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Localising Religion in a Jewish State

Published online by Cambridge University Press:  29 June 2012

Yishai Blank
Yishai Blank
Affiliation:
Senior Lecturer and Vice Dean, Tel Aviv University Law School. LLB, BA (Phil), Tel Aviv University, 1997; LLM, Harvard Law School, 1999; SJD, Harvard Law School 2002. Email: [email protected].
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Abstract

Cities in Israel are regulating religion and controlling religious liberty. They decide whether to close down roads during the Sabbath, whether to limit the selling of pork meat within their jurisdiction, whether to prohibit sex stores from opening, and whether to allocate budgets and lands to religious activities. They do all that by using their regular local powers as well as special enablement laws which the Israeli parliament enacts from time to time. The immediacy of these issues, the fact that the traditional powers – business licensing, traffic and road control, spending, and more – of local authorities touch upon many of them, and the inability of central government to obtain a nationwide consensus over religious matters have caused the localisation of religious liberty in Israel. In addition, some legal rules induce and even force religious-based residential segregation, thus resulting in a relative religious homogeneity of local populations. Hence, cities are able to decide to advance a religious – or a secular – agenda much more easily than the national councils. This process, however, has gone unnoticed by most scholars and courts. As a result, religious liberty doctrine has failed to live up to the challenges Israel is now facing: growing religious and national extremism and the ensuing risk of fragmentation and oppression of minorities. This article shifts the focus from the role of central government in regulating religion to that of cities. I argue that the particular form of decentralisation of religious liberty in Israel has a mixed outcome: it has helped to weaken the monopoly of orthodox Judaism in some locations and enabled diverse communities to flourish and express their unique religious vision; but it has also radicalised some religious practices, exacerbated tensions among competing religions and denominations, heightened religious-based residential segregation and jeopardised minorities.

Keywords

religious libertylocal government lawreligious minoritiesdecentralisationreligion-based segregation
Type
Articles
Information
Israel Law Review , Volume 45 , Issue 2 , July 2012 , pp. 291 - 321
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2012

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References

1 HCJ 5016/96 Horev v Minister of Transportation 1997 PD 51(4) 1 (Horev) (holding that the closure of a major road in Jerusalem during the Sabbath was ‘unreasonable’ since it gave too much weight to religious considerations). In the American context, see McGowan v Maryland 366 US 420 (1961) (ruling that state Sunday closing laws did not violate the Due Process or Equal Protection Clauses of the Constitution).

2 HCJ 953/01 Solodkin v City of Beit Shemesh 2004 PD 58(5) 595 (Solodkin) (ruling that a local authority can limit the selling of pork meat to certain areas in order to balance between ‘religious feelings’ and freedom of occupation).

3 HCJ 5277/07 Marzel v Police Chief of the District of Jerusalem (unpublished, 2007) (holding that the municipality's refusal to allow a gay parade march was unreasonable).

4 See AdminA 343/09 Jerusalem Open House v City of Jerusalem (unpublished, 2010) (Jerusalem Open House); HCJ 262/62 Peretz v The Chairman, the Council Members and the Residents of Kfar Shemaryahu 1962 PD 16 2101 (Peretz).

5 See, for example, County of Allegheny v ACLU 492 US 573 (1989) (ruling that the display of a crèche on government property violated the Establishment Clause, but that a menorah on display was not unconstitutional).

6 See, for example, Schragger, Richard C, ‘The Role of the Local in the Doctrine and Discourse of Religious Liberty’ (2004) 117 Harvard Law Review 1810CrossRefGoogle Scholar; Barak-Erez, Daphne, Outlawed Pigs: Law, Religion, and Culture in Israel (University of Wisconsin Press 2007)Google Scholar; Rosen-Zvi, Issachar, ‘Pigs in Space: Geographic Separatism in Multicultural Societies’ in Freeman, Michael, Law and Sociology: Current Legal Issues 2005, Vol 8 (Oxford University Press 2006) 225Google Scholar.

