In yet another decision against Judaism and kedushas Eretz
Yisroel the High Court effectively ruled to allow the
sale of pork inside cities if the majority of a given
neighborhood is in favor, and not allowing a municipal
council to set rules that apply throughout the area. In
effect the Court decided that everyone who wants pork must
have easy access to it. The Court refused to recognize the
rights of municipal councils to set standards for their whole
areas, but ruled that they must treat each neighborhood
separately.
Jurists say the ruling will lead to "residents' referendums"
in mixed neighborhoods around the country. The High Court
decision followed an appeal submitted by a group of MKs from
Yisrael B'Aliya and Shinui against the cities of Beit
Shemesh, Carmiel and Tiberius, which legislated local
ordinances banning the sale of pork products within city
limits. According to these ordinances pork products were to
be sold only in industrial areas located outside residential
neighborhoods, but on Monday the High Court declared those
rules illegal.
The decision was written by High Court President Aharon
Barak, who was joined by all eight of the other judges,
including the two religious ones. Judge Barak wrote that the
three cities must rescind the ordinances and reformulate
them. Until the ordinances are rewritten stores will be
allowed to continue selling pork without restriction.
In the future, writes Judge Barak, pork sales will be
permitted or prohibited according to the character of the
neighborhood. If only a minority of local residents find pork
sales offensive, their preferences would not be taken into
account. If the majority of a neighborhood is opposed, the
municipality can ban pork sales in that part of the city. In
mixed neighborhoods, if the majority cannot be clearly
determined the municipality can ban the sale of dovor
acher on condition that pork is available elsewhere
within close proximity.
In the case of mixed neighborhoods, writes Judge Barak,
"where each group constitutes a significant portion of the
local population and the groups cannot be separated, under
such circumstances the local authority must evaluate the
character of the territorial unit [i.e. neighborhood]. It
must assess the degree of social consent of that unit and the
degree of willingness for mutual tolerance within that unit.
The various alternatives must be assessed, primarily the
availability within close proximity of stores where pork and
pork products can be purchased; the means of transportation
to these stores and the feasibility of utilizing these means
of transportation. If this inquiry shows the alternatives are
practical then pork meat and pork products may be banned in
that territorial unit."
In the decision the judges address the religious sector's
opposition and the Jewish character of the State, but along
with a desire to defend religious sensitivities the judges
write that the liberties of individual citizens must also be
realized and that the nature of the local population and
various other factors must be taken into consideration.
"This compromise is also called for based on the values of
the State of Israel as a Jewish and democratic state,
manifested in the need for a balance on the local level
between Jewish and national values on one hand and the
liberty of the individual in a democratic state on the
other," writes Judge Barak. Therefore "the local authority
must balance the opposing aims based on local factors. In
this balance on one scale-pan rests consideration of
religious and national sensitivities. Together they reflect,
in a broad sense, the considerations of the public interest.
These considerations have much social importance and under
certain conditions may restrict the protection given to human
rights. On the other scale-pan lie the considerations
associated with the liberty of the individual (seeking to
sell or purchase pork and pork products). Together they
reflect the considerations of human rights."
In seeking to assist pork consumers, Judge Barak downplays
the harm done to the enormous observant and traditional
sectors who strongly prefer not to have pork meat sold near
their homes. Butcher shops selling non-kosher meat opened to
meet the demand created by the hundreds of thousands of non-
Jewish immigrants from the former Soviet Union.
"The decision standing before the municipality may be
difficult," continues Judge Barak. "It will reflect the
degree of tolerance toward the opposing opinion that
characterizes the residents of the towns. It will be
expressed in the social unit and the ability of residents
having differing worldviews to live together. Indeed, we must
all keep in mind that living together is not all-or-nothing;
living together is about mutual concessions that reflect dual
existence in a variegated society; it is based on
consideration of the opinions and sensitivities or others; it
is the fruits of the recognition that in order to live
together the uniqueness of each one of us must be
acknowledged and that this uniqueness will be apparent only
if we can live together."
