By Charles Miller

Within every society, there is always an internal struggle between individual liberty and collective responsibility. It exists here in the United States, in the form of mandated jury service, for example, and it is at the forefront of debate within the State of Israel. The raging debate within Israel regarding mandatory conscription for military service touches on all aspects of societal existence, including religion, social welfare, economic prosperity, and notions of equality. Solving this issue is critical to establishing a more cohesive and unified Jewish state.

After the Holocaust and the establishment of the State of Israel, there was an urgent need to rebuild the world of Torah and the yeshivas that had been decimated during the war. Israel’s first prime minister and defense minister, David Ben Gurion, adopted a military draft deferment, as an exception to compulsory military service, for the chareidi yeshiva students in Israel who pledged that their sole occupation was the study of Torah and not any other form of employment. The number of eligible deferments grew from under 400 a year until 1970 to over 60,000 a year by 2010.

In 1998, the Israeli Supreme Court took up the issue of the legality of these deferments, explaining that the rationale for them no longer existed. Supreme Court President Aharon Barak argued in Rubinstein v. Minister of Defense that the “yeshivas are flourishing in Israel, and there is no serious worry that the draft of yeshiva students, according to any arrangement, would bring about the disappearance of the [yeshiva] institution.”

Justice Barak further argued that those chareidi men who did not remain in yeshiva were not seeking employment for fear of being drafted, creating a community ravaged by poverty and largely dependent on the government for subsistence. His sentiments were echoed by Justice Elyakim Rubinstein in the 2012 decision of Resler v. Knesset:

Nevertheless, we need to admit the truth, [that] unlike in the Jewish-chareidi society in other countries, which has understood that only a few brilliant individuals can live under the tent of Torah all their lives, in Israel a whole complicated sociological system has been built that even its leaders know, deep in their hearts, is not good and not appropriate, that because of military duty thousands of people sit in the yeshivas, where it is not their place…these people, if they served in IDF, and if they worked like any other person while also making time for Torah [study]…, would be efficient both to the State, to their community, and to themselves.”

The nature of the debate, beyond the economic and practical necessity of employment, involved the conflict between two competing basic, constitutional rights: the right to freedom of religion, via the pursuit of religious studies, and the right to human dignity, via an equitable public sharing of the burden of military service. The controversy created a societal upheaval, pitting those who serve for three or more mandatory years of military service from age 18-21, followed by decades of reserve duty, against those who do not perform military service whatsoever.

The inherent tensions within Israeli society on this issue have come to the fore. Following the 1998 Rubinstein decision, which found that the military draft deferment lacked any specific legal authorization, the “Deferment of Military Draft for Yeshiva Students Whose Occupation is the Study of Torah Law” (the Tal Law of 2002) was enacted authorizing the Minister of Defense to defer the military service of any Israeli national, upon his request, if he studies in a yeshiva on a regular basis for at least 45 hours a week and that he does not engage in any other additional occupation.

The debate did not end upon the enactment of government legislation sanctioning these deferments. The Israeli Supreme Court in the 2006 case of Movement for Quality of Government v. Knesset, weighed in on the Tal Law, holding that a “grant of a swift deferment–which over the years transforms into an exemption from military service–for thousands of persons eligible for military service based only on reasons of study in a yeshiva constitutes harm to the equality of everyone in the majority group who is subject to military service. The distinction among persons designated for military service based on a religious worldview is discrimination without any relevant difference.”

Although the Court recognized the basic right of freedom of religion, the Court held that such human rights are not absolute and can be violated by a law “befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” Mandatory military or national service within the State of Israel, a nation perpetually at war, serves the highest values of protecting life and building societal cohesion that all Jews are responsible for one another.

The United States Supreme Court has taken a similar approach toward the limiting of fundamental, constitutional rights, requiring that any such infringement serve a compelling government interest and be narrowly tailored to serve that interest. In upholding the Conscription Act of 1917, mandating military service for men of suitable age, the United States Supreme Court in Arver v. United States, unanimously recognized the Constitution’s delegation to Congress of the power to declare war and to raise and support armies. The Court also recognized the principle of the reciprocal rights and duties of citizens:

“It may not be doubted that the very conception of a just government and its duty to its citizens includes the reciprocal obligation of the citizen to render military service in case of need, and the right to compel it.”

