Law in Israel
The socio-economic status of a profession determines the significance of women’s integration into the profession. The integration of women into professions is not always an indication of socio-economic flourishing. When a profession is undervalued and underpaid, the integration of women may represent exploitation rather than success. In contrast, the legal profession in Israel is sought after and elitist. Women have been prominent partners in the legal profession for some time and their successful integration reflects socio-economic success in a wider frame of social reference.
In Israel, the judiciary is professional; there are no lay judges in the general courts, but only in specialized courts such as the labor courts. Judges are appointed by a committee of judges, lawyers, government ministers and members of Knesset. There are no jury trials. The judiciary is therefore composed almost entirely of members of the legal profession. Furthermore, the legal profession provides both status and economic advantage to its members. Public service lawyers, particularly those in the offices of the State Attorney and the Ministry of Justice, play a central role in safeguarding the rule of law and are held in high esteem. Student demand for places in law schools has been very high for many years. In recent years, the demand for law studies has produced a mushrooming of colleges that grant degrees in law. In response to the explosion in the number of law students, a professor of educational planning commented that it is a sad waste of human resources to see so many first class minds going into law, “where such high intelligence is not needed anyway.”
An overall numerical view of women in the legal profession appears encouraging. Women figure in large numbers in the student body, in academia, in the public service, in law firms and in the judiciary. Israel has had a woman on the Supreme Court since 1977. Justice Miriam Ben Porat was appointed to the Supreme Court in 1977 and became Vice-President of the Court in 1983. Justice Shoshana Netanyahu was appointed to the Court in 1982. Since then, there have consistently been at least two women justices serving on the Supreme Court. In 1994 the appointments of Justice Dalia Dorner, Justice Tova Strasbourg-Cohen and Justice Dorit Beinish brought the number of women up to three. Currently, of the fifteen justices of the Supreme Court, five are women: Justices Dorit Beinish, Ayala Procaccia, Miriam Lerner Naor, Esther Hayut and Edna Arbel. Women have served in the positions of State Comptroller and State Prosecutor. Recently, the legal advisors to the Civil Service Commission, the Ministry of Defense, the Police Force and the Histadrut Trade Union Branch were all women. Thus, at the pinnacle of the profession, women are prominent.
Although the overall numbers are encouraging and there are women at the highest levels of the profession, more women than men in the legal profession are concentrated at the lower levels of a pyramid of advancement. In the law schools at Israeli universities, approximately fifty percent of the student body are women, but only about twenty percent of law faculty are women. In the court system, while forty percent of the judges in magistrate courts are women and more women than men serve in the regional labor courts and the traffic courts, only a quarter of district court judges are women. In public service, although women constitute sixty-six percent of public service lawyers and attorneys and sixty-six percent of the top seven ranks, in the four highest ranks women constitute only fifty percent.
In the economic hierarchy of the legal profession, women are concentrated at the lower income levels. Women are not numerous among partners in the big commercial law firms—the most highly paid sector of the profession. Judges and public service lawyers are not the highest earners in the legal profession. Furthermore, women also pay an economic price for their integration into certain branches of public service. When there is a very high concentration of women in a particular branch of the public legal sector, the salaries are apparently lower.
In spite of this evidence of a residual pyramid of advancement, given the encouraging number of women in the legal profession, we should perhaps be able to talk of a feminist bar in Israel. However, this is not entirely the effect that the high participation rate of women in the profession has produced. In substance, the Israeli legal profession, on one hand, has asserted the justice of the case for women’s equality, particularly in recent decisions of the Supreme Court. On the other hand, the profession has totally disregarded feminist justice, particularly in its ongoing tolerance of blatant discrimination against women professionals and “consumers” in the arena of personal law, which is delegated to the jurisdiction of religious courts. Women in law mostly have refrained from feminist identification, and feminist activism has been promoted by only a tiny minority of women lawyers.
