Petty, Aaron R. “The Concept of ‘Religion’ in the Supreme Court of Israel.” Yale Journal of Law & the Humanities 26.2 (2015): 211-68.
In this Article, I suggest that “religion,” both as it is commonly understood, and as it is understood and applied by courts as a legal term of art, refers chiefly to belief. This understanding of “religion” is incorrectly, if tacitly, assumed to be both neutral and broadly applicable. Building on previous work focusing on British courts, I now turn to investigating how Israeli courts understand the concept of religion. And, as before, I focus on cases addressing the question “who is a Jew?” as a window into how courts understand religion and membership in a religion more generally.
To set the legal issues in context, in Part II, I briefly trace the emergence of the State of Israel. Part II.A discusses the early Zionist movement with particular attention to the philosophy of Theodor Herzl. Part II.B traces the early legal foundations of the State of Israel from the Balfour Declaration through the Proclamation of the State. Part III concerns the legal system created by the State. Part III.A introduces the legal structure of the state of Israel. Part III.B details the function and authority of the courts within that structure. Part III.C addresses the legal status of religion in the state, and Part III.D looks at the Law of Return, a unique feature of Israeli law applicable only to Jews (and certain relations). Part IV concerns the substantive debate on “Who is a Jew” under Israeli civil law. Part IV.A discusses in detail three seminal cases addressing the legal relationship between Judaism and the State-Rufeisen (also known as Brother Daniel), Shalit, and Beresford-along with significant legislation passed in the wake of Shalit. Part IV.B attempts to reconcile these decisions and tease out the factors that the Israeli Supreme Court has considered significant and the assumptions that it has made in adjudicating issues of religious identity.
Part V turns to the historical validity and neutrality of the understanding of “religion” applied by the Israeli Supreme Court. Part V.A offers an overview of the Christian origins of the modern concept of “religion” as primarily a matter of belief. Part V.B reflects on how the Jewish state, through its secularist Supreme Court, could have come to a Christian understanding of religion. Finally, Part VI takes a step back to place the findings in the wider debate on secularization. Part VI.A provides the necessary background on this secularization paradigm, and Part VI.B suggests that these cases may point to a useful refinement. Part VII offers a brief conclusion.