7 There are, however, limitations on government religious activities. Israeli courts have acknowledged and protected the freedom from religion – the limitation on the government to impose religious prohibitions and rules in the 1950s. Since Israel had no constitutional limitations on legislative power until 1992 – when two Basic Laws were passed – there was a crucial difference between legislative and executive power to establish religion and infringe upon individual freedom from religion. While parliament was able to legislate religious laws and to infringe on basic liberties as it saw fit, the government was limited by judicially invented and enforced ‘fundamental rights’ which only the legislator could infringe.

8 Prime examples for such religious pieces of legislation are the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953 and the Law of Return, 1950. The first is of special importance as it sets up a religious system of marriage and divorce, prohibiting in Israel any marriage which is not religious, and assigning individuals to their ‘official’ religions, thus forcing them to marry.

9 Moller-Okin, Susan, Is Multiculturalism Bad for Women? (Princeton University Press 1999)Google Scholar.

10 James Madison, ‘The Federalist No 10’, essay published 22 November 1787.

11 ibid. See also the discussion at Section 4.2.1 below.

12 ibid. The idea to ‘extend the sphere’ means that the larger the political units are, the less susceptible they will be to the risk of faction. Larger political units would include more individuals, thus leading to a more moderate constituency.

13 Schragger (n 6).

14 Gerken, Heather K, ‘Dissenting by Deciding’ (2005) 57 Stanford Law Review 1745, 1764–65Google Scholar.

15 Basic Law: Human Dignity and Liberty, 1992, SH 1391, 150; Basic Law: Freedom of Occupation, 1994, SH 1454, 90.

16 See Ravitzky, Aviezer and Stern, Yedidia Z (eds), The Jewishness of Israel (Israel Democracy Institute 2007)Google Scholar.

17 See, for example, Horev (n 1) 34.

18 Until the enactment of Basic Law: Human Dignity and Liberty in 1992 there was almost no limitation on the power of the Israeli parliament to legislate on religion. The only barrier between religious laws becoming state law was the political situation in which religious parties were a minority, unable to obtain a majority. Since 1992, however, the Israeli parliament is constrained by various constitutionally protected individual rights (including the right to a free exercise of religion, which the Court read into them), yet there is no general prohibition on establishing religion.

19 The French principle of laïcité imposes a strict prohibition on any form of state establishment of religion. Obviously, the principle as well as its application have been criticised by many.

20 See Stopler, Gila, ‘The Free Exercise of Discrimination: Religious Liberty, Civic Community and Women's Equality’, (2004) 10 William & Mary Journal of Women and the Law 459, 485–92Google Scholar.

21 ibid. See also Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953. The recognised religious communities are Judaism, Islam and several Christian denominations.

22 Some scholars have also pointed to the fact that this system established de facto anti-miscegenation since members of different religious denominations cannot marry each other in Israel.

23 Because of the serious infringement that the religious-only marriage system imposed on the liberty of individuals, the Supreme Court ordered the state, in the 1960s, to recognise and register marriages that were performed outside Israel: see HCJ 143/62 Funk Slezinger v Minister of Interior 1962 PD 17 225.

24 Barak-Erez (n 6), 43–57.

25 HCJ 98/54 Lazarovitz v Food Controller 1956 PD 10 40 (ruling that the exercise of power by government authorities cannot be guided chiefly by religious motivations, but can be influenced by them). See also CrimA 217/58 Isramax Ltd v State of Israel 1962 PD 22 343.

26 Lazarovitz, ibid.

27 ibid 55; HCJ 531/77 Baruch v Tel Aviv District Traffic Controller 1978 PD 32(2) 160, 163 (Baruch).

