Case Number

AAA 5875/10

Date Decided

2-11-2016

Decision Type

Appellate

Document Type

Full Opinion

Abstract

Facts: An appeal of an administrative judgment finding that there was no defect in the decision of the Beer Sheva Religious Council to prevent the Masorti (Conservative) Movement and the Movement for Progressive (Reform) Judaism from using the mikve [ritual bath – plural: mikvaot] in its jurisdiction for the purpose of their conversion ceremonies.

Held: The Court (per Deputy President E. Rubinstein, Justice S. Joubran and President M. Naor concurring) granted the appeal, holding as follows:

Inasmuch as a number of local councils that permit the immersion of converts from the official conversion system in their mikvaot, the question of whether immersion for the purpose of conversion falls within the scope of a “religious service” is rendered superfluous, inasmuch as the service is actually provided, and it may be presumed that it is provided lawfully, as no one has argued otherwise in the matter before us. The question to be decided, therefore, is whether the state/local council can lawfully distinguish between converts in the official conversion system and converts in other frameworks – including those of the Appellants – and the same is true, of course, for the religious council.

In the opinion of the state, the distinction between official and private conversion in regard to mikvaot is justified by three reasons: (1) the supervision over the official conversion system, which is lacking in regard to private conversion; (2) the legal consequences that arise from official conversion, which are absent in private conversion; (3) official conversion has a “public dimension”. The Court was of the opinion that those reasons could not justify preventing immersion for the purpose of private conversion in pubic mikvaot.

First, the existing discrimination in the general policy (in choosing who to supervise and how) cannot justify the discrimination exercised in practice (in regard to access to the mikvaot). Such behavior is inconsistent with an administrative authority’s obligation to act equally in all of its endeavors. Second – the legal significance of immersion in a mikve and the issue of unofficial conversion – which is pending before the Court – is irrelevant to the matter of placing limits upon immersion itself. From the moment that the state erected public mikvaot and made them available to the public – including for the purpose of conversion – it cannot employ a policy of different measures, large and small (Deut. 25:14), in regard to their use. In this regard, there is no importance to the legal consequences, or lack thereof, attendant to the immersion itself, nor to any worldview, legitimate as it may be, in regard to the religious significance under these circumstances. Third, as we are concerned with public mikvaot that are financed with pubic funds, it is hard to understand the state’s contention that the religious council is under no obligation to serve private bodies. This is particularly so when private Orthodox organizations that conduct conversions encounter no difficulty in arranging for immersion in various mikvaot, even if it may be the case that some of them may be private.

As for the exemption included in the Prohibition of Discrimination in Products, Services, and Entry into Places of Entertainment and Public Places Law, 5761-2000, sec. 3(d)(1) states that “The following shall not be deemed discrimination under this section – when that is necessitated by the character or nature of the product, public service or public place.” According to the Respondents, the matter before us falls within the scope of this section, inasmuch as mikvaot are, by their character and nature, intended for the immersion of Jews, whereas converts are, at present, not Jews. The Court rejected this argument. As long as the Respondents permit the immersion of converts from the official conversion system – who all agree are not yet Jews at the time of their immersion – they cannot prevent the immersion of the converts of the Appellants on a claim that the mikve is intended for Jews alone.

Section 6A of the Religious Services Law which states that “The religious council and its members will act in accordance with the rulings of the local rabbinate and the Chief Rabbinate of Israel – like any public authority in every matter in the realm of the functions and authorities of the religious council” cannot make it “kosher” to bar the Appellants’ converts from public mikvaot, as the Rabbinate – like any public authority – is not empowered to establish a policy of discrimination. The above is also required by the freedom of religion and worship granted to all in the State of Israel, subject to the Validity of Laws clause in Basic Law: Human Dignity and Liberty.

The appeal was therefore granted in the sense that converts from the the Appellants’ private conversion system must be permitted to immerse in a public mikve in Beer Sheva, including the presence of a rabbinic tribunal in the course of the immersion. Inasmuch as the arguments in this case were general, and inasmuch as Respondent 2 represents the state in this matter, the Court added that a similar solution must be found for the mikvaot of other councils that permit immersion for conversion.

Keywords

Constitutional Law -- Basic Law: Human Dignity and Liberty, Jewish Law -- Conversion, Jewish Law -- Ritual baths, Jewish Law -- Rabbinical Courts

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