“A rabbi in Israel, as part of his rabbinical freedom of expression and in keeping with his role, is permitted to speak from his own religious-Zionist perspective, to say words of Torah as he understands them, and to convey to his adherents – who are not considered a captive audience – any halakhic message he sees fit, so long as it is indeed a halakhic message that is truly and in good faith being promulgated as such.”
That is the convoluted conundrum presented by Justice Alex Stein in his ruling regarding a petition against Safed Chief Rabbi Shmuel Eliyahu. Eliyahu will be subject to a disciplinary hearing, small consolation to anyone who was horrified to hear the unadulterated racism, aglow with holy fire, that has spewed from his mouth for a long time. But even the slap in the face delivered by the High Court of Justice to former Justice Minister Ayelet Shaked, when it ruled that her decision not to subject the rabbi to a disciplinary hearing reflects “a substantial flaw in judgment” and is “extremely unreasonable,” cannot cover up Justice Stein’s fundamentally flawed decision.
For example, to what extent must the ayatollah deviate from his assertion that “Nowadays we must try to make sure that anyone who raises a hand against a Jew in order to kill him, will be avenged. Even if he didn’t kill but just hit [a Jew] or wanted to kill him” – which served Stein as an example of a forbidden statement – so that his words fall within the category of “rabbinical freedom of expression,” which Stein considers legitimate.
If we want to be optimistic, we can rejoice for a moment that an ordinary person, who is not a rabbi, won’t be able to enjoy the wide open spaces of freedom of expression that Justice Stein granted to Eliyahu, even if he has a religious Zionist mission. The problem lies in the dark aspect of Stein’s interpretation. Stein is holding a particularly thick needle in order to sew a nonexistent gap between a halakhic message “that is conveyed truly and in good faith” and “a religious Zionist perspective” – as though these two foundations did not emerge from a single womb, which grants permission to a rabbi and his adherents to do whatever they please.
Anyone who enjoys splitting hairs can claim that from now on anyone who wants to incite, to taunt and to encourage murder will have to meet two conditions: a religious Zionist perspective, and an adherence to it “truly and in good faith.” In other words, if a rabbi “truly and in good faith” believes that the halakha requires killing a prime minister, and he expresses his opinion in public based on that same “perspective,” he should not be accused of bloodshed, but should be offered the portion of rabbinical freedom of expression to which he is entitled.
That is precisely Justice Stein’s sleight of hand. In a Jewish state there cannot be a perspective that is not religious Zionist, the bedrock of Israeli politics, and there is no room in the country for anyone who doesn’t “truly and in good faith” believe in that perspective. And why should only rabbis deserve this hallucinatory protection “from God.” Aren’t politicians, politicos, not to mention a prime minister, worthy of using the name of the halakha or seizing onto that same “religious Zionist perspective” as protection from the law against incitement and against racism?
Because what’s the difference between the statement of Rabbi Eliyahu and the ruling of Chief Rabbi Yitzhak Yosef, who in 2016 asserted that “Every terrorist should be shot in order to kill him, no matter what the High Court of Justice says,” and between them and the statement by former Public Security Minister Yitzhak Aharonovich, to the effect that “a terrorist who harms civilians must be killed,” or the words of then-Minister Naftali Bennett in 2013, that “If we catch terrorists, we simply have to kill them.”
None of them was prosecuted, there wasn’t even a complaint lodged against them. Why was Eliyahu of all people burnt at the stake? After all, all he did was to disseminate a halakhic message in the context of “rabbinical freedom of expression,” which apparently has no boundaries, and reflected the feelings of most of the public.
And what about the ordinary citizen? The one who in the name of religion/nationality shouts “Death to the Arabs”? Will the escape hatch opened to halakhic scholars by Justice Stein be closed only to him? God forbid. In the Israeli democracy everyone has the right to incite.
This article is published in its entirety.