28 Indeed, since the 1950s the Knesset has enacted a few ‘special enablement laws’, granting specific powers to localities to limit, or even prohibit, the sale of pork meat in their jurisdiction, and to take into account ‘religious considerations’ when granting business licences to various establishments and determining their ability to operate during religious holidays: see Local Authorities Act (Special Enablement), 1956, s 249(21); Municipalities Act, 1964 (religious holidays and days of rest); and Prohibition of Opening of Amusement Places (Special Enablement), 1997 (regarding Tish'a Be'av, the day of fasting and atonement to mark the destruction of the Jewish Temple).

29 Baruch (n 27); HCJ 174/62 The League for the Prevention of Religious Coercion v The Council of Jerusalem 1962 PD 16 2665 (Prevention of Religious Coercion).

30 HCJ 122/54 Axel v The Mayor, Councillors and Residents of Netanyah 1954 PD 8 1524 (Axel).

31 ibid 1528 (translation of the Hebrew in Barak-Erez (n 6) 48–49).

32 This mode of authorisation was coined ‘bundling of jurisdictions’ by Richard Ford: see Ford, Richard T, ‘Law's Territory (A History of Jurisdiction)’ (1999) 97 Michigan Law Review 843, 844–45CrossRefGoogle Scholar.

33 See Compulsory Education Law, 1949 (education); Water Law, 1959 (sewage and water); Planning and Building Law, 1965 (planning and zoning); Business Licensing Law, 1968 (business licensing); Welfare Law, 1958 (welfare services); Municipalities Act, 1964 (levying taxes). Most of these powers are conferred in laws which date back to Mandatory Palestine (and in some cases even to the Ottoman period), and which have been amended quite significantly over the years. Local powers can be changed in regular legislation by a regular majority of the Knesset, and localities can be established and abolished, and local jurisdictions can be redrawn by a simple act of the Minister of the Interior.

34 Such zoning exceptions were the issue in the case of a religious kindergarten in Ramat Aviv Gimel, a secular neighbourhood in the north of Tel Aviv, which became a ‘target’ for ultra-orthodox Jews. For an equivalent case in the US see Bethlehem Christian Fellowship, Inc v Planning & Zoning Commission 807 A 2d 1089 (Conn App Ct 2002).

35 See HCJ 166/71 Halon v The Mayor of Local Council Ussafiyah 1971 PD 25(2) 591 (Halon).

36 See nn 25–26 and accompanying text.

37 Axel (n 30).

38 ibid (translation of the Hebrew in Barak-Erez (n 6), 48–49).

39 HCJ 72/55 Freidi v Municipality of Tel Aviv 1955 PD 10 734.

40 This reading seems implausible in this concrete case, since the towns where such restrictions were enacted were in fact secular in their demographic composition, yet supportive of these restrictions as a result of the relative consensus, even among secular Jews, over the symbolic importance of the prohibition to sell and buy pork meat. However, the people who indeed wanted to consume pork were indeed a small minority, and deserved the Court's protection.

41 Prevention of Religious Coercion (n 29).

42 ibid 2668.

43 ibid.

44 Baruch (n 27) 164–65.

45 ibid 163.

46 Horev (n 1).

47 Halon (n 35).

48 HCJ 230/73 SZM Ltd v The Mayor of Jerusalem 1974 PD 28(2) 113.

49 ibid 117.

50 ibid 119, 121. In a later case, the Court upheld a decision by a locality to restrict the location of a sex store for similar reasons: see HCJ 809/86 Yanovitz v Chair of the Council of Ramat Ha-Sharon 1987 PD 41(4) 309.

51 Local Authorities (Special Enablement) Law, 1956.

52 Municipalities Act, 1964, s 249(21) (religious holidays and days of rest); Prohibition of Opening of Amusement Places (Special Enablement), 1997 (Tish'a Be'av, a day of fasting and atonement marking the destruction of the Jewish Temple).

