Coercing Virtue (15 page)

These three cases indicate the direction in which the Court is headed. Perhaps the Israeli public should begin to take seriously President Barak’s assertion that the Court has the authority to rule on the deployment of military forces in wartime.

The Supreme Court has been active in normalizing homosexual conduct. Given its absorption with abstract versions of equality, freedom, and dignity, it could hardly be otherwise. Still, the decision in
Berner-Kadish
v.
Minister of Interior
(2000) must have come as a shock: the
Court’s protectiveness of homosexual relations in this case led it to redefine the family unit. A lesbian couple asked that both of them be registered as the mother of a boy whom one had borne and the other adopted under California law. (California has a peculiar culture. Americans have a saying that the continent is tilted and that everything loose rolls to the West Coast. Israel should be wary of adopting California policies.) A split three-Justice Court ordered that both women be listed as the mother, in direct defiance of Israel’s law that adoption can only be done by a husband and wife. The Court majority held that the minister had no right to question the legal documents showing both women as the mother. Apparently, Israel has lost the authority to define what constitutes a legal family on its soil whenever a foreign country recognizes some arrangement as a family.

In another case, the minister of education, relying on a panel of experts, determined that a program in which four teenage homosexuals discussed their sexual preferences should be made more balanced before being shown on Educational TV. A three-judge panel of the Supreme Court, including President Barak, assumed that a positive portrayal of homosexuality could have no impact on its incidence and ordered the program broadcast. Not a single statute or precedent was cited. In his comment of the case, Jonathan Rosenblum asked that we imagine a program in which four Haredi teenagers discuss their lives. If Educational TV refused to broadcast the show, “Does anyone dream that the Supreme Court would … order the program shown? The [petitioners]
would more likely be assessed court costs for filing a frivolous suit.” It is quite true that, in the Court’s view, homosexuals are a favored class and Orthodox believers a disfavored one.

The Court’s obsession with equality determined its decision in
Hoffman
v.
Director-General of the Prime Minister’s Office
(2000). Overturning a practice that had existed for centuries, the Court ruled that Women of the Wall, a women’s prayer group, had the right to hold prayer services at Jerusalem’s Western Wall. David Hazony commented that “it has been an important judicial tradition in Israel to rule consistently for the preservation of extant practices in the holy places of all faiths” because such places are “a tinder box of sensibilities and passions.” The alteration of such practices in Jewish, Christian, or Muslim shrines “risks disrupting the delicate balance which prevails in Israel among competing religious interests and between those interests and the state.” Hazony said that, whatever the merits of the particular dispute, as a precedent “the ruling is potentially catastrophic.”

What may save the ruling from being catastrophic is that the Court seems unlikely to extend a decision that is partly responsive to feminists among other groups. A more worrisome explanation of the decision is probably also correct. The Court has repeatedly upheld the government’s prohibition of Jewish and Christian worship on the Temple Mount because such prayer would offend
Muslim sensibilities and would be liable to provoke Muslim riots. The government’s argument in
Hoffman
was that women’s prayer at the Western Wall would offend ultra-Orthodox sensibilities and would be liable to provoke ultra-Orthodox riots. Concern for Muslim sensibilities was reasonable, but concern for ultra-Orthodox sensibilities was not.

The Court’s rejection of specifically Jewish values was also evident in its decisions that the importation of nonkosher meat may not be banned; new communities sited for defensive purposes may not be limited to Jews; and Haredi youth groups may not be funded by the government as other youth groups are. As Rosenblum wrote: “For Israeli civil libertarians, freedom from religion and the religious seems to be the highest civil liberty.”

