Civil Fights: Court to state – Ignore the law

It is a sad day when no less a body than the Supreme Court declares that the law is irrelevant. Yet that is what Israel’s Supreme Court did last week in its ruling on state funding for conversion programs. To quote Supreme Court President Dorit Beinisch, writing for a unanimous court, “the legal validity of the conversion process… cannot in and of itself justify a distinction” between Orthodox and non-Orthodox programs.

The case began when the Absorption Ministry decided to fund private conversion programs, but only if they prepare people for Orthodox conversion. The Reform Movement petitioned the court, charging discrimination.

The state argued that a crucial difference exists between Orthodox and non-Orthodox conversion: The former is legally recognized by the state; the latter is not. Regardless of whether this should be the case, the fact remains that under current law, it is. People converted by either state rabbinical courts or special state-run conversion courts, as graduates of Orthodox programs are, can legally marry a Jew in Israel or be buried in a Jewish cemetery. People converted by non-Orthodox rabbinical courts, as graduates of non-Orthodox programs are, cannot.

The court, however, dismissed this argument, ruling that a conversion’s “legal validity” cannot justify a funding distinction. In short, it ordered the state to regard Israeli law as irrelevant to funding decisions: to treat programs that culminate in certification legally valid in Israel as identical to programs that do not.

Applying this principle to other fields makes its absurdity readily apparent. For instance, should the state subsidize programs that prepare students for foreign bar exams, just as it subsidizes university departments that prepare students for the Israeli bar? After all, they have an “identical purpose” – enabling graduates to work as lawyers – just as, according to the court, Orthodox and non-Orthodox conversion programs have an “identical purpose”: the “cultural and spiritual integration” of non-Jewish immigrants into Israeli society. And freedom of occupation, which includes the right to practice one’s profession where one pleases, is guaranteed by a Basic Law, so it is surely no less important than freedom of religion, on which the court based its ruling (and which, incidentally, is not guaranteed by any law at all). In fact, there is only one substantive difference between the programs: One prepares its students to obtain certification that is legally valid in Israel; the other does not. And it should be obvious that the state has a greater interest in the former than in the latter.

Of course, this difference means these programs do not really have an identical purpose – and neither do Orthodox and non-Orthodox conversion programs. Both certainly aim at “cultural and spiritual integration” into Israeli Jewish society, but Orthodox programs also aim at legal integration: securing the convert all the legal rights of an Israeli Jew, such as the right to marry another Jew in Israel. That is something non-Orthodox programs cannot currently offer.

The convert may not care: If he did, as Beinisch noted, he would presumably choose an Orthodox program. But the state, precisely because its goal is integration, has a clear interest in legally valid conversion: Integration will obviously be impaired if, for instance, the convert cannot legally marry another Jew. Yet the court willfully ignored this interest.

ITS OTHER ARGUMENT, that equal funding is mandated by the state’s commitment to freedom of religion and pluralism, is equally fallacious. According to the court, this commitment cannot be merely passive; it must be active – meaning if the state funds programs by one religious movement, it must fund similar programs by others. But “freedom” means exactly that: the freedom to do (or not do) something. It does not translate into a right to receive state funding. Again, this becomes obvious if you apply this principle to other realms. For instance, freedom of expression is no less fundamental a right than freedom of religion. So by the court’s logic, just as the government must finance non-Orthodox conversion programs because it finances Orthodox ones, the government should finance privately-owned television stations, since it finances the state-owned Channel 1. Similarly, since it subsidizes some forms of cultural expression (for instance, symphony orchestras), it must subsidize all forms.

In reality, however, government budgets are not unlimited, so states cannot fund every exercise of a given right. They must make choices, based on which exercises serve state interests. For instance, like many democracies, Israel views public broadcasting as a public interest that justifies the television funding distinction. Similarly, Israel does not fund Christian missionary work, though Jewish converts to Christianity are exercising their freedom of religion no less than non-Jewish converts to Judaism: The state has an interest in the latter (the converts’ integration into Israeli society) that it lacks in the former.

In this case, there is a compelling state interest in Orthodox conversion that does not exist in non-Orthodox conversion: the interest in a process that is legally valid under Israel’s own laws. This interest will exist unless and until the law is changed. And it is one that the court recognizes in other walks of life: It does not, for instance, require the government to fund academic programs not accredited by the state, professional training programs whose certifications are not accepted by the state or absorption benefits for immigrants not recognized by the state as eligible under the Law of Return.

So why did the court dismiss this distinction in this case? Its two stated reasons, as noted, are nonsense. But the verdict makes the unstated reason quite clear: Quite simply, the justices disapprove of this legal situation.

As private individuals, that is their right, and many Israelis would undoubtedly agree. But as justices, they are obligated to uphold the law, whether they like it or not. Instead, they ordered the state to treat the law as irrelevant, as a factor that deserves no consideration in its funding decisions. That is a gross violation of their duty. And it sends a deeply disturbing message to the Israeli public – because if even the Supreme Court does not deem the law a relevant factor in decision-making, who will?