3.1.1 Cities Using Their Powers While Taking into Account Religious Considerations: Between a ‘Nationwide Problem’ and a ‘Local Matter’

As a general rule, as already noted, the Supreme Court has ruled that the state must abstain from giving dominance to religious considerations unless explicitly authorised by the legislator to do so.Footnote ³⁶ The same rule applied also to cities as administrative agents. The issue of cities taking into account religious considerations was raised most predominantly in the context of selling pork. Given the importance of the religious prohibition on eating pork in Judaism (and Islam), localities throughout Israel have tried to limit its sale within their jurisdiction. Lacking any specific authorisation to do so, they tried to regulate the sale by using their regular business licensing powers. In Axel v Netanyah, the Court voided the city's prohibition on the selling of pork within its jurisdiction, ruling that it had not been specifically authorised to prohibit such sale by the legislator.Footnote ³⁷

But the Court went further. Instead of merely repeating the formal rule according to which religious affairs required explicit authorisation by the Knesset, President Olshen based his decision on the fact that religious matters, such as the prohibition on selling pork, were not a ‘local’ matter. In fact, Olshen ruled that religion is ‘a general, nationwide problem that is not specific to a particular place, and its solution is within the exclusive purview of the national legislator’.Footnote ³⁸ Although the Court has repeated this reasoning in other cases, it has not explained why selling pork is a ‘nationwide problem’ that requires the attention of the Knesset.Footnote ³⁹ Perhaps the Court hinted at the fact that the entire nation is interested in the outcome of the judicial battle over outlets that sell pork, and that every Israeli citizen has a strong opinion with regard to the selling of pork. But are these considerations enough to centralise the issue and take it out of the hands of localities? Normally, other reasons are mentioned in order to legitimate central control over an issue: the existence of externalities and spillovers, the need to co-ordinate between several locations, and the need to protect minorities from abusive local majorities. While the first two reasons seem irrelevant to the consumption of pork (it involves no tangible externalities on other localities and there is no need to co-ordinate it nationally), it is possible that the Court wanted to protect secular minorities from local religious majorities.Footnote ⁴⁰

Axel thus establishes a structural principle according to which religious liberty and the regulation of religious matters should not belong to localities, but should rather be seen as a nationwide problem, requiring central solutions. This principle, however, I argue, was severely undercut by a competing principle which the Supreme Court developed.

This competing principle was that, even though religion was a ‘nationwide problem’ that required explicit authorisation by the legislator, the authorised governmental agency was in fact at liberty – and sometimes even under a duty – to take into account religious considerations, whenever they were relevant for the efficient and professional use of power. In The League for the Prevention of Religious Coercion v The City Council of Jerusalem, the Court was faced with a challenge to the decisions of the city of Jerusalem and of the regional traffic controller to close several street sections in Jerusalem during the Sabbath.Footnote ⁴¹ The petitioners argued that the city and the traffic controller were prohibited from taking religious considerations into account when using their professional authority to close down streets. The Court rejected this claim, ruling that there is nothing wrong in considering the interests of the religious residents who live near the roads and balancing them against other considerations such as the volume of traffic and alternative roads, among other considerations.Footnote ⁴² Although there is no doubt that the city and the controller ‘took into account interests which are religious by nature’, they were allowed to do so, opined the Court, as long as those considerations pertain to a ‘significant’ part of the population.Footnote ⁴³

In Baruch v Tel Aviv District Traffic Controller (Baruch), which also had to deal with the closure of numerous roads and streets during the Sabbath, the Court affirmed a decision made by the professional traffic authorities, since there was nothing wrong in taking into account religious sentiments and the need to protect the religious interests of individuals.Footnote ⁴⁴ In fact, citing Lazarovitz, the Court reasoned that it is possible that, had the authority failed to consider religious needs and interests, its decision would have been invalidated.Footnote ⁴⁵ And, in Horev, although the Court struck down the decision of the traffic controller and the city of Jerusalem to close down a major road during the Sabbath, it did so because they failed to balance the competing interests properly, not because they were prohibited from taking any religious considerations into account. Indeed, the Court ruled that it is acceptable to consider the religious needs of the population, so long as this consideration should not overcome all other considerations.Footnote ⁴⁶

The tension between these two principles stands at the basis of the jurisprudence regarding the role of localities in the regulation of religious liberty in Israel. On the one hand, localities are prohibited from regulating religious practices since it is seen as a nationwide problem requiring the explicit mandate of the legislator; on the other hand, since many of these issues pertain to religious local populations for whose safety and interests the locality is responsible, local governments are necessarily empowered to take religious considerations into account. Thus, the Supreme Court oscillates between prohibiting localities from weighing religious considerations and allowing them to do so.

Such judicial oscillation is evident also in the area of sex-oriented businesses and other religiously objectionable establishments. The Druze village of Ussafiyah decided to issue a business licence to a coffee shop on condition that it would not play ‘western music’. Despite clear evidence that the decision was based on religious prohibitions – no alcohol was allowed either at the coffee shop – the Court ruled in Halon v Ussafiyah that it was legal for the locality to do so, since ‘we see no justification to deny the elected body's right to maintain the unique characteristics of its village … according to the spirit and the culture of the vast majority of its residents’.Footnote ⁴⁷ Although the Court casts these religious prohibitions in cultural terms, it is rather obvious that the prohibitions are indeed religious in their origin and in their nature. The ‘majority’ to which the Court refers is not a ‘cultural’ group, but a religious one – the Druze. Put differently, I think it is hard to be convinced by the Court's attempt to legitimate the application of religious norms by merely calling such norms ‘cultural’; it seems more plausible that the Court is willing to accept the adoption of such norms by governmental agencies when dealing with small religious communities.

