Tal Tales

By Elli Fischer
Tuesday, July 31, 2012

Tomorrow, the Deferral of Military Service for Yeshiva Students Law (Temporary Measure), better known as the Tal Law, will expire.  This law is not just any law: it is the latest enactment of the so-called “status quo arrangement” that frames the uneasy relationship between Israel’s Haredi and secular populations, and between religion and State more generally.  As such, the expiration of the Tal Law and the majority’s desire to draft Haredim en masse into the military upsets a fragile balance, and the various factions in the Knesset have yet to reach agreement.

Why is the Tal Law such a sensitive issue, and how exactly did Israel come to this legislative impasse?

The story of the law goes back to the months leading up to Israel’s independence, to an agreement between David Ben-Gurion, then head of the quasi-governmental Jewish Agency Executive, and the heads of the Haredi Agudath Israel organization.  As fact-finders arrived in 1947 as part of the United Nations Special Committee on Palestine (UNSCOP) to “make recommendations . . . concerning the future government of Palestine,” Ben-Gurion concluded that it would be necessary to create a united front of all Jews in Palestine, and consequently made the concessions necessary to get the Haredim on board.  One such concession, first granted in early 1948, was the exemption of yeshiva students from conscription into the pre-state militia.

To be sure, not all yeshiva students in 1948 were Haredi, and many Haredim served in the military in some capacity.  In fact, over a thousand soldiers would come to serve in the first incarnation of Nahal Haredi, the army unit designed for observant recruits, through the 1960s.  With time, however, the Haredi community increasingly adopted the Hazon Ish’s ideal of the “society of scholars,” while religious-Zionist yeshiva students opted for arrangements that integrated Torah study with military service.  Thus, the issue of deferral for yeshiva students became associated solely with the Haredi population.

What began as an ad hoc deferral became, in 1949, the official policy of the Minister of Defense (conveniently, also Ben-Gurion).  No law was passed recognizing the unique status of yeshiva students: Instead, the Defense Minister was granted discretion as to who would and would not be drafted, and the ministry exercised this discretion to allow students to defer conscription for as long as they remained in yeshiva.

For a while, this state of affairs prevailed, but the surrounding controversy became more complex.  The initial agreement had applied to 400 students and straightforwardly held that full-time yeshiva students could defer military service.  But within a few years, with Haredi demographic growth outpacing that of the rest of the Israeli population, the number of yeshiva deferrals more than tripled.  Objections were also raised, including objections in the Orthodox camp itself, that some students were enrolling in yeshiva in order to dodge the draft.  Additionally, the rationale advanced by the supporters of deferral was changing: Originally, it had been argued (including by Ben-Gurion himself) that the deferrals were needed in order to revitalize the yeshiva world, which had been decimated by the Holocaust.  The presumption had been that once the yeshivot were back on their feet, they could sustain the temporary absence of some students and the deferrals would cease.  But now, this line of argument was abandoned even by its earlier advocates.

The issue was revisited in 1954 and again in 1968, but no profound adjustments were made, and the number of yeshiva deferrals grew more than twenty-fold in 30 years, to over 8,000 by Begin’s election.  The issue was first brought before Israel’s Supreme Court in 1970, but the challenge was rejected.  During this early period, not a single Haredi politician served in the (Mapai-dominated) governing coalitions (with the exception of the First Knesset from 1949 to 1951).  Thus, in upholding yeshiva deferrals, the Court was not defending a factional interest against the wishes of the majority; this was a consensus position.  Thus the status quo was politically and legally secure.

The 1977 electoral victory of Menachem Begin’s Likud, which ended Mapai’s predominance, had little effect on the arrangement (despite popular perception).  His governing coalition, which did include Haredi parties, made some changes:  It abolished the limit on deferrals and loosened the definition of eligibility, resulting in a temporary spike in the total number of deferrals (16,000 by 1985).  Perhaps more significantly, incentives for yeshiva students to work diminished, as the deferral was contingent on study without employment. And with the emergence of a two-party system in Israel, the smaller Haredi parties began to wield more influence as the larger parties offered concessions in return for their coalitional cooperation.

This rise of Haredi power and the resultant increase in material benefits to yeshiva students left Israel’s middle class with a sense of injustice.  Unlike the previous generation, which saw participation in a Jewish army as a historic privilege, the next, more career-oriented generation viewed it as a necessary burden, especially once it entailed service in Lebanon and the increasingly violent West Bank and Gaza Strip.  The resentment toward the Haredi community was manifest in electoral pledges—by Ehud Barak’s Labor Party in 2009 and Tommy Lapid’s Shinui party in 2003—to end wholesale Haredi deferrals and entitlements, and was arguably a key motive for last summer’s tent protests.  Still, the arrangement continues: as of early 2011 there were over 61,000 yeshiva students deferring military service.

