Coercing Virtue

by Robert H. Bork

  The Court has vetoed the Cabinet’s choice for director general of a government ministry, overturned the Knesset decision to lift the parliamentary immunity of a member of the Knesset so he could stand trial, and denied the government’s right to continue a fifty-year-old ban on the import of nonkosher meat. It has overturned the attorney general’s decision not to try certain public figures, prevented the government from dismissing its civil service commissioner, and even overturned the Israel Prize Committee’s choice of a prize recipient. In Raphael Pinhasi v. Knesset of Israel (1993) the Court overturned the Knesset’s decision to lift Pinhasi’s parliamentary immunity so he would stand trial for violations of tax and party-funding laws on the ground that the Knesset was playing a “quasi-judicial” role and had not met standards of judicial fairness. Members had not, for example, been given copies of the indictment or had enough time to read the protocols of the House Committee’s lengthy analysis of the issue. The quasi-judicial rationale was preposterous because the Knesset did not try or convict Pinhasi of any offense, but merely gave permission for him to stand trial, where he would have been entitled to full procedural regularity.

  There appear to be few limits to the Supreme Court’s willingness to interfere in political matters. In Yosef Zberzhevsky v. Prime Minister (1990) the Court overturned a coalition agreement between the Likud and a small faction in which the Likud agreed to cancel a debt that the smaller party owed it. The Court said that this agreement was equivalent to buying power and therefore illegal. In Ze’ev Welner v. Chairman of the Labor Party (1994) Labor and Shas agreed that, “If the status quo in religious affairs is violated [by a decision of the Supreme Court], the two sides promise to correct the violation by means of appropriate legislation.” The attorney general declared the agreement “inappropriate, and not to be acted upon.” During initial hearings, the Justices made it clear they were likely to rule the same way. Labor and Shas then altered the wording: “In any case where the two sides think the status quo has been violated, the two sides will investigate, in a serious and reasonable manner – considering each case on its own merits – how it is possible to restore the status quo, and will act accordingly … If it becomes clear that the only way to restore the status quo is through legislation, the two sides will use their discretion as to the appropriate content of such legislation.” Labor promised Shas that this wording meant the same thing as the previous form of the agreement. It must have taken some acrobatic lawyering to produce the identical promise disguised in verbose prose. Even so, the agreement slipped by the Court by only a 3 to 2 vote.

  Interference with National Security

  In assessing the Supreme Court’s performance in the area of national security, it is essential to remember the nation’s extremely precarious position in the Middle East. All the nations surrounding Israel ardently desire the country’s destruction and, indeed, the annihilation of the Jews. Arab terrorist organizations regularly commit bloody outrages against the civilian population. A major portion of Israeli citizens are Arabs, some of whom are of dubious loyalty. Considering the dangers continually confronting Israel, its responses to terrorist attacks and the threat of invasion have been quite moderate, sometimes arguably too moderate. Be that as it may, one would suppose that the nation’s courts would stay out of life-and-death decisions about national security and defense. Yet the opposite has been the case.

  The Court suggested in Committee Against Torture v. Government of Israel (2000) that it may take over the supervision of the methods of interrogation employed by Israel’s General Security Service against suspected terrorists. The GSS had been using both psychological and physical techniques, such as shaking, sleep deprivation, and placing those waiting for interrogation in the “Shabach” position (the prisoner seated on a low chair tilted forward, hands tied uncomfortably behind his back, head covered by an opaque sack, all while powerfully loud music was played in the room). Although very unpleasant and potentially damaging, these techniques did not come close in severity to those used by many other security forces around the world. The GSS’s decision to use physical force in each case was based on internal regulations that required permission from various ranks in the GSS hierarchy and that were themselves approved by a special Ministerial Committee. President Barak’s opinion for the Court acknowledged Isreal’s extremely perilous situation, which “has been engaged in an unceasing struggle for both its very existence and security, from the day of its founding.” The difficulty was that the Basic Law: Human Dignity and Liberty contains clauses guaranteeing freedom from violation of a person’s body or dignity and from restrictions of liberty by imprisonment. The rights could be violated only “by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” But the Knesset had never passed legislation authorizing GSS interrogation techniques or even authorizing the existence of the GSS. The Court’s decision disapproving of the techniques was, therefore, correct, but the rhetoric was so disapproving that any legislation authorizing the GSS’s techniques would very probably be very unlikely to pass the Court’s interpretation of values, proper purpose, and least-restrictive means. An additional problem is that the decision to use force and the degree necessary will always depend on the facts of a particular case. It is difficult to see how the Knesset can do more than articulate general principles, and even then the Court may well disapprove of their application.5

  Terrorist organizations, often in cooperation with Arab governments, seize and hold Israeli soldiers hostage. Israel’s Defense Force retaliates in a variety of ways, among them by holding terrorists in order to assist negotiations leading to an exchange of prisoners. In John Doe v. Minister of Defense (2000) the Supreme Court of Israel ruled that the IDF had to release eight Lebanese prisoners, members of the Hizballah, it had held past the expiration of their prison terms as leverage in securing the release of Israeli prisoners of war. In a 6 to 3 vote, President Barak, writing for the majority, ordered the Lebanese prisoners set free. No law prevented the IDF from using this “bargaining chip” tactic, but Barak wrote that holding the guerrillas violated their dignity and freedom. An important means of preserving national security was taken away by the Court.

