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Privatizing Religion in the Jewish State?

It is often remarked that America is the most religious Western democracy because and not in spite of its separation of religion and state. Would an Israel that adopted a similar system be both more democratic and more Jewish?


 Yes but also no, argues Ruth Gavison. In the Israeli context, the relevance of the American model is limited.

Response
Ruth Gavison
July 14 2013

Moshe Koppel is a supporter of the Jewish state who, in marked contrast to many of his religious and political allies, argues for the separation and privatization of religion in Israel. This he does on the basis of a distinction between states (large, heterogeneous, territorial) and communities (small, homogeneous, voluntary). Between these disparate entities he urges a division of labor, under which states should enforce liberty and provide for some corrections of market failures but mainly facilitate and encourage the freedom of communities, including religious ones, to pursue their moral and social purposes—which often enough provide value and meaning to the life of the society served by the state. 

In this account, good states seek a balance between political freedom and social solidarity, and wise states know that the path toward this goal lies through restricting their own reach by empowering the work of communities. Hence the distinct features of the American model, which Koppel on the whole endorses: broad religious freedom from the state, very limited legal endorsement of religious values as such, no establishment or financing by the state of religious institutions and services.

In the Israeli context, however, the relevance of the American model is limited. On the one hand, we have a large, successful, modern state whose defining ethos is a Constitution privatizing and legally equalizing all non-civic affiliations while simultaneously building on the fact that (at least until recently) Christianity cuts across most of its social divides. On the other hand, we have a small and still relatively new state founded in order to enable the revival of Jewish independence in its ancient homeland while respecting democracy and the human rights of all within it. This state also operates in a region mostly Arab and Muslim and hostile, where democracy has not been entrenched and where non-civic affiliations (religious as well as ethnic) are much deeper and stronger than civic ones, leading at times to bloody wars among domestic communities themselves.  

One way to square the Jewishness of Israel with the American model might be to posit that Israel is Jewish (in the religious sense) just as the U.S. has often been described (again, at least until recently) as Christian. That is to say, the particular non-civic quality of each society is embodied in its history, culture, and demography, but is not endorsed by the state itself even as, for a variety of historical and political reasons, the country’s “civil religion” singles out religion from other forms of association and affiliation.

From the inception of Zionism, Zionists, whether religious or secular, aimed at something different—a difference reflected in the fact that, in its basic laws, Israel defines itself as “Jewish and democratic.” The state thereby declares emphatically that it does not want totally to privatize its Jewishness. Nor is that Jewishness a matter of private communities independent of (though also supportive of) a state defined only as a home to all its citizens.

Does Koppel mean to suggest that Israel can and should nevertheless privatize the Jewish religion, without necessarily privatizing all possible Jewish affiliations, preeminently the ethnic and cultural ones? According to this reading, Israel should be considered “Jewish” as Arab states are considered Arab, as in the formulation of the 1947 UN resolution partitioning Palestine into two states, one Arab and one Jewish. It is unlikely that he does mean to suggest this (or even to concede that Jewishness can be totally separable from religion). Yet it is worth noting that even this sense of Jewishness would be problematic in terms of Koppel’s own account of the good state. For how could non-Jewish communities of Israeli citizens be expected to instill in their young a sense of patriotism and membership in a state that makes them second-class citizens at best?  

Koppel is right that good and wise states do not seek to replace the thick moral and social identity of their citizens and communities. Liberal “universalists” who ignore this truth do so at their peril. Yet issues of state and religion (as well as state and ethnicity) in Israel cannot be analyzed only along the very contingent and fortunate lines of present-day America.1 The model cannot be one of a small “night-watchman” state versus robust and free communities, for the simple reason that the state of Israel must arbitrate among the particular visions of many different communities whose attitudes to each other, and to the state, are complex and not always positive. On top of this, Israel must square its obligation to all its citizens, Jews and non-Jews alike, with its own avowed and non-privatized Jewish distinctiveness.

A great deal of privatization of (Jewish) religion is indeed consistent with this enormous task, and is even desirable and necessary for its implementation. About this, Koppel is undoubtedly correct. Indeed, it is bad for the debate about the Jewishness of Israel to be interpreted in purely religious terms, since the justification for statehood relates not to the creation of a Jewish theocracy but rather to the self-determination of all Jews interested in such self-determination, regardless of their attitude to religion.

The difficulty of the task is both political and philosophical/theological. One cannot deal, as Koppel does, only with the internal Jewish debate. Nor can one discuss law and religion without regard to the ongoing debate in Israel about the nature of Judaism and the Jewish collective. Jews in Israel are not one community. They are many. Their visions of the good life are similarly many and at times incompatible—despite and possibly because of the fact that most of them want both to maintain their Jewish identity and to transmit that identity to future generations.

These, then, are some necessary qualifications to Koppel’s analytical framework. As it happens, though, taking them into consideration actually strengthens many of his practical suggestions for state-religion arrangements in Israel.