And, indeed, in another case the Court was much less willing to accept the legitimacy of such religious/cultural considerations. In SZM Ltd v The Mayor of Jerusalem, the Court invalidated the decision of the Mayor of Jerusalem, operating as the local licensing board, to deny a sex shop a business licence.Footnote ⁴⁸ Distinguishing the case from Halon, the Court reasoned that, while the village of Ussafiyah is rural and the majority of its residents share the same ‘culture and traditions’, Jerusalem is a ‘mixed and diverse’ city that has no ‘unified life style’.Footnote ⁴⁹ Hence, it seems that the Court is indeed willing to give more deference to local governments which represent religious minorities than it is to those which represent religious majorities. The Court, however, did not only distinguish the two cases; it also qualified and modified the general principle, limiting the city's ability to take into account religious and moral considerations. Such considerations were permissible only where there was a ‘serious harm to the religious sentiments of a majority of the people’ living near the controversial establishment.Footnote ⁵⁰

3.1.2 Special Enablement Laws

The tension between the competing principles articulated above has spurred different responses among localities, with some taking a more active role in establishing religion and accommodating religious sentiments and others either being inactive in this regard or even expressing their secularity and hostility towards religion. But another result of these evolving principles was that the Knesset enacted numerous special laws that explicitly enable localities to shape the public space within their jurisdiction in a religious fashion. Thus, over the course of the years, the Israeli parliament has enacted special permissions for localities to limit, or even prohibit, the sale of pork in their jurisdiction,Footnote ⁵¹ and to take into account ‘religious considerations’ when they grant business licences and determine the ability of establishments to operate on religious holidays and days of rest.Footnote ⁵²

The decision to authorise localities to regulate the selling of pork and the closure (complete or partial) of shops on the Sabbath was the result of intense political fighting between secularists, nationalists, moderates and religious politicians.Footnote ⁵³ Until 1992, parliament was unlimited in its legislative capacity. Nonetheless, there were political constraints which prevented the adoption of laws establishing religion: religious parties were a minority in the Knesset and were unable to pass a nationwide prohibition on the sale of pork or on various activities on religious days of rest. Thus, these enabling laws were a compromise between religious and secularist members of the Knesset.Footnote ⁵⁴ At the national level, this compromise seems to have worked: the Knesset has not attempted to enact a nationwide prohibition on the selling of pork or on operating businesses on the Sabbath in almost over two decades, since the 1990s.

The battle shifted from the Knesset to elsewhere. Following these special authorisations, many localities throughout Israel enacted bylaws which severely limited the selling of pork within their jurisdiction,Footnote ⁵⁵ and which put serious restrictions on the operation of various businesses during the Sabbath. Other localities, however, actually allowed more and more businesses to open during the Sabbath and were filled with butcheries that sell pork. Indeed, one of the most obvious effects of these special enablement laws was a growing divergence among cities with regard to religious prohibitions. While some became more religious, others simply did not use, or used minimally, these laws and expressed their overt secularism. In other cities, however, wars of religion broke out, with residents trying to coerce the locality to adopt their view.Footnote ⁵⁶ These battles were particularly noticeable where the demographic composition of the population was less homogeneous.

Especially in the case of pork, ‘pig wars’ have broken out throughout the country since the 1990s, making this issue salient and alive at the local level (and thus also at the central level). The reasons for this were legal, political and social. First, religious parties increasingly wanted to use their political power to exert more influence over the shaping of public areas in Israel (trying to pass laws that would prohibit the selling of pork throughout the state, rather than only in localities with a large religious majority). Indeed, the religious revival and the desire to reinscribe religion into the public sphere did not leapfrog over Israel.Footnote ⁵⁷ This religious revival was strengthened by the high birth rate of the ultra-orthodox Jews, which caused this previously almost insignificant minority to become a visible and substantial minority: in less than two decades (from 1990 until 2008), the percentage of ultra-orthodox Jews rose from only 3 per cent to 9 per cent of the Jewish population of Israel.Footnote ⁵⁸ While this fact enabled ultra-orthodox Jews to exert more political power and influence at the national and local levels, it also created a backlash which was mobilised by ‘secularist’ political parties that fed on the intensification of the conflict.Footnote ⁵⁹

Second, massive waves of immigration from the former Soviet Union changed the demography of Israeli society in an unprecedented manner. Within less than a decade, about one million immigrants arrived in Israel. These immigrants were highly secularised and shared very little religious customs with the ‘traditionalist’ Jews (often of Mizrahi descent) or with orthodox Jews. Their distaste for religious prohibitions, such as pork laws and religious marriages, became a political agenda which the parties that represented them pursued. Moreover, some of the newcomers were housed in towns which were densely populated with ultra-orthodox Jews or traditionalists. This has caused friction between the two opposing views on public space in sharing a local space and a local jurisdiction.

Third, the enactment of Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty brought about not only judicial review of the Knesset; it also shifted the balance between various basic principles and values of the Israeli legal system, elevating some of them to a protected constitutional status. Thus, it became easier to challenge in courts local decisions which infringed basic liberties. And when cities balanced ‘religious sentiments’ with other rights and interests (such as freedom of contract and the commercial interests of pork sellers), it was argued that they had to modify this balance, following the enactment of the Basic Laws.