  These cases do not stand alone. Kedan v. Israel Lands Administration (2000), known as the Katzir decision after the community involved, held that the government could not refuse Arab citizens of Israel the right to establish residence in Katzir, which was situated along with seven other communities to create a buffer zone against areas with large Arab populations. The admission of Arabs, citizens of Israel or not, to such communities would endanger and perhaps defeat the defensive purpose of the bufferzone policy. Barak wrote the opinion holding that use of the criteria of nationality or religion was discrimination and, therefore, a violation of the principle of equality. The disingenuity of the reasoning need not detain us. The important point is that, once again, universalistic principles were deployed to harm Israel’s security, without adequately weighing Israel’s particular circumstance and needs.

  These three cases indicate the direction in which the Court is headed. Perhaps the Israeli public should begin to take seriously President Barak’s assertion that the Court has the authority to rule on the deployment of military forces in wartime.

  Homosexuality

  The Supreme Court has been active in normalizing homosexual conduct. Given its absorption with abstract versions of equality, freedom, and dignity, it could hardly be otherwise. Still, the decision in Berner-Kadish v. Minister of Interior (2000) must have come as a shock: the Court’s protectiveness of homosexual relations in this case led it to redefine the family unit. A lesbian couple asked that both of them be registered as the mother of a boy whom one had borne and the other adopted under California law. (California has a peculiar culture. Americans have a saying that the continent is tilted and that everything loose rolls to the West Coast. Israel should be wary of adopting California policies.) A split three-
Justice Court ordered that both women be listed as the mother, in direct defiance of Israel’s law that adoption can only be done by a husband and wife. The Court majority held that the minister had no right to question the legal documents showing both women as the mother. Apparently, Israel has lost the authority to define what constitutes a legal family on its soil whenever a foreign country recognizes some arrangement as a family.

  In another case, the minister of education, relying on a panel of experts, determined that a program in which four teenage homosexuals discussed their sexual preferences should be made more balanced before being shown on Educational TV. A three-judge panel of the Supreme Court, including President Barak, assumed that a positive portrayal of homosexuality could have no impact on its incidence and ordered the program broadcast. Not a single statute or precedent was cited. In his comment of the case, Jonathan Rosenblum asked that we imagine a program in which four Haredi teenagers discuss their lives. If Educational TV refused to broadcast the show, “Does anyone dream that the Supreme Court would … order the program shown? The [petitioners] would more likely be assessed court costs for filing a frivolous suit.” It is quite true that, in the Court’s view, homosexuals are a favored class and Orthodox believers a disfavored one.

  Religion

  The Court’s obsession with equality determined its decision in Hoffman v. Director-General of the Prime Minister’s Office (2000). Overturning a practice that had existed for centuries, the Court ruled that Women of the Wall, a women’s prayer group, had the right to hold prayer services at Jerusalem’s Western Wall. David Hazony commented that “it has been an important judicial tradition in Israel to rule consistently for the preservation of extant practices in the holy places of all faiths” because such places are “a tinder box of sensibilities and passions.” The alteration of such practices in Jewish, Christian, or Muslim shrines “risks disrupting the delicate balance which prevails in Israel among competing religious interests and between those interests and the state.” Hazony said that, whatever the merits of the particular dispute, as a precedent “the ruling is potentially catastrophic.”

  What may save the ruling from being catastrophic is that the Court seems unlikely to extend a decision that is partly responsive to feminists among other groups. A more worrisome explanation of the decision is probably also correct. The Court has repeatedly upheld the government’s prohibition of Jewish and Christian worship on the Temple Mount because such prayer would offend Muslim sensibilities and would be liable to provoke Muslim riots. The government’s argument in Hoffman was that women’s prayer at the Western Wall would offend ultra-Orthodox sensibilities and would be liable to provoke ultra-Orthodox riots. Concern for Muslim sensibilities was reasonable, but concern for ultra-Orthodox sensibilities was not.

  The Court’s rejection of specifically Jewish values was also evident in its decisions that the importation of nonkosher meat may not be banned; new communities sited for defensive purposes may not be limited to Jews; and Haredi youth groups may not be funded by the government as other youth groups are. As Rosenblum wrote: “For Israeli civil libertarians, freedom from religion and the religious seems to be the highest civil liberty.”