The record of feminist legal activism was fairly sparse until the 1980s. Although women’s organizations in Israel, particularly Na’amat, had been very strong in terms of membership numbers and budget since the earliest days of the State, their early activities were largely confined to the provision of services to working mothers. This was a task that they handled with great efficiency, thus facilitating the integration of work and parenthood for women. These early activities did not include advocacy of legal solutions to feminist issues, and hence there was no systematic strategy for promotion of equal opportunity. Development of legal advocacy for women’s rights was sporadic and often at the initiative of individual plaintiffs and their counsel. In the 1950s several successful legal actions were brought before the courts to improve the status of married women on questions of matrimonial property, guardianship and domicile. In the 1960s, an unsuccessful action was brought against the tax authorities for discrimination against married women under the Income Tax Law. In 1973 the first employment discrimination case, Chazin v. El Al Israel Airlines, was fought in the labor courts, resulting in a judicial precedent that, in the absence of legislation, paved the way for a right to equal opportunity employment on the basis of public policy. The plaintiff, an air stewardess who alleged discriminations in promotion because the job of chief steward was closed to women, was supported in her legal action against El Al Israel Airlines (El Al Israel) by the Section for Working Women of the Histadrut.
In the mid-1980s Frances Raday established the Legal Center for Women’s Rights in the Israel Women’s Network. With a number of volunteer lawyers and a staff lawyer, the IWN Legal Center for Women’s Rights instituted an organizational concept of systematic feminist legal advocacy in the Knesset and litigation in the courts on a wide range of feminist issues. The strategy developed in the 1980s was to combine lobbying for legislation with litigation. The first major victory was the achievement of a precedent setting judgment of the Supreme Court sitting as High Court of Justice relating to women's retirement age. Since then, women’s organizations, with a growing body of staff lawyers, have formed coalitions on central feminist legal issues. Advocacy for legislation was strategized, first, to take advantage of general trends in legislative reform and to inculcate a feminist perspective whenever the opportunity arose, and second, to promote legislative solutions to issues that could not be resolved in the courts. Litigation was undertaken whenever there was a suitable issue and plaintiff. The litigation served to focus issues and to popularize them by presenting them in the context of individual cases that illustrated the injustice to women in current legal or social regulation. Even when litigation was unsuccessful, it could form a good basis for a legislative initiative, as happened on the issue of women’s retirement age. The case histories involving feminist legal strategies provide an insight into feminist legal activism and the response to it by judges and legislators.
In the late 1980s and 1990s, women’s advocacy organizations succeeded in promoting feminist legislation on a series of important subjects. In 1988, women’s organizations engaged in successful legal advocacy on legislative reform of the law. Led by the Rape Crisis Center, the women’s organizations successfully lobbied for reform of the laws on rape, introducing to Israel the concept of rape shield laws, canceling the requirement for corroborative evidence, replacing the element of “unwillingness” previously required to prove the crime with “lack of free consent,” and codifying the judicial ruling that marital rape is a criminal offense. The IWN Legal Center for Women’s Rights drafted legislative proposals and lobbied successfully for their acceptance on a wide variety of issues, including equal retirement age, equal employment opportunity, sexual harassment, transformation of maternal rights in the workplace to parental rights, extension of the kinds of matrimonial property subject to division on divorce, introduction of civil protection orders in cases of violence in the family, affirmative action in appointments to the directorates of government companies, and reform of discriminatory provisions with respect to married women in the Income Tax Ordinance. These legislative initiatives drafted by feminist lawyers received widespread support on the floor of the Knesset, although some of their more radical details were lost in the legislative process.
Against the background of feminist legal activism, the number of cases on discrimination taken to the courts increased appreciably. There have been applications to the labor courts, most ending in compromise settlements, and a number of petitions to the Supreme Court sitting as the High Court of Justice. A famous case was the application of Alice Miller to the High Court of Justice to be admitted to the pilots’ course of the Israel Air Force, which was closed to women. She was represented by staff lawyers of the Israel Women’s Network and the Association for Civil Rights in Israel.
However, the increase in litigation is probably less than it might have been had not the burden of promoting feminist litigation fallen entirely on voluntary women’s and civil rights organizations, feminist litigators and individual plaintiffs. Attempts to acquire funding for an Equal Employment Opportunities Commission have so far failed. In the process of legislating the Equal Employment Opportunities Law, it became clear that the Knesset’s enthusiasm for promoting equal rights for women stopped short of providing budgets. The costs of litigation are formidable and, because they fall on private individuals and voluntary organizations, they create a chilling effect on feminist litigation.