53 The reason for this is a combination of political reality and the legal structure. The religious parties in the Knesset believe that they cannot obtain the required majority in order to enact such a nationwide prohibition. It is particularly true since such a law would most probably require the amendment of a Basic Law, a measure which mandates a special majority of the Knesset. In the case of the importation of non-kosher meat, such amendment to the Basic Law: Freedom of Occupation was obtained but it was a difficult process which only demonstrated the difficulty to enact such religious legislation nationwide.

54 Barak-Erez (n 6) 43–57.

55 ibid 59–79; Rosen-Zvi (n 6) 226–27.

56 A prime example was the battle that took place in Petah Tiqwa (in 1983–84) and in Jerusalem (in 1986–87) concerning the opening of cinemas during the Sabbath: see CrimC (Jerusalem) 3471/87 The State of Israel v Kaplan PM 5748(2) 26 (1988). See also Schweid, Eliezer, ‘The Sabbath in Israel’ in Dromi, Uri (ed), Brethren Dwelling Together: Orthodoxy and Non-Orthodoxy in Israel – Positions, Propositions, and Accords (Israel Democracy Institute 2005) 220–25Google Scholar.

57 See Mautner, Menachem, Law and the Culture of Israel (Oxford University Press 2011)CrossRefGoogle Scholar.

58 See Rebhun, Uzi and others, Demographic Trends in Israel (Metzilah Center 2009) 27Google Scholar.

59 The rise of Shinui, the political party which set out to combat the increased influence of religious parties, is commonly understood to be a manifestation of such a backlash: see Mautner (n 57), especially ch 5.

60 Israeli local government law oscillates between two competing conceptions of what localities are and what they should be: the first and the most dominant is the bureaucratic conception, according to which localities are mere subdivisions of the state, an administrative convenience, with little or no discretion over the functions they perform, almost entirely subordinated by the central state apparatus. The second conception, the democratic self-rule, conceives localities as mini-governments which represent the will of the local populace, as voluntary associations of the communities residing within them, thus exerting significant discretion over the wide range of matters they deal with. Each of these conceptions has its own advantages and shortcomings, and each has its roots in history and in legal doctrine. Even though the bureaucratic conception is far more intuitively accepted by jurists, political theorists and the general public, the democratic self-rule idea has wide support not only as a normative ideal, but also as describing historical and present processes as well as legal rules: see Blank, Yishai, Local Frontiers: Local Government Law and Its Impact on Space and Society in Israel, unpublished SJD dissertation, Harvard Law School, 2002Google Scholar; Rosen-Zvi, Issachar, Taking Space Seriously: Law, Space and Society in Contemporary Israel (Ashgate 2004)Google Scholar.

The balance between the bureaucratic and the democratic conceptions has been slowly shifting over the past 25 years, not only at the ideological level but also in terms of legal reforms, governmental policies and judicial decisions. This shift has a contradictory character. On the one hand, local governments were given more planning powers, more fiscal discretion, and their general authorities were expansively construed in some important court rulings; on the other hand, and especially since 2004 following the financial crisis that many localities experienced, fiscal supervision over local governments tightened and it became easier for the Minister of Interior to interfere with the internal affairs of ‘failed’ localities (including putting them into receivership, etc.). Despite this contradictory nature of the change, it is safe to say that the democratic–localist conception has been strengthened since the 1990s, and that the bureaucratic–centralist one, while still being very dominant, is no longer the hegemonic perception of Israeli local government theory. See, for example, HCJ 2838/95 Greenberg v Local Council of Katzrin 1997 PD 53(1) 1.

61 Solodkin (n 2).

62 ibid. For a detailed discussion of the decision, see Rosen-Zvi (n 6) 226–28.