Fourth, a shift in the jurisprudence of the Israeli Supreme Court in favour of decentralisation and the delegation of powers to local governments has been taking place since the 1990s. This shift has made the courts more susceptible to ideas according to which local governments could serve as locations for political action, democratic legitimacy and norm setting no less – sometimes even more – than central government.Footnote ⁶⁰

As a result of these new legal battles and the changing circumstances in Israel, the Supreme Court has refined, perhaps entirely reformed, its jurisprudence regarding the local exercise of special enablement laws. In the case of Solodkin v City of Beit Shemesh,Footnote ⁶¹ secular residents and a Member of Knesset from a party identified with immigrants from Russia petitioned the Court, challenging the legality of bylaws which limited, or entirely prohibited, the selling of pork in three localities. The Supreme Court ruled that there are two competing interests which must be balanced by the local government in regulating the sale of pork: it needs to take into account, on the one hand, the freedom of occupation of pork sellers and the right of pork eaters to consume whatever they wish to eat and, on the other hand, the need to protect the religious beliefs and conscience of those who oppose the consumption of pork.

What is unique about this balance, the Court added crucially, is that the legislator vested it in the hands of the local authority, which means that a special balancing needs to be carried out: one which would take into account the unique demographic composition and geographic dispersion of the local populace throughout the local jurisdiction. The maps drawn by the municipality of where pork may or may not be sold should reflect this demographic balance. The Court ruled that if there exists only a ‘tiny minority’ of ‘pork eaters’, the locality can prohibit it altogether, since they can either purchase pork in a nearby village, or they can choose to leave the locality and live in a another place where they could form a majority. The same goes for the internal division of the locality: if homogeneous neighbourhoods can be found within the local jurisdiction, the local government can prohibit (or permit) the sale of pork within these neighbourhoods.Footnote ⁶²

The Solodkin decision thus further localised religion. It pronounced a very clear principle according to which the balance between freedom from religion, freedom of occupation and religious sentiments is a ‘local matter’, which is to be based on local facts, such as demography and geography. Yet, it also localised religion in the sense that it fragmented each locality into smaller ‘locales’, requiring a more nuanced regulation, based on the character of each neighbourhood within it. What is particularly striking about the test that the Court adopted is that it is based on social science positive data regarding the demography and geography of the place rather than its history, context and character, or on real normative evaluation of the competing interests, values and rights. In this regard, although it might be said to leave only little discretion in the hands of the local governments, there is still room left to manoeuvre since the locality gets to decide the issue, even if theoretically it could be checked by courts retrospectively.

Hence, the Solodkin decision incentivised religious and secular local groups to obtain a clear majority in the whole locality, or at least in the neighbourhood where they lived. It has put a premium on homogeneous, ‘pure’ spaces and posited, perhaps unwittingly, an ideal of ‘geographic separatism’, as Rosen-Zvi claims.Footnote ⁶³ Following Solodkin, it was argued before the courts that municipalities that wish to open synagogues and other religious public facilities should do so only in religious neighbourhoods.Footnote ⁶⁴ Although the Supreme Court rejected this claim, the message sent by the Court in Solodkin was that if people want to have a residential environment that would fit their religious (or secularist) preferences, they should advance homogeneity in their locality or at least in their neighbourhood.

3.1.3 Taxation and Spending

Another extremely important area in which local governments constantly reflect and express their religious beliefs and sentiments is through taxation and spending, both of which lie well within the traditional powers of local governments in Israel and throughout the world. In their application of these powers, too, cities use religious considerations and try to benefit their favoured religions, provoking a fierce debate in courts, in the executive branch and in the parliament. In Yekutieli v Minister of Interior, local tax exemptions and deductions for residents of Jerusalem were challenged.Footnote ⁶⁵ The basis for these exemptions were regulations promulgated by the Minister of Interior – a member of the ultra-orthodox Shas party – in which he enabled localities to exempt two groups of persons from local property taxes. The first group included those who dedicate their entire time to the study of the Jewish religious texts; the second group included families with four or more children. The Jerusalem local council/municipality decided to use its power to grant these exemptions. Both exemptions benefited ultra-orthodox Jews, as families with that number of children almost exclusively belong to the ultra-orthodox community. While the legal challenge was raised against the Minister of Interior as well as against the Jerusalem local council/municipality, it was clear that the main problem was not with the way in which the city applied the regulations – they were very straightforward and clearly empowered the city to give such exemptions – but against the regulations themselves.

The Supreme Court invalidated the regulations, ruling that they violated the principle of equality which every governmental entity has to respect. Exempting ultra-orthodox Jews from paying local taxes imposes a heavy burden on the rest of the local population. If the state wants to give ultra-orthodox Jews or Jewish religious scholars tax benefits and exemptions, it should do so in primary legislation of the Knesset and not in executive regulations. This legislation, too, might be subject to judicial review, but what the legislator – which enjoys greater judicial deference – might be allowed to do is clearly not permissible for the executive branch. The Court explained at length why local governments should not be allowed to decide for themselves on local tax breaks: since they are smaller and therefore depend on solidarity, they cannot afford to alienate groups by discriminating against them, and they have a tighter budget and therefore cannot afford any breaks at all.