One might safely venture that among the thousands of women judges, academics and lawyers only a small minority would consider themselves feminists. The reaction of women in the legal profession to the development of feminist legal activism has, with some notable exceptions, been less than enthusiastic. The legal system has lagged behind the feminist revolution in important areas. The move to guarantee equal opportunity in economic activities was delayed in comparison with such movements in North America, Scandinavia, and to some extent, Europe. Furthermore, the delegation of personal law to religious courts is an ongoing cause of the infringement of women’s human rights. Yet the women of the profession have not mobilized to press for reform on this issue. Women lawyers and judges have, with few exceptions, shown a distinct lack of enthusiasm for any form of workshop mobilization or representation based on feminist association or interest. The number of feminist litigators can be counted on one hand. Only a minority of women law professors would regard themselves as feminist. Women lawyers have not in the past been well represented in leadership roles in the Bar Association; however, with the election of the Lishka Aheret (A Different Bar) to leadership of the Bar Association in 1999, women have been better represented, with Attorney Orna Lin in the position of Chair of the Central Committee.
There is opposition among many women members of the profession to any form of affirmative action for women; though held constitutional by the Supreme Court in 1995, it produces antagonistic responses from many women in the legal profession.
The reticence of the majority of women in law in Israel to associate themselves with the struggle for equality can be tentatively explained, as follows. In Israel, the integration of women into the legal profession works both at the formal and informal levels. There is a feeling of belonging and collegiality with men and women in the profession. This feeling of belonging may blur sensitivity to actual inequalities. Furthermore, the prominent success of the considerable number of women who have reached the top in the judiciary, public service, universities and legal practice has a cooling effect on awareness of discrimination. The women who have succeeded have no personal axe to grind. In contrast, other women may feel that they could have achieved more and that they have been disadvantaged as a result of being women. For such women, the example of successful women role models undermines their attempt to explain their frustration in terms of discrimination within the profession, even though discrimination certainly exists.
The Israeli system provides a highly synthesized balance between career advancement and a traditional family life for those lawyers who wish to have both. This is probably because public services provide a wide range of opportunities for lawyers, from fairly low profile jobs to competitive career posts, and perhaps because there is in Israel an emphasis on extra-occupational responsibilities that extends beyond the issue of parenthood (for example, recognition of rights to absence for sometimes months of military reserve service or seven days of mourning). Since the great majority of women lawyers regard their own role as homemakers as central in traditional family life, this range of opportunities has acted as an escape valve through which they can juggle career and family life. Indeed, many women in law in Israel “succeed” in combining their career with a traditional family life: eighty-two percent of senior women employees in the public service have children (as compared with one hundred percent of men) and almost all the women on the law faculties have children. According to research, even among women who have reached senior posts in the State Service, legal and nonlegal, the division of household and family obligations with their male spouses remains traditional. Thus, many women regard failure to reach their full professional potential as the price they have willingly paid to combine their career with their family life. In a profession in which the elite work twelve-hour days on a regular basis, the improvement of such women’s opportunity to more fully fulfill their potential depends on a change of attitude either toward family life and relationships or toward the professional environment. In the absence of such change, the feasibility of a personal compromise, which meets many if not all of the demands of family and career probably explains the apathy of Israeli women in law, as a group, toward the feminist agenda.
The record of the courts in handling feminist issues reflects both the impact of feminist litigation and the attitudes of the judiciary in a legal profession in which women are comparatively highly integrated. In the context of a discussion of the role of women in law, the highlight inevitably falls on a search for distinguishing features of women judges in their decision-making. The quest to discover whether women judges have an identifiable difference in their substantive or procedural approach is an anathema to classical legal thinking. It goes against the legal grain to admit that the judge is not merely an objective and impartial agent of “The Law.” This classical view has been criticized by judges and academics. Professor J. A. G. Griffith pointed out that in order for a judge to be completely impartial, he or she would have to be a political, economic and social eunuch. The admission that judges are not legal or constitutional robots, while certainly an irrefutable observation of fact, is not necessarily an assertion of uncontestable good. Indeed, feminist legal thinkers regard the fact that male judges function from a male world view as one of the sources of injustice for women in the legal system. Since, however, judges are incorrigibly human and since we live in a world of people half of whom are female, we must examine whether a female world view is expressed through the mediation of female judges and, if it is, insist on its inclusion in the determination of the social norms that regulate both male and female lives.
