Israel's dayanim are the latest targets of the High Court's woke judges

Photo: Flash90

I

t’s amazing how deceptive appearances can be. To the uninitiated, Israel’s High Court is a fusty repository of traditionalism — all tacky gowns and wigless judges. Like a cut-price Madame Tussaud’s version of London’s Old Bailey, if you will.

But look deeper, and the High Court has long been a fount of innovation. Show their eminences a legal, political or social norm — especially one grounded in thousands of years of Jewish tradition — and they’ll shred it with all the relish of Elon Musk devouring a legacy industry.

Chometz in public institutions on Pesach? Check. Recognition of Reform conversions for citizenship? Sounds good. Supermarkets open on Shabbos — whyever not?

At a time when Israel’s tech sector is worried about the country losing its innovative edge, the court — known by the elegant acronym Bagatz —continues to disrupt with all the chutzpah of a Silicon Valley startup circa 2011.

The court’s sheer radicalism is likely why its latest move — an attempt to force the chief rabbinate to allow women to qualify as dayanim — has mostly flown under the radar.

A few years ago, feminist groups demanded that women be allowed to take the advanced tests. The standoff forced the Rabbanut to suspend testing for dayanim entirely for a year, with obvious consequences for the overloaded beis din system.

Undeterred, Chief Justice Yitzchak Amit forged ahead, and a ruling that flies in the face of halachic norms was born a few months ago.

As Sephardic Chief Rabbi David Yosef put it, “The High Court justices have appointed themselves as chief rabbis.”

If anything, that’s an understatement. If Amit’s woke version of Jewish law were a Christian denomination, it would stand somewhere between the Church of England, which permits women to be ordained, and the Vatican, which doesn’t.

Put differently, Israel’s High Court is simultaneously holier-than-thou and less Catholic than the Pope.

The dayanus story may seem like small change compared to some of the High Court’s recent high-stakes interventions, but it contains a stark lesson for the issue that has convulsed Israeli society for the past two years.

Simply put, the arrogance and militancy on display in this latest attempt by a secular court to engineer rabbinic practice has contributed to the chareidi draft deadlock.

That’s because for many chareidim — especially those already in the workforce — a major obstacle to considering the draft is the army’s secularism, of which the High Court remains the ultimate guarantor.

While media attention and the political process focus on the core of the chareidi world that is engaged in full-time Torah learning and will not draft — whatever combination of carrot and stick the government wields — there are many to whom that doesn’t apply.

It should go without saying, but the million-strong chareidi world is far from monolithic. Plenty of married chareidim aren’t in the beis medrash, and they’re open to shouldering the civic burden of army service in some form. So why don’t they? Part of it is social pressure. Another part is the circling of the wagons effect that takes place whenever chareidim as a group come under attack.

But talk to many average chareidim, and it’s very straightforward: They don’t trust the army to keep its end of the bargain.

Most simply don’t believe that the secular elites who run the army and justice system will swallow the separation of the genders that a large-scale chareidi draft would entail.

And that’s where the critical sticking point is. No amount of Badatz food, siyumim on base, or stirring renditions of Carlebach’s “Mimkomcha” at graduation ceremonies will compensate for the single most elementary assurance that chareidim demand: that gender-separate programs such as the IDF’s new Chashmonaim Brigade will remain gender-separate.

No ifs, no buts. No sharing bases with mixed units, or female instructors “mistakenly” assigned. No “accidental oversights” followed by half-hearted vows to follow the rules next time.

Skepticism about the future of these programs is based on hard historical experience. Over the decades, the army and air force have opened a series of tracks for chareidim. They all began with promises of high halachic standards, but the reality was often more mixed in the long term.

When commanders changed, priorities changed. Understandings reached with the army leadership came under attack on a host of issues, large and small. The bottom line was that army service was a risky proposition, in spiritual terms.

Post-October 7, the IDF claims to understand that that cycle needs to change. But even if the backers of the Chashmonaim unit succeed in having the religious rules included in the IDF General Staff Orders — the army’s highest legal framework — it will take something far more concrete to get your average chareidi through the door.

That’s because of the big beast of the Israeli jungle; the ultimate power in a country where the Knesset doesn’t really rule the roost.