Indeed, the issue of local tax exemptions and deductions has long been centralised and taken out of the hands of localities – whether the exemption is religiously motivated or not. The reasons for this are numerous, and undoubtedly involve the fear that some localities will abuse these powers and simply go bankrupt, believing that the government will bail them out. But the fear that local majorities will use their powers to exempt themselves and milk minorities is also significant. Yet, despite the formal prohibition on localities to grant tax exemptions and deductions, they try to use their taxation powers to benefit various religious communities. For example, they can expansively interpret the tax break given to synagogues, churches and mosques (by the Knesset), or they can interpret it narrowly.Footnote ⁶⁶ Since the current exemption is given only to ‘synagogues’ (and other places of religious worship), some localities impose local taxes on buildings that only partly serve as synagogues. Other localities, on the other hand, read the exemption very generously, thus giving tax breaks to wedding parlours and other establishments that dedicate a small room for a synagogue and claim the exemption on this basis.Footnote ⁶⁷ Cities can also act informally by, for example, measuring and assessing religious property with greater lenience, refraining from collecting the taxes, and so on.

Compared, however, with the relative centralisation of local taxation and the ensuing difficulty of cities to infuse taxation with religious motivations and preferences, cities are more easily able to use their spending power, and to allocate their property, in a manner that expresses their religious sentiments. As a legal matter, it is not only legitimate but also desirable that localities spend their money on projects which they deem appropriate. Indeed, except for municipal services which they are required to provide by law, local governments are expected to form a budget which is based on the unique local preferences and needs of their residents. And if those residents happen to be religious and wish to spend money on religious enterprises, it is legal for the local government to do so. However, once a locality decides to spend money on a religious enterprise, it must not discriminate between the different religions. This legal principle enables localities to express their religiosity by giving money to synagogues, churches and other religious enterprises. And, despite the requirement to allocate money and other municipal resources ‘equally and transparently’, this is a source of much contention and legal battling.

As early as the 1960s, the Supreme Court ruled that, while a locality was allowed to let religious activities take place within its property, it could not discriminate between different Jewish denominations, and had to give them equal access. In Peretz v Kfar Shemaryahu the Court invalidated the decision of a small and affluent Jewish suburb to refuse a group of reform Jews (a modern, non-orthodox Jewish denomination) to hold prayers in the synagogue owned by the suburb.Footnote ⁶⁸ A city was under the duty to treat all its residents with equality, regardless of their religious denomination. Freedom of religion meant, the Court ruled, that each religious group was entitled to the same treatment by the locality; it meant that no one religion could be preferred over another.Footnote ⁶⁹ The fact that the religious sentiments of orthodox Jews might be hurt by a Reform prayer – since they find it offensive and sacrilegious – is insufficient to disallow reform Jews from holding prayer, as they have religious sentiments, too, that are obviously hurt when refused from using the suburb's property.Footnote ⁷⁰

Thus, alongside their support for religious activities which they favour, localities have made an attempt to refrain from budgeting for activities which were offensive to their religion, even though they could not openly admit that because of their duty to allocate their budget and land equally. In the case of Jerusalem Open House v City of Jerusalem (Jerusalem Open House), such discriminatory local practices came under the scrutiny of the Supreme Court. The Jerusalem Open House, a local LGBT (lesbian, gay, bisexual and transgender) organisation, has been leading a long and protracted legal campaign, challenging the refusal of the city of Jerusalem to fund its activities.Footnote ⁷¹ Over the past two decades Jerusalem has undergone a tremendous demographic transformation of ‘ultra-orthodoxisation’: the percentage of ultra-orthodox Jews in the city has increased dramatically as a result of migration and the natural growth of this community and of an exodus of secular and moderately religious Jews.Footnote ⁷² Ultra-orthodox parties form a rather solid coalition at city hall and, from 2003 until 2008, the mayor of Jerusalem was an ultra-orthodox Jew (Mayor Lopolyanski). Although Jerusalem denied that it was motivated by religious sentiments, the Open House's requests for municipal support were consistently refused. The city argued that all the budgetary allocations that the Open House applied for were either irrelevant considering the activities of the organisation, or that the organisation simply did not meet the standard that the locality was aiming for. A District Court Judge accepted the city's claims, ruling that the city had ‘equal and transparent’ guidelines which did not discriminate against gays and lesbians; they simply did not fit the specific activities that the Open House wished the city to fund.Footnote ⁷³

The Supreme Court overruled the District Court's ruling and ordered the city to revise its policy and allocate equal funds to the Open House. In a groundbreaking decision, Justice Amit adopted the American ‘strict scrutiny’ test, finding that gays and lesbians are a ‘discrete and insular minority’ deserving special protection. Historically oppressed, discriminated against, politically underrepresented and geographically dispersed, gays and lesbians are worthy of unique protection.Footnote ⁷⁴ The reason for Justice Amit needing to adopt the special review test was that it was very difficult to find any intentional discrimination against the Open House. Indeed, the broad fiscal powers of cities enable them to reflect religious sentiments by tailoring the criteria for spending in a manner that will exclude activities which are abhorrent to its religious creed. Thus, Jerusalem could refuse the funding requests of the petitioner by carefully crafting the ‘objective criteria’.

Although the Supreme Court ruled that the Open House was discriminated against and that it should receive funds from the municipality, the case actually illustrates the ease with which local governments can overcome the prohibition to refuse funding based on religious animus. Despite the fact that overt discriminatory criteria-crafting would be deemed unlawful, in many such cases discriminatory intent or impact would be very hard to prove and localities will thus be able to reveal their religious sentiments.

