In every society there is always an internal struggle between individual liberty and collective responsibility. It exists here in the United States, in the form of mandated jury service, for example, and it is at the forefront in Israel where the raging debate regarding mandatory conscription for military service touches on all aspects of societal existence, including religion, economics, and notions of equality.
After the Holocaust and the establishment of Israel, there was an urgent need to rebuild the Torah world, which had been decimated during the war. Israel’s first prime minister and defense minister, David Ben-Gurion, adopted a military draft deferment for haredi yeshiva students who pledged that their sole occupation was the study of Torah. The number of eligible deferments grew from under 400 a year before 1970 to more than 60,000 a year by 2010.
In 1998, the Israeli Supreme Court took up the issue of the legality of these deferments, explaining that the rationale for them no longer existed. Supreme Court president Aharon Barak argued in Rubinstein v. Minister of Defense that the “yeshivas are flourishing in Israel, and there is no serious worry that the draft of yeshiva students, according to any arrangement, would bring about the disappearance of the [yeshiva] institution.”
Barak further argued that those haredi men who did not remain in yeshiva were not seeking employment due to their fear of being drafted, thus creating a community ravaged by poverty and largely dependent on the government for subsistence. His sentiments were echoed by Justice Elyakim Rubinstein in the 2012 decision of Resler v. Knesset:
Nevertheless, we need to admit the truth, [that] unlike in the Jewish-Haredi society in other countries, which has understood that only a few brilliant individuals can live under the tent of Torah all their lives, in Israel a whole complicated sociological system has been built that even its leaders know, deep in their hearts, is not good and not appropriate, that because of military duty thousands of people sit in the yeshivas, where it is not their place…. these people, if they served in IDF, and if they worked like any other person while also making time for Torah [study]…would be efficient both to the State, to their community, and to themselves.
The nature of the debate, beyond the economic and practical necessity of employment, revolved around the conflict between two competing basic rights: the right to freedom of religion, via the pursuit of religious studies, and the right to human dignity, via an equitable public sharing of the burden of military service. The controversy sparked widespread upheaval, pitting those who serve for three or more mandatory years of military service from age 18-21, followed by decades of reserve duty, against those who perform no military service at all.
Following the 1998 Rubinstein decision, which found that the military draft deferments lacked any specific legal authorization, the “Deferment of Military Draft for Yeshiva Students Whose Occupation is the Study of Torah Law” (the Tal Law of 2002) was enacted. The law authorizes the defense minister to defer the military service of any Israeli national who requests it, provided he studies in a yeshiva on a regular basis for at least forty-five hours a week and does not engage in any other occupation.
The debate did not end upon the enactment of government legislation sanctioning these deferments. The Israeli Supreme Court, in the 2006 case of Movement for Quality of Government v. Knesset, weighed in on the Tal Law, holding:
[a] grant of a swift deferment – which over the years transforms into an exemption from military service – for thousands of persons eligible for military service based only on reasons of study in a yeshiva constitutes harm to the equality of everyone in the majority group who is subject to military service. The distinction among persons designated for military service based on a religious worldview is discrimination without any relevant difference.
Though the court recognized the basic right of freedom of religion, it ruled that such human rights are not absolute and can be violated by a law “befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”
About the Author: Charlie Miller is a criminal defense attorney in New York. He served on active duty for six years in the United States Navy from 1994-2000 as an officer in the Judge Advocate General’s Corps, including a year in the White House as a military aide to the president. He is a national board member of the National Council of Young Israel.
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