Israel is in the midst of an interesting struggle over separation of temple and state. An Israeli court ruled that stores could sell bread and religiously forbidden foods during Passover. This has led to an uproar in the Knesset over its authority to dictate such religious-based practices. It is a debate and has elements of an early debate in the United States over the role of Congress on constitutional questions.
While the Knesset is in recess, a special session was called for the debate. The prior law forbade the sale and consumption of leavened bread and other foods beginning on Passover — even for those Jews and non-Jews who do not follow the practice. The special session was demanded by Shmuel Halpert, leader of the United Torah Judaism party, who insisted that eating forbidden foods was a sin punishable by death or excommunication, according to the Israeli newspaper Haaretz .
Notably, the ruling of the court was not based on a standard separation of church and state rationale. Israel has many religious based laws enforced by the state. Rather, Jerusalem Municipal Court Judge Tamar Bar Asher-Zaban found that the businesses’ selling of chametz (non-Passover food) does not fall under the “matzot” law because it was not designed to prohibit the sale or consumption of those products during Passover. Instead, she found that it only instructs the owners of businesses not to publicly present chametz products for sale or consumption.
Knesset Speaker Dahlia Itzik objected to the actions of the court and said that “The issue at hand belongs to the Knesset and not to the courts.” she said. “It is this Knesset that must decide.”
Minister of Religious Services Yitzhak Cohen was more forceful in his statement while calling for an appeal:”The court must rule on what it knows, and not halakha (Jewish religious law). The court’s ruling points a gun to the head of the Jewish people.” Click here.
Since this was an interpretive ruling of the statute, it is something that the Knesset could effectively reverse.
Notably, the interaction of Congress and the courts on constitutional questions was a matter of some debate in the early years of the Republic. The English parliament had an interpretative and legal role in its system. Some thought that Congress could play the same role — a suggestion put asunder by the ruling in Madison v. Marbury.
It is notable that the Israeli controversy is statutory rather than constitutional. There is no true separation of church or temple and state in Israel — at least in the U.S. sense. It produces a striking tension in the country with many secular Jews and others who are religious but support a neutral government model like the United States. Many of my friends in Israel speak of something of a culture shock when first encountering these laws — though in practice they are easy to avoid. When Jewish Americans go over as kids (like my wife), it can seem quite exotic for those used to a strict separation. The Israelis system contains a unique blend of a modern legal system, independent court system, but a direct entanglement of church and state. This entanglement is reinforced by the parliamentary system giving special religious groups enhanced power as swing voting blocks. For those of us who prefer a separation, the role of a political branch in reinforcing religious laws and reversing a court in such a decision raises obvious concerns.
Attorney General Menachem Mazuz said Tuesday ruled that the state will not appeal the decision. Click here. That could be a great victory for secular Israelis, though they still face the actions of the Knesset.