The role of women judges in Israel does not indicate that women judges have been the sole standard bearers of a feminist or feminine perspective, or that all women judges are pioneers of equality for women. Women’s partnership with men in the legal profession has resulted in an integrated profession in which a female world view has recently gained a legitimate place, as expressed in the judgments of some male and some female judges, primarily in the Supreme Court. Analysis of Supreme Court decisions on issues relating directly to differences of treatment for men and women shows that it is men and not women judges who have initiated most of the more radical breakthroughs; nevertheless, where they have sat on such cases, female judges have more consistently adopted an egalitarian world view than male judges . However, despite the clear directives of the Supreme Court, there are some courts with a poor record of empathy to women’s causes—for example, labor courts—and indeed there are some courts—the religious courts—in which there is a patriarchal attitude to women.
The Supreme Court, which is a predominantly male court, did little to promote women’s right to equality before the 1980s. In the handful of feminist issues brought before the Court (in its capacity as the High Court of Justice or as the highest appellate jurisdiction), there was minimalist analysis of issues of equality and a conservative approach to remedies. This, however, coincided with a period of widespread apathy and inactivism in the community at large regarding feminist issues.
Between 1988 and 2004, the Supreme Court accepted all ten petitions and one appeal that directly and centrally raised issues of women’s equality. Of the thirty opinions given by the Supreme Court justices in these cases, there were only two dissenting opinions, neither of them given by women. Two lead opinions and five of the concurring opinions in these cases were given by women justices.
A closer analysis of the Supreme Court’s decision making in these cases shows that the Court took a pro-feminist stand on issues that were disputed in society at large. In all eleven cases, the Court gave opinions that, to a greater or lesser extent, asserted the importance of the principle of gender equality. In two of these cases—Shakdiel and Poraz—although egalitarian justice was meted out to the applicants, the outcomes were not based on a fully articulated egalitarian philosophy. These cases were the earliest petitions, which may explain their less determinative language. In the other nine of the eleven cases—Nevo, Bavli, Shomrat, The Israel Women’s Network I, The Israel Women’s Network II, Ben Asher, Galili, Niv and Batzon—principles meeting feminist criteria were expressly incorporated. In each of these cases, the leading opinions were written by male justices and only two of the lead opinions were written by a woman justice.
In Nevo, the Court, overturning the National Labor Court, held that women have the right to continue working until the retirement age of men if that age was different from the retirement age fixed for women in pension agreements. Nevo was the first Supreme Court decision expressly to recognize discrimination against women as a negative social phenomenon that must be dealt with by the courts.
In Bavli, the Court held that women are entitled to receive a half share of the matrimonial property upon divorce, even if the divorce proceedings and the division of property questions are under the jurisdiction of a religious court, where the applicable religious law does not include a presumption that matrimonial property is shared. Applying the principle of women’s right to equality, Justice Barak examined the different doctrines of matrimonial property—the presumption of common rights in matrimonial property practiced by the rabbinical courts under Jewish law. He reached the conclusion that the doctrine of separation of property was discriminatory against women. He held that, even though it is applied in a neutral way to property of the husband and the wife, the doctrine of separation of property has an adverse impact on women in view of the socio-economic realities of the relations between married men and women.
In Shomrat, the Court accepted a prosecution appeal of an acquittal in a case of adolescent group rape. Two of the judges analyzed the element of nonconsent in rape from a perspective of the right to human dignity and women’s fundamental right to equality. The Court acknowledged and accepted feminist research findings regarding rape trauma syndrome and the propensity of women not to report rape immediately after the attack. The Court was highly skeptical of the probability of any fourteen-year-old girl consenting to the sexual acts carried out by a group of boys. Justice Cheshin added, “[A] man who initiates intimate contact with a woman bears the burden of requesting her consent and the burden of acquiring her consent is placed on him.”
