Israeli Supreme Court Justice Alex Stein, considered the most conservative and anti-activist member of the court, the celebrated 2018 appointment by then Justice Minister Ayelet Shaked, was selected to write the High Court of Justice ruling compelling the state to hold a disciplinary hearing against the chief rabbi of Tsfat, Rabbi Shmuel Eliyahu, for incitement to violence and racism.
Stein’s appointment was marred by several controversies, one of which was a (deleted) Facebook post criticizing the Israeli Supreme Court’s activism. Although he isn’t religious, Justice Stein’s most controversial ruling to date has been his endorsing a Rabbinical Court’s assigning of property which had been owned prior to the marriage by the husband in a divorce case – because the wife had an extramarital affair and thus forfeited the right to her share.
So, if Justice Alex Stein says you’re inciting to violence and a racist, you can take it to the disciplinary hearing committee. Mind you – Rabbi Eliyahu is not facing criminal charges over his right to free speech, he is being tried as a civil servant who must adhere to a modicum of government demand for decorum.
Judge Alex Stein noted that the petitioners – the Reform Center for Religion and State, the Tag Meir Forum, the Anti-Racism Headquarters, and the Association for Civil Rights – presented to the court more than a hundred controversial public statements made by Rabbi Eliyahu over more than a decade.
Justice Stein divided the remarks into several areas.
In a segment of his ruling entitled “Threats, incitement, defamation and statements condemning entire populations,” the judge noted Eliyahu’s statement to Galei Israel radio from December 2018: “Nowadays we must make an effort that everyone who raises a hand against a Jew is killed, revenge must be exacted. And even if he did not kill, but only hit or wanted to kill him […] even in our time, it is important to arrange the law so that it is clear to everyone, including the murderers, that a terrorist who came to kill Jews – that will be their end. It is a duty and a mitzvah for the soldiers and policemen and civilians to finish them off. Not neutralize them and not control them, but to take them out of this world. And whoever protects them – brings bloodshed into the world.”
Rabbi Eliyahu posted a video on YouTube in which he said about the Arabs: “Wherever they see Jews they kill, they don’t care about Jews in the country or Jews in Tel Aviv or Elon Moreh or Paris or Buenos Aires, it doesn’t matter to them.”
“These and similar statements are not protected by the permit to convey halachic messages given to city rabbis,” Justice Stein ruled. “This is because these statements include words of contempt and incitement that are not a matter of Torah and Halacha.”
The judge then quoted Eliyahu’s statements which expressed a political position, supporting candidates or parties in connection with an election campaign, even though city rabbis are not allowed by law to take part in any kind of propaganda.
Last July, Rabbi Eliyahu signed a statement expressing endorsing Rabbi Rafi Peretz, head of Habayit Hayehudi, and expressed his support for him in an interview with Army Radio.
The third type of remarks made by Justice Stein is those that blatantly criticize senior officials in public authorities, as well as judges in civilian and military courts. “The damage from a public trustee’s blatant criticism of government policy and systems is twofold,” Justice Stein wrote. “First, there is a nucleus of anarchy in such a critique by an insider. Second, blatant public criticism leveled by a public official against state institutions undermines public trust in the civil service.”
Justice Stein’s ruling, joined by Supreme Court President Esther Hayut and Justice Yitzhak Amit, who also served on the panel, stated that between 2017 and 2019, Rabbi Eliyahu was summoned for “clarification and warning” talks before Justice Ministers Ayelet Shaked and Amir Ohana, who stopped short of making him face a disciplinary board.
“The failure to make Rabbi Eliyahu face disciplinary action for his prohibited statements, the examples of which have been given above, and only for such statements, was extremely unreasonable,” Stein levied the charge at the very woman who fought for his appointment.
But along with the above harsh rebuke, Justice Stein also noted that “some of Rabbi Eliyahu’s statements, which include harsh, even blunt, statements intended to convey a halachic message to his congregation, do not necessarily amount to a disciplinary offense. These statements express a very negative attitude – to the point of contempt – toward the phenomenon of the assimilation of Jews and the LGBT community, favoring a halachic ban on the sale and rental of Jewish property to the Arab population, and against women’s singing,” and “condemnation of women’s service in the IDF,” Judge Stein continued.
“In my opinion, statements made by a rabbi in Israel from his national-religious perspective, as well as all those statements that come to convey a halachic message to an audience of the rabbi’s believers – no matter how harsh and blatant – do not amount to disciplinary offenses.”
Stein also wrote on this subject that “it is permitted for the rabbi in Israel, as part of his rabbinical freedom of expression and as part of his job, to speak from his own national-religious perspective, to say words of Torah according to the best of his understanding.”
He added: “Are the members of the LGBT community, women serving in the IDF, Jews who lead their lives according to universal or other values, after distancing themselves from the tradition of our ancestors, as well as non-Jewish citizens, such as the Arab population going to be offended by the words of Rabbi Eliyahu that do not amount to a disciplinary offense due to the fact that they are a religious message allowed to the rabbi? I think so, and yet we will not rebuke the rabbi on their behalf. This burden is the necessary price we all have to pay so that we will not be silenced when we want to speak openly so that we will not be blocked on our way to a house of prayer, a demonstration or a pride parade, and so that we can continue to live our lives as free people.”
Frankly, this ruling revealed what an intellectual asset Justice Alex Stein has been to the Supreme Court, and how it takes a calm, conservative thinker to express liberal values the way they were intended by the 18th century’s great thinkers.
Rabbi Eliyahu, who serves as a member of the Chief Rabbinical Council, said in response to the High Court’s ruling that he would not back down from the things he said that led to it. “We did not expect a different ruling from the court,” he said, making no distinction between a secular conservative justice and a dyed-in-the-wool, anti-religious leftist. “If it’s a matter of freedom of speech for leftists, the court will protect those who depict the prime minister with a noose. But when it comes to the right to free speech of religious people or rabbis – we have no chance with them – because everything there is political.”
That, in itself, was great injustice against Justice Stein, who analyzed brilliantly the nuances of what a city rabbi who is paid by the state may or may not be free to say. Should Rabbi Eliyahu bother to read the actual ruling, he would surely understand this.
Rabbi Eliyahu then added insult to injury, saying that “this court will always protect infiltrators, terrorists, prevent the destruction of murderer’s homes, protect Bedouin who build on Jewish lands. You will never catch it protecting Sephardi Jews or those living in the periphery. It will always find a reason to demolish the homes of settlers. We have no confidence in this court. It is a political court.”
Alas, while many of Rabbi Eliyahu’s accusations are true, the reason for the majority of these High Court of Justice decisions have to do with the cowardice of the rightwing Knesset factions, most notably the Likud, which creates whole swaths of ambiguity regarding the liberated territories, opening the door for the court. He should probably be going after Rabbi Rafi Peretz, who continues to serve in a Netanyahu government that reneged on its grandiose promise to the settlers to make them equal with the rest of Israel’s citizens.
The lawyers who filed the petition, Orly Erez Lechowski and Uri Narov were delighted with the ruling, but they, too, ignored the fact that Justice Stein endorsed Rabbi Eliyahu’s right to call for a ban on selling or renting apartments to Arabs as part of his halachic understanding. So, in the end, both sides in this fight didn’t bother to read the ruling.