The combination of their regular local powers, special enablement laws and fiscal powers of taxation and spending makes localities prime sites for the consideration of religious sentiments and for the regulation of religious liberty in Israel. Cities prohibit or allow the sale of pork meat, limit or permit the opening of stores on the Sabbath and other religious holidays, ban or sanction sex stores, close down or open up roads during the Sabbath, and spend money on and give tax breaks to synagogues or LGBT centres. Given their democratic structure, they are responsive to demands made by their residents. It is therefore imperative to understand the demographic composition of localities in Israel, and analyse how the law constrains and shapes them.

3.2.1 History and Market Forces that Support Segregation

Historically, in the nineteenth century, ultra-orthodox Jews lived in separate neighbourhoods, which were later recognised by the British mandate authorities as independent localities. Christian Arabs and Muslim Arabs also often lived in separate villages and towns. The market values of houses in Arab villages and neighbourhoods (Christian as well as Muslim) and in ultra-orthodox Jewish areas were significantly lower than those of houses in central Jewish secular communities. There were also vast discrepancies among the different social groups in terms of funds available for purchasing an apartment: the income levels of Arabs and ultra-orthodox Jews were significantly lower than those of secular Jews.Footnote ⁷⁹ The social capital of the former groups was similarly low. Accordingly, Arab or ultra-orthodox homeowners who sought to sell their houses and purchase homes in a Jewish town would be forced either to compromise on the size of the new house (if they succeeded in finding a smaller one, and live in crowded quarters), or else live in a poor neighbourhood in which the schools and other municipal services are inferior.Footnote ⁸⁰

Thus, ultra-orthodox Jews, Christians and Muslims were economically ‘steered’ to reside in communities where they could afford to buy or rent. Often, these localities were similar to those in which they were born, since they reflected their purchasing power. This is not to deny that individual preferences influenced these choices, but merely to suggest that economy, too, played a role in the perpetuation of religious segregation in Israel.

3.2.2 Formal Exclusionary/Segregationist Mechanisms

While undoubtedly individual preferences to live with one's peers and within one's economic means play a significant role in determining one's residential decision, the state of Israel adopted various mechanisms which incentivised and even forced people to live within their communities. First, ultra-orthodox Jews were formally excluded from many rural secular settlements; second, secular Jews were excluded from ultra-orthodox towns.

The exclusion of ultra-orthodox Jews from secular – and even modern-orthodox – settlements was a by-product of the unique legal structure of rural settlements with state-sanctioned screening boards. Concerned with the concentration of the majority of the population in the centre of Israel, and worried about the scarce ‘Jewish presence’ in its northern and southern parts, the state began to establish dozens of new settlements in the rural periphery of the country.Footnote ⁸¹ Since the state owns 92 per cent of the land in Israel, it could easily implement this policy by allocating land in these remote areas to groups of individuals who organised themselves as collective associations. These associations would regularly appoint ‘acceptance committees’ (screening boards) that interviewed candidates and decided who could become a member of the association and purchase land in the settlement. The contracts that the residents signed with the collective association and the Jewish Agency (the official owner of some of this state land) regularly included restrictive covenants, requiring the consent of the screening board for any future land transaction. But most crucial was the condition that most associations included in their minutes and founding documents, which was that the candidate had served in the Israeli military.

While this condition was mostly aimed at excluding Arabs from these settlements, it incidentally excluded ultra-orthodox Jews who, by and large, very seldom serve in the army. The military service requirement was voided by the Court as being unconstitutional in the famous Kaadan case for violating the principle of equality.Footnote ⁸² However, such screening boards are still alive and well. They use various mechanisms, including psychological evaluations and other tests designed to examine the candidate's ‘fitness’ for the settlement in order to exclude various individuals. Indeed, it was only in 2011 that the Knesset passed a law which formalised the right of small settlements (that is, with fewer than 400 families) to screen their residents based on their ‘fitness for community life’ and ‘fitness for the social fabric’ of the settlement.Footnote ⁸³ Various studies show that such screening processes serve to exclude individuals belonging to minority communities.Footnote ⁸⁴ In some cases, even religious communities living in such settlements – religious-Zionist communities who do serve in the military – have used their screening boards to exclude ultra-orthodox Jews.Footnote ⁸⁵

Perhaps more surprising than the exclusion of ultra-orthodox Jews from various rural settlements is the relatively new policy according to which secular Jews cannot buy property in new ultra-orthodox cities. In the face of increased housing shortage among the growing ultra-orthodox community, the Israeli government began, during the 1990s, to construct new towns to meet the demand. Both within Israel proper and in the West Bank, the state allocated lands to erect new ‘ultra-orthodox’ towns. The state adopted a clear policy of allowing only ultra-orthodox Jews to purchase apartments in these towns. The screening, it should be noted, was not carried out by acceptance committees but rather by the contractors who won the government tenders and who built the various real estate projects.