In the three sexual harassment cases which came before the Supreme Court during this period—Ben Asher, Galili and Batzon—the Court increased the penalties imposed by the lower tribunals and gave strongly argued decisions in favor of regarding sexual harassment as a serious offence against women’s right to equality and human dignity.
In 1994 the Israel Women’s Network applied to the High Court of Justice to enforce the affirmative action provisions of the Government Companies’ Law, passed in 1993, and to obtain an order canceling appointments of three men to government company directorates on the grounds that the ministries concerned had not sought women for the positions. Granting the application, the Court confirmed the constitutionality of affirmative action for women. Justice Matza held that affirmative action is “a criterion for equality which is one of the essential derivatives of and one of the chief guarantees for the fulfillment of the principle of equality itself.”
The social impact of this case has been considerable: only two percent of company directors had been women before the law was passed. In 1995 the Ben Dror Committee of the Finance Ministry reported that, since the passage of the law, it had confirmed appointments for four hundred and ninety-eight men and one hundred and forty-eight women and rejected sixty-seven men and twenty-one women.
In 1998, in IWN II, Justice Cheshin extended the use of affirmative action as a way of achieving equality to promotions policy in all public institutions. He used very strong rhetoric to delineate the place of equality amongst legal principles:
The king of principles—the most elevated of principles above all others—is the principle of equality. … So it is in public law and so it is in each and every aspect of our lives in society. The principle of equality infiltrates every plant of the legal garden and constitutes an unseverable part of the genetic make-up of all the legal rules, each and every one … The principle of equality is, in theory and practice, a father-principle or should we say a mother-principle.
In Niv, as well, Justice Cheshin gave a strong feminist decision, holding that women employees could not have been found to consent to a discriminatory plan for early retirement when no alternative of a non-discriminatory plan had been offered to them.
There were some further cases in which women’s equality was involved but was not presented as the central issue in the decision: Cohen, Plonit (Raphael), and three petitions regarding Hoffman (Women of the Wall). In two of these five cases—Cohen and Hoffman II—the petitions were accepted; in those cases, women justices gave concurring opinions and went a step further in analyzing women’s situations and maintaining the necessity for protecting their interests than did their co-justices. The other three petitions were rejected: Plonit and two of the decisions regarding Hoffman. The three decisions in which the petitions were rejected involved Orthodox Jewish law or sensitivities.
In some other cases that were not directly on women’s equality, Justice Dorner, who was appointed to the Supreme Court in 1993, has written a number of opinions that clearly reveal what many feminist legal thinkers would regard as a feminist perspective. Thus, for example, in the Danilovitz case, in 1994, which concerned the right of homosexual couples to employment benefits enjoyed by married and common law couples, she argued, in a concurring majority opinion, for a strong judicial principle of equality to be applied in private and public relations in addition to equality rights guaranteed by statute. She was the only member of the Court to analyze in depth the changing norms regarding the right of homosexuals to equal treatment in the general social context.
In Vaxelbaum, the Court accepted the petition of a fallen soldier’s family to order the Ministry of Defense to allow them to make variations from the standard epitaph in the army burial ground by adding the names of the soldier’s brothers to the tombstone. Justice Dorner wrote a contextual and emotional concurring opinion, taking the unusual measure of prefacing her opinion with a quotation from a radio interview. She quoted Judith Hendel, an Israeli woman author, as follows:
People bring things from home, they bring jars, they bring dishes, I even saw them bringing all kinds of household utensils there or they bring some musical instrument … to give something intimate with an absolutely personal aura to the tomb. …They come there as if coming home. She comes to her son, she goes there to her son and she sings him a lullaby. Because time froze. Time stood still. She sings him a lullaby and for her he is still alive. … A father called me … and he told me that he will not go to the memorial ceremony on Memorial Day. I asked him why and so he told me: “Because I cannot bear it when they say ‘our sons.’ It is not ‘our sons.’ It is my son.”
