LEGAL VIEW: Messianics and Homosexuals embroiled in heated law suit

Tuesday, August 11, 2009 |  Michael Decker

Several months ago, a same-sex couple petitioned the courts in Israel in an attempt to sue the religiously affiliated commune Yad Hadmashona for punitive damages. According to the petitioners, the moshav prohibited them from holding their marriage celebration on its premises. Clearly, this subject strikes personal discord for both parties—the couple aims to expunge all forms of supposed discrimination and intolerance, while the institution struggles to function successfully within the parameters of its belief system.

Founded in 1971, Yad Hashmona was presented to the state of Israel as a gesture of solidarity by Finland. Today, the grounds function as a commune and serve the public by running a guesthouse, convention center, and banquet hall, which the couple sought to rent for their celebration. Administrators seek to maintain a specific religious ethos and as a result place limits on the type of events renters wish to host. Now, because Yad Hashmona denied its services for the purpose of a same-sex marriage celebration, the commune faces a moral and legal dilemma.

While this decision is not a reflection of the commune's feelings regarding homosexuals as individuals or citizens of the state, it is a direct reference to the institution’s devotion to the sanctity of marriage. Forcing Yad Hashmona to allow such events would defile the community's fundamental beliefs, business would be destroyed and Yad Hashmona may cease to exist.

Vanguard of Israel’s activist judicial system is former Supreme Court Chief Justice, Aharon Barak. He presided over several suits that have since set the precedent for the relationship between religion and state. Two cases in particular highlight his position on the Israeli government’s responsibility to protect religious institutions while guarding the freedoms of secular society. Citing these cases, in our opinion, will provide the insight needed to gain legal perspective on the suit filed against Yad Hashmona.

Bar-Illan Street is no longer simply a street, but a conduit for heated debate between the ultra-Orthodox and secular communities in Jerusalem. In 1997, petitioners approached the Israeli Supreme Court claiming that the closure of Bar-Illan on Friday evenings during Shabbat was a coercive measure to violate freedom of movement. Justice Barak presided over the case and was forced to decipher the appropriate degree of state-intervention in religious matters. The suit quickly became a watershed in determining the relationship between religion and state.

A main vessel through which traffic flows into the center of the city, Bar-Illan Street also cuts through the nucleus of surrounding ultra-Orthodox neighborhoods. Petitioners claimed that the Friday evening roadblocks impeded the freedom to use the street by non-Sabbath observers, along with emergency vehicles. Any alternative routes, they argued, were inconvenient. This upset the petitioners, who disregarded the injurious effects opening the street would have on the religious community. It was up to the courts to create balance and initiate an environment of tolerance.

Despite the opposition, it was clear that the harm induced by allowing of vehicles on Bar-Illan Street outweighed the inconveniences faced by the petitioners. Barak ruled that because the closure did not block off alternative routes, it was the responsibility of the petitioners to respect their cohabitants by changing the course of travel during hours of prayer. Their freedom of movement was minimally injured. This case became a benchmark in Justice Barak’s secular rulings regarding the cost of limiting human rights to protect religious sentiment.

In 2004, a similar case was brought to the Supreme Court. The subject of debate—the Enabling Laws, created in the 1950s to empower local authorities with control over the sensitive issue of the sale of pork and pig products in Israel. In Solodkin vs. Beit Shemesh, the courts once again were challenged with balancing Jewish national identity with secular democratic standards.

At the time of its induction, the Enabling Laws operated without noted opposition. However, an influx of immigrants in the early 1990s and subsequent societal shifts complicated its enforcement. While some bylaws disabled the sale of pig meat within the entire district, in other places, they were restricted to specific zones. Newly diversified communities compounded with citizens' frustration with the law's ill-administration led to unrest among the secular community.

In the court case, petitioners agreed that the sale and consumption of pig in religious communities, where it would harm the feelings of the public, should be prohibited. However, they argued that the enforcement of such laws without due cause (i.e. in secular and mixed secular-religious communities) threatened to violate the Basic Law: Human Dignity and Liberty by instating religious-based legislation that de facto coerces the non-religious community to follow. They also contended that the enabling laws violated the Basic Law: Freedom of Occupation by restricting business and employment opportunities on the basis of religious law.

Once again Justice Barak ruled that the injury caused by the sale of pig and pig products in religious communities takes precedence over the minimal damage to the petitioners, since they can sell pork in alternative areas. The decision was supported by Barak's insistence on the simplicity of purchasing pig outside of restricted zones and reassurance that the prohibition of pig was not a coercive religious tactic. Mixed neighborhoods, he asserted, should be judged with discretion by local authorities.

Justice Barak believes that Israel is obligated to maintain a tolerant and pluralistic society. As such, it is in the interest of the country and its citizens to protect the religious sentiments of all groups. Judging from the precedents set in the aforementioned cases, it seems plausible for the religious sentiment of Yad Hashmona to be declared secure and the charges, null.

As a private institution that does not seek to coerce the surrounding community, Yad Hashmona should be able to create religiously-inspired bylaws that are respected by surrounding communities and the government. However, legally Yad Hashmona is categorized as a 'public place', which is broadly defined as any location 'meant for public use, including a tourist site, hotel…space…used for entertainment…etc.' Therefore, the commune is de facto resolved to following Israeli laws that explicitly prohibits discrimination by sexuality, religion, race, personal views, or disabilities. Additionally, Israeli law includes a segment that addresses sex-based discrimination or sexual harassment, which deems discrimination against someone on the basis of his or her gender or sexuality as unlawful. As a result, Yad Hashmona runs the chance of being charged for discrimination, however if the origins of and reasoning for the bylaws are examined carefully, in our opinion, the institution’s intentions should be clear and charges dropped.

While the couple should have the right to proceed with their marriage celebration, they are free to choose any other available venue. But their decision to challenge and potentially damage the religious sentiment of Yad Hashmona is antithetical to the nature of a tolerant, pluralistic society.

The wild shooting rampage that killed three and wounded fifteen in Tel Aviv's homosexual community is tragic and serves to highlight the hatred and intolerance that boils at the surface of Israeli society, oftentimes ending in violence. Israel’s minority religious groups should all stand in solidarity against such hate crimes.

Michael Decker has a B.A. in law and is a licensed attorney in Israel. Michael also serves as Senior Legal Advisor to the Jerusalem Institute of Justice.

For further inquiries regarding the issues mentioned in this article, please do not hesitate to contact Michael Decker at counsel@jij.org.il.

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