When this government policy was challenged by secular Jews, the Supreme Court ruled, in Am Hofshi v Ministry of Building and Housing, that as long as secular Jews could purchase an apartment with the same government benefits, it was legal for the state to adopt and implement a ‘separate but equal policy’ on condition that it was aimed at enabling the religious community ‘to sustain its [unique] ways of life’.Footnote ⁸⁶ The Court stressedFootnote ⁸⁷ that recognising the right of the religious community to sustain its lifestyle

This ruling proved to be of crucial importance, as it opened the gate for the establishment of more and more settlements solely for ultra-orthodox Jews.Footnote ⁸⁸ In other cities, new ultra-orthodox neighbourhoods are being constructed. Although this segregation is often presented as self-segregation – there is indeed no doubt that many ultra-orthodox Jews seek such radical segregation – the fact that it is mandated by the government makes it hard to assess whether it is voluntary or not. It seems plausible that at least some ultra-orthodox Jews would have chosen to have secular neighbours; and it is possible that some secular Jews would have liked to live near ultra-orthodox Jews. Indeed, according to a recent survey, only 61 per cent of ultra-orthodox Jews prefer to live in purely ultra-orthodox settlements; the rest – a significant minority counting for 39 per cent of the community – would rather live in integrated localities. Among the general population there is even greater willingness to live in integrated areas, with less than the majority (48 per cent) preferring not to live near ultra-orthodox neighbours.Footnote ⁸⁹

4.1.1 Localisation as Protection Against One Religion's Hegemony

The greatest promise of the dispersal of authority to local governments to express and reflect religious sentiments and beliefs is that it would counter and destabilise the monopoly that one dominant religion might have if all political power is held by central authorities. Richard Schragger noted that ‘political decentralization ensures that the national councils do not have a monopoly on the power to regulate religion’ in America.Footnote ⁹⁰ The role of localities in the discourse and doctrine of religious liberty was of crucial importance as it provided incentive for the creation of religious groups, ‘a necessary precondition for the robust competition among sects that prevents any one sect from gaining political dominance in the whole’.Footnote ⁹¹ Indeed, what Madison feared most – the violence of the religious faction – is, claims Schragger, the antidote against the dangers of one religious group becoming all too dominant. Decentralisation is an institutional safeguard – rather than a mere judicially enforced barrier – against the monopolisation of one religion over the entire national territory.

The fact that local governments in Israel have been routinely involved in regulating matters pertaining to religious liberty – much like localities in the United States – has been crucial as a check both on the government's ability to establish one religion, and on religious power to spread through the entire federation. Even if the localisation of religion which I have described in this article has not truly dismantled the hegemony of Jewish orthodoxy, it has still managed to create ‘pockets’ of resistance to this hegemony. Theorised in this way, we can begin to see that localities are, in fact, the only places where non-hegemonic religions are able to flourish and become powerful in Israel, and thus possibly challenge the hegemony that orthodox Judaism currently enjoys. Taking some of the power in religious matters away from central government and vesting it in a multitude of local governments, each applying it somewhat differently, allocating budgets and jobs to non-orthodox strands of Judaism, might have actually weakened, at least to a certain degree, the monopolistic power of ultra-orthodox Judaism. In this view, the greatest threat to religious liberty comes, of course, from central government and the Knesset establishing religion, since it will always be one dominant religion: orthodox Judaism. Decentralisation is the antidote since it incentivises people to form religious sects that would fight against such dominance.

4.1.2 Localisation as Enabling Religious Dissent by Deciding

Given the monopoly that orthodox (even ultra-orthodox) Judaism enjoys in the government and in parliament, there is very little hope that reform Judaism, other Jewish denominations and other religions will ever be able to express their beliefs and norms publicly or assume power positions. Other religions, as well as other Jewish denominations, are discriminated against and suffer from chronic weakness and underrepresentation in central government. However, in cities where religious minorities constitute a locally significant constituency – or even a local majority – that can exert meaningful political clout, they are further empowered and might be thought of as exercising, to a certain extent, self-rule. This point lies at the heart of a compelling argument made by Heather Gerken.Footnote ⁹² Permanent minorities – those that could never become a majority of the votes at the federal level – who radically differ from the majority, she claims, are often thought to be able to do nothing more than voice their dissent or compromise their radical views. They can ‘speak truth to power’ but they can never be powerful.

The American structure of government, argues Gerken, enables such minorities to ‘dissent by deciding’, thus act radically and ‘speak truth with power’.Footnote ⁹³ Permanent minorities can do so since they are enabled to form local majorities, to which the law grants decision-making powers. The strength of dissenting by deciding does not lie solely with the immediate benefits and consequences of a particular action, such as prohibiting the sale of pork meat within one local jurisdiction or allowing women to be elected for a religious council in another. Such powerful local ‘disobedience’ enables religious minorities to give their dissenting viewpoint salience on the national plane. The nationwide ripple effects caused by different religious governmental actions – closing of roads on the Sabbath, but also refusing to enforce religious laws in the case of a secularist locality – are felt at the national level as other communities with similar views follow suit.

4.1.3 Localisation as Deprivatisation

The localisation of religion enables religious minorities to express their values not only in the private sphere but also publicly, albeit at close quarters. Indeed, one of the difficulties with religious freedom is that in secular societies it is often limited to the private sphere, while the public sphere is shaped by the secular majority. And this sphere, although experienced by secular individuals as ‘neutral’ is, in fact, experienced as profane by (some) believers. Streets, parks and other public areas are filled with expressions that are an abomination for (some) religious people. Therefore, in order to create a public sphere that will be experienced as holy by ultra-orthodox Jews, by observant Muslims or by other religious denominations, their localities need also to be able to express their religious values in public.