63 Rosen-Zvi, ibid 228–31.

64 See HCJ 10907/04 Solodoch v Municipality of Rehoboth (unpublished, 2010).

65 HCJ 6741/99 Yekutieli v Minister of Interior 2001 PD 55(3) 673.

66 Over the past year there has been an attempt to amend the tax exemption given to synagogues, churches and mosques so that it will also include places ‘whose main use is for prayers’. In this way, localities will have to give this break even to buildings that only partly serve as synagogues: see the Knesset Finance Committee, ‘Protocol of Session of the Knesset Finance Committee Concerning the Proposed Amendment to the Municipality Taxes and the Government Taxes Ordinance (Exemptions) (Synagogues), 2009 of Member of Knesset Nissim Zeev (P/662)’, 2 March 2010, available at http://oknesset.org/committee/meeting/52/ (in Hebrew).

67 ibid.

68 Peretz (n 4).

69 ibid 2106.

70 ibid 2107.

71 The list of petitions to the District Court and to the Supreme Court is lengthy. The most important decision by the Supreme Court was delivered in 2010: see Jerusalem Open House (n 4).

72 Hasson, Shlomo and Gonen, Amiram, The Cultural Tension within Jerusalem's Jewish Population (Floersheimer Institute for Policy Studies 1997)Google Scholar; Hasson, Shlomo, The Cultural Struggle over Jerusalem: Accommodations, Scenarios and Lessons (Floersheimer Institute for Policy Studies 1996)Google Scholar.

73 AdminC (Jerusalem) 8187/08 Jerusalem Open House v City of Jerusalem (unpublished, 2008). This decision itself reversed a previous District Court decision in which Justice Yehudit Tzur requested that the municipality reconsider its policy: see AdminC (Jerusalem) 219/06 Jerusalem Open House v City of Jerusalem (unpublished, 2006).

74 Jerusalem Open House (n 4) paras 53, 56–57.

75 Blank, Yishai, ‘Brown in Jerusalem: A Comparative Look on Race and Ethnicity in Public Schools’ (2006) 38 Urban Lawyer 367, 384–89Google Scholar; see also Rosen-Zvi (n 60).

76 I refer mostly to the segregation between Mizrahi Jews (Jews of oriental descent) and Ashkenazi Jews (Jews of European and American descent), which was extremely prevalent until the late 1980s. While a significant spatial segregation of impoverished Mizrahi Jews in development towns and poor neighbourhoods in large cities still exists, the radical isolation of Mizrahis has been mitigated as a result of government policies and the gradual upward mobility of second and third generation Mizrahis. Another segregation which still exists, but which has begun to change recently, is that between Palestinian Arabs and Jews. Though the vast majority of Arabs still live in localities which are purely Arab, and although most Jews live in all-Jewish localities, a new phenomenon has started to unsettle this clear divide. If, until the late 1990s, there existed only very few ‘mixed towns’ – in which Jews and Arabs lived together (albeit in different neighbourhoods) – during the past decade a few more mixed towns began to appear as a result of new residential patterns. Arabs started to move into previously all-Jewish towns, thus changing the demographic nature of these towns, and weakening the radical segregation that previously existed.

77 Such new localities include El'ad, Beitar Illit, and Modi'in Illit. See Norma Gurovich and Eilat Cohen-Kastro, ‘Ultra-Orthodox Jews: Geographic Distribution and Demographic, Social and Economic Characteristics of the Ultra-Orthodox Jewish Population in Israel, 1996–2001’, July 2004, available at http://www.cbs.gov.il/www/publications/int_ulor.pdf (in Hebrew).

78 The separation between Jews (secular and religious alike) and Arabs (Muslim and Christians alike) was obtained mostly through the allocation of land exclusively to Jews: see Blank (n 75) 386–89.

79 Blank (n 75) 384–89.

80 ibid.

81 See Yiftachel, Oren and Kedar, Alexandre (Sandy), ‘Landed Power: The Making of the Israeli Land Regime’ (2000) 16 Theory and Criticism 67Google Scholar, available at http://www.vanleer.org.il/Data/UploadedFiles/Publications/TUV/16/4.pdf.

