IN-DEPTH FEATURES
Stealing the Gavel from the Judge!

Part I

The chareidi community quite frequently finds itself trapped between the hammer of the judges of law and the anvil of the dismal reality. The Israeli courts are well known for their "objectivity," and the community of Torah-faithful Jews has found itself to be on the raw end of the legal rulings. As a consequence, Betzedek was founded, which aimed to utilize "their" tools and, while triggering the mechanisms of law and justice, overstep the boundaries and take care of the interests of the inferior and vulnerable sector—the Torah Jews.

Just as the gedolei hador dispatch rabbinical delegates deep inside the legislative system—the Knesset— to rescue a drop from the ocean, so Rabbi Mordechai Green, as a rabbinical delegate in the judicial system, acts with his legal expertise to save what he can—and from the power of those who sent him come the legal successes of the organization.

The fact that the offices of the Betzedek organization are located in the Shaarei Ha'ir building, at the entrance to Yerushalayim, is not merely symbolic. From the window on the fifth floor you get a good view of the streets below, and these streets are not just any Jerusalem streets, they comprise the site which contained the half million people who demonstrated on 28 Shvat, 5759 (1999) against the exclusive rule of the Israel Supreme Court. It seems that, despite the passing of the years, the tremendous outcry still continues to reverberate in the air.

There, in the Betzedek offices, we gathered together attorneys Mordechai Green and Uri Steinmetz, both of whom were once deeply involved in similar action for "The Council for Legal Protection of Jewish Values," which was also initiated by the gedolim. We wished to understand the way in which the Betzedek organization functions today under the encouragement and direction of the Israeli gedolim from all circles and communities, and why the Council for Legal Protection of Jewish Values has pulled out of the operation and its voice been silenced. Attorney Green is now the director of Betzedek, while Attorney Steinmetz is primarily in private practice.

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Is not all this involvement with the courts risky? After all, is it not an open secret, proven in research, that the judges of law do not favor religion in their decisions—to put it mildly!

The host, Rabbi Mordechai Green, chose to let his colleague, attorney Uri Steinmetz, speak first.

Attorney Steinmetz: In 1972 (5732), the High Court handed out a ruling which became known as "High Court Borkovsky," which was related to the famous heter of the Langer brother and sister. The two had been born of a woman who did not get a proper get from her first husband. Thus they were pesulei chittun — mamzerim and could not marry most other Jews. They had served in the IDF and there was a lot of public pressure to enable them to marry Jews. In order to allow this, Rabbi Goren's (he said he had a beis din but the members were not identified) solution was to declare that the first husband was a goy and thus that first marriage was invalid. He was a convert but had up until then been considered a ger tzedek. Thus Borkovsky was declared a "non-Jew" without being given any chance to present his side.

Borkovsky appealed to the High Court and complained about his being declared a non-Jew, even without a hearing. The High Court responded that the ruling did not apply to him, and that the hearing did not concern him but rather the children, and he was therefore not a party in the hearing and had no legal standing. And this was despite the fact that the ruling necessarily affected him directly. This was an episode which was given wide publicity in our times, though today not too many people remember it.

The court ruling on this matter aroused great anger, as well as irony, disgust and frustration among observant Jews. It became a laughing stock. Nothing has changed since then; we are all still in that same position of "High Court Borkovsky." The judges still follow that same train of thought, have the same outlook, and use the same logic and approach.

The idea of a war with legal tools was first begun by the chareidi jurist, Dr. Aryeh Wagner. As far back as forty years ago, he would make appeals to the High Court, only to lose and despair. He began to see that the outcome of the game was predetermined. I once had a conversation with Rabbi Simcha Meron, another activist in the area, about some petition to the High Court which had to do with religious issues. It was a petition that by rights he should have won, but that he lost. He explained to me then that, "The game was lost before it began."

In light of my own experience while working for The Council for Legal Protection of Jewish Values, I felt quite hopeless. The practical decision of how to proceed had obviously been given over to the Israeli gedolim, but from my perspective, I was ready to give up—even after consulting with the Israeli gedolim, to whom I had then been sent.

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Attorney Green: Let me make it clear that the rules of the game have changed. Today, the High Court rules over the lifestyle of the citizens of this country. The current situation now is not the same as it was in the past. Then, decisions were of a general nature—they were meaningful— and they were in particular aimed to enable people to live in accordance with the lifestyle that they had chosen.