  “The World Is Filled with Law”

  In Jane Doe v. State of Israel (2000), three Justices sitting as the final appellate court ruled that it is criminal for a parent to use the mildest corporal punishment (e.g., a light slap on the hand) in disciplining a child. The Court did so by interpreting a provision of the Criminal Code prohibiting assault in clear violation of the Knesset’s intent. The opinion purported to rely on what Gordon says “is fast becoming the Supreme Court’s all-purpose justification for judicial lawmaking, the 1992 Basic Law: Human Dignity and Freedom.” That Law says nothing, and was not intended to say anything, about reasonable spanking. Nor is the Court’s position supported by any of the other sources it cites. Worse, there was no reason for the Court to have taken up the subject. The facts of the particular case showed that a mother had clearly committed assaults on her children with violent beatings. The Court should have stopped there. Instead, it went on to legislate against mild physical discipline, an issue not before it. Not only did the Court deform the Criminal Code, but, since light and reasonable physical discipline of a child is not a violation of the civil law, the Court managed the feat of declaring that behavior that is not even a tort is a crime, punishable by two years in prison.

  This, Gordon wrote, is the Court’s “most significant incursion to date into Israelis’ private lives.” Indeed, that incursion follows from Barak’s view that “the autonomy of the individual … exists because it is recognized by the law.” Barak worries that some aspect of life, somewhere, may escape the Court’s domination: “The moment that a certain realm is not justiciable, the wielder of power does whatever he wants.” He cites the executive branch, the police, and actions taken within “normal family relations.” In a word, no freedom of the individual may exist without the Court’s approval.

  It is possible to lament the decision as a violation of parents’ personal autonomy, but it is also reasonable to view it as a radical expansion of the child’s autonomy. (An increase in one person’s autonomy often necessarily requires the diminishment of another’s.) Much of the opinion reads that way:

  Punishment that causes pain and humiliation does not contribute to the child’s character or education; it infringes on his rights as a human being. It damages his body, his feelings, his dignity and his proper development. … We must not endanger the physical and emotional integrity of a minor by administering any corporal punishment at all.

  That passage reflects not merely the Court’s desire to confer radical personal autonomy on the child, but the strain of softness and aversion to discomfort that is characteristic of modern liberalism.

  Speech and Expression

  The government’s Film Censorship Board, which is charged with the duty of judging a film’s debauchery according to contemporary community standards, decided that a film was pornographic and could not be shown. The Supreme Court, despite the judgment of a majority of both the censorship board and the panel of independent experts consulted, decided that the testimony of those few experts who thought the movie was “art” was enough to warrant the film’s protection on free-speech grounds. The decision of a government body acting responsibly and fully within its legal mandate was overturned in favor of a free-speech principle that had no legislative basis whatever.

  Trivia

  The direction of the Court’s activism is indicated in cases of less gravity than those discussed above. In Akiva Nof v. Ministry of Defense the Court ruled in favor of a secular bearded man who demanded that the government supply him free of charge with a special gas mask which, unlike the ordinary masks given out to the public, could fit over a beard. The government wanted him to pay a fee, since the special mask cost the state two and a half times as much as the ordinary mask. Orthodox Jews were given the special masks free; only the secular bearded were required to pay. That distinction was correctly ruled discriminatory, and the Court could have told the government either to fund everyone or no one. Instead, the government was told to fund everyone, but the Court apparently could not resist producing a parody of New Class values. It ruled that “a beard is part of the man’s self-image” and the right to determine one’s self-image is implicitly protected by the Basic Law: Human Dignity and Liberty. Concern for radical personal autonomy, free of cost, can hardly get sillier. The Court said that there was no need to ascribe this right to any explicitly mentioned right in the law because “human dignity, as a protected constitutional value, has a broader meaning than the sum total of the recognized specific rights.” That argument closely resembles the reasoning, discussed in chapter 1, by which Justice Brennan of the United States Supreme Court concluded that what the Constitution really protects is dignity, and he would decide what dignity demands, and by which Justice Douglas of the same Court found a right of privacy broader than the sum to
tal of recognized specific rights, although the right of privacy was not one of them.

  Jewish and Democratic Values

  Barak and his Court are redefining Israel’s values so that, in area after area of Israeli life, the Jewishness of the state comes to matter less and less. Barak has written that Jewish values should be interpreted at the highest level of abstraction – freedom, equality, justice – so that Jewish values become indistinguishable from democratic values. In this situation, Jewish particularism disappears into the mists of abstract universalism – part of what I have called the socialist impulse – with predictably dire consequences. An Israeli court that rules on the basis of the same set of ideas as its American, Canadian, or German peers, and that insists on universalist principles, cannot sustain the particularist Jewish laws and framework set up by Israel’s Zionist founders. Nor need it take account of Israel’s very different and precarious situation in the Middle East. Given the centrality of the Supreme Court in Israel, the idea that Israel’s Jewish character ought not to influence its decision-making is likely to influence other branches of government as well as a growing segment of the citizenry.