Last week, a bill was approved for its first reading in the Knesset that would expand the powers of religious courts.
Participating in the Knesset discussions regarding the bill, I was reminded of Finance Minister Bezalel Smotrich’s response when asked, in February 2023, who would defend our rights if all the checks on the government were removed as part of the judicial overhaul: “I promise to protect human rights,” Smotrich said.
Currently, the legal matters of marriage and divorce are under the sole authority of Israel’s religious courts, a situation that is, in itself, highly unusual in democratic states. The bill in question would further expand their authority, allowing rabbinical courts and Sharia courts to rule as arbitrators on civil matters such as employment disputes, disputes between neighbors, and more, as long as both parties consent.
Yet, when the question is raised of who will ensure that the consent given is genuine – especially in cases involving a considerable power imbalance between the parties, such as an employer and a low-wage worker – the answer given is: “We’ll trust in the courts.”
MK Yitzhak Pindrus (of the ultra-Orthodox United Torah Judaism Party) went as far as to say that if one side does not agree to arbitration in a religious court, then the court will persuade them to acquiesce. This hardly sounds like voluntary consent.
Though the revised version of the bill includes changes that bolster protections against forced consent, there is still no answer to the question of whether a low-wage worker who is afraid of losing her job can object to such proceedings, nor to the question of whether women will be allowed to deliver testimony during hearings, given that religious courts may consider them ineligible to testify.
“No one can compel religious law to change its restrictions on women"
In an earlier committee hearing for the bill, a representative of the Rabbinical Courts Administration – a part of Israel’s judicial system managed by the Religious Services Ministry – said, “No one can compel religious law to change its restrictions on women.”
What, then, will happen to a woman who finds herself in such a hearing to which she did not truly consent, and encounters discrimination against her testimony, in a court consisting exclusively of male judges?
Some of the protections included in the bill require the courts to ensure that their rulings abide by laws that protect basic rights, such as the Women’s Equal Rights Law and labor laws. This obligation should be self-evident, but past experience suggests that when religious courts have adjudicated civil matters, they have often ignored these protections. In addition, there are various issues that are not explicitly covered by the legislation specified in the bill, and for which a basic commitment to the values of equality is still required.
The answer is the same: “We will trust in the courts.”
It is not just a question of values and worldviews. In some cases, the problem is a lack of expertise. It is no coincidence that labor courts, for example, have been established with exclusive jurisdiction over the adjudication of labor disputes. These are very different from other disputes, and require a deep understanding of labor law. Unquestionably, the rabbinical courts and the Sharia courts do not have any special expertise in these matters.
In the deliberations of the Knesset Constitution, Law and Justice Committee, it was repeatedly argued that there is no difference between the religious courts and private arbitration services, which cannot guarantee free consent or offer specialized expertise either.
However, there is a hugely important difference: Private arbitration, as its name implies, is not publicly funded, nor does it have the markings of a state institution, with symbols of government such as the emblem of the state.
Thus, it is less likely that one of the parties in private arbitration will mistakenly think that it is under the aegis of the state. In this regard, it was argued in the hearings that the religious courts are preferable because they are supervised institutions, unlike private institutions. But if this is the problem, then the legislature should act to increase the supervision of private arbitration. It should not use it as an excuse to undermine equal protection under the law.
In A review we carried out at the Israel Democracy Institute, we did not find a single democratic country with public, judicial institutions that adjudicate solely on the basis of religious law.
Even in the State of Israel, which is both Jewish and democratic, there is no justification for expanding the powers of the religious courts. Those who wish to have their disputes arbitrated on the basis of religious law have a wide selection of private institutions to turn to.
At the same time, the mechanisms for protecting rights, especially for certain population groups, are few in number, and they need to be strengthened, not weakened. In a democracy, institutions are what we rely on to protect people’s rights. Mere promises that rights will be preserved are not enough.
The writer is director of the Israel Democracy Institute’s Center for Democratic Values and Institutions.