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The Israeli Supreme Court Denies Women The Right to Pray at the Western Wall:
A Misguided Decision Parallels the U.S. "Fighting Words" Doctrine


Wednesday, Apr. 23, 2003

Earlier this month, the Israeli Supreme Court, in a 5-4 decision, refused to permit women to pray out loud at the Western Wall ("the Wall") in Jerusalem. Known in Hebrew as the "Kotel Ha'Maaravi," the Wall is all that remains of the second Jewish Temple destroyed by the Romans almost 2000 years ago. It is one of the holiest sites in existence for Jews around the world.

The plaintiffs in the case called themselves the "Women of the Wall." They asked the Israeli Court to recognize their right to pray out loud at the Kotel, after they had repeatedly encountered physical and verbal abuse from the Ultra-Orthodox each time they tried to do so on their own.

The women had hoped and expected the Court to agree that they, as a matter of equality, should be able to assemble and pray just like men have done for as long as the Wall has stood. Besides formalizing the legal equality of women, such a ruling could help fortify the resolve of police who must invariably come to the women's aid and repel acts of aggression.

On April 6, the women's hopes were dashed. The Israeli High Court concluded that because of the violence that plaintiffs' religious practice provokes on the part of Ultra-Orthodox spectators, the Women of the Wall would have to conduct their services elsewhere. In the estimation of the Court, female assembly and vocal prayer at the Wall could endanger public order and lead to rioting by Ultra-Orthodox Jews.

Fighting Words: An American Counterpart to the Israeli Concern

American Law has an analogue to the Israeli Court's public order concern: the "fighting words" doctrine. The First Amendment ordinarily protects people's right to speak or assemble in a public forum, without censorship by the government. Under such cases as Chaplinsky v. New Hampshire, however, an exception exists for "fighting words," defined to include "those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction."

To assess whether particular speech qualifies as "fighting words," courts must determine when the likely response will be an assault. Words that predictably provoke immediate violence do not enjoy constitutional protection. Like the Women of the Wall, the speaker in such cases is classified as disruptive of public order.

Implicit Gender Bias in the Fighting Words Doctrine

Feminist authors have argued persuasively that the fighting words doctrine focuses on the wrong party in attributing responsibility for outbreaks of violence. To attach the label "fighting words" is, at least to some extent, to mitigate the seriousness of the violence that may follow such speech, on the theory that the speaker "asked for" or provoked the aggression.

Such labeling literally "blames the victim" for violence that is directed against him. It permits the government to punish his speech in addition to (or even instead of) punishing the person who would use his fists in response to words.

On top of unfairly attributing blame, moreover, the fighting words doctrine could conceivably turn on the gender of an audience to offending speech. When a woman, for example, listens to abusive remarks, the odds are relatively slim that she will physically assault the speaker. However hurtful the words that she hears, a woman ordinarily will not lash out in physical violence, even in situations in which men predictably would.

At best, this reality suggests that the fighting words doctrine is built around a masculine conception of speakers and listeners that disregards female modes of interaction and accommodates a stereotypically male way of responding to provocation.

At worst, as some authors have suggested, the doctrine provides that a person speaking abusively to a woman may enjoy greater First Amendment protection than a person speaking abusively to a man, by virtue of the likelihood that each respective listener will respond with violence.

Another way of putting this is that, as a matter of First Amendment doctrine, the worse the listener's temper, the more limited the speaker's freedom.

Explicit Gender Bias

The gender bias implicit in the American fighting words doctrine becomes explicit and pronounced in the decision handed down by the Israeli Supreme Court. The provocative speech (and worship) in that case is the prayer of women at a holy site. It is precisely the speakers' gender that triggers violent disorder on the part of onlookers.

By taking the abusive conduct of Ultra-Orthodox Jews as inevitable and silencing the praying women to restore order, the Court effectively condones violence as a strategy for imposing one's religious dogma on others. In the particular case, it does so at the expense of equality.

A Lesson from U.S. Constitutional Law

As noted above, U.S. courts have adopted a troubling fighting words doctrine. In addition, they have in other contexts often failed to resist oppressive private behavior. Yet in the area of race relations, they have embraced a salutary policy that could be instructive for the Israeli Supreme Court.

In Palmore v. Sidoti, decided in 1984, the U.S. Supreme Court confronted a custody battle between a man and woman who had formerly been married and had a daughter together. Both parties and their child were Caucasian.

The mother in the case, Linda Palmore, had originally been awarded custody of the couple's daughter. The father - Anthony Sidoti - later sought a modification of the custody award due to changed circumstances. Since the divorce was finalized, the mother had begun cohabiting with an African-American man (whom she went on to marry), and the child's father believed that this development called for a change in his child's living situation.

The Florida courts agreed with Sidoti and held that his daughter should not have to suffer the social stigmatization that would likely accompany life in a multiracial household. It accordingly awarded custody to the girl's father.

On appeal, the United States Supreme Court reversed the decision of the Florida courts. It held that the Equal Protection Clause of the Fourteenth Amendment prohibits the government from making custody decisions on the basis of race, even if the government's motive is to protect innocent people from exposure to the racial prejudice of society. The Court's decision wisely refused to allow bigots to dictate the structure of society.

The Israeli Supreme Court should have ruled likewise. The fact that some Ultra-Orthodox Jews may become violent and abusive in response to women praying out loud at the Wall is shameful and should be addressed as the hate crime that it is. As the U.S. Court said in Palmore, "[p]rivate biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." The decision against the Women of the Wall did exactly that: it gave effect to the wishes of the Ultra Orthodox, as expressed through violence.

The Larger Implications of the Ruling for Israeli Policy

The Israeli government should be especially sensitive to the perversity of the argument that prevailed in this case. Terrorists regularly visit death and injury on the people of Israel. They do so, they claim, in response to what they describe as Israel's provocative behavior - including settlement of the West Bank.

Rather than alter its settlement policy, however, Israel has chosen to react to suicide bombings by indicating that it will not bow to terrorists, even if it might - in the absence of the violence - have begun the process of dismantling the settlements.

Whatever one thinks of Israeli settlements, the value of standing up to terrorists and resisting such extortion is clear. For both practical and moral reasons, Israel must not be perceived as conducting its decision-making at the point of a Palestinian gun.

Women of the Wall: Their Right to Worship

A group of Jewish women has sought to worship at a holy place at which men have worshipped for centuries. The women wish to pray and sing aloud - as the men do - despite the religious opposition of Ultra-Orthodox Jews who contend that the sound of a woman's voice is too sexually alluring to be heard by men.

Onlookers - apparently inflamed with desire - have repeatedly set upon the "provocative" women by spitting, shoving, and hurling stones and other heavy objects, causing injuries that have, on occasion, required hospitalization. The Israeli Supreme Court attributes this "public disorder" to the peaceful prayers of the women rather than to the illegal and disgraceful behavior of their assailants.

One could justifiably characterize this decision as representing one step along to road to appeasing terrorists. It is a grave mistake that ought to be recognized as such and overruled.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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