The U.S. Supreme Court has taken a similar approach concerning the limiting of fundamental constitutional rights, requiring that any such infringement serve a compelling government interest and be narrowly tailored to serve that interest. In upholding the Conscription Act of 1917, mandating military service for men of suitable age, the court, in Arver v. United States, unanimously recognized the Constitution’s delegation to Congress of the power to declare war and to raise and support armies. The court also recognized the principle of the reciprocal rights and duties of citizens:
It may not be doubted that the very conception of a just government and its duty to its citizens includes the reciprocal obligation of the citizen to render military service in case of need, and the right to compel it.
The U.S. law was universal. Its subsequent repeal, when the nation adopted an all-voluntary military service, did not change its legality. And the country maintained a mandatory selective service registration.
The Israeli Supreme Court revisited the viability of the Tal Law in 2012, holding that the law violated the right to equality and that the Knesset could no longer extend its application. The repeal of the Tal Law required the government to attempt to introduce alternative legislation to stop the differential treatment extended to sectors of the public. It also created momentum for the absorption of the haredi community into the workforce and national or military service.
The recent election brought into the government the HaBayit HaYehudi (Jewish Home) and Yesh Atid (There is a Future) parties, under the leadership, respectively, of Naftali Bennett and Yair Lapid. While holding differing philosophies on certain core issues, the two parties are united in seeking to end inequality in shouldering the military burden.
The legislation they’ve been hammering out would put an end to the rampant military exemptions within the haredi community. Haredi men would be allowed to postpone military or national service for three years, until the age of 21, during which they will still receive state funding for their Torah learning. Following this period, a maximum of 1,800 exemptions per year would be granted for the most talented haredi Torah scholars, with the rest doing either IDF service or civilian national service.
Bennett rejects the notion that haredim are doing their equal share by remaining full time in the yeshivas. “My haredi brothers, army service is also a mitzvah, no less than that,” he says, adding that “the current situation in which thousands of haredim do not serve or work cannot continue. It’s not ethical and it’s not sustainable.”
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The Netzah Yehuda Battalion, also known as Nahal Haredi, founded in 1999, is a fully functioning battalion of haredi combat troops established within the IDF to accommodate the religious needs of these soldiers. By all accounts, the battalion functions effectively. In 2007, the Israeli Air Force began the Shahar Program, which integrates haredi youth into technological, logistics and intelligence service for the military, while training them to incorporate these skills into civilian employment. There is no reason why such concepts cannot be implemented on a much larger scale within the IDF.
Bennett’s mention of the mitzvah of military service stems from the words of the Mishnah in Sotah and in Parshat Shoftim. The Mishnah mentions two types of military conflict: obligatory wars (milchemet mitzvah) and discretionary wars (milchemet reshut). According to the Rambam, obligatory wars were those fought by Joshua to liberate Eretz Yisrael from the Seven Nations, the war to eradicate Amalek, and wars “to defend Israel against an enemy that attacks.” A discretionary war would be one undertaken to obtain some other objective, such as extending the borders of the state.
The parshah discusses the nature of warfare and the limited military exemptions during times of discretionary armed conflict. The kohen addresses Israel in collective terms and then advises the military officers to speak to the people, enunciating four exemptions from battle. The first three deal with newly built homes, newly planted vineyards, and the first year of marriage – during which the mind of the would-be soldier is not directed on the mission ahead. The fourth exemption is for the fearful and fainthearted, lest such a person instill the same fear and uncertainty in other soldiers.
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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