82 6698/95 Kaadan v Israel Land Authority 2000 PD 54(1) 258 (Kaadan). See also Kedar, Alexandre (Sandy), ‘A First Step in a Difficult and Sensitive Road – Preliminary Observations on Qaadan v Katzir’ (2000) 16 Israel Studies Bulletin 3Google Scholar.

83 Amendment to the Collective Associations Ordinance Act (No 8), 2011, ss 1 and 2. The Association for Civil Rights in Israel filed a petition in the name of numerous individuals challenging the constitutionality of this amendment: see HCJ 2311/11 Sabach v The Knesset (filed 23 March 2011), the petition is available at http://www.acri.org.il/he/wp-content/uploads/2011/03/hit2311.pdf (in Hebrew).

84 Ziv, Neta and Tirosh, Chen, ‘The Legal Battle Against the Screening of Candidates to Communal Settlements: A Trap in a Pierced and Muddy Web’ in Lehavi, Amnon (ed), Gated Communities (Law, Culture and Society Series, Faculty of Law, Tel Aviv University and Nevo Press 2010) 311.Google Scholar

85 This happened when an ultra-orthodox family tried to be admitted to the religious-Zionist settlement of Bar Yochai. The screening board disqualified the family on the grounds that it did not ‘fit’ its way of life: see Neta Ziv, ‘An Appeal on the Rejection Decision in the Settlement of Bar Yochai’, letter to Israel's Land Authority sent by the family's lawyer, 11 April 2011 (on file with the author).

86 HCJ 4906/98 Am Hofshi v Ministry of Building and Housing 2000 PD 54(2) 503, 508 (Am Hofshi). One of the sources of inspiration for the Am Hofshi decision was another case in which state-coerced segregation was challenged. In HCJ 528/88 Avitan v Israel Land Authority 1989 PD 43(4) 297, the Court affirmed the decision of Israel's Land Authority to establish towns only for Bedouins. The Court ruled that it was a legitimate state interest to settle the nomadic Bedouins and that excluding Jews as well as other non-Bedouins was imperative for this policy's success. The Court also mentioned the unique history and culture of the Bedouins as a way of legitimating the state segregation. In Am Hofshi the Court ignored the uniqueness of the Bedouin community, extending the licence to segregate between communities to any minority group with ‘unique ways of life’.

87 Am Hofshi, ibid 508–09. It is important to note that the Court in fact voided the Ministry's decision as it found that the policy was separate and unequal. The Court ordered the ministry to establish an equally beneficial project for secular Jews.

88 Such new towns include El'ad, Beitar Illit, Modi'in Illit, Kiryat Sefer and Immanuel. Two additional ultra-orthodox cities – Kasif and Harish – are currently planned by the government.

89 The survey was conducted by the Geocartography Institute. See Avi Dagani, ‘61% of the Ultra Orthodox Prefer to Live in Separate Settlements’, 15 February 2011, available at http://www.relevanti.com/גלובס/עמוד-הבית/פרופ-אבי-דגני/m7329_61-מהחרדים-מעדיפים-לגור-בישובים-נפרדים (in Hebrew).

90 Schragger (n 6) 1815–16.

91 ibid.

92 Gerken (n 14).

93 ibid 1750.

94 Cover, Robert M, ‘Foreword: Nomos and Narrative’ (1983) 97 Harvard Law Review 4Google Scholar; see also Greene, Abner S, ‘Kiryas Joel and Two Mistakes about Equality’ (1996) 96 Columbia Law Review 1CrossRefGoogle Scholar.

95 Barron, David J, ‘The Promise of Cooley's City: Traces of Local Constitutionalism’ (1999) 147 University of Pennsylvania Law Review 487, 490CrossRefGoogle Scholar.

96 Gerald Frug defines public freedom as ‘the ability to participate actively in the basic societal decisions that affect one's life’: Frug, Gerald E, ‘The City as a Legal Concept’ (1980) 93 Harvard Law Review 1057, 1068CrossRefGoogle Scholar (attributing the concept of ‘public freedom’ to philosopher Hannah Arendt).