In the case of Buhbut, Justice Dorner wrote a concurring majority opinion, reducing from seven to three years the prison sentence imposed by a lower court upon a battered woman who had killed her husband. In her opinion she concurred with Justice Bach and both opinions are based on an expression of understanding of the severity of the violence to which the accused had been exposed. Justice Dorner, however, expanded the Court’s comprehension of the social context of the killing. She opened her opinion with a description of that social context and the way it affected the life of the accused woman before the court:
Carmela Buhbut was a battered woman. For twenty-four years her husband treated her brutally. In the village where she lived, this was an open secret. Her husband’s parents, his brother, his sisters and the community all knew of it and all kept silent. She wandered around like a shadow, carrying on her face and body signs of her injuries, and she did not smile. Her sons grew up in the atmosphere of the beating of their mother, and even when they were grown up did not intervene. In November 1993, she was hospitalized after her husband had beaten her on the head with a clog. Serious injuries had been detected, and accordingly, it was clear that she had been beaten. She explained to the hospital staff that she had beaten herself, and amazingly, her explanation was accepted.
Justice Dorner referred to some of the research findings on the situation of battered women, which reinforce the theme of her judgment: “[T]he battered wife, frustrated and unprotected by an ineffective legal network, often sees no choice but to kill or be killed.” The powerful message of the Dorner opinion leaves no illusions as to the reality of the suffering of the accused as victim and the totality of the social isolation and helplessness that her status as battered wife imposed on her. The message is so powerful that the natural conclusion should be that in cases like Carmela Buhbut’s, as in cases of self-defense, the accused should not be regarded as criminally responsible. However, this is a conclusion that has not yet been reached by the Israeli courts.
The record of the labor courts has had its moments of glory on the path to creating equal opportunity for women. The Regional Labor Court in Tel Aviv gave the first judgment in Israel to examine, in a way that was not perfunctory, the issue of discrimination against women. It was a woman judge, Judge Harduf, who wrote this opinion. In a way that was innovative in Israel, she used the doctrine of public policy as a vehicle for creating employment discrimination law in the absence of a statutory prohibition of employment discrimination. She accepted the plaintiff air stewardesses’ suit to invalidate a collective agreement that barred their promotion to the top position of chief steward. She unequivocally rejected arguments brought by El Al Israel, the defendant employer, that women air stewardesses were entitled to equal but separate career tracks since they received free cosmetics in exchange for not being eligible for promotion to chief steward, and that the job was not suitable for women because the aura of authority of a male steward reassured passengers. Her judgment was upheld by the National Labor Court.
However, the radical pursuit of equality for women was not to be a constant feature of labor court judgments. Out of eight reported judgments between 1985 and 1995, only in two did the labor courts award the discrimination plaintiffs the remedy they sought. In another two cases, the courts accepted the claim, but did not award the major remedy requested, and in four cases, the courts rejected the claim. Although empowered by statute to give an enforcement remedy, in only one case did the courts do so. Requests for interim injunctions have been consistently rejected. While the rejection of claims cannot, on a numerical basis alone, be regarded as proof of the labor courts’ lack of enthusiasm for fighting employment discrimination against women, a closer look at the decisions supports a view that the labor court judges, male and female, are not sufficiently using the power bestowed on them by statute, by judicial precedent and by constitutional principle to help women combat the discrimination against them. Women judges have participated both in the decisions that reject women’s discrimination claims and in those that accept them.
In recent research on women in the administration of justice, the findings indicated that there was no blatantly sexist interaction between men and women judges and lawyers. The researchers, Rina Bogush and Rachel Don-Yichye, had not witnessed the use of stereotypical patronizing or disparaging language toward women. There were, however, some more subtle forms of interaction that create an atmosphere of deference to men and not to women. Terms of address are particularly problematic. The researchers observed that while male judges are frequently addressed as “His Honor” (Kevodo), a term that is exclusively used to address judges, the female form of this term is almost never used for women judges. Women judges are usually addressed as “Madam” (Gevirti). While this has a parallel for male judges—“Sir” (Adoni)—its use is less deferential because it is a term also used by the judge in addressing counsel. Use of “The Honored Judge” in its feminine and masculine form (Kevod Ha-Shofet/et) does not differentiate in deference to men and women judges, but as a residual term of address it cannot correct the imbalance that results from the use of other forms of address.
