Israel’s High Court of Justice ruled on Tuesday that the law that allows full-time yeshiva students to defer army service is unconstitutional. The Knesset will not be able to renew it in its present form.

The law, known as the Tal Law, went into effect 10 years ago and is due to expire in August. According to the legislation, the Knesset must begin considering whether to extend it at least six months before it expires.

Open gallery view Yeshiva students Credit: Nir Kafri

Defense Minister Ehud Barak welcomed the ruling − the result of a 6-3 vote. “The Tal Law, after 10 years, did not meet expectations, nor did it lead to the required changes ... concerning equally sharing the burden.”

Barak said it was urgent that Israel pass a new law so that all citizens equally share society’s burdens.

Tuesday’s decision punctuates outgoing High Court President Dorit Beinisch’s term; it might be the most significant of her tenure. Her successor, Justice Asher Grunis, said in a minority opinion that “it would have been best if the court didn’t have to deal with the issue; if it had been left in the public sphere beyond the court’s jurisdiction.”

In theory, the ruling should require the state to draft around 62,000 yeshiva students and ultra-Orthodox youths this August, on top of 7,000 yeshiva students who serve according to the Tal Law’s stipulations. But a more likely scenario is that the ruling will force the Knesset to recraft the law, or the Defense Ministry will offer a new deal to Haredi men. In any case, Prime Minister Benjamin Netanyahu’s coalition may be rocked by the ruling.

Beinisch wrote in her opinion that “apart from a certain improvement in the implementation of the law, one cannot say that the law’s means achieved their goals, and it seems that certain blocs influence its potential to be fully fulfilled. That being the case, one cannot but determine that the law is unconstitutional .... Originally the legislation harbored the hope that the law would launch a social process that without coercion would encourage ultra-Orthodox people to serve in the military or take part in national civil service. These hopes were dashed.”

Beinisch’s opinion was supported by justices Miriam Naor, Elyakim Rubinstein, Esther Hayut, Hanan Melcer and Neal Hendel. Justices Grunis, Edna Arbel and Eliezer Rivlin opposed the ruling.

Tuesday’s ruling marks a peak in 30 years of legal wrangling, with the High Court first dealing with petitions concerning Haredi military service in 1982. Still, the High Court may find itself forced to deal with the issue yet again when a new law on the horizon is formulated. For that reason, Justice Rubinstein wrote that the solution, “this time, must be more radical.

In contrast, Justice Grunis wrote that “the fact that this court dealt again and again with the issue of Haredi military service, without any progress being made as a result of the court’s ruling, does not add much to the standing of the High Court.”

Prime Minister Benjamin Netanyahu announced that he would formulate a new law to deal with the issue. “As I have already declared, prior to the ruling, the Tal Law in its present form will not be extended,” he said. “In the approaching months we will formulate a new bill that would guarantee a more equal sharing of the burden of all parts of Israeli society.”

Nonetheless, sources in the coalition believe that the new law will continue to exempt Haredi youth from military service.

Netanyahu is scheduled to meet with Interior Minister Eli Yishai to discuss the matter.

Some observers in the Knesset point out that the new High Court president, Justice Grunis was opposed to the ruling, raising the possibility that in the future he might be more forthcoming on the issue than Beinisch was.

MK Shaul Mofaz ‏(Kadima‏) said he welcomes the decision, adding that the Knesset now has “an historic opportunity to fix this demented law once and for all.” Fellow Kadima MK Yohanan Plesner also welcomed the decision, saying it will have “far-reaching moral consequences on Israeli society and the economy.” Barak and Israel Defense Forces Chief of Staff Lt. Gen. Benny Gantz have expressed their opinions in the past that all Israelis must be enlisted in either military or civilian service, and that the IDF should receive priority in selecting its recruits so as to expand the number of people who serve. In addition, Barak has recommended implementing a limit of about 2,000 to 3,000 Torah experts, who would register their vocation as studying the Torah. Foreign Minister Avigdor Lieberman ‏(Yisrael Beiteinu‏) has also strongly objected to the extention of the Tal Law in its present form. “The Tal Law will not be extended,” Lieberman recently stated at a press conference. “All coalition members will act on this issue as they see fit,” he said.

The Movement for Quality Government, which submitted the petition to the High Court, welcomed the “brave decision that reinstated the values of equality and mutual responsibility in Israel.”

The movement stated that “a red stain was removed from the law book, a law that discriminated between the blood of Israelis, and therefore, this should be a day of rejoicing.”

The movement first petitioned the High Court in the summer of 2002, demanding the law be annulled. Following the Knesset’s decision to extend the law, the movement petitioned the High Court again in 2007. Paradoxically, the petitions actually promoted the law’s implementation, since the state attempted to prove that it does encourage military or civil service. Still, the data submitted to the court proved that only a few more ultra-Orthodox men served in the IDF, and the movement’s assertion was that the data proved the failure of the law.

Meretz chairwoman, Zahava Gal-On welcomed the decision. “Meretz’s petition and the decision that the law is unconstitutional is a victory for the principle of equality.

The government in the last decade excelled in evading its duty to realize the principle of equality. The High Court correctly put an end to Haredi evasion of military service, and ordered the Knesset to put an end to discrimination based on blood. The Knesset must pass a law that will be equal to all, making national, civilian or military service compulsory, allowing each citizen to serve according to his conscience and beliefs,” said Gal-On.

Kadima leader, Tzipi Livni also hailed the decision. “Justice has been served. Social justice necessitates sharing the burden. Kadima will initiate tomorrow a set of bills that will make military or civil service compulsory. We won’t allow the Zionist majority to become a minority that carries everyone else on its back because of Netanyahu’s coalition preferences, and his natural allies. The Zionist majority must oust the government that enslaves our future to certain sectors that damage the general public. A government under my leadership would initiate legislation that would make service for all compulsory, and that is a commitment to the public,” said Livni.

MK Tzipi Hotovely ‏(Likud‏) said the decision was morally correct. “It would have been preferable if the political establishment had reached the decision. Due to the consecutive failure of Israeli governments to guarantee mutual responsibility within Israeli society it was the High Court’s duty to stand firm and guard social consolidation, especially in such fateful times,” said Hotovely.