Case Number

HCJFH 4128/00

Date Decided

4-6-2003

Decision Type

Original

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

A group of Jewish women (hereinafter: the Women of the Wall) sought to pray together in the Western Wall Plaza while wrapped in tallitot [prayer shawls] and reading the Torah. The possibility of praying at the Wall in accordance with their practice was prevented due to the violent objection of other worshippers at the site. The Women of the Wall petitioned the High Court of Justice, which ruled that the Government must establish appropriate arrangements and conditions to permit the petitioners to realize their right to worship in accordance with their custom in the Western Wall Plaza. In its petition for a Further hearing, the Government reiterated its argument – that was rejected in the judgment – according to which the Government fulfilled its obligation toward the Women of the Wall by adopting the recommendation that they be permitted to pray in the area of “Robinson’s Arch”.

The Supreme Court held:

A. (1) The Women of the Wall have a right to pray at the Wall in their manner. However, like every right, that right is not unlimited. It must be evaluated and weighed against other rights that are also worthy of protection.

(2) Accordingly, all steps must be taken to minimize the affront that other religiously observant people sense due to the manner of prayer of the Women of the Wall, and by doing so, also prevent serious events arising from the confrontation of the opposing parties.

(3) In order to try to strike a balance between the opposing demands in this matter, the Government must prepare the adjacent “Robinson’s Arch” site and make it into a proper prayer space so that the Women of the Wall will be able to pray at the site in their manner, inasmuch as the site, in its current physical state, cannot serve as an appropriate place for prayer.

(4) If the “Robinson’s Arch” site is not made suitable within twelve months, and having found no arrangement acceptable to both parties, it is the duty of the Government to make appropriate arrangements and conditions within which the Women of the Wall will be able to realize their right to pray in their manner in the Western Wall Plaza.

B. (per J. Turkel J.):

(1) In deciding to designate the “Robinson’s Arch” site for the prayer of the Women of the Wall, the Government acted within the framework of its discretion, and the Court should not intervene in that discretion. This solution should not be adopted “conditionally”, but rather as a permanent solution.

(2) Adopting the said solution preserves the right of the Women of the Wall to access to the Western Wall Plaza itself, as long as they pray in accordance with the local custom while in the Western Wall Plaza. Thus, both their freedom of access to the Western Wall Plaza and their right to worship in their own manner is preserved.

C. (per E. Mazza, T. Strasberg-Cohen, D. Beinisch JJ., dissenting):

(1) The right of the Women of the Wall to pray according to their custom in the Western Wall Plaza was recognized without reservation in the prior judgments of the High Court of Justice in this matter, and there is no justification for restricting that right at present.

(2) The position adopted by the Court in the proceedings at bar in regard to the need to prepare the “Robinson’s Arch” site as a prayer space that will serve the Women of the Wall essentially eviscerates their said right, and also upsets the appropriate balance between their right to worship in the Western Wall Plaza and the need to consider the feelings of other worshippers.

D. (per I. Englard J., dissenting):

(1) The Palestine Order-in-Council (Holy Places), 1924, deprives the High Court of Justice of jurisdiction to consider matters concerning freedom of worship in the Holy Places.

(2) The dispute between the petitioners and the Government in the case at bar concerns freedom of worship at the Holy Places and not freedom of access to them, inasmuch as no one is preventing the Women of the Wall from entering the Western Wall Plaza. Rather, the dispute is in regard to the possibility that they pray in their manner at that place. Therefore, the High Court of Justice does not have subject-matter jurisdiction over the dispute at bar.

(3) All the laws of the Knesset are, by their very nature, secular norms, but there is no principled reason that a secular law not refer to a religious system.

(4) The secular character of the Protection of the Holy Places Law says nothing in regard to the interpretation of the terms therein or in the regulations thereunder. Everything rests upon the legislative intent in using those terms. The presumption is that terms borrowed from a religious system should be interpreted in accordance with that system.

(5) The result is that terms employed in the Protection of the Holy Places Law that are borrowed from the religious world should first and foremost be interpreted in accordance with their religious significance.

(6) Accordingly, the expression “conducting a religious ceremony that is not in accordance with the local custom” in reg. 2(a) (1a) of the Regulations for the Protection of Holy Places to the Jews, 5741-1981, should be interpreted in accordance with its halakhic meaning, such that prayer in the Western Wall Plaza in the manner of the Women of the Wall falls within the scope of the prohibition established under the regulation.

(7) Additionally, there is support for the opinion that, in view of the halakhic situation, the judgment under review in this Further Hearing that would allow the petitioners to act in their style and manner would constitute a substantial intrusion upon the prayers of others or an excessive violation of the feelings of others.

Keywords

Constitutional Law -- Basic Law: Jerusalem, Constitutional Law -- Capital of Israel, Constitutional Law -- Equality Before the Law, Constitutional Law -- Freedom of Religion, The Rabbinate, Justiciability -- Jewish Law, Women

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