Does the Establishment of Religion Justify Regulating Religious Activities? - the Israeli Experience

Abstract

The extent of public sector involvement in providing religious services is an important factor in determining the scope of legitimate regulation of relevant religious activities. However, I argue that the existence of a government role is not a sufficient justification for such regulation. Participation in the supply of religious services does not exempt the government from the constraints of its duty to respect freedom of religion. I point at two main considerations in this respect. First, in certain cases, accomplishing the purpose of government involvement - securing reasonable access to religious services - entails government intervention in religious activities. Second, a more extensive regulation can be justified when involvement of the public authority intensifies the harm that the relevant religious practice imposes on other interests. These and related arguments are illustrated through a case-study - the Israeli experience of almost six decades of intensive involvement of a democratic state in supplying religious services.

I explore the issue of regulating practices in holy sites, by comparing two decisions of the Israeli Supreme Court: The decision not to intervene in conflicts regarding religious rituals in the Church of the Holy Sepulcher (the Tomb of Christ); and the decision to impose "secular" norms of tolerance and impartial balance of interests in the case of the Western Wall Plaza in Jerusalem. Other issues discussed are the qualifications necessary to serve in state-run religious institutions; issuing kosher food certificates and regulating the activities of Jewish burial societies.

The discussion demonstrates the important role of government involvement in supplying religious services and in regulating religious activity as a means of enhancing - rather than restricting - religious freedom. The Israeli case is a useful one in illustrating the potential benefits of supplying religious services by the government, as well as in understanding the limits of this policy.