57 Fall 2021 toward… permissible religious conduct… amounts to a significant restriction of religious liberties” (p. 99). In a recent article,2 I examined the argument that WoW’s religious liberties would be infringed upon if they were not allowed to pray at the plaza. I present here a summary of part of my analysis which perhaps might help update the views taken in this book published in 2017. The principle of freedom of religion is derived mainly from freedom of conscience. By conscience, we mean a person’s deepest normative beliefs, those that establish their personal identity. In this understanding, an injury to a person’s conscience is an intolerable attack on their integrity and personal identity, regardless of the substance of that conscience. How is a person’s conscience injured? Mainly by coercing them to do something that violates their conscience. A less severe injury is inflicted when a person is prevented from doing what their conscience dictates. It follows, therefore, that freedom of religion, as a derivative of freedom of conscience, only encompasses things that a religious person is obligated to do or forbidden from doing. Does women’s public prayer at the Western Wall constitute an obligation? Even if the religious streams with which the members of the WoW are affiliated hold that prayer by women must include elements of a public service, the wearing of prayer shawls and phylacteries and reading from the Torah scroll, it appears that they do not have a religious obligation to pray specifically at the Western Wall Plaza. Incidentally, this statement is equally true regarding the members of the Orthodox group who oppose public prayer by women at the Western Wall. As far as I am aware, no religious authority has ever characterized prayer at the Western Wall as a religious obligation. Not all religious obligations or prohibitions are anchored in written codes. Alongside these texts, many faiths develop a“folk religion” that their members may view as no less obligatory than the formal precepts. The Jewish folk religion attaches special value to prayer at the Western Wall. Despite this, it is unlikely that these practices can establish a right based on freedom of conscience. To establish such a claim, it would be necessary to show that these customs are viewed as mandatory. Even if folk religion places special value on prayer at the Western Wall, there seems to be no one who asserts that it is an obligation. The arguments advanced to support the WoW’s demand, too, lead to the conclusion that not allowing them to pray there does not violate the freedom of religion as a corollary of the freedom of conscience. Those who espouse the women’s position emphasize the use of the clash at the Western Wall to promote conceptual change in Orthodoxy (strengthening the liberal current within it) or to upgrade the status of the Conservative and Reform movements in Israel. This is a legitimate struggle in and of itself, but not one that is protected by freedom of conscience. Additional support for the conclusion that there is no basis for a claim based on freedom of conscience is the fact that as part of the attempts to resolve the dispute, some members of the WoW agreed to the plan proposed by then-chairman of the Jewish Agency, Natan Sharansky, that they pray in an egalitarian section to be constructed south of the current Western Wall Plaza. If praying specifically in the current Western Wall Plaza was a religious obligation, prayer somewhere else could not be a substitute. This last point leads to the heart of the matter. We are dealing with a political struggle for recognition. The liberal streams are fighting to gain such recognition, while Orthodoxy seeks to repel them. As part of this battle, each side asserts rights and values to bolster its position. But I believe that neither side has succeeded. In the absence of a clear constitutional argument for judicial intervention, the correct venue for a decision on the matter is the political system. The fact that there are no constitutional restrictions on any decision about the WoW does not mean that we have exhausted the discussion. There are two types of arguments which I believe are important to consider: one pertaining to political morality and the other to political wisdom. Regarding morality, the subject of our discussion is a unique public asset in which all the groups have an interest; the question is how to allocate it. Even if the Western Wall serves the WoW more as a means than as a goal, the WoW represent a significant group of Jews, members of the liberal streams, who see their attachment to the Western Wall as a goal in and of itself. Even if the state has justification for denying their wish, it would be more appropriate for it to find a solution so that these groups are not left empty-handed. As for political wisdom, even if the choice of the Western Wall stemmed from tactical considerations, 2. “The Western Wall Controversy,” 9 LAW, RELIGION AND STATE 124 (2021).
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