97 Halon (n 35) 594 (my emphasis).

98 In the city of Beit Shemesh, which is experiencing waves of ultra-orthodox migration into the city, secular residents demanded that Israel's land authority allocate lands to a secular neighbourhood, as it regularly does for ultra-orthodox neighbourhoods. The District Court of Jerusalem refused to intervene with the Authority's refusal, reasoning that the logic of the Am Hofshi decision did not apply to secular Jews who were a majority group with no unique lifestyle worthy of protection: see AdminC (Jerusalem) 1888/09 Edri v Minister of Building and Housing (unpublished, 2009). The Supreme Court affirmed the decision on procedural grounds: AdminA 68/10 Edri v Minister of Building and Housing (unpublished, 2011).

99 Schragger (n 6) 1815.

100 Madison argues: ‘The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State’: Madison (n 10).

101 ibid.

102 According to the report, in various ultra-orthodox communities families have started to separate between men and women even in small family gatherings, squeezing women around separate tables in the kitchen. Until very recently, this custom had never been observed and has very little religious basis: see Tamar Rotem, ‘Separate Tables’, Haaretz, 1 July 2011, available at http://www.haaretz.com/weekend/week-s-end/separate-tables-1.370695.

103 HCJ 746/07 Ragen v Ministry of Transportation (unpublished, 2011). See Yair Ettinger, ‘High Court: Gender Segregation Legal on Israeli Buses – But Only with Passenger Consent’, Haaretz, 6 January 2011, available at http://www.haaretz.com/news/national/high-court-gender-segregation-legal-on-israeli-buses-but-only-with-passenger-consent-1.335567. For a supportive position of the practice, see Harel, Alon, ‘Benign Segregation: A Case Study of the Practice of Gender Separation in Buses in the Ultra-Orthodox Community’ (2004) 20 South African Journal on Human Rights 64CrossRefGoogle Scholar.

104 Ragen, ibid. The Court therefore required that the buses put up signs which made it clear that entering and getting off the bus through different doors was not mandatory and neither were the seating arrangements. These signs, ruled the Court, will make it clear that it was illegal to force anyone to respect these practices. Many commentators have criticised this ruling, calling it naïve at best.

105 Many have criticised this decision, calling it a dangerous compromise and caving in to the most radical sections of the ultra-orthodox community.

106 There are many projects throughout Israel that are currently marketed to national-religious families and individuals only. While some rely on market and social dynamics, in other cases the exclusion is overt and explicit. See, for example, the website of ‘Be'emuna’, which prides itself on marketing its apartments only to the national-religious sector, available at http://www.bemuna.co.il/show.asp?id=5861 (in Hebrew).

107 See AdminC 1888/09 Edri (n 98); AdminA 68/10 Edri (n 98); and discussion above at Section 4.1.4.

108 ibid.

109 Madison (n 10).

110 See the discussion above of the Jerusalem Open House case at Section 3.1.3 above.

111 Moller-Okin (n 9).

112 n 82.

113 The Tel Aviv District Court recently held that a private development company was allowed to refuse to sell apartments to anyone who was not ‘Zionist-religious’. The court ruled that there was ‘nothing wrong in a group of people organizing in order to live next to each other to be able to lead their life according to their ways of life’: AdminC 2002/09 Saba'a v Israel Land Administration (unpublished, 2010). An appeal to the Supreme Court was rejected since the project was already being constructed and the Court ruled that it was a ‘done deal’. However, the Court made remarks which could be understood as expressing dissatisfaction with the District Court's ruling as well as with the practice: AdminA 1789/10 Saba'a v Israel Land Administration (unpublished, 2011).

114 HCJ 1067/08 Noar Kahalacha v Ministry of Education (unpublished, judgment delivered on 6 August 2009).