Today, we are talking about an interference in day-to-day living, a real interference in your life! That means telling you what to do and making you do it! For instance, you have to act against your faith and write down a goy as a Jew. That makes for a profound interference in the way of life of the public, along with a blatant interference in the way of life of the individual.

The High Court decides that "everything is justiciable," and proceeds to dictate lifestyle, scale of values, and manners of conduct. It even interferes with the job of the legislator, and tries to establish which law is "legal," and which is not. The High Court has allocated to itself new powers that it did not previously possess, and now actually runs the country.

Consequently, when we went to the gedolei hador for advice, asking whether we should move towards a legal battle, they gave their backing and encouragement — and ever since, they have guided us all the way along the road.

Our activities have been backed in a permanent and intense way. The instructions the gedolim give do not derive from their assessment of the extent of the judges' objectivity, and certainly not out of respect for the overall values that they represent—but rather from an awareness that the High Court establishes people's lifestyle here, and therefore we have no choice but to protect ourselves even by stealing the gavel.

Have you not confused the High Court with the Knesset? Does the High Court really institute people's way of life here?

Attorney Green: No! I am not confusing them. They are the ones that have mixed them up. And not by mistake, but intentionally! You must have heard of the widespread criticism of how the High Court has squashed and taken over the Knesset's role, and that its real intent, both then and now, has been to shape Israeli society. The High Court consistently pays no attention to the statements by the Knesset (the protocols of the hearings in which the legislator's intent was often obvious), but rather sees the law as something possessing an independent status. This is often in diametrical opposition to the explicit directions that the members of the Knesset give to clarify the law in their explanatory comments.

In this way the High Court interprets and grants validity to laws, granting them a much wider interpretation than was originally intended by the legislator.

You should know that criticism of the courts for what is dubbed "judicial activism" does not only come from the chareidi community. It also derives from various sectors in the legal world, such as Professor Gavison, Judge Allon and others. In the enlightened world, most are opposed to it. Even the new Chief Justice of the American Supreme Court is notable for his opposition to "judicial activism."

Rather than being a mirror of Israeli society, the High Court is only a reflection of that minority that it terms "the enlightened community." But this does not prevent it from trying to shape the lives of the entire society. Only a very small minority in Israel mirror this judicial system. I am talking about a homogeneous group, most of whose members went to the same school, frequent the same sites of entertainment, and revert to the same group of friends. This small minority group desires to shape the entire Israeli society. In practice, the President of the High Court has managed to influence the courts and the lawyers to follow his path. Therefore, the onus is on us to try to defend ourselves.

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Only defend ourselves?

Attorney Green: The main objective of our legal activity is defense. Not to attack, and as little as possible to intrude into the lives of secular Jews. The mission that our rabbis have given us is specifically to guard the world of Torah.

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But, Mr. Green, according to Mr. Steinmetz, "the game is lost before it begins . . . ."

The deciding factor must be the results: Are we achieving our goals or are we not?

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The results we do not have to learn from Attorney Green. At least some of them have been published in newspapers, especially Yated. Out of the material that has been published, we will quote just a few of the goals that have been achieved recently:

Arnona Exemption: Efforts have been made in the legal field for a year and a half to equate the yeshivas with other higher education institutes, with regard to everything connected with arnona (the local municipal property tax) exemptions. The State claimed that there is no real justification for it, since institutes for higher education involve studying for diplomas which is not the case with yeshivas.

Attorney Green argued as follows: How is it possible that someone who studies Talmud in a university is eligible for a discount, whereas someone who studies the same gemora in a yeshiva is not?

For a year and a half the issue dragged on, until finally the longed-for authorization was acquired. In the meantime, the dormitories of yeshivas were not included in the exemption, so that battle has to be fought separately with political tools. However, if you look at what has been achieved so far, a tremendous amount of money is involved. And with regard to the exemption for the dormitories, Betzedek, like other rabbinical emissaries, is now in the thick of this widespread battle.

Criticism of the Yeshivas: Yeshivas have been habitually subjected to exaggerated, demeaning and unjustified criticism by government officials. Betzedek petitioned the courts to stop this, basing its contention on the fact that there was a clear discrimination between the chareidi institutions and the secular ones—in terms of the lack of representation, the frequency of the criticism, and the penalties exacted on the institutions in the case that infractions were found.

