by Frances Raday, Professor of Law: Elias Lieberman Chair in Labor Law, Hebrew University of Jerusalem; Director of the Concord Research Institute for Integration of International Law in Israel, at Colman College of Management and Academic Studies; Chair of the Israeli Association of Feminist and Gender Studies
This chapter focuses on the confrontation between religious and constitutional authority, as it affects the rights to freedom of conscience, freedom of religion, and gender and ethnic equality. It will analyze the Supreme Court’s reviews of decisions made by religious authorities. As background, I will first discuss the way in which constitutional norms should, as a matter of constitutional principle, deal with clashes between the right to culture or religion, on one hand, and the right to equality and freedom of conscience and religion, on the other. I will then seek to measure the Court’s jurisprudence within this conceptual framework. In order to determine which principles should govern the role of constitutional law in regulating the interaction between religious values and equality, I shall examine the theoretical arguments supporting deference to cultural or religious values over universal values. ose arguments, I shall contend, must not prevail. ere are various situations in which constitutionalism must cope with claims for deference to religious authority. The boundaries of a religious culture will not necessarily be coextensive with the constitutional realm. Within the constitutional realm, there may be a dominant religious culture and minority subcultures, or there may be a mosaic of subcultures. Furthermore, even in a religiously homogeneous society, the imposition of religious norms may vary at the levels of family, workplace and church/mosque/synagogue. There may be a different appreciation of the applicability of the norms in each of these institutional frameworks.