The law in the United States was universal. Its subsequent repeal, replaced by an all-voluntary military service, did not change its legality. Notwithstanding, the country maintained a mandatory selective service registration, in the case of the nation’s needs.

The Israeli Supreme Court revisited the viability of the Tal Law in 2012 and held that the law violated the right to equality and that the Knesset could no longer extend its application. The repeal of the Tal Law has required the Israeli government to attempt to introduce alternative legislation to stop the differential treatment between different sectors of the Israeli public. It has also created momentum for the absorption of the chareidi community into the workforce and into national or military service for the state.

The recent Israeli elections brought into the government the Habayit Hayehudi (Jewish Home) and Yesh Atid (There is a Future) parties, under the respective leadership of Naftali Bennett and Yair Lapid. While holding differing philosophies on certain core issues within Israeli society, the two parties are united in ending the inequality of the military burden that currently exists in Israel.

The legislation they are proposing will put an end to the rampant military exemptions within the chareidi community. Chareidi men would be allowed to postpone military or national service for three years, until the age of 21, during which they will still receive state funding for their Torah learning. Following this period, a maximum of 1,800 exemptions per year would be granted for the most talented Torah scholars, with the rest doing either IDF service or civilian national service.

The purpose of the legislation, according to Bennett, himself a religious Jew and a former combat soldier in Sayeret Matkal, Israel’s elite commando unit, is “for the first time in the history of the State of Israel to officially recognize learning Torah as a value,” to get chareidim involved in military/national service, and to get them into the workforce. The current poverty level of chareidi families stands at over 50% and is increasing.

Bennett rejects the notion that chareidim are doing their equal share by remaining full time in the yeshivas. “My chareidi brothers, army service is also a mitzvah, no less than that…the current situation in which thousands of chareidim do not serve or work cannot continue. It’s not ethical and it’s not sustainable.” Bennett states that the overwhelming majority of chareidim will first go to the military or national service and they can then choose what they want to do with their lives, including Torah study. “Israel must be a State with full equality to all its citizens; it is a State with one nation–the Jewish nation.”

Special Nahal Chareidi units were established within the IDF to accommodate the particular religious needs of these soldiers. By all accounts, these units function effectively. There is no reason why such a concept cannot be implemented on a much larger scale.

Bennett’s mention of the mitzvah of military service stems from the words of Parashas Shoftim, which discusses the nature of warfare and the limited military exemptions during times of armed conflict. The Kohen addresses Israel in a collective nature, and then advises the military officers to speak to the people, enunciating four exemptions from battle. The first three deal with newly built homes, vineyards, or marriages, where the mind of the would-be soldier is not directed on the mission ahead. The fourth exemption is for the fearful and fainthearted, lest such a person instill the same fear and uncertainty in others.

None of these exemptions mention avoiding military service for Torah study pursuits. Rather, it seems as though the two can coexist within the life of each soldier. We’ve seen the beauty of the Hesder movement and how it has integrated successfully intensive Torah study and dedication to some of the most difficult missions within the IDF.

Israel today needs courageous leadership, both within the yeshiva system and in the political establishment. With the great challenges upon Israel and world Jewry, including the threats of terrorism and war, Israel needs a society unified. The esprit de corps of any embattled nation is the confidence that everyone is in the fight together, for the common good. In Israeli society, that common good, by the overwhelming majority of citizens, is reflected in the willingness to put one’s life on the line for the nation, including sacrificing three of the most formidable years via military service.

For those who refuse to serve, including shunning other measures of societal cohesion, such as failing to display the national flag on holidays or reciting the prayer for the State and the IDF, it should come as no surprise to the chareidi leadership that such perceived indifference is viewed with great disdain by the general Israeli public. It does nothing to raise the honor of Torah within the rest of Israeli society.

The new and inspired leadership in Israel aims to elevate the dual nature of the state’s Jewish and democratic character. Emphasizing the primacy of Torah study, alongside the Torah values of military service and raising a family, the State of Israel and the Jewish nation, experiencing a rebirth in our ancestral homeland after 2,000 years of exile, hopes to build a society worthy of Hashem’s blessing and the speedy and full redemption of our people. v

Charlie Miller is an attorney residing in Woodmere with his wife and four children. He served in the United States Navy for six years on active duty as an officer in the Judge Advocate General’s Corps, including a year in the White House as a military aide to the President of the United States. He is a national board member with the National Council of Young Israel.


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