The High Court’s track record when it comes to religion versus secular liberalism is what will determine whether there’s an off-ramp for the draft crisis.

That record seems clear. A court that wouldn’t permit public funds to subsidize a Motty Steinmetz concert in Afula in 2019 because it was for men only, isn’t likely to defend that same segregation in the army.

A court that couldn’t countenance the elementary separation of men and women at an outdoor Ne’ilah in Tel Aviv on Yom Kippur 2023 is highly unlikely to approve the hermetic separation of the genders that large chareidi formations would entail.

Again, such tracks may succeed for a time — but it’s the long-term that matters. What happens when media and political attention move on, when the pressure on the army to show that it can work with chareidim fades? Will the fervent promises that “anyone who enters chareidi will leave chareidi” hold up in five years’ time?

One thing is certain: For that to have a chance, a sea change in thinking on religious rights is necessary where it matters most — in the courts.

Yet how likely is that, when a High Court that repeatedly struck down any attempt to pass a new Draft Law over the last decade was one of many triggers for the justice law overhaul in early 2023 that brought the left wing onto the streets?

Chareidim are many things — stupid isn’t one of them. For years, they’ve watched as the army bullies the Religious Zionist sector, sometimes forcing highly-motivated soldiers from Hesder yeshivos to compromise on their religious observance in order to continue to serve.

The intermittent controversy around women performing at official IDF ceremonies in front of religious soldiers is a minor irritant compared to the full-scale breaches of tzniyus forced on religious soldiers in the Gaza war, as the woke IDF brass insists on integrating women in frontline combat units.

In one example of many, last year a representative of Machon Chotam, an organization that campaigns for religious values in the public square, spoke before the Knesset’s Foreign Affairs and Defense Committee about the realities of active service when senior officers prioritize a progressive agenda of mixed-gender service.

Efrat Lupo, whose husband is a paratroop reservist, spoke of her shock at hearing of male and female soldiers in the field, serving together, and even camping in close proximity. “We never had that in mind when we sent our husbands to fight,” she said.

Chareidim see the paternalism with which the secular establishment treats the Religious Zionist soldiers. The message is clear: You can volunteer for combat at extraordinary rates. You can do the fighting and bleeding. But we’ll reserve the right to call you “messianic.”

Your best officers, such as former Givati Brigade commander Ofer Winter, or former Chashmonaim Brigade commander Avinoam Emunah will hit a glass ceiling if they’re perceived as too religious.

Chareidim see that hypocrisy and understand one thing all too well: The army wants religious soldiers to serve — but on the terms dictated by the establishment.

The reality is that the army faces a stark choice: It can draft large numbers of chareidim, or integrate large numbers of women — but it can’t do both.

Which will the army and justice system choose? Justice Amit’s ruling about the dayanim speaks for itself.

It’s clear that the secular elite’s progressive mania hasn’t been dulled in the slightest by the growing traditionalism of post-October 7 Israel.

All of which means that the Draft Law making its way through the Knesset now seems largely a fiction. Even if 61 legislative fingers can be found to vote it into existence, it’s likely only a matter of time until it’s challenged in the High Court.

When a court that insists on forcing the rabbinical establishment to ordain female dayanim in the name of gender equality is asked to rule on whether chareidi units can deny equal opportunities for female fitness instructors, why should it rule differently?

Amid the bad blood of the last two years’ draft controversy, an oft-repeated charge has been hurled at the chareidi public: “Did October 7 change nothing for you?”

It’s a powerful moral claim, the response to which is beyond the scope of this column. But two points are worth making: One, that a commitment to unimpeded Torah learning is indeed nonnegotiable, as it has been throughout Jewish history.

Second, that the real address for the question ought to be the country’s High Court justices, perched in their off-white ivory tower near the Knesset.

If the national security emergency of October 7 has indeed done nothing to restrain Their Honors’ boundless appetite for social engineering; if they’re intent on inflicting their boutique viewpoints on an Israeli public who are far more tradition-minded than their judges, then the whole draft law is an exercise in futility.

What do the all-powerful judges think about the draft law? With this farcical ruling about dayanim, Israelis have a chance to judge for themselves.

(Originally featured in Mishpacha, Issue 1092)