The broad powers vested in the hands of localities in Israel indeed enable them to create such ‘holy communities’. Control over what shops and establishments operate within their jurisdiction, over the opening of businesses during religious holidays and days of rest, over the closure of roads during the Sabbath, and over the presentation of Hammetz (leavened dough that is prohibited from being eaten and presented during Passover) in public during Passover all afford religious communities the ability to escape the privacy of their homes and engage in public religious lives. This is particularly true for ‘nomic’ communities, to use Robert Cover's term, whose mutual cultural world is not limited to a single and compartmentalised field of action, but rather stretches into a wide range of human activities and guides the group members in the most profound ways.Footnote ⁹⁴ For such communities, only self-regulated and segregated areas can serve as an approximation to their radically alternative utopia. The intense segregation which I have described also contributes to the deprivatisation of religion, as it provides a safeguard against ‘surprises’ in the public sphere. For instance, having only ultra-orthodox around means that modest dress codes are retained also in the streets.

4.1.4 Localisation as Pluralism

Since localities can use their powers to express their endorsement as well as rejection of religious values and beliefs, the range of religious and secular attitudes is broad, reflecting the real plurality that exists among Israelis. According to David Barron, towns and cities should be understood as ‘important political institutions that are directly responsible for shaping the contours of ordinary civic life in a free society.Footnote ⁹⁵ Enabling cities to deal with religious matters is part of such a pluralistic and democratic vision of society. Instead of viewing localities as mere instruments for the protection of individuals against governmental (or private) encroachment upon their negative liberties, we can see them as fostering ‘public freedom’, based on a positive rather than a negative conception of liberty.Footnote ⁹⁶

Harnessing the powers of local governments to advance positively the goals, ideas and desires of religious communities, and not merely to protect individual believers from discrimination, goes beyond negative liberty and affords those religious communities the capability to advance their shared world view and enrich the society with profound diversity. In Israel, especially, such pluralism can indeed be fostered through localising religion, since religion often overlaps with other identity traits such as nationality and ethnicity. Since the majority of Muslims and Christians are Arab, with other denominations that signify ethnicities, the use by localities of their religious authorities can become an instrument for racial and ethnic pluralism. Put differently, these minorities make use of their religious powers to express not merely ‘religion’ but also their cultures. It is therefore no coincidence that in the case of Halon, the Supreme Court refers to the prohibition on western music, which the Druze village imposed on a coffee shop, not as a religious prohibition but as an expression of ‘the spirit and the culture of the vast majority of its residents’.Footnote ⁹⁷ Their empowerment to express religion and the overlap between culture and religion thus enables such minority communities to be able to self-construct and self-regulate, at least to a degree, their shared spaces.

But there is a danger in the reconfiguration of religion into a culture, as it moves it from the realm of actions to the realm of identity: religion is beginning to be understood as an ethnicity or race, rather than as a set of codes, beliefs, norms and practices. Religious norms, practices and motivations are reinscribed as expressions of ‘culture’, and religious freedom is reconceived as cultural autonomy. Religion thus becomes immutable and impossible to change or transform, as this conceptual manoeuvre reifies individual choices and congeals fluid practices. Ironically, secularism is also reconceived as a culture. As the percentage of secular Jews is dropping, and as their political power is in decline, there are more and more voices that try to conceptualise liberal secularism as a culture, perhaps one which is on the verge of being extinct in Israel. In the last round of battles between secular and ultra-orthodox Jews, such claims were made in an attempt to grant secular Jews the desired status of a minority which is entitled to ‘separate’ allocation of land or of an environment free from religious symbols altogether.Footnote ⁹⁸ Although until now such challenges have been rejected by the courts, it is too early to tell what future lies for such attempts.

4.1.5 Localisation as Pacification

In Israel, where radical disagreements exist between competing communities such as ultra-orthodox Jews and seculars and between Jews and Muslims, decentralising religion enables those tensions to be sidestepped, at least partly. Much like in federal regimes, where the decentralisation of various decisions enables vastly different cultures and communities to enjoy some degree of co-operation while maintaining their different cultures, the localisation of religion in Israel allows people of very different religious creeds to share the same national territory. Indeed, where it is impossible – or terribly painful – to reach a national agreement, it is sometimes better to let territorial subdivisions such as local governments decide for themselves. According to this argument, localising religion in Israel mitigates some of the potential tensions between religious communities, thus weakening the violence that might occur had religion stayed entirely centralised.

4.2.1 Localisation as Radicalisation and Fragmentation

Religion, Madison warned, was a particularly ‘virulent form of faction’.Footnote ⁹⁹ As such, it had the potential to do much more than merely curb centralised political power or dismantle religious monopolies; it was one of the greatest risks to the American federation, which needed to be met with crystal clear central norms (constitutional protections of individual rights) and powerful central institutions. Religion was able to move people in the wildest directions, and it could bring about the most destructive ideas.Footnote ¹⁰⁰ Thus, the healthy interreligious competition that we imagined earlier on can deteriorate into a multitude of radical religious factions combating with each other with ever increasing zeal. Madison's cure of ‘extending the sphere’ – enlarging the political units in a way that each becomes more moderate with more people whose ideologies and preferences ‘balance out’ each other's – is supposed to deradicalise the local zeal and result in the moderation of extreme politics in light of the large number of people with opposing views throughout the federation that will balance each other and the restraining effect of federal elites.Footnote ¹⁰¹

