The Concept of 'Religion' in the Supreme Court of Israel

Abstract

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, and that this understanding of “religion” is incorrectly, if tacitly, assumed to be both neutral and broadly applicable. I focus on three leading cases in the Supreme Court of Israel addressing the question “who is a Jew?” As Judaism is the dominant religion in Israel, how Israeli courts understand “who is a Jew” in a legal context says a great deal about how the Court understands “religion” more generally. The Court’s discussion reveals factors that the courts would find relevant in deciding what makes a religion a religion. I explore how this question has been answered and what the shape of the legal discourse has been in responding to that question, what assumptions have been made, and what factors have been determinative. The Article concludes that the Court has imported a Christian understanding of “religion” into Israeli civil jurisprudence under the mistaken assumption that such an understanding of religion is “secular.” It then asks how such an understanding could come to be seen as universal, and suggests that while conceiving of religion as belief fits neatly in the context of Christian Europe, in which religion was subordinated to the state, both the idea of religion as belief and the separability of religion from the temporal political authority of the modern state present greater difficulties in the context of the Jewish experience.

Keywords: Religion, Who is a Jew, Law of Return, Brother Daniel, Shalit, Beresford, Secularization