Diminishing Constitutional Law: The First Three Decades of Women's Exclusion Adjudication in Israel

Abstract

Balancing between sex equality and religious interests has been a challenge for Israel’s constitutional law from the state’s inception. In recent years, however, the expanding repertoire of practices known as women’s exclusion has brought forth this tension with new formulations, intensity, and public sensitivity. This article maps the three decades of Israel’s High Court of Justice (HCJ or “the Court”) adjudication on women’s exclusion. The modesty requirements and sex-based physical segregation that have become rampant in Israel, require re-articulations of the scope and status of the right to equality, as well as other constitutional rights such as dignity and liberty. The thirty-year database compiled for the purpose of this article encompasses all women’s exclusion cases decided by the HCJ. The database was built based on an annotated definition of women’s exclusion cases as a legal field, developed and explained in this article. The database reveals what might be defined as diminishing constitutional adjudication. In the nineteen nineties, the Court has labored in elevating sex equality, developing a doctrinal structure that guards it against religion-based demands to legitimize exclusion norms. In contrast, in the past decade, the Court has almost completely refrained from reviewing cases on the merit or writing reasoned opinions, adopting ad-hoc problem-solving approaches or taking dispute resolution approaches prompting the parties to find compromise, without delineating the legal framework that should guide the disputes.