Two days after the Israeli Supreme Court overthrew the Tal Law, reactions and hopes are all over the map. There are those who expect nothing to change, those who are ready for culture war, and those who think both reactions are overblown or in denial. It is difficult to know who will be right, but one thing is clear the Supreme Court decision, the summer protests, and the agitation about the exclusion of women this fall and winter have fundamentally changed the facts on the ground.
The Status of the Supreme Court
The first challenge posed by the Supreme Court decision is the balance of power between the Knesset and the Supreme Court. Now that the Supreme Court has issued a decision, the Tal Law cannot be renewed unless the Knesset decides to completely nullify the decision of the Israeli Supreme Court. Nor can it be replaced with a similar law, equally ineffective at getting Haredim to serve in the army before marriage and children give them a de facto exemption.
Any attempt to maintain the status quo in light of the Supreme Court decision now carries the double burden of an explicit rejection of the authority of the court. The open question is: how many are willing to do that?
There are several MKs, especially on the right, who habitually complain about the Supreme Court overstepping their jurisdiction. The Supreme Court, in their opinion, should not overturn Knesset laws. Rather it should limit itself to deciding questions of application. The basic laws, which guarentee human rights and serve as Israel’s de facto constitution, are therefore meant to guide the application of the lawas and not to pass judgement on the laws themselves.
Already member of United Torah Judaism (UTJ) are making noises about the legitimacy of the Court decision and suggesting that they can just ignore it. MK Yisrael Eichler, chairman of UTJ told Radio Kol Hai on Tuesday night,
The State of Israel has no constitution, and it is a fiction to talk about [what is] constitutional or not constitutional,” he said. “It’s an agreed-upon lie, and I reject the right of the High Court to determine what is constitutional and what is not. [The justices] are not elected by the public, but political appointees.” Only the Knesset can determine what is and is not constitutional, the MK added. —
Shas MKs are insisting that there will be little practical change. Yakov Betzalel believes that a new law will be passed with only minor changes. MK Eli Yishai is promising that the Tal Law will be renewed for another year pending creation of a new version of the Tal Law.
A new Tal Law will not satisfy the supreme court decision, since the Court’s overturning of the Tal Law was based on the observation that was no national interest that could justify an unequal responsibility for national service between Haredim and other citizens. Although Shas is not as blatant as UTJ in rejecting the authority of the Supreme Court, the message is clear: no court decision will be allowed to change their determination to ensure life time exemptions from national service for the vast majority of Haredi 17 year olds.
Legal experts consulted by Ynet underscored the severe challenge this represents to the Supreme Court and what little bit of checks and balances it has in its government structure:
It’s inconceivable that a minister will speak put against a ruling by the High Court to the extent of saying that the government will not uphold it. A ruling by the High Court of Justice is binding and there is no way that the government will ignore it an extend Tal Law.
The Movement Against the Tal Law, a coalition of 40 social organizations, also commented on Yishai’s disregard of the supreme court: “It is not possible that a cabinet minister will openly defy the Supreme Court and continue ‘ business as usual.'”
Could 60,000 Really be Drafted in August?
The practicality of quick change is a second consideration affecting the real impact of the Supreme Court decision. There are 60,000 yeshiva students who have escaped the draft. Could they really all be drafted at once? Is the army really ready for such an influx of recruits, all of whom have need for significant cultural accommodation? Are there enough national service positions for those who are not willing to join the IDF?
Yishai says that his insistence that the Tal Law will be extended is a purely practical consideration. He argues that (a) it will take a year to draft a new law (b) the army couldn’t absorb so many draftees all at once anyway and (c) the law isn’t nearly as ineffective as it seems. There are many Haredi that want to join the army, but lack of funds and positions are holding up their enlistment.
Others have spoken out to refute this. Mk Yohanan Plesner (Kadima), chairman of the Knesset working group for the implementation of the Tal Law said that a new law could be drafted in two months. The IDF Spokesperson’s Unit says that the army could handle a mass mobilization of thousands if necessary. No response to the financial arguments has yet been reported.
What is the Real Risk of Culture War?
Even if the IDF and national service organizations is ready and able to induct 60,000 Haredim, there is still an open question of whether or not Haredi men would comply. As discussed in an earlier Jacob’s Bone’s article, there are many uncertainties about the true depth of Haredi resistance to national service, whether military or civil.
On one hand, Rabbi Shmuel Auerbach has issued a scathing condemnation of mandatory army service saying that one should refuse even unto death. On the other hand there are mixed messages from community members and sociologists about the true power of the rabbis over the Haredi community. There is mixed evidence that the Haredi community is more willing to work, more open to modern technologies such as the internet, and more open to advanced academic and profesional study. This is despite rabbinic pronouncements. Perhaps the same holds for claims that men should refuse service even at the price of grave economic penalties or even life itself.
Another unexplored question is the link between Haredi support for their political leadrs and the high level of social benefits. How much of the loyalty to the Haredi political establishment is due to their success in maintaining a high level of social benefits for the Haredi community?
In other words, is it an instrensic reality of the Haredi community, or a created reality perpetuated by habitual accommodation of non-Haredi politicians to Haredi demands for government services? If political momentum continues to build against Haredi handouts, will the Haredim continue for vote as a block? Or will that consensus begin to fracture?
In short, it is difficult to know how the Haredi public would ultimately respond to enforced manatory national service or threats to withdraw financial supports. Will the practical needs and personal security win out? Or will idealism and obedience? Will the result be culture war? Or considerable noise followed by gradual acquiesce ?
The Significance of Culture War
Even if there was a culture war, what would be the real price? One of the Haredi students in a recent HaAretz article on student response to the Tal Law said “It would certainly not throw ultra-Orthodox draft-dodgers into prison, the state would collapse in that situation.”
