Perverted sensibilities

Many Israelis were undoubtedly relieved by the compromise that resolved last week’s Gay Pride controversy and resulted in a demonstration unmarred by violence. And from a short-term perspective, it was indeed a success. But from a long-term perspective, the handling of this affair was a disaster – because it tangibly demonstrated that our legal system discriminates based on religious and political affiliation.

To understand this, it helps to realize that the haredim who threatened violence should the Jerusalem Gay Pride parade proceed as planned, and who rioted almost daily last week in order to drive home their point, intentionally modeled their response on a long-standing and highly successful paradigm for how to prevail in such culture clashes. That paradigm is the Temple Mount.

For four decades, successive Israeli governments have denied Jews the right to pray on the Mount for fear that this would offend Muslim sensibilities, and therefore provoke Muslim riots. This policy has been backed by every attorney-general and every Supreme Court; the latter has repeatedly ruled that while freedom of worship is a fundamental right, the state’s interest in preventing bloodshed trumps that freedom, and therefore the government is entitled to bar Jews from worshiping at Judaism’s holiest site.

For the same reason, every attorney-general and every Supreme Court has upheld a ban on demonstrative ascensions of the Mount by Jewish organizations. Every few months, groups such as the Temple Mount Faithful request permission to ascend the Mount on particular Jewish holidays, but the police consistently refuse, for fear of sparking Muslim riots. And every time, the attorney-general and the court have backed the police’s decision.

Some of those opposed to the Gay Pride parade in Jerusalem thus logically concluded that what worked for Muslims on the Mount would also work for them. This is not mere speculation; even haredim, who firmly believe that Jews are religiously forbidden to ascend the Mount, cited the Temple Mount precedent. In a media interview last week, for instance, MK Moshe Gafni (United Torah Judaism) argued that Attorney-General Menahem Mazuz should have banned the parade, because “there has never been a case in which the police said that public safety would be endangered, or that a certain act would seriously hurt large sectors of the population, and the attorney-general interfered…. Why don’t Jews have the right to pray at the Temple Mount, contrary to Halacha? The police do not allow it because they believe it would cause riots and grave injury to Muslim feelings.”

AND IN fact, the police were perfectly consistent: They wanted to cancel the parade. But Mazuz and the courts refused.

In a strongly worded statement to the court last Wednesday, attorney Eran Ettinger, representing Mazuz, argued that the court should not give “prizes for violence by forcing police to cancel the parade.… The police’s activities must be directed not against participants in the event, but rather against those threatening acts of violence against them.… The price Israeli society would pay for a surrender to violence would be difficult to bear.”

And on Thursday, the court upheld this position in its rejection of several petitions against the parade. The compromise that replaced the parade with a stadium rally was due not to any concern over religious sensibilities, but to fear of a Palestinian terror attack after IDF artillery shells killed 19 civilians in Gaza the day before.

And thus, in the clearest possible fashion, the legal system sent the following ugly messages:

Muslim religious sensibilities matter enough to trump fundamental freedoms, such as freedom of worship and freedom to demonstrate, but Jewish religious sensibilities do not.

Secular homosexuals who wish to demonstrate in Jerusalem are entitled to have the police uphold their rights against threats of violence, but religious Jews who wish to pray at Judaism’s holiest site are not.

Demonstrations in support of a left-wing cause – gay rights – are important enough to outweigh both religious sensibilities and threats of bloodshed, but demonstrations in support of a right-wing cause – Jewish rights on the Temple Mount – are not important enough to outweigh either.

THE PROBLEM is not that Mazuz’s response to the court was wrong in principle. Violence should indeed not be rewarded; the police should indeed direct their energies against those who threaten violence instead of against those who are threatened; and Israeli society would indeed pay a steep price for surrendering to violence. Allowing violence to decide a dispute simply invites more violence. And this is especially true in a society as fractured as Israel’s, where almost everything offends some group or another.

But the price that Israeli society will pay for a legal system that openly discriminates between Jew and Muslim, religious and secular, and Right and Left may well be even steeper. Faith in the legal system, by enabling disputes to be resolved peaceably, is the glue that holds society together – and again, this is especially vital in a fractured society such as Israel’s, where sectoral disputes are frequent. If instead, large segments of society become convinced that Israeli law does not grant them a fair hearing, many of their members are liable to conclude that they have no recourse except the law of the jungle: brute force.

Both Mazuz and the court could still prove that what occurred was not discrimination, but a genuine change in policy. Last Wednesday, the Public Council for the Temple Mount submitted a new request for permission to pray on the Mount, basing it explicitly on Mazuz’s stance in the Gay Pride controversy. The organization thus effectively threw down a gauntlet to the legal system: Prove that you do not discriminate on the basis of religious and political affiliation – or prove that you do.

The danger of Muslim violence on the Mount is undeniably real. But in the long run, the dangers posed by a blatantly discriminatory legal system are worse. One can only hope that both Mazuz and the court will be wise enough to understand this.