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State and Religion in Israel on Pesah

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The return of a rightwing government, heavily reliant on religious parties in Israel, is a matter of some concern because of the increasing encroachment of religious compulsion in Israeli life (as much as I fear the opposite). In the interests of a free and open society where everyone should be taken into consideration, I worry about narrowminded, self-defeating religious coercion. And the religious coercion is self-defeating because where you do not have religious coercion, religions actually thrive and face less resistance.

Israel is, according to its declaration of Independence and subsequent laws, a Jewish State. It also recognizes the rights of all its citizens (Jewish, Christian, Muslim or Atheist) to live according to their own values and ways of life. But in public matters (whether it is the calendar, language or heritage), Judaism has a legitimate primary role just as Christianity, Islam, Hinduism Buddhism or Taoism do in countries that describe themselves as such. However, there will always be grey areas of overlapping demarcation.

The festival of Pesah brings to mind a perfect example of two different values at work in modern day Israel. It concerns Hametz in the public arena and illustrates the contribution a Jewish law has to make in trying to resolve the tension.

In 1986 the Knesset passed a law forbidding the public display of hametz on Passover (except in non-Jewish neighborhoods). The law was denounced as an example of religious coercion, that it discriminated against the non-religious and prevented food business owners from making a fair living. Some unsuccessfully argued that it was unconstitutional. Knesset members tried to repeal it. Here is what happened:

This law was not enforced for years until a religious Interior Minister decided to. Non-kosher restaurants and food stores, which legally served non-kosher food all year round, were now suddenly required by law to obey certain specific dietary laws. Italian restaurants that sold pepperoni pizza were told to make it from unleavened dough. The pork and cheese were fine as long as it was served on matzah!

“On Pesah 2007, in Jerusalem, officers raided a grocery store, two restaurants, and a pizzeria, and summoned them for selling hametz in public. The case was tried in the Jerusalem court of Judge Tamar Bar-Asher Zaban. Her ruling was remarkable because she succeeded in giving the unreasonable law a new reasonable definition, and thus saved it from being repealed. She acquitted the defendants on the basis of Jewish Law

Her decision was based on a distinction between two senses of what we mean by “public.” In Hebrew there are two relevant words pumbi and tzibburi. Pumbi is the more common word for public. Tziburri is more like communal. The law, she said, forbids display of hametz in pumbi, that is, in the public arena. A restaurant or food store is public in the sense that it is open to members of the public, but it is not public in the sense that passers-by can’t necessarily see what’s going on inside and therefore although it is tsibburi a place open to the community, to the public, it is not pumbi. The law, thus, does not forbid the sale of hametz inside a restaurant or store, but would forbid it on the street in government offices or a place visible to passers-by.

Supporting her distinction between the two senses of “public,” she cited a 1998 Tel-Aviv case in which a man was acquitted of the charge of committing an indecent act “in public” pumbi in a stall of a public rest room, since the stall, although public tzibburi, was not public pumbi.

She referred to the talmudic definition of reshut haRabbim (public domain) in the Babylonian Talmud Shabbat 6a: “What is reshut haRabbim? A thoroughfare, a big plaza, and alleys open at both sides,” such as, according to the great Medieval commentator Rashi, an intercity highway, an urban market, and streets at least seven meters wide. The judge argued that just as not all public roads or markets are considered reshut haRabbim by the Talmud, so not all public places are considered pumbi by Israeli law.”

She might also have referred to the Greek/Armaic word pharhessia meaning “openly” – as in the difference between breaking Shabbat publicly, bepharhessia, as opposed to privately. The former carries public consequences. The latter does not.

The hametz law, as now redefined by Judge Bar-Asher Zaban, seemed acceptable to most Israelis and talk of repealing the law ceased. One would think that religious Jews, concerned about preserving the spirit of Passover in the public domain, would have praised the judge’s decision that prevented the law from being repealed. However, the religious politicians and journalists vociferously attacked her for not convicting the four defendants. You can’t win!

This is a battle that is played out everywhere where religion and democracy or civil rights clash. Not just in Israel. I can accept rules relating to public behavior but definitely not in private (assuming it is not actually hurting someone else). This is one of the reasons I do not want there to be a Sanhedrin or some other body that controls Jewish life. If it were to be composed of those who represent Judaism nowadays, I fear for our sanity – and that of Judaism in general. I would rather bet on Elijah the prophet coming up with a more sensible resolution!

Which is why I fervently hoped and prayed that Mr. Netanyahu would enter into a coalition of National Unity with the second biggest party, the Blue and White led by Benny Gantz and Yair Lapid. This could have given Israel a government without religious parties (and extreme rightwing parties) and the risk of more coercion. And indeed one that might have appealed more to the middle ground in Israel and abroad. Sadly, history was against me. And despite it being Pesah, redemption, I fear, is still a long way off!

I am indebted to Rabbi Marc Angel for allowing me to use some material that appeared in an article written by Professor Warren Zev Harvey “Some Thoughts on the Role of Judaism in the State of Israel” that appeared in his excellent IDEALS, published by his Institute for Jewish Ideas and Ideals (https://www.jewishideas.org)

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