In Jane Doe
v.
State of Israel
(2000), three Justices sitting as the final appellate court ruled that it is criminal for a parent to use the mildest corporal punishment (e.g., a light slap on the hand) in disciplining a child. The Court did so by interpreting a provision of the Criminal Code prohibiting assault in clear violation of the Knesset’s intent. The opinion purported to rely on what Gordon says “is fast becoming the Supreme Court’s all-purpose justification for judicial lawmaking, the 1992 Basic Law: Human Dignity and Freedom.” That
Law
says nothing, and was not intended to say anything, about reasonable spanking. Nor is the Court’s
position supported by any of the other sources it cites. Worse, there was no reason for the Court to have taken up the subject. The facts of the particular case showed that a mother had clearly committed assaults on her children with violent beatings. The Court should have stopped there. Instead, it went on to legislate against mild physical discipline, an issue not before it. Not only did the Court deform the Criminal Code, but, since light and reasonable physical discipline of a child is not a violation of the civil law, the Court managed the feat of declaring that behavior that is not even a tort is a crime, punishable by two years in prison.

This, Gordon wrote, is the Court’s “most significant incursion to date into Israelis’ private lives.” Indeed, that incursion follows from Barak’s view that “the autonomy of the individual … exists because it is recognized by the law.” Barak worries that some aspect of life, somewhere, may escape the Court’s domination: “The moment that a certain realm is not justiciable, the wielder of power does whatever he wants.” He cites the executive branch, the police, and actions taken within “normal family relations.” In a word, no freedom of the individual may exist without the Court’s approval.

It is possible to lament the decision as a violation of parents’ personal autonomy, but it is also reasonable to view it as a radical expansion of the child’s autonomy. (An increase in one person’s autonomy often necessarily requires the diminishment of another’s.) Much of the opinion reads that way:

That passage reflects not merely the Court’s desire to confer radical personal autonomy on the child, but the strain of softness and aversion to discomfort that is characteristic of modern liberalism.

The government’s Film Censorship Board, which is charged with the duty of judging a film’s debauchery according to contemporary community standards, decided that a film was pornographic and could not be shown. The Supreme Court, despite the judgment of a majority of both the censorship board and the panel of independent experts consulted, decided that the testimony of those few experts who thought the movie was “art” was enough to warrant the film’s protection on free-speech grounds. The decision of a government body acting responsibly and fully within its legal mandate was overturned in favor of a free-speech principle that had no legislative basis whatever.

The direction of the Court’s activism is indicated in cases of less gravity than those discussed above. In
Akiva Nof v. Ministry of Defense
the Court ruled in favor of a secular bearded man who demanded that the government supply him free of charge with a special gas mask which, unlike the ordinary masks given out to the public, could fit over a beard. The government wanted him to pay a fee, since the special mask cost the state two and a half times as much as the ordinary mask. Orthodox Jews were given the special masks free; only the secular bearded were required to pay. That distinction was correctly ruled discriminatory, and the Court could have told the government either to fund everyone or no one. Instead, the government was told to fund everyone, but the Court apparently could not resist producing a parody of New Class values. It ruled that “a beard is part of the man’s self-image” and the right to determine one’s self-image is implicitly protected by the
Basic Law: Human Dignity and Liberty
. Concern for radical personal autonomy, free of cost, can hardly get sillier. The Court said that there was no need to ascribe this right to any explicitly mentioned right in the law because “human dignity, as a protected constitutional value, has a broader meaning than the sum total of the recognized specific rights.” That argument closely resembles the reasoning, discussed in
chapter 1
, by which Justice Brennan of the United States Supreme Court concluded that what the Constitution really protects is dignity, and he would decide what dignity demands, and by which Justice Douglas of the same
Court found a right of privacy broader than the sum total of recognized specific rights, although the right of privacy was not one of them.

Barak and his Court are redefining Israel’s values so that, in area after area of Israeli life, the Jewishness of the state comes to matter less and less. Barak has written that Jewish values should be interpreted at the highest level of abstraction – freedom, equality, justice – so that Jewish values become indistinguishable from democratic values. In this situation, Jewish particularism disappears into the mists of abstract universalism – part of what I have called the socialist impulse – with predictably dire consequences. An Israeli court that rules on the basis of the same set of ideas as its American, Canadian, or German peers, and that insists on universalist principles, cannot sustain the particularist Jewish laws and framework set up by Israel’s Zionist founders. Nor need it take account of Israel’s very different and precarious situation in the Middle East. Given the centrality of the Supreme Court in Israel, the idea that Israel’s Jewish character ought not to influence its decision-making is likely to influence other branches of government as well as a growing segment of the citizenry.

