailable for comment. But Assistant Attorney General Yoran Bar Sela, who represented the State in this case, was quoted as hailing the court’s ruling as an “important precedent for the State.” It may serve as a future guideline regarding the legal standing of the chief rabbis in relation to actions and policies of the State, he added.
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