Real barriers.

Photographer: Gali Tibbon/AFP/Getty Images

Women Wage War at Western Wall

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The Temple Mount conflict has made headlines in recent months as a possible cause of a string of Palestinian stabbings and Israeli retaliations. But at the Western Wall, in the literal shadow of the site -- known to Muslims as the Noble Sanctuary -- another long-ranging controversy has been simmering, one posing its own challenge to Israel’s identity as a Jewish and democratic state.

The struggle concerns Jewish women who’ve been prohibited from reading the Torah at the Orthodox-dominated Western Wall. On Sunday, a group of them brought the issue to the Israeli Supreme Court, charging the Orthodox rabbi in charge of the holy site with discrimination on the basis of sex.

To understand the lawsuit, you need a bit of background. The Israeli government controls the Western Wall area, and it delegates that control to a rabbi who is appointed by the prime minister. The rabbi’s job is largely ceremonial; the one time I met the current one, Shmuel Rabinovitch, he mentioned that he’d escorted both Pope Francis and Justin Timberlake there. But the rabbi’s state-delegated authority also has an important practical component: He can in general decide who gets to pray at the wall, and how.

Starting in 1988, women -- many of them American-born Jews affiliated with progressive, non-Orthodox movements -- began trying to pray in a group at the site. Organized as Women of the Wall and devoted to pursuing women’s spiritual rights at the location, they faced angry rejection, occasional rioting, and ultimately an outright ban. Their struggle has been closely covered by the Israeli media, although it’s received less attention abroad.

In 2013, the Israeli Supreme Court ruled that the women could pray at the wall. But with a handful of exceptions, they’ve been blocked by large demonstrations of Haredi, or ultra-Orthodox, women. The government offered the Women of the Wall a prayer space farther down the same wall at a location known as Robinson’s Arch, which is separated from the main Western Wall prayer area by a ramp that leads up to Haram al-Sharif. Some of the group accepted the compromise, while others rejected it as both separate and unequal.

Faced with the high court’s grant of permission to the women, Rabinovitch came up with a work-around: He banned the women from using the Torah scrolls that are used by the men’s prayer groups at the site. Another rule prohibits anyone from bringing his own Torah scroll.

Taken together, the two prohibitions block the women from reading from the Torah, one of the key elements of Jewish public prayer ritual.

A further effect of the ban is to block girls from reading from the Torah at bat mitzvah ceremonies that might be held at the wall. For the Women of the Wall, this is a significant setback. Many Jewish boys, from Israel and abroad, celebrate bar mitzvahs at the wall, and the group has campaigned to encourage girls to enjoy the same privilege.

The group that is now suing Rabinovitch is technically a breakaway group calling itself the Original Women of the Wall. Its members reject the compromise and seek full equality. The group is also challenging the rabbi’s authority to deny them access to the Torah scrolls under his control.

What’s most striking about the lawsuit is its refusal to accept at face value the arrangement that exists between Israel’s government authorities and its religious establishment. In general, Israel guarantees equality before the law to men and women. But when it comes to religion, that guarantee breaks down.

Public prayer is just one symbolic instance of a situation in which equality of the sexes does not exist. Family law in Israel is controlled by religious authorities. So is conversion to Judaism. The state does not perform civil marriages, although it will recognize marriages performed abroad.

In practice, that means marriage for Jews is in the hands of the Orthodox rabbinate. Reform, Reconstructionist and Conservative Judaism have only a few members in Israel, and they wield little political power. What influence they do have comes through American Jewish lobbying. The rabbis of these movements are not treated as rabbis under Israeli law: They cannot perform marriages nor conversions in Israel. As a general matter, the Orthodox rabbinate will not recognize marriages or conversions performed abroad by these rabbis.

Orthodox Jewish law is unapologetically nonegalitarian as between men and women. A man may divorce a woman unilaterally, but a woman cannot initiate divorce. If a man refuses to divorce his wife, Orthodox Jewish law allows for him to be coerced by a rabbinical court -- but if he successfully resists coercion, the marriage cannot be annulled.

The Original Women of the Wall are arguing, inconveniently enough, that the basic principle of legal equality shouldn’t allow them to be treated differently based on their sex. In a democracy, the claim has power.

If Israel is to be Jewish and democratic, as its basic laws require, the high court should have to resolve the basic contradiction between traditional Judaism and democratic equality of the sexes.

You can be sure it will try to avoid doing so by any legal means possible. For most secular Israelis, Orthodox inequality is an embarrassment. But many also consider it a sideshow to Israel’s other serious problems. They perceive the state’s deal with Orthodoxy, which dates back to the earliest years of the state of Israel, as an unfortunate artifact of Israel’s system of proportional representation. Many secular Israelis would like to see that changed but realize there’s no realistic prospect of doing so under current electoral math.

The problem with this rather standard secular view is that Israel’s religious demographics are changing. Haredi Jews are no longer an unthreatening sectarian minority. They make up at least 10 percent of the total Jewish population, and their large families mean they’re also the fastest-growing segment.

The authority of Haredi Judaism at the Wall, in the Rabbinate and beyond, means that the issues raised by the current lawsuit will continue to occur in the future. Avoiding the issue has worked for the court in the past, but that strategy can’t last forever. Orthodoxy and feminism are on a collision course in Israel. The state’s definition of democracy hangs in the balance.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Brooke Sample at bsample1@bloomberg.net