So why might change now be afoot?

The answer lies with the Supreme Court.  Having rejected two earlier petitions against the deferrals, in 1986 the court changed its mind, as Justice Aharon Barak ruled that this issue (like much else) is justiciable.  Although he ultimately judged the Defense Minister’s exercise of authority reasonable, he left the door open to revisiting the issue in the future.

The future arrived in 1998, when Barak, by then Chief Justice, ruled that in light of the growing rift within Israeli society and the burgeoning number of deferrals (both in absolute numbers and as a percentage of overall conscripts), yeshiva students’ deferrals must be enshrined in a legislative act.  That is to say, the existing arrangement whereby the Defense Minister could grant deferrals to yeshiva students was declared illegal.

Enter the Tal Law.

In response to the ruling, the government established a committee headed by retired Justice Zvi Tal to make legislative recommendations.  The Tal Law, passed in 2002, focused on alleviating the economic burden inflicted on the majority by the Haredi pursuit of full-time study.  On the one hand, exemptions for full-time yeshiva students were enshrined; on the other hand, a series of measures intended to encourage Haredim to do some kind of abbreviated military or civil service and enter the workforce were advanced.  It was presumed that most Haredim would avail themselves of the opportunity to enter the workforce under such conditions.

The presumptions were wrong.  Moreover, it turned out that the government and the IDF were themselves unprepared for the absorption of large numbers of Haredim.  And so the Supreme Court intervened again in 2006, this time upholding the Tal Law—but warning the government that the Tal Law was discriminatory and therefore could be tolerated only if it met a certain standard detailed by Justice Barak.  That standard held that as long as there is a rational link between the law’s goals and the means selected to achieve them, and that any impingement on rights is in reasonable proportion to the benefits accrued, the policy can stand.  In his decision, Barak wrote that the Tal Law did not pass this proportionality test yet, but that the court was willing to take a wait-and-see approach to whether the law would ultimately be justified.  In the interim he allowed the Knesset to extend the law for another five years, from August 2007 to August 2012.

In that time, modest results were achieved: whether due to the Tal Law or to the reality of a recession that finally forced the “society of scholars” to face up to its economic non-viability, the number of Haredim entering the army and civil service rose significantly.  And this time, infrastructure was put in place to absorb them.

The court, though, was unsatisfied with these meager attainments, and in February 2012 judged the Tal Law to be unconstitutional—allowing it to remain on the books until its expiration, but forbidding its extension.

The Knesset was given half a year to pass an alternative to the Tal Law, or else the entire deferral arrangement would collapse.  In these past few months, every conceivable option has been proposed, from drafting everyone equally (even if that would mean wholesale jailing of Haredi draft dodgers) to cancellation of the draft altogether in favor of a professional army.  Partially in order to gain leverage over the Haredi parties, Prime Minister Netanyahu formed a unity coalition with Kadima and established a committee to issue recommendations for a new law.  Although this committee, and subsequently the coalition, broke apart, the committee did publish its recommendations, which were then approved by Likud.

If nothing else, these recommendations provide Netanyahu with a bargaining position as he negotiates with the Haredi parties, which continue to insist that the “status quo” be upheld—i.e., that no full-time yeshiva student be conscripted for mandatory service.  Amid all the wrangling, the question Netanyahu faces is effectively the same one Ben-Gurion faced in 1947: Will yeshiva students be forcibly conscripted (even for an abbreviated service after several years of full-time study) or will they serve if and when they so choose?

Like Ben-Gurion, Netanyahu is choosing the path of compromise and gradual change, with the goal of encouraging yeshiva students to enlist voluntarily.  This approach seeks to build on the positive gains of the Tal Law, noted by Justice Edna Arbel in her dissent earlier this year.

It is unrealistic to imagine that the uneasy relationship between Israel’s Haredi and secular populations that has prevailed over the last 70 years will shift overnight, or that any government, whether right- or left-wing, would seek to force such a change.  In the end, this juncture never presented the “historic opportunity” for universal conscription that many wished. Perhaps Netanyahu will be able to make some incremental changes, but he can hardly be expected to take a more principled stand than Ben-Gurion.

Elli Fischer did not serve in the IDF due to his flat feet, allergies, and hypothyroidism.

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