In conclusion Judge Barak determines that the local
authorities must rewrite the municipal ordinances regarding
the sale of dovor acher in accordance with the
directives established by the High Court judges, but before
passing new legislation they must inform the appellants 30
days in advance to allow them an opportunity to appeal,
before the respective city councils grant approval. Until
then the existing ordinances are invalid.
Degel HaTorah Chairman MK Rabbi Avrohom Ravitz said, "The
State of Israel is defined as a Jewish and democratic state
and as such it should be accepted as axiomatic that bossor
dovor acher is not sold throughout the State. If there
are non-Jews who immigrated to Eretz Yisroel the legislature
allowed hogs to be raised in Christian areas. Let them go
there to buy prohibited meat.
"But it turns out that the State of Israel is a Jewish state
on paper. When it comes to granting binding interpretations
Judge Barak sees before his eyes the democratic state and the
Basic Laws for Freedom of Enterprise and Human Dignity, and
uses them as he sees fit. Later they complain about why we
don't want the Basic Laws.
"Judge Barak holds that the State of Israel's values should
be defined as a Jewish and democratic state. . . . why, when
the State of Israel is defined as a Jewish state, which is
also in the Fundamental Law, is this questioned? There is
clear bias here.
"Without a doubt the High Court does not allow the State of
Israel as a state to express the State's Jewishness. From the
High Court judges' standpoint there is no such thing. In
terms of the areas it also discriminates because . . . only
an area characterized as religious can prohibit it.
Everywhere else it is permitted. In other words if an area
does not have a religious character, is neutral, there it is
permitted. The High Court is fighting against the practical
expression of the State of Israel as a Jewish state. This is
the judges' worldview.
"The judges allow in the State of Israel, as a Jewish state,
the possibility of legislating a law according to which in
areas characterized as religious a representative municipal
council may legislate an ordinance that there [pork] cannot
be sold. This is what characterizes the State? This
characterizes a society that takes the minority into
consideration. But the State as a Jewish state, as of
yesterday [Monday], is a state that sells pork."
Degel HaTorah Secretary MK Rabbi Moshe Gafni said, "The High
Court judges have no sensitivity for matters of consensus in
the Jewish people. There was a consensus in the past and
there is a consensus today. Essentially they are destroying
every good aspect of the Jewish people. The High Court is
eradicating the Jewish identity of the State.
"Imagine if someone were to sell things that caused serious
harm to the State of Israel, would the High Court judges say
because of freedom of enterprise there are areas where it is
permitted and areas where it is prohibited? The High Court
judges have no understanding of Judaism, no sensitivity to
Jews in Eretz Yisroel or abroad. Today we are submitting a
bill that would prohibit the sale of pork not under the
Empowerment Laws [of local councils] but as primary
legislation [directly passed in the Knesset]. I hope and
expect the Knesset will pass this bill, for when the Knesset
sees that the High Court judges rule against the majority of
the people in Israel--and this has happened repeatedly--the
members of the Knesset have to legislate a law against the
High Court."
Tiberius Mayor Zohar Oved said he would act in accordance
with the High Court decision by holding neighborhood
referendums. "The Council members and I believe there is no
place for the sale of pork here," he said. "We have a strong
feeling that the secular public living in the city feels the
same."
In Beit Shemesh and Carmiel legal advisors are assessing the
High Court decision in order to prepare to act according to
the decision or to appeal it.
Shas Chairman Eli Yishai said the High Court decision is "one
of the main nails in the coffin of Jewish identity in the
country. Even leading left-wing leaders at the State's
founding were resistant to the idea. Such a ruling comes as a
result of establishing an anti-Jewish atmosphere. The sale of
pork with state approval is a serious indictment the State
has filed against itself. Would the High Court have ruled
that in chareidi neighborhoods businesses that desecrate
Shabbat and harm the sensitivities of chareidim must by
closed?"
Shinui and Meretz of course praised the decision. Interior
Minister Avraham Poraz (Shinui) said it "represents an
important landmark in the struggle against religious coercion
and for the sake of individual liberty." MK Roman Bronfman
(Meretz) said, "This is an important step the High Court is
advancing in the separation of religion from the state and
strengthening the freedom of conscience of the citizens."
