Freedom of Religion?

07.30.12

How Israel Isn't Like Saudi Arabia

Last week on Open Zion, Sahar Segal lauded what she saw as respect for religion in public spaces. In America this isn't really a debate—it's ingrained in the law.  But in Israel sometimes "law" doesn't mean law. 

Segal's discussion was about Saudi Arabia and Israel. She asserts that the former bans foreigners from eating in public during Ramadan, and that the latter bans selling unleavened bread (hametz) during the Passover holiday. This second point is where the problems begin; the Israeli ban on selling hametz (leavening bread) on Passover is more complicated.

Segal's mistake is not simply a factual error, for Israel actually does have a so-called “hametz law” that misleads us—outside observers and Israeli citizens both—to think that Israel does ban hametz.  But this law, not unusually for Israel, is not executed, and—unlike American law—is not expected to be executed.  Even that law’s authors never intended to put it into practice.

In 1986 the Knesset did passed the “hametz law” that states “a business owner shall not present in public a hametz product for selling or consuming.” The law also delegates the execution of this law to the Interior Minister.  And so Segal might rightly think Israel bans hametz, taking for granted the good offices of the incumbent Eli Yishai or his faithful predecessors.

In 2001 the Knesset’s Research and Information Center wrote a brief on the non-execution of laws in Israel for the Committee on Constitution, Law and Justice. The report’s starting point is that “rather free approach to rules-following and law enforcement has developed in Israel.”  The report thus distinguishes between two classes of law that are never intended to be executed:  “symbolic laws” whose “importance is in their existence” (that is, in the book), and “PR laws” which are “proposed by members of Knesset for the sole purpose of publicity with no real interest in passing them.”   

Among the examples illustrated is the hametz law. But you’ll also find the Labor and Rest Time Law from 1951 and Ban on Youth Work from 1953, and the regulation and restriction on work on Shabbat therein, whose enforcement, we learn, is conditional on the religious identity of the officer heading the ministry.

To be fair, other laws are not executed, including the Israeli version of the Americans with Disabilities Act and “laws related to the Palestinian Authority.”

A generation after the hametz law was legislated as a dead letter it was resurrected in 2007. A feeble attempt to fine business owners for selling hametz prompted them to sue the state. The state tried to defend itself in the case by arguing for its right to execute hitherto non-executed law.  But no one thought that it was the government’s chief duty to execute the law.

The court ruled in favor of the plaintiffs, effectively granting the right to sell hametz in businesses, and essentially rendering hametz kosher according to Israeli law.  

So today hametz is as available as ever on Passover, with some changes due to the development of the economy. Since 1993, for instance, McDonald’s has been faithfully serving Big Mac sandwiches to the Israeli public, mixing kosher meat and kosher cheese, on kosher-for-Passover buns—an embodiment of what a Jewish state looks like in practice. If such mishmash is Israeli, it is not quite kosher. And if it is respectful, it's still pretty superficial. (Though, in fairness, it certainly distinguishes Israel from Saudi Arabia.)

The real trouble comes when Israel's regulation religion becomes a trade-off between maintaining that superficial layer of Judaism in the broader population, and damaging the respect for all religions that only liberty can allow. 

The hametz example may also enhance our understanding of the debate on the conscription of haredi men to the IDF.  If the 2002 Tal Law was poorly executed—as both the Knesset and Supreme Court agreed—how can we expect a more comprehensive policy to be executed any better?