Why ‘Faith-based’ Discrimination May Soon Be Legal in Israel

T. Belman. This means that religious beliefs supersede group rights when there is alternative. That’s the way it should be.

The incoming far-right government says private businesses will be allowed to deny their product or service as long as it ‘is not unique, and a similar substitute can be obtained at a similar price in geographic proximity’

By Allison Kaplan Sommer, HAARETZ

Netanyahu greeting United Torah Judaism’s Yitzchak Goldknopf in the Knesset last month.Credit: Ohad Zwigenberg

The idea of “religious liberty” is a controversial issue in American politics, climaxing in the 2017 Supreme Court decision letting a Colorado baker refuse to sell wedding cakes to same-sex couples on the basis of his religious beliefs.

The debate migrated to Israel over the weekend following the revelation that the Likud party’s agreements with two coalition partners – United Torah Judaism and Religious Zionism – include a commitment that would let business owners refuse service on the basis of religion. This amendment of the country’s antidiscrimination law was widely interpreted as a license to refuse services to LGBTQ people and other groups.

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Following a public outcry Sunday, Likud leader Benjamin Netanyahu said he wouldn’t allow discrimination against Israel’s LGBTQ community, leading political pundits to ask: Hasn’t he read the coalition agreements his own party signed just days ago?

If Likud fulfills its commitment to the religious parties, private businesses in Israel will be permitted to deny their product or service as long as it “is not unique, and a similar substitute can be obtained at a similar price in geographic proximity.”

Rothman replied, “If it goes against your beliefs and it hurts your religious sentiments, and it’s your private hotel, then the answer is yes, that’s the law.”

He added: “I personally think that when it’s someone’s private business, that person has the right to do what he wants without any government interference for any reason. In Israel, we have a law that says no, you can’t discriminate for any reason.

“This bill doesn’t cancel the general ban on discrimination. But it does say that when a religious reason prevents a vendor from giving service to someone, he shouldn’t be forced to violate his religious beliefs.

“There has to be a limit where the state can’t intrude on my values and impose its values on me. This proposal is extremely limited in scope because it’s only saying that the state can’t dictate to me what my religious values are and interfere with my religious beliefs.

“If my religious beliefs discriminate between men and women – and I’ll tell you a secret: More than one religion in this region does this – under this law the State of Israel isn’t going to force men to be with women and women to be with men.”

Rothman was also asked about another eventuality: a business owner claiming that his religion dictates that the Land of Israel belongs to the Jews, so he may discriminate against Arabs. Here Rothman was more evasive, saying that the courts would distinguish between “real” and “invented” religions and beliefs.

In a separate interview, Rothman’s party colleague Orit Strock ignited a firestorm with her remarks on the availability of fertility treatments for unmarried women and LGBTQ couples. She said she believes the proposed amendment lets doctors use religious reasons to withhold treatment.

“As long as there are other doctors who can provide the same service, it’s forbidden to force a doctor to give treatment that violates their religious beliefs,” Strock said.

Interpreting the current law, the courts have held that an owner’s religious beliefs or an appeal to religious customers is not a valid reason for discrimination.

For example, Makor Rishon, a newspaper with an Orthodox audience – and formerly with an Orthodox owner – was ruled in breach of the law for refusing to publish ads for an LGBTQ center and help line.

The proposed amendment is likely to reach the High Court of Justice after being challenged as unconstitutional by civil rights groups. Under the current law, the court may override legislation that it believes breaches a constitutional right by violating one of Israel’s 12 Basic Laws.

A challenge to the amendment would probably rest on the argument that it encroaches on the right to equality and therefore breaches the Basic Law on Human Dignity and Liberty.

The right to equality is not specified in this Basic Law, but the top court has held that violating the principle of equality for groups such as women, LGBTQ people and religious and ethnic minorities infringes on these groups’ dignity. As a result, they are protected.

It was this clash – whether equality is part of the protected “human dignity” principle – that led to the court’s decision that exempting ultra-Orthodox men from the military draft was unconstitutional.

For this reason – and for proposals like the religious discrimination amendment to stand – the ultra-Orthodox and Religious Zionism parties have also secured a commitment from Netanyahu and Likud to enact the highly contested “override clause.” This would give the Knesset the last word after an override by the court.