Tuesday, July 31, 2007

Changing the Tal Law?

I'm not sure what I think of this new effort by Israel's Finance Ministry. While of course, everybody sympathizes with the effort to get charedim to work, or alternatively get them to work legitimately and report their earnings to the tax authorities. The current arrangement forces the charedi community to basically starve or cheat the government, which everyone can agree is a negative thing. On the other hand, is it the government's responsibility to change their demands to prevent a community from imploding just to thwart them? I mean, if they enforce the current law, then maybe it's just the charedim's problem is they choose to starve rather than give a year to National Service. Cruel, but true. Although they're currently a burden on welfare, so I suppose it's in the government's interest to get them to work. If, of course, it is the threatened army service and not their ideology that is keeping them in yeshiva.

But it seems like the main thing being incentivized here is having two children by the time you're 23. Granted, charedi men marry early, but that means that you would have to marry by 21 and really hurry. Given that wives pretty much have to be younger than the husbands, you're encouraging the community to marry people off before they're out of their teens, which they do anyway to some degree, but hardly as much as you're encouraging them to do.

At the same time, the movement basically acknowledging that charedim don't have to/won't
serve in the army, which defeats the ideological purpose of the Tal Law and is bound to make the secular outraged for pretty legitimate reasons.

And from a legal point of view (it's fun to actually know stuff!) I am extremely dubious that the Supreme Court is going to let the arrangement stand even should it be fortunate enough to get passed. The Tal Law barely survived the Barak Court (then, specifically Barak himself). I can't see this one doing much better.

Basically, when a law is challenged as unconstitutional (or contrary to the Basic Laws) and found to actually infringe upon rights or equality or some such, it's tested according to 3 criteria: 1)That it fits Israel's values as a democratic and Jewish state: it's anybody's guess what that one means. But judges usually let laws slide past this test as law as there's some legitimate-ish purpose going on- which is the third test
2)It has a worthy purpose: Probably met here, what with the incentivizing into the workforce. But quite possibly not-the court doesn't tend to think that religious sensibilities are legitimate concerns, so they could be annoyed with any exemption at all.
3)It's proportional- which is interpreted to mean that a)it is effective at attaining the purpose, b)that the benefits outweigh the costs and c) that it is the means of achieving the goal that involves the smallest possible infringement. Basically, any time that a judge can think of a law that he likes better than the current one, he can strike down the law. And for judges, money isn't an issue- several cases have stated that when it's a choice between rights and money, rights always win.

Of course, you could employ these rules and let the law stand. But the Tal Law itself only squeaked by Barak because he liked the fact that it was aimed at integrating charedim into the army and therefore decided that the infringement on equality (and slight injury to everyone else in the country who has to serve in reserves a bit longer each year) is justified. I'm not sure that the court is going to be as fond of this law. And the above rules are certainly wide, vague, and flexible enough for them to express their disapproval by declaring the arrangement unconstitutional, either because they don't like the purpose, or don't see it as proportional.

2 comments:

Halfnutcase said...

I don't understand at all, but since you like people who read your posts to comment, here it is.

But of course cheredim need to get out to work, but it seems that they're rather obstinant about the issue.

Out of curiosity does this have anything to do with your refusal to go to the army?

(I'm not sure what I'd do. I get the heeby jeebies at the thought of having to carry a gun) One reason why I'm not in isreal I suppose.

Tobie said...

Aw, thanks hnc! I love comments.

The question isn't whether the charedim should be forced to work, the question is just whether this is going to do it all that well. I don't know- it seems logical but it just has so very many side effects.

This post was speaking more from an analytical point of view. It's not addressing whether, morally, the charedim should serve in the army or do national service (which is an equal option for everyone) but rather whether this law will get them to do so and how everyone else will feel if they don't. For whatever reason, people tend to be less annoyed at individual females who fail to serve than a whole community of males who all refuse to do so.