On one level every Jew is important. On the other hand, there is an open question on the practical impact of a disgruntled Haredi sector.
A Haredi boycott of national service won’t have much of an economic impact. Given that the 68,000 draftable Haredim aren’t working, one has to wonder what part of the state would collapse if they were in prison. Unless the students are working on the side, no business or government office will lose man power. Their children would still receive social welfare payments so it is unlikely that there would be a significant drop in consumer spending.
It won’t have much of a military impact. Haredim don’t serve in the IDF in any significant numbers so even if all Haredi soldiers stopped serving in solidarity, the impact would be small.
Would the state collapse because of civil disobeience? A crime wave? No haredi has made such a claim. The most fearsome claim made to date is threats of Kiddush haShem, willingness to die for the cause. However, Israel isn’t going to put anyone to death for failing to serve. In the wake of Beit Shemesh, most Haredim disavowed the extremists insisting that they were just a small minority who bullied Haredim far more than they bullied anyone outside of the community.
But even if mandatory service were to cause mass unrest in 7-11% of the population that is Haredi, that would likely only strengthen the resolve of the wider society not to give in. It would further tarnish the reputation of Haredim as students who study torah but somehow fail to absorb the most basic ethical values of Judaism. It would cast the Haredim once again as violent thugs who try to bully their way into power rathre than work cooperatively with fellow Jews and the Israeli public.
Thus it is unlikely that Haredi resistance to the draft will have major economic or security impact. Haredi non-participation in wider society has also reduced their leverage.
The real issue won’t be Haredi ability to disrupt society, but rather our willingness to see fellow Jews in pain. There is a long mile between anger at a community for taking more than its fair share from the wider Jewish community and being willing to cause extreme social pain to a group of fellow Jews, however disliked and maligned. Is the wider society really angry or frustrated enough to go that extra mile?
The Coalition and Elections
Another great unknown is the status of the current government coalition. The current government coalition includes Likud (27 seats), Israel Beiteinu (15), Shas (11), UTJ (5), HaAtzmaut (5), and HaBayitHaYehudi (3).
However, about a third of the coalition is against any form of renewal. Israel Beiteinu, HaAtzmaut (Independence) and HaBayitHaYehudi (Jewish Home) have made it clear that they think the Tal law is a failure and renewal is not an option. They vehemently oppose anything short of yeshiva students taking full shared responsibility for national service. They have a total of 23 votes.
It is quiet likely that Israel Beiteinu has more to gain than to lose even if voting against Likud breaks away from the ruling coalition. In fact, MK Lieberman (Israeli Biteinu) is already warning that the Tal Law could bring down the coalition.
Should the anti-Tal coalition parties and the opposition be able to come up with a bill that statisfies the opposition parties and they all vote as a block, the joint bill would have a nearly two thirds majority, i.e. 77 votes.
Hiddush’s 2011 annual Religion and State index found that 87% of Israeli Jews and 94% of non-Haredi Jews supported manatory service for all.
By and large Isrealis are fed up with having to work, pay taxes, and serve in the army to foot the bill for the yeshivas and for large families with no wage earners. Previously, this sacrifice was tolerated in the belief that Haredim were more devoted, more perfect Jews who were preserving Judaism for the rest of us. However, this fall and winter that image became significantly tarnished. At best Haredim showed themselves every bit as human as the larger society. At worst they convinced the wider Israeli society that they had serious internal problems. Instead of preserving the best of Judaism, their constant study and isolation had produced misguided notions of Judaism that rationalized and exused violence, mysogyny, intolerance of fellow Jews, trivialization of the Holocaust, and the abuse of small girls walking to school.
Come next election being a leader in the resolution to the Haredi exemption crisis could push a middling sized party like Israel Beiteinu into a dominant position.
Of course, a joint bill would require getting all parties to agree on a solution. That may be easier said than done. The Tal Law didn’t just handle Haredi draft deferments. It also provides a framework for combination study and army programs like the Hesder Yeshivas. Some would also like to see exemptions for a small number (2000-3000) of the best Talmud scholars.
The Problem of Timing
According to Jonathan Rynhold, a political scientist at Bar Ilan University, Netanyahu has every reason to want to delay any discussion or vote on a Haredi enlistment bill until a year from now just before the next scheduled elections. Should the vote come earlier he is in a lose-lose situation. If he endorses a sham bill that simply duplicates the Tal Law with minor modifications, he will anger voters who are tired of Haredi preferences. If he votes against a rehashing of the Tal Law he will lose the support of Shas and UTJ and risk breaking the coalition. This would likely force early elections and as well as damaging the long term relationship Likud has had with the religious parties.
Delays on timing may not be the option politicians hope for. First, delays open up politicians up to charges of acting against Basic Laws and denigrating the Supreme Court. Already Yishai’s assertion that the state will need a year to draft a replacement has inspired such allegations.
Secondly, without a bill to replace the Tal Law, come August 1 everyone would be subject to the normal secular mandatory service. That’s not at all what the Haredim want. Even if most of the rest of the country would be ecstatic to finally see Haredim forced into national service, the lack of a law would also be a problem for the Hesder Yeshivas, since the program is defined as part of the Tal Law. The Hesder program is core to the Religious Zionist commitment to army service. Anything that jeopardizes the Hesder program is going to cause internal revolts in Likud.
Finally, Netanyahu could decide that it makes sense to work with the anti-Tal politicians to force Haredim into national service. If Shas and UTJ withdraw from the coalition, new elections would most likely work in Netanyahu’s benefit. The latest poll, taken February 19, gives Netanyahu’s party, Likud, 39 seats, Israel Beiteinu 13, Kadima/Labor 12, and Lapid 6.