Wednesday, April 06, 2005

Yesterday's meeting in the Knesset's law committee (vaadat hukah) was an extremely important one. It was the first meeting devoted to religion and state in the constitution. RG is in charge of all the sections dealing with "principles" and her approach was to begin the discussion at a high level of abstraction. (BTW, I'm using initials not because this information is secret -- it's a matter of public record -- but simply to prevent casual ego-surfers from quickly finding my thoughts about their work. Anybody who cares to make any effort can easily determine whom I'm refering to.) Very quickly, though, the discussion got quite concrete.

The two MKs who have been most consistent in attending the meetings and contributing are RC of Shinui and AR of Yahadut HaTorah and they both immediately began sparring. Both are very decent and fair-minded people who genuinely wish to find common ground. (This is not true of the other Shinui MK on the committee who is a Shulamit Aloni wannabe; last week, when the issue of kibbutz galuyot (ingathering of exiles) arose, she began to shout "That's so passe, passe, passe!". Even the far lefties' jaws dropped.) Anyway, when it was my turn to speak I revealed the true fact that in my separate conversations with AR and RC, they had in fact pretty much agreed on all the difficult issues. I outlined the compromises that need to be made for some reasonable consensus to be possible.

The main points are these:

1. We need to avoid speaking about principles and restrict ourselves to concrete issues. People can't compromise their principles; they can agree on practical arrangements.

2. We also can't get too detailed; the constitution ought to set the guidelines for finding solutions, not provide the solutions themselves.

3. The anti-clericalists will have to concede that religion is a legitimate basis for advocating legislation. Legislators can, of course, choose to reject such legislation but they can't appeal to freedom from religion to disqualify it. They can appeal to considerations of equality and other constitutionally protected rights to disqualify legislation -- or, rather, to appeal to the Court to disqualify it -- but there will be no blanket protection from religion. On the contrary, the preservation of Jewish tradition will be enshrined in the constitution as a national value.

4. The power of the religious establishment needs to be limited. In particular, the rabbinic monopoly on marriage and divorce is a catastrophe. Hundreds of thousands of Russians whose self-identity is Jewish but who are not halachically Jewish can simply not get married. In a nutshell, the proposed solution is to retain (orthodox) rabbinic control of gittin for those who are married al pi halachah. For marriages, other options -- civil unions -- can be explored (at the statutory, not constitutional, level).

Predictably, the last item provoked the most intense debate. The Mafdal is understandably opposed to the whole idea of civil unions. But in the end there will be no choice. The real battle lines will be drawn around the questions of intermarriage and homosexual marriage. Those will be bloody battles. My bet is the Mafdal will win on homosexual marriage (I certainly hope they do) but will lose on intermarriage because they have no solution for the Russians.

On the other hand, I never thought I'd live to see an MK from Shinui practically jumping over the table to defend me against a Reform Rabbi attacking me for not writing civil marriage into the constitution. But that's exactly the way it was.


Anonymous Anonymous said...

Why is the isuee of marriage even being raised at the constitutional level? Is a purpose of the constitution to be a chok okef bagatz? What is going to be the status of the chukei yesod once a constitution is adopted? How is the constitution going to be adopted (knesset, constitutional convention, etc.)? Why do you think the constitution should not be specific about the things it discusses? That will just give bagatz room to maneuver and we'll be right back where we are now. Who are you?


3:31 PM  
Blogger Sharvul said...

Is the Gabison-Meidan agreement being at all discussed as a possible basis for a constitutional law? If I recall correctly, they proposed civil marriages, based on a state "marriage license" with a couple of religious conditions.

6:48 PM  
Blogger Sharvul said...

And you're right. It is indeed not hard to figure out who RG, RC and AR are. And you seem to have a particular dislike for ZG; you don't even mention her initials... I don't blame you.

Incidentally, it is also not that difficult to figure out who the "mysterious" Ben Chorin is. All it takes is 10 minutes on Google. I'm guessing HS was busy yesterday, picking up his in-laws from Ben Gurion airport and driving them to Ra'anana...

5:37 AM  
Blogger Ben said...

This comment has been removed by a blog administrator.

11:46 AM  
Blogger Ben said...

Marriage, or more precisely divorce, is being raised because it is incredibly contentious and many people can't get past it. So we will either find some common ground or there won't be a constitution.
The constitution is not "okef bagatz", it is the document that bagatz will have to work with, as in any constitutional democracy.
The process of adoption is unclear but will likely be done in the Knesset. Probably some fanfare will be added but its nature is as yet undetermined.
Ambiguity is indeed fodder for bagatz but there is only so specific a constitution can reasonably get.
The basic laws are being reworked (very slightly) and will be rolled into the constitution.

If you know who RG is, you know the answer to your first question. You are wrong about ZG, who is in Meretz not Shinui. You're also wrong about HS, who may have been at the airport, but Ben Chorin wouldn't know about that.

11:50 AM  
Anonymous said...

Dr. Klein,

What do you make of Dr. Gavison's suggestion that the Basic Laws were adopted amidst "regular" politics and not "constitutional" politics?

I'm studying First Year Const. Law with Prof. Bendor. He dismissed this out of hand.

4:01 PM  
Anonymous Anonymous said...

BenChorin: I've been following your blog with interest, and I am very hopeful that the constitution you are working on will indeed be passed. I can't shake the vision, though, of the knessed disregarding all the compromised that were made in the va'ad and rewriting all of the carefully worded and balanced clauses, creating and passing a constitution completely different from the one you are working on. What is going to prevent this from happening?

6:13 PM  
Blogger Sharvul said...

Oh. I guess YK does not take particular interest in his colleagues and hence was not aware of HS's trip to the airport...

And you're right about ZG. I associated her with the wrong party.

Actually, I don't know what RG thinks about Gabison-Meidan. If you don't mind explaining....

1:29 PM  
Blogger Jeffrey said...

The issue of the Russians will be lost by Mafdal because they don't have the guts to take on the Haredim who run the Rabbanut. If they were willing to back Rav Druckman, they would (at least) make a bent in the Russian Aliyah issue.

2:12 PM  

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