 

As the place where Jews of all stripes and attitudes enjoy self-determination with respect to their Judaism, Israel will in fact be stronger in its insistence on the importance of communities and their moral robustness if the state is not dragged into religious debates that it is neither competent nor able to resolve; if the integrity of religion and of religious services and institutions is not wedded to state largesse; and if the cause of Jewish statehood is immunized against the increased intrusion of Jewish religious law (halakha), in its most exclusivist interpretation (especially concerning the status of women and non-Jews), into Israel’s public life and legal arrangements. 

The state should welcome the opportunity to relegate these debates to a religious sphere not endorsed by the state itself. If it does so clearly and consistently, it will be more able to maintain its complex identity as both Jewish and democratic. Doing so will also facilitate a sense of Jewish solidarity among all Zionist Jews—a sense critical to the health of Israeli society but now threatened by state-sanctioned religious monopolies with control over the life of many non-observant Jews. A shared awareness of just this critical need was central to the effort undertaken by Rabbi Yaakov Medan and myself to draft a set of consensus proposals for Jews on issues of state and religion. In his article, Koppel graciously indicates his general agreement with these concrete ideas.

Nevertheless, I am not arguing that religion in general, and Judaism in particular, can be fully privatized. To the contrary, I believe they cannot and should not be. Israel is the one place in the world where Jews are a majority and enjoy self-determination. It is and will be and should be Jewish in a cultural sense (as is clearly evidenced in the current debate over the public observance of Shabbat as a day of rest). At the same time, it should protect freedom of religion and provide all of its citizens, irrespective of religion or ethnic identity, with such services as education, health, security, social security, marriage and divorce, burial and housing. It should not be in the business of employing religious leaders who advocate, in the name of religion, violating its laws, challenging the legitimacy of its government, or denying its services to its citizens.

Like Koppel, I firmly believe that separating halakha and religious teachings as such from the state will facilitate all these ends, not only making Israel more democratic but making it more Jewish as well. Let me illustrate with the example of marriage and divorce.

Koppel supports the abolition of the religious monopoly over these matters—a monopoly inherited from the Ottoman millet system—because it is counter-productive to achieving such legitimate Jewish goals as the prevention of mixed marriages and mamzerut.2 I join his bottom line, but my approach starts from the viewpoint not of the religious establishments but of the state.

Empires often used the millet system as a way of maintaining “thin” central control while granting autonomy to local, mostly communal authorities. They did not see themselves as also responsible for the freedom of individual members of religious and ethnic communities. Modern states cannot do that. They need to permit and cultivate communities, but also to develop civic cohesion and to protect individual rights. To this, Israel must add the obligation to maintain and develop Jewish flourishing. The regime of marriage and divorce is a prime instrument for achieving this complex task, but the present religious monopoly protects communities only under orthodox interpretations of the religion, ignoring all other parts of the equation.

In short, it is and should be the obligation of the state to allow its citizens to form the family unions that the state authorizes. What Israel should have—similar to the American model that Koppel usually endorses—is a civil framework for marriage and divorce under which the state decides who can get married in its jurisdiction, with that framework being arrived at through a political, democratic process attending to the preferences of all groups.3 Couples eligible to marry can decide how and by which ceremony and with which authorized official they will exercise their right. The state should also regulate divorce (while ensuring that individuals obtain a proper religious divorce where applicable).

All this is designed to promote state responsibility and the development of a civic place to which all citizens have access, but which in itself does not force citizens into a specific religion or culture or community. At the same time, by supporting and encouraging the tendency of couples to choose the ceremony most suited to their way of life, the state also recognizes that families and kin are primarily communal matters.

It is often remarked that America is the most religious Western democracy because and not in spite of its separation of religion and state. An Israel that adopted a similar regime for marriage and divorce would be a state recognizing its duties to all its citizens. It would be a state that encouraged members of the Jewish majority, along with all others, to work creatively on their communal life. It would no longer be a state sidelined by the perceived need to fight a holy war for or against religion. And it would be, I confidently predict, a state both more democratic and more Jewish.4

Ruth Gavison is the Haim H. Cohn Professor Emerita of human rights at the Hebrew University of Jerusalem and the founding president of the Metzilah Center in Jerusalem. 

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1 Of course, I cannot discuss the accuracy of this portrait of the American model, together with its social and philosophical presuppositions.

2 If the monopoly were not counter-productive, would he support the current arrangement, despite the fact that it enforces religious values on all and grants to religious authorities both state power and a state salary? Koppel professes not to see a violation of human rights here, drawing an analogy between the chief rabbinate’s exclusive power over state-recognized marriages and the medical establishment’s power to authorize those competent to perform surgery. This is an odd statement from someone sensitive to religious freedom, which presumably includes the freedom not to be religious at all.

3 With Koppel, I reject the claim that religious arguments must be excluded from political deliberations. The only constraint I accept on democratic legislation is the protection of core human rights, among which is religious freedom, including freedom from religious coercion. But not every limitation of freedom based in part on religious considerations amounts to religious coercion. Sunday or Shabbat laws are a prime instance.

4 For a full development of the ideas in the preceding paragraphs, see A Civil Framework for Marriage and Divorce in Israel by Pinhas Shiffman and Avishalom Westreich (2013), a paper by the Metzilah Center.

More about: church and state, Israel, Jewish identity, Moshe Koppel, Zionism