The researchers also observed that terms of address for women counsel in the courtroom were problematic because judges often failed to address women by name as they would male counsel. Thus, while the men would be addressed as “Advocate Levy” or “Mr. Levy,” the woman would be addressed simply as “Madam.”
In informal discussion with some of the few judges and lawyers who have a feminist background, they said that they have witnessed blatantly gender-biased remarks in the courtroom to women judges and lawyers.
While at the conscious level there may be an atmosphere of mutual respect between men and women judges and lawyers, this does not mean that the problem of sexual bias has been solved in the Israeli court system. There is evidence that, on a less conscious level, judges and lawyers treat litigants in accordance with sex stereotypes. In one study, Tamar Plesner showed how a complainant in a rape trial was treated in terminology and attitudes which typed her as the accused rather than the victim. Furthermore, there are constant allegations by women’s organizations that sentencing is too light for sexual offenses against women. The findings of the research on women in the administration of justice supported this accusation.
The central areas of disregard of women’s right to equality are the areas of state and religion. The political compromise reached on this issue, stemming from the time of the British Mandate, is the delegation of matters of personal status to the jurisdiction of the courts of the various religious communities (Jewish, Moslem, and Christian). These courts are blatantly patriarchal institutions and the relegation to them of questions of personal status causes an ongoing violation of women’s right to equality in personal status law. The result of this political compromise for women in the legal profession has been the exclusion of women from the bench for divorce jurisdiction for all communities, because the religious courts are exclusively male, and marginalization of women at the family law bar because of the increased difficulties for women advocates in these courts.
The responsibility for the subjugation of women’s equality to the deference to religious autonomy belongs to the political parties and their coalition agreements. For many years, the Supreme Court has maintained a low profile on this issue and has not intervened decisively to vindicate women’s right to equality when petitions on issues of state and religion have been brought before it. On public issues of state and religion, the Court has refrained from imposing its views on the state authorities.
The case of the Women of the Wall illustrates literally the silencing of women in all areas of life and law touched by the modus vivendi on state and religion. A group of primarily orthodox women wished to pray by the Western (“Wailing”) Wall—which is considered by Jews to be the historical and spiritual center for Jewish culture and religion—in prayer groups, wearing a tallit (prayer shawl) and reading out loud from a Torah scroll. They were refused permission by the Rabbi of the Wall, who has authority under state law to regulate the use of the site, on the ground that their mode of worship was not acceptable for women in accordance with Jewish custom. Their petition to the High Court of Justice was upheld in principle, but rejected in the result. Two of the three justices upheld the petitioners’ right of access and their freedom of worship. Neither justice referred to the principle of equality. The third, Justice Elon, himself of a religious persuasion, rejected the petition and said that, although the question of equality between men and women was at issue regarding modes of worship, it could not be examined in the context of a dispute at a site as important as the Wall. The majority recommended that the government find a solution that would guarantee the women freedom of access while minimizing the injury to the sensitivities of other worshippers at the Wall.
A subsequent unanimous decision was given by three judges—Justices Maza, Beinish and Strasburg-Cohen—requiring the government to make arrangements for the WOW to exercise their right to pray in their mode by the Wall. Attorney General Eliyakim Rubinstein requested an additional hearing and the latest judgment on the subject was given by nine judges on April 6, 2003: Bagaz 4128/00. The court held that the state had one year to find a solution for the women—either at Robinson’s Arch or at the Wall itself. At the end of the year, the state requested a postponement, claiming that it had been building a platform for the women in Robinson’s Arch. The request was accepted but has since lapsed and the situation at the time of writing is that there is no legal obstacle to the prayer of the WOW in the Western Wall Plaza. However, it seems likely that, should the State request a renewed injunction on the grounds that the Robinson’s Arch site has been prepared for prayer of the WOW, the Court would accede.
