Entrenching the Status‐Quo: Religion and State in Israel's Constitutional Proposals

Abstract

The article aims at analyzing the proposed constitutional solutions for the most disputed issues in the religious-secular conflict in Israel. It focuses on the three complete constitutional drafts published between 2005-2006. The article shows how the three constitutional proposals not only refrained from reforming the existing religious arrangements in the area of personal law, observance of Sabbath, and the question of conversion or “who is a Jew?” In addition, all three proposals limit potential future reforms of the religious status quo by the Supreme Court, which is perceived as representing a liberal-secular worldview. The proposed constitutions limit the court’s authority through various constitutional tools which are geared to maintaining parliamentary supremacy in regulating controversial issues of religion-state relations. Thus, the article argues, the debate over the future of the constitutional arrangements in the religious sphere in Israel is a conflict not only between two opposing views of the appropriate relationship between religion and state institutions, but also involves a clash between fundamentally different views of the role of constitutions and constitutional law under conditions of deep societal disagreement. On the one hand advocates of Israel’s secularization hold a liberal understanding of the role of constitutions as vehicles for the introduction of principles of constitutionalism. On the other hand, the authors of the proposed drafts expect constitutions to serve as the basic charter of the state’s identity, and therefore to rest on a broad consensus, reflecting the common vision and shared basic norms of society as a whole. At present the broad consensus of Israeli society seems to prefer the preservation of the religious status quo.