56 No. 67 JUSTICE denomination, does not prove that this approach is the correct one. But this fact can justify the transfer of the burden of proof onto those who make the opposite case. Those supporting a different order from the one accepted by much of the civilized world must, in my view, provide solid reasons for the change that they propose. This is one of the challenges facing Jobani and Perez, who advocate for the adoption of the most extreme version of a separation between religion and state in general, and in the case of the Western Wall Plaza in particular. The principal rationale presented by the authors against the preference model revolves around equality. According to their argument, if the state prefers religion in general, or a specific religion over other conceptions of the good, then it is treating part of its citizenry unequally. While it respects the conception of the good held by some citizens, it discriminates against the conception of the good held by others. A commitment to equality therefore implies a policy of neutrality. In the context of the Western Wall Plaza, the argument is that if the state prefers the liturgical practices of Orthodox Judaism over those of liberal denominations, it is treating these latter streams unequally, discriminating against their worldview and lifestyles. However, as attractive as the equality argument may be, it does not stand as an independent argument but rather relies on other arguments that must be examined separately. In discussions of the principle of equality, one encounters the principle that equals be treated equally. Since no two individuals are equal in every possible respect, the only way to understand the condition of equality is through the notion that all members of a given group are equal “in all relevant respects,” that is, in all that pertain to the purpose of the activity or allocation under discussion. Hence, to establish an argument for equality, we must first clarify whether the position/group claiming to be discriminated against, is indeed equal in the relevant respects. In most cases, the answer to this question is itself in dispute and therefore the demand for equality essentially begs the question. A point made by Justice Yitzhak Zamir in the Israel Supreme Court’s Masorti Movement case1 offers a good example. Justice Zamir asserted that in the name of the principle of equality, the state should be required to allocate budgets for religious study conducted by the Reform and Conservative movements in an amount equal to that granted to the Orthodox movements. In fact, this conclusion cannot be inferred from the principle of equality without assuming that Torah study is of equal value for each stream. The Orthodox, who might oppose such equal allocations, would assert that the differences between the streams are relevant. For example, they would claim that only Orthodox Judaism is authentic Judaism, and it therefore deserves privileged status. The Reform would counter that their Judaism is no less authentic, so when it comes to the right to receive funding for Torah classes, the differences between the movements are irrelevant. The debate between the supporters and opponents of equal funding for religious study by the different streams cannot be resolved based on the principle of equality, but first requires a decision with respect to which form of Judaism is authentic. In some respects, our case is like the Masorti Movement case. Here too, the Orthodox would assert that the exclusivity they demand stems from the fact that only they represent authentic Judaism. Whether that claim is true or relevant to the case is subject to debate; but the claim of equality itself provides no assistance on the matter. It is even harmful, because relying on it begs the question and diverts attention from the real issue. On the other hand, a significant difference between the Masorti Movement case and ours pertains to the character of the demand made of the state. In Masorti Movement, the petitioners demanded that the state support their activities, just as it supports the Orthodox. Regarding prayer at the Western Wall, however, the liberal streams are asking that the state not forbid them from praying their own way. Even if we agree that the Aristotelian principle of equality could justify preferred treatment by the state based on a relevant difference, the liberal intuition to defend individual liberty is incompatible with prohibitions based on such a relevant difference. While it may be possible to distinguish between the two cases, it still appears that the claim to equality does not provide strong enough support for the WoW’s position. The argument made by the WoW is not that they are treated unequally, but that their freedom is being violated without sufficient justification. The biggest question facing us is therefore whether applying the preference model to the Western Wall Plaza entails an infringement of the rights of WoW and others who share their religious outlook. Unfortunately, the authors do not elaborate on this point and make do with a laconic assertion that “an inegalitarian approach 1. HCJ 1438/98, Masorti Movement v. Minister of Religious Affairs, P.D. 53(5) 337 (1999).
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