Enhancing Freedom of Religion Through Public Provision of Religious Services: The Israeli Experience

Abstract

This Article challenges the premise that the separation of state and religion is a necessary predicate for religious free exercise. The state's duty to treat people as equals requires it to ensure that all citizens enjoy reasonable access to religious services. Public supply of religious services thus enhances the exercise of freedom of religion. The extent of public involvement in the provision of a religious service is not by itself a sufficient justification for the regulation of the relevant activity. In certain cases, the intervention is justified by reasons that are unrelated to the scope of government involvement. A prominent example is the case of competition between different religious congregations over limited resources, such as space and time at a holy site. Regulation of activity is then required in order to ensure reasonable access. In other cases, the government enhances the powers of religious bodies, and thus generates a concern of religious coercion. In these cases the governmental role may well result in an infringement of religious freedom. However, such a conclusion is not self-evident, and a detailed assessment of the over all effect of the government involvement is required in order to determine whether the involvement—and what type of involvement—is desirable.These and related arguments are demonstrated through a discussion of the Israeli experience of almost six decades of intensive involvement of a democratic state in supplying religious services. The Israeli case can serve as a thought-provoking hypothetical on the consequences—and thus of the desirability—of adopting a model of extensive establishment of religion(s) by a democratic state.