In a groundbreaking ruling, the Jerusalem District Court upheld an earlier decision of the Jerusalem Magistrates Court that women who wear prayer shawls, tallitot in Hebrew, at the Western Wall plaza do not contravene “local custom” or disturb the public order, and should not be arrested.
The issue of equal prayer rights at the site has risen to the forefront of the public debate in recent months due to the frequent arrest of women participating in the prayer services of the Women of the Wall activist group at the Western Wall.
WoW chairwoman Anat Hoffman said the ruling “liberated the Western Wall for all the Jewish people.”
“This is a critically important story for reclaiming Judaism, redefining our values and reclaiming the Wall,” she said. “Women of the Wall have really achieved something for Israeli society and the entire Jewish world.”
On April 11, five women who donned tallitot during the monthly prayer service of the Women of the Wall activist group were arrested and brought to the Jerusalem District Court.
Judge Sharon Larry-Bavly ruled at the time that that there was no cause for arresting the women, and that the Women of the Wall prayer services do not disturb the public order.
The Regulations for the Protection of Holy Places to the Jews of 1981 forbid performing religious ceremonies “not according to local custom” or which “may hurt the feelings of the worshipers” at the site, where local custom is interpreted as being Orthodox practice.
These regulations and their interpretation, upheld by a Supreme Court ruling in 2003 and reiterated by a directive of the Ministry of Justice in 2005, have been the legal basis for the regular arrests of women for performing Jewish customs at the Western Wall usually practiced only by men in Orthodox Judaism.
On Thursday however, Judge Moshe Sobell who was presiding over an appeal hearing filed by the Israel Police Force against the decision, upheld Larry-Bavly’s earlier ruling that there was no basis to arrest women for wearing talitot or performing rites not in accordance with Orthodox custom.
Sobell ruled that the definition of “local custom” did not automatically mean Orthodox practice, basing this decision on the written opinions of several Supreme Court Justices from previous cases, in particular that of Shlomo Levin who wrote in 1994 in a ruling on the issue that “the expression ‘local custom’ does not need to be interpreted specifically as according to Jewish law or the current situation.”
Levin wrote at the time that it was the nature of customs to change with the times, and within that context “[permission] should be given to the expression of a pluralistic and tolerant approach to the opinions and customs of others”
In reference to the charge of endangering or disturbing the public peace, the Sobell ruled that even if the women had behaved in a way that disturbed the public order, they were not a danger to the public peace and were in no way suspect of violent or verbal behavior that would endanger the public.
Attorney Einat Horowitz, who represented Women of the Wall in Court, said following the decision that “the most important aspect of this ruling is the fact that Women of the Wall’s prayer in the women’s section of the Western Wall does not violate the ‘local custom’ and therefore does not imply a reasonable doubt of violation of the Law of Holy Places.
“The court has rejected any reasonable cause for a policy of repeated detainment and arrests of Women of the Wall by police,” Horowitz added.
Following the publication of the district court’s decision, Yesh Atid MK Aliza Lavie, who has been working on formulating a solution to the problem in recent months, called on the Attorney General to issue a clear and updated directive for accepted practice at the Western Wall.
“In light of the new ruling, the Israel Police Force must refrain from making arrests,” Lavie said in a statement to the press.
“Disorder in the legal arena will cause a firestorm at this sensitive place... confusion will increase the controversy and conflict,” she added.
A spokesman for the Jerusalem District Police said that the police would “adhere to the ruling of the court.”
WoW, along with sympathetic Members of Knesset, was exploring avenues to change the 1981 regulations, including either legislation or new directives from the Ministry of Religious Affairs, in order to prevent the ongoing arrests of women at the site.
These steps may well be unnecessary now following Thursday’s ruling.
Rabbi of the Western Wall Shmuel Rabinowitz, who has strongly advocated for the preservation of Orthodox custom at the site, said that he turn to the Attorney General and the Attorney General’s Office “to examine the consequences of the ruling and its implications, especially in relation to the decision of the Supreme Court.”
Jewish Agency chairman Natan Sharansky, tasked by the prime minister with finding a solution to the issue, said in response that the ruling strengthened the need for a sustainable and agreed solution, “which will allow every Jew to feel at home at the Western Wall.”
Sharansky’s plan will allow for the construction of an additional section of the Western Wall Plaza at the southern end of the Western Wall “equal in size and height to the northern prayer area,” for egalitarian prayer and accessible as part of one unified Western Wall complex with a single entrance.