The Sad Joke of the Supreme Court and Reform Mikvaot

By HaRav Yisrael Rosen 
Dean of the Zomet Institute

The Supreme Court "Mikveh Ruling"

A preliminary version of a bill was recently approved in the Knesset, known as the "Mikveh Law." It was proposed by eight MK's from Chareidi parties and four MK's from the Bayit Yehudi Party. The law decrees that "The use of a mikveh (ritual bath) will be allowed only for immersion that is halachically approved... according to the instructions of the Chief Rabbinate." This law was born as a reaction to a recent "victory" by Reform Jews, who won a case in the Supreme Court that permits them to immerse their new converts in a mikveh in Beer Sheva, just like people who are converted through the Chief Rabbinate. "It is not reasonable to expect residents from the south who want to convert through the Reform movement to travel to Kibbutz Hanaton in the north (which is Conservative), or to Modi'in or Omer... And even granting permission for them to immerse in these three places is not a satisfactory solution to the problem, since most of the converts come from Jerusalem or Tel Aviv..."

Supreme Court Justice Elyakim Rubenstein wrote a long decision, focusing on the need not to discriminate against Reform Jews: "Reform converts must be allowed to immerse in Beer Sheva, and it naturally follows that a similar solution must be made available in other regions where converts will be allowed to immerse in a mikveh. An explanation is necessary as to why public mikvaot which are built by public funds should not be made available to various private entities, when private Orthodox organizations which perform conversions have no trouble in obtaining the use of such mikvaot" (but this is patently untrue! – see below). It goes without saying that Chief Justice Naor and Justice Jubran joined Rubenstein, who wears a kippa and therefore clearly understands the details of the issues involved. And so the "Mikveh Ruling" took shape and was born! As a counter-move a law to overrule the Supreme Court was introduced, and to counter this it was agreed that the country (through the Jewish Agency) will constructfour Reform mikvaot throughout the country. They will remain closed during the year, but this does not change the fact that the Reform "victory" has taken shape. And we have legitimacy and equality in the realm of "religion and state."

Both Laughable and Sad

This whole situation can be best described as a sad joke. The "joke" part is the untrue "facts" that were "spoon-fed" to the honorable justice. For his part, he (perhaps based on his judgmental preferences) chose to raise the level of discussion and to move the ruling into the realm of equality. This joke makes me sad in the way the Chareidi parties (who also managed to pull in the Bayit Yehudi) go into an all-out war at the very mention of Reform Judaism. Reform Jews will always win their case when they ask for protection of the Israeli Supreme Court! What follows is a summary of my claims, ending with a compliment to Supreme Court Justice Noam Solberg for his opinion in the "Kashrut Ruling" and for the way he criticized his colleague Elyakim Rubenstein. What does that have to do with the mikvaot? Have some patience, and you shall be rewarded with an explanation...

Fact Number 1 : The governmental Conversion Authority performs immersions of about 4,000 converts a year (while the Reform courts do less than 300), and for them a total of 3 mikvaot is enough – in Chatzor (in the north), in Hod Hasharon (the center), and in Beer Sheva (the south). People from Jerusalem, Tel Aviv, or Haifa "have no convenient nearby public mikveh for their immersion, to avoid forcing them to travel," but nobody has complained about this in the past.

Fact Number 2 : Converts are immersed in the morning hours, when the mikvaot involved are not open for other purposes. This takes place in accordance with commercial contracts signed between the Conversion Authority and the mikvaot, which are hired for the job (the contract includes heating the water, cleanup, and providing a place for a chuppa for converts who want to be married on the spot). What prevents the Reform organizations from signing similar contracts with any mikvaot that are available? I am sure that they can make similar arrangements!

Fact Number 3 : As opposed to what the honorable judge wrote, private Orthodox conversion organizations (such as those of Rabbi Karlitz in Bnei Berak, the one in Gush Etzion of which I am the head, and the one for minors headed by Rabbi Rabinowitz, among others) cannot have their converts immerse in public mikvaot, and nobody ever thought of adding them to the contracts for immersions in Chatzor, Hod Hasharon, or Beer Sheva. It is perfectly clear to me that what Justice Rubenstein wrote (about public immersion of private conversions) is something that he was never told. Evidently, he seems to prefer Reform conversions as opposed to Chareidi ones (such as those performed in the Karlitz court).

In summary, the "Mikveh Ruling" of the Supreme Court, which gave Reform Judaism full recognition, is based on a statement of "facts" which have no basis in fact, and which can be "credited" to lawyers who did not have correct information (and who perhaps were not in a proper defensive mood) – in addition to having a judge who was in search of a "ruling based on value judgements" even if this was not really necessary in this case. Note that this misinformation would not have happened in a court run by the rules of halacha, where a judge is allowed to perform his own investigation of the facts in the case.

Comparison to the "Kashrut Ruling"

I am reminded of another ruling by the Supreme Court from a few weeks ago, on the subject of kashrut. A private supervision company was providing certificates (not using the word "kosher") to restaurants in Jerusalem. They turned to the Supreme Court for a ruling against the "Law to Prevent Fraud in Kashrut" which insists that "the owner of a food establishment shall not write that the food is kosher unless it was given a certificate of approval" (by the Chief Rabbinate or the local Rabbinate). The (previous) state attorney supported the restaurants, claiming that the certificates clearly stated which authorities were granting the certificate, and thus there was no element of fraud, and that the word "kosher" was not used. The state attorney's office concurred with this opinion, even though its task in this case should have been to defend the position of the Chief Rabbinate.

However, Supreme Court Justice Noam Solberg "listened to the people" and he "heard rumors" (that is, he read in news reports) that the Chief Rabbinate disagreed with this opinion and wanted to be represented by a private law firm and not by the state attorney's office. Judge Solberg ruled in favor of the Rabbinate, explaining in broad terms why a government body should have the right to represent itself in such cases. His colleague Judge Rubenstein wrote a minority opinion on this ruling, noting that he is willing to accept representation other than the official government legal bodies only under very special circumstances.

My heart tells me that if the Conversion Authority had been represented by their own lawyers in the "Mikveh Ruling" the true facts of the case which I outlined above would have come to light.. .