It is impossible not to recognize the Court’s performance as one strand of a much wider weave: post-Zionism. This is a new frame of mind, propagated mainly by Israeli academics and others of the intelligentsia, that denigrates
the ideals and the narrative of the Zionists who founded the Jewish nation. It is to be found in education curricula at all levels. As Yoram Hazony wrote, “The only Israeli institution likely to rival the Education Ministry in its ability to shape the Jewish character of the state of Israel is the country’s Supreme Court.” Education and law are each powerful forces. In tandem, they may prove overwhelming.

According to Barak, when the values of Israel as a Jewish state cannot be reconciled with its values as a democratic state, the decision must be made according to “the views of the enlightened community in Israel.” The Court decides who is “enlightened” and who is not. The “enlightened community” is another term for the New Class. As Hillel Neuer points out, however, Barak’s enlightened community is not a community at all; the phrase is a metaphor for a particular set of values, which is to be made dominant by judicial decision. The enlightened community holds tight to the values of universalism and progressivism, which include the defense of individual rights and equality. Given the value of universalism, in cases where the general public would prefer a value specific to Judaism, that public is effectively left without a voice or the ability to govern. A liberal world view is, willy-nilly, forced upon it.

This is very much the same, though far more explicitly expressed, as the powerful tendency of the United States Supreme Court to be influenced by the values of the academy and the intelligentsia. Barak’s critics say the enlightened are an identifiable set of people recognizable by postal zip code, social affiliation, and party loyalty. In
the United States a similar set is identifiable by faculty status, particularly in places such as Cambridge, New Haven, Ann Arbor, and Palo Alto; by occupation, especially journalists, professors and teachers, and television and motion picture personnel; and by politics, such as by loyalty to the Democratic Party. This “enlightened” minority has a major influence on U.S. courts, although no U.S. judge has been as imprudent as Barak in articulating that fact.

Post-Zionism appears to be the Israeli version of the counterculture prevailing among the elites of other Western nations. That counterculture, which is no longer counter but dominant, represents the outlook of the New Class. In Israel, as in the U.S., Canada, and Europe, a culture war is raging and, as in those countries, the courts take the side of the New Class minority against the general public. Judicial activism and the culture war go hand in hand, and the enlistment of the courts on one side of the war gives the New Class an extraordinarily powerful weapon. “At the end of the day,” according to Neuer, “one is left with a sense that a judge who searches for the values of the ‘enlightened community’ is likely to find them inside himself – and then use the metaphor to justify his subjective conclusions.” I once wrote of the U.S. Supreme Court that a judge who looks outside the actual Constitution looks inside himself and nowhere else. Some commentators, usually of the liberal variety, try to make the difference in judicial approaches a question of interpretation, but it is not that at all. A judge who is not bound to the original understanding of a document’s principles interprets nothing but his own state of mind.

Though the displacement of democratic government by judicial rule is far advanced in many Western countries, realization of the degree to which the public has been disfranchised and the executive branch emasculated in Israel comes as a shock to most outside observers. In all probability, the more friendly to Israel such observers are, the greater the dismay. The diminution of democratic governance is worrisome enough, but an equal peril may be presented by the Supreme Court’s promulgation of the abstract universalisms of equality, radical individualism, and rationalism. That this set of universalistic notions should have invaded the Israeli intelligentsia is a major threat; that it should have captured a breathtakingly imperialistic Supreme Court is a calamity. More than Israeli democracy is endangered by the New Class’s post-Zionism; so, ultimately, may be Israel’s survival.