Sadly, there is evidence that the Israeli combination of empowering localities to regulate religion and allowing – if not forcing – religious-based residential segregation is spiralling Israel into increased religious and political radicalisation. Religious radicalisation of the ultra-orthodox Jewish communities has recently been documented. There are reports that segregation between men and women is beginning to seep from the public and religious spheres into the privacy of the homes.Footnote ¹⁰² As recently as 2011, the Supreme Court was confronted with another case resulting from the growing religious extremity of the ultra-orthodox community. In Ragen v Ministry of Transportation, a group of orthodox Jewish feminists challenged the practice of public transport providers to force gender segregation on buses that passed through ultra-orthodox neighbourhoods and localities: men were let in through the front door and allowed to sit at the front of the bus, while women had to enter through the rear door and sit at the back.Footnote ¹⁰³ The Court invalidated the practice, ruling that it violated the principle of equality and the antidiscrimination law inasmuch as it was forced upon the passengers. However, if passengers were willingly entering these ‘Kosher buses’ (as they became known) through different doors and voluntarily sitting in different parts of the bus, there was nothing wrong in bus companies accommodating this desire.Footnote ¹⁰⁴

A thorough discussion of this extremely controversial decision and its problematic assumptions regarding voluntary behaviour in such circumstances exceeds the limits of this article.Footnote ¹⁰⁵ What is important to note, however, is that such a radical – and new – practice could not have developed unless a fairly strict spatial segregation existed between ultra-orthodox Jews and the rest of society. Indeed, it is only because these communities live in such insular localities and neighbourhoods that bus companies can cater for this desire. In a more integrated residential environment, secular and moderate orthodox Jews would have revolted or simply disobeyed the practice. Lacking meaningful internal opposition, the spatial insularity of the community enables the most radical elements within it to push forward their extreme policies.

As Madison predicted, unchecked by strong central powers, extremism can spread like fire. Once given the legitimacy of the law, the logic of segregation infiltrates deeper, into other domains of life and into other social groups. Residential segregation is now observed in Israel not only between ultra-orthodox Jews and secular Jews: modern-orthodox Jews are starting to demand segregated environments,Footnote ¹⁰⁶ as are secular Jews.Footnote ¹⁰⁷ Baffled by these developments, courts are oscillating between condemning such segregationist tendencies and accepting them as legitimate, desirable or simply unavoidable.Footnote ¹⁰⁸ The logic of segregation is particularly noxious where social solidarity collapses, and where the traditional majority seems to lose its majority status. According to recent data, secular Jews are losing their clear majority status, and religious Jews are becoming an extremely large minority. Indeed, it is no longer clear that a majority, demographically speaking, truly exists. In such an environment, every group begins to demand its own homogeneous spaces, from which it could exclude all the rest. Once such a dynamic of accelerated fragmentation begins, it becomes very hard to retract from it. And as time goes by, and segregation becomes the rule, people are less and less able to imagine that secular and religious individuals ever lived together or that they could ever share a space again.

4.2.2 Localisation and the Oppression of Minorities

The radicalisation just described does not end, however, in theological extremism and growing disparity between the different parts of the country. One of the greatest dangers stemming from such radicalisation is that it puts minorities who reside within religious communities at risk of greater abuse and infringement of their rights. The danger that lurks for ‘minorities within minorities’ has been theorised already by Madison, who was worried that radical religious factions would infringe people's property rights by coming up with ‘[a] rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project’.Footnote ¹⁰⁹ But not only property owners are at risk under a structure of religious decentralisation. Women, gays and lesbians, and other minorities are also jeopardised by too powerful religious localities. As we have seen above, some of the most radical religious plans indeed involve the subordination of women and of gays and lesbians.Footnote ¹¹⁰ Giving religious communities control and autonomy over their jurisdictions exposes minorities-within-minorities to risks of domination and abuse by the powerful within their community.Footnote ¹¹¹

4.2.3 Localisation as Racial Steering and Discrimination

Spatial segregation of religious communities can be turned into a mechanism of ‘racial steering’ which could be used in order to discriminate against racial or ethnic minorities. In the case of Israel, this risk is particularly high since, as I have already noted, religious distinctions overlap national ones. Instead of diverse and empowered communities, we might end up with minorities who are discriminated against on the basis of their places of residence. Exclusion on the basis of religion can thus serve as a guise for exclusion on the basis of race, ethnicity or nationality. For example, instead of explicitly excluding Arabs – a practice prohibited by law since the ruling in Kaadan Footnote ¹¹² – companies adopt a policy of selling apartments only to ‘Zionist-religious’ buyers, thus ensuring that no Arab will be allowed to buy into the project. Surprisingly, this practice was affirmed by the District Court of Tel Aviv, in a highly contentious decision.Footnote ¹¹³

Furthermore, in some cases, religion has been used to justify ethnic discrimination, such as the discrimination of Mizrahi Jews (Jews of oriental descent) in the education system.Footnote ¹¹⁴ Religious leaders claimed that the Mizrahi or ‘Sepharadi’ girls were spiritually/religiously ‘inferior’, thus justifying the separation between Mizrahi and Ashkenazi (Jews of European descent) girls in a religious school in an ultra-orthodox locality. The Supreme Court invalidated this repugnant practice (sending some of the parents to jail for failing to send their daughters to the integrated school), yet it was a telling example of the ways in which religion can serve as a pretext for racial and ethnic discrimination.