Following the petition, new criteria were instituted, in which five points were established. Though the manner of the scathing and skeptical criticism—which habitually placed a false mistrust and negative image on yeshiva boys, as slippery customers who have to be guarded against—was not entirely abolished, some not insignificant concessions were achieved. In truth the public record shows that the behavior of yeshivas and yeshiva students is not worse than that of secular institutions, and is in fact usually better.

Meanwhile, only one central topic on the agenda—fines levied on Torah institutions in cases of violations—has continued to be a judicial controversy.

Secular Studies: Where a child lives in an area which has no Chinuch Atzmai school, and his parents are specifically interested a school of this type because they wish their child to have a Torah education, the local authorities are obligated to fund his studies in the nearest city where there is a Chinuch Atzmai institution. This concession was achieved following the intervention of Rabbi Moshe Gafni.

Unfortunately, the law was not applied in practice and the authorities ignored it. At the moment, Betzedek is acting with legal tools to force the local authorities to implement the law, on the grounds that everyone has the right to be educated in accordance with his outlook on life, without discrimination. If this matter has a happy ending, it will have repercussions all over the country.

Betzedek has intervened in other areas too, such as the release of NIS 50 million in Team funds from the special yeshiva budget when, after a petition to the High Court, the State was forced to pay the above amount right away. The organization has also taken care of the matter of school licenses, the funding of further training courses, and the enforcement of restrictions on giving out work permits for Shabbos.

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Attorney Steinmetz: It is perfectly obvious that at times there is no choice and you have to go to the High Court. That is how it was in 1985 (5745) when we put in a petition against the opening of the stadium in Ramat Gan. I went to HaRav Chaim Kanievsky and heard him say a very sharp sentence in Yiddish that I don't know if I can repeat. HaRav Shach was in favor of handing in a petition which relied on the municipal bylaw, forbidding the opening of a stadium on Shabbos.

We argued that it was out of the question for the police to provide security for an illegal event. During the hearing, the judge in the High Court asked me: "How do you know the event is illegal?" I showed him a copy of the ticket for 500 shekels—proof of the fine that the municipality had sent a sports group for every hour that they played on Shabbos in violation of the municipal bylaws. Without going into all the legal details, suffice it to say that they sent us round in circles well and good. It took them a whole year, but eventually they did it.

What happened in the end? It turned out that the advertising agency of a senior chareidi businessman had a senior position in that particular sports group that was trying to open the stadium on Shabbos. When the chareidi businessman informed him that he was thinking about changing advertising agencies, the group dropped out of the picture! That is when I realized that when you hit them in the pocket, it is much more effective than hitting them in the courts.

Rabbi Simcha Meron wrote two articles, thirty years apart, in which he brought clear evidence: there were cases on the very same legal issues—and on the very same particular points— that the left and the secular were found by the courts to be in the right, while the chareidi and religious community were found wrong!

As for the legal activity itself, the real question is not what I think, but what the gedolim instruct. I personally think that it is always good when there is a new generation which does not give up and makes a new attempt, with redoubled energy . . . When I began with this work, attorney Yaakov Weinroth told me: You are young, and perhaps a little naive. It's good that there are young people around.

It could be that I grew up too quickly. Perhaps I have become old overnight from reading the rulings that always blacken the chareidi community.

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Attorney Green: I have no argument with Mr. Steinmetz with regard to the courts. There is no doubt that when the High Court decides, it first of all marks out its desired result and only then arrives at its conclusion. That is true not only with regard to religious issues, but for every issue.

For example: Today the courts place full confidence in, and grant almost unqualified esteem to, the positions of the State Attorney and the Attorney General's office, and that of the various government ministries. I might add that I have not infrequently found that, beyond the legal opinions of the attorney general's office, they round off corners even on matters of fact. I think that the judges, if they wished, could easily see that this is no clean, objective presentation. It is true that the State Attorney's office has the ability to make things look clean and objective, but even much less skilled judges could be expected to be able to distinguish between some of the real objective presentations and those that are merely dressed up to pretend that they are objective. At the moment, no such distinction is being expressed.

Judges are human beings, with their own intuitions, feelings and goals that they aim for. They will always find the legal tools that work for them, to achieve the results they want to achieve. This is especially true when it does not concern dry law or just simple exposition, but rather interpreting the spirit of the law, balances between inevitable conflicts, and so on.

