Today the Israeli High Court of Justice, the Israeli equivalent of the US Supreme Court, ruled that the Tal Law is “unconstitutional” because it does not fairly distribute the burden of mandatory military service.
The Tal Law, originally passed in 2002, must be renewed every five years. It was designed as an answer to a 1997 High Court ruling that the practice of giving ad hoc administrative exemptions to Haredim was illegal. Israel must either pass a law that officially exempts Haredim or else develop a scheme by which all Israelis share the burden of national service, whether Haredi or not.
The law required all Israelis to serve in the army, but allowed full time Talmud students to defer their service until age 23. In practice this meant that many never served at all. Ultra-Orthodox men typically marry at a young age. By the time students had reached age 23 they were married with children. Outside of national emergencies, married men with children are normally exempt. By contrast, people who were not full time Yeshiva students started serving at age 17, long before marriage and children would have exempted them. Thus the law gave a de facto exemption that applied almost exclusively to children raised in ultra-orthodox environments.
The High Court voted 6-3 to declare the Tal Law illegal. The outgoing court President, Dorit Beinisch, was among the six. The three dissenting judges were Eliezer Rivlin, Edna Arbel, and the incoming High Court President Asher Grunis.
Defense Minister Ehud Barak (Independence), MK Shaul Mofaz (Kadima), and MK Yohanan Plesner (Kadima) all welcomed the decision. All had three had been active in opposing renewal of the law earlier this month. According to the Forward, Barak concurred with the courts assessment that the law had failed in its goal of ensuring that the burden of service was equally shared:
The Tal Law, after ten years, did not meet expectations, nor did it lead to the required changes in all aspects concerning equally sharing the burden and expanding the number of citizens who undertake the civilian obligations.
Today’s ruling is a response to a 2007 petition filed against the Tal Law by the Movement for Quality Government, attorney Yehuda Ressler, former Shinui MK and minister Avraham Poraz, former Meretz MK Ran Cohen, and and attorney Itay Ben-Horin from the Forum for Equality in the Burden of Military Service.
Last month the High Court heard arguments in the case and warned that the government needed to show proof that the burden of military service was equally distributed. If it could not, the Tal Law would fail to meet the “proportionality test” and be declared illegal. Israel’s laws must conform to the Basic Law: Human Dignity and Liberty. The proportionality test requires that the benefits of the law must outweigh any harm that the law causes to the principal of equality demanded by the Basic Law.
This is most likely not the end of legislative attempts to exempt Haredim from national service. The Times of Israel reports that Prime Minister Benjamin Netanyahu wants the Knesset to draft a revised law that will give Haredi men exemptions from the IDF.
Shas has also expressed hopes that a new law can be found. AP and the Jewish Chronicle both reported Yakov Betzalel, Shas party spokesman saying that he does not see the court decision triggering any sort of coalition crisis. According to AP, “he was confident seminary students would continue to pursue religious studies rather than serve, and expressed hope a new military exemption deal would be struck that would meet the court’s standards.”
The Tal Law has sparked considerable debate since it was first passed in 2002. For a fuller discussion of its history and the objections to it, see “Why a Revised Tal Law is Not Enough”.
Last updated: 3:10pm, 2012-02-22