Women in the legal profession have not taken any organized stand on their exclusion from the vital areas of legal life regulated by the religious courts. The responsibility for the subjugation of women’s rights to religious values in the sphere of the personal law falls squarely on the Knesset. The socio-political forces that hold this modus vivendi in place seem to be invincible. However, even apparently intractable facts can be changed by persistent argument and organization, and in this, women in the profession have a role that, until now, has remained grossly underplayed.
There is a powerful message of gender integration in terms of formal and informal success and attitude in the legal profession in Israel. Women are not only present—they also have power. Their prominence in the profession results in no small part from their numbers, their top level appointments and their high level of proficiency in the State Service and judiciary. They are far less well represented in the high levels of private practice.
Feminist thinking has found expression in the Supreme Court among both men and women justices. Women in the judiciary have not been the sole flag bearers of equality for women; nevertheless, on closer examination of the judicial decisions, it seems that a higher proportion of women judges than of male judges take an ideological stand on these issues and that, though they may not be the standard bearers of feminism, they exhibit on average a higher level of sensitivity and concern on issues of equality for women.
Most women in the legal profession are not inclined to feminist activism. Some may regard the apparent success of women in the profession as a barrier to any claim of inequality. Others may regard a failure to reach their full potential in the profession as the result of a choice to integrate a traditional family life with their careers. Feminist lawyers are those whose agenda extends beyond the fulfillment of their own personal and professional expectations to the wider context in which women lawyers, like other women, find themselves exposed to the continuing disadvantage and discrimination that have continued into the twenty-first century.
Cr. App 91/80 State of Israel v. Cohen, 35(3) PD (1980), 281.
Bagaz 153/87 Shakdiel v. Minister for Religious Affairs et al., 42(2) PD (1988) 221.
Bagaz 953/87 Poraz v. Lahat, Mayor of Tel Aviv-Jaffa, et al. 42(2) PD (1988), 309.
Bagaz 104/87 Nevo v. The National Labour Court et al., 44(4) PD (1990) 749.
Cr. App 5612/92 The State of Israel v. Be’eri et al., 48(1) PD (1993) 302 ( Re: Shomrat).
Bagaz 5688/92 Vixelbaum v. Minister of Defence, 47(2) PD (1993), 812.
Bagaz 1000/92 Bavli v. Rabbinical Court of Appeals, 48(2) PD (1994) 221.
Bagaz 453/94 IWN v. Minister of Transportation, 48(5) PD (1994), 501.
Bagaz 721/94 El Al v. Danilovitz, 48(5) PD (1994), 749.
Bagaz 257/89 Hoffman v. Western Wall Commissioner, 48(2) PD (1994), 265.
Bagaz 4541/94 Miller v. Minister of Defence, 49(4) PD (1995) 94.
Cr. App 6353/94 Buhbut v. State of Israel 49(3) PD (1995) 647
Bagaz 1371/96 Plonit v. Ploni, 51(1) PD (1997), 198 (Re: Raphael).
Civ. Ser. App. 6713/96 The State of Israel v. Ben Asher, 52(1) PD (1998), 650.
Bagaz 2671/98 IWN v. Minister of Labour, 52(3) PD (1998), 630 (para. 29–31, Cheshin’s judgment).
Bagaz 1284/99 Plonit v. Chief of the General Staff, 53(2) PD (1999), 62 (Re: Galili).
Bagaz 3358/95 Hoffman v. Prime Minister’s Office, Tak-Al 2000(2), 846.
Bagaz 6845/00 Niv v. The National Labour Court, Tak-Al 2002(3) 1867 [and at: 56(6) PD (2001), 663].
Civ. Ser. App 10088/02 Batzon v. State of Israel, Tak-Al 2003(1), 1884.
Bagaz 4128/00 Director General of Prime Minister’s Office v. Hoffman, Tak-Al 2003(2), 270.
Air Crew Committee and El Al Airlines v. Chazin (1973) 4 PDA 364.
Bogush, Rina, and Rachel Don-Yichye. Discrimination Against Women in the Courts in Israel. Jerusalem: 1999; Raday, Frances. “On Equality: Judicial Profiles.” Israel Law Review 35 Isr. L. Rev. 380 (2003).
Griffith, J. A. G. “The Brave New World of Sir John Laws.” Modern Law Review 63/2 (March 2000).