Incidentally, I do not see this as a criticism necessarily, because after all they are only human, with all the weaknesses other human beings possess. They have their own feelings, opinions and personal values. One would be hard put to assume that they are capable of fully making the separation that they work on presenting, talk a lot about, and openly profess—i.e. to fully isolate their personal and private outlooks on life from the outcome of the specific case they have to judge.

Even if, theoretically, they were completely objective, without any personal biases, personal desires, or prejudices — but any law whose ultimate source is the human brain is necessarily limited—in complete contrast to the laws of the Torah whose source is Divine. A judge is definitely influenced by who he is — his background, education, outlook on life — and that varies from one judge to another. This is in contrast to a dayan whose private ego has no part in his deliberations. Rather he must only consider what the daas Torah is on the case being judged.

Therefore, since the judges are influenced by who they are— and they are not exactly chareidim — therefore all that we have said before about their general approach is certainly true with regard to the way they relate to chareidim: The courts do not like chareidim! They do not like chareidim any more than the rest of the population do. And this is expressed in their decisions as well.

Is this true for every individual chareidi who comes to court?

Attorney Green: A typical chareidi person hardly ever comes in contact with the courts. Every judge—who is a western secular citizen of the State of Israel—has to overcome a psychological block. He is influenced by his prejudices. And therefore a chareidi person has a real difficulty when he needs to be represented in the courts. There is a mutual lack of trust.

I have met with some very senior people in the High Court, and they displayed enormous interest in Betzedek's activities, and in the fact that the gedolei hador are behind this operation. I explained to them that the ball is in their court! After all, they are always stressing their intention and desire to increase trust in the courts even among the chareidi community.

I made it clear to them that a man of Torah will never place his faith in archo'os! Archo'os are archo'os! But the extent to which the issue concerns trust on an interpersonal level and not on the level of a hashkofoh, well, their actions speak for themselves and they will be judged by the actions. If they are looking to change that in the chareidi community—and not just in their own minds — then the test is as follows: is their judging objective to a reasonable extent even according to their own rules! But if we see, time and again, that even in those cases when we are in the right, this does not come through in their decisions, then obviously we will not have any faith in their law, fully aside from the fundamental issue of archo'os. The ball is in their court!

We also need to recognize that even when the courts do not like us, it has all kinds of legal constructions and methods to attain the results it wishes. Thus, in order to blind us or confuse us, it often tries to toss us a few legal scraps or candies.

Would it not be correct to say that the courts are using the Betzedek organization? After all, the candies are being transmitted through you!

Attorney Green: I have to admit that there is a certain danger here. The possibility that they might use us in certain instances does exist. But in any case we are sure that the chareidi community will not change its basic value relationship towards the High Court. It only requests over and over again not to persecute it. It only seeks to protect itself against attacks.

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There are so many issues. Why not try to overwhelm the High Court with dozens of petitions?

Attorney Green: Indeed, in a large percentage of cases, we do not sue. The consideration of whether or not to file is a very broad one: What is the risk against the chances of the petition itself? What is the damage that may be caused on a general, national scale? At times, one legal defeat could lead to defeats in other battles, or it could waken a sleeping bear. These matters always require immense consideration, and the responsibility is almost beyond endurance. We have people we can turn to for advice, obviously, and whatever we are told to do we do. But the final conclusion, in many cases, is no petition!

I do not want to detail the instances because it could be harmful. But what I do want to stress is the fact that in many cases we did not sue, out of a general consideration for Klal Yisroel. Even in cases where, from a short-term perspective, it might well have been in the interests of chareidi Judaism, out of concern for the general population out there we often decide to act otherwise. Jews, after all, are responsible for each other!

Once, HaRav Y.Z. Soloveitchik was asked whom to appoint as rabbi of a certain townlet. There were two candidates, and both were talmidim of HaRav C. Soloveitchik, his father. HaRav Y. Z. chose one of them, and explained: Both of them are talmidei chachomim! Both are suitable! It is just that one of them was present only when Father wrote his chiddushim, while the other one was also there when Father erased them, as well! The one who was there also when Father erased them was the one worthy of serving as rabbi.

The power of erasing is a basic foundation stone. You have to know when it is time for `no!' In Torah, the rewards for withdrawal are great, and not only the rewards for demanding! And, lehavdil, even in the area in which we work.

End of Part I