Jerusalem, Israel - In a case that demonstrated the delicate balance between religious autonomy and individual liberty, the Supreme Court forced the Petah Tikva burial society to allow bereaved women to eulogize their loved ones if they desired to do so.
However, the court also did not force the burial society to change the way it conducts its burials unless it receives a specific request to do so.
Unlike the rabbis of many cities, including Tel Aviv and Jerusalem, Chief Rabbi of Petah Tikva Baruch Shimon Salomon ruled that eulogies given by women were prohibited. Rather, the code of decorum abided by mainstream Orthodox synagogues would be the rule of behavior during the entire burial. As a result, eulogies by females were not permitted and there was also a separation of the sexes both during the eulogies and the procession.
The petition was brought before the Supreme Court by Dr. Aviad Hacohen of the Ben-David, Avraham, Hacohen law office.
Rivkah Lubitch, a prominent Rabbinical Advocate [to'enet rabbanit] and one of the petitioners to the High Court, said the Petah Tikva burial society refused to allow her to eulogize her father, sociologist Charles Liebman, an Israel Prize Laureate.
"At the time I was not exactly in the mental state to fight them," recalled Lubitch.
Assaf Behr, another petitioner who is a lawyer, said he got the impression from the judges that they were wary of infringing on the autonomy of Salomon and the Petah Tikva burial society.
"Rabbi Salomon was never asked to appear before the court and the judges did nothing more than force the burial society to do things they were already prepared to do anyway," said Behr.
"It's as if the court has lost courage after [former President Aharon] Barak retired. "The court did not interfere in anything that the burial society explicitly opposed, such as allowing females to console and be consoled immediately following the burial, even though this is a blatant example of religious coercion and an infringement on individual freedom."
Behr said that in the past the Supreme Court has curtailed rabbinic authority when it hurt individuals' rights as anchored in the Basic Law: Human Dignity and Freedom.
In a letter to the Supreme Court, the Petah Tikva burial society explained that although the custom at Petah Tikva's Segula Cemetery was to adhere to the separation of the sexes during the entire burial ceremony, there were cases in which women were permitted to give eulogies if they demanded to do so.
Judges Salim Jubran, Miriam Ne'or and Uzi Fogelman ruled that all concessions already permitted by the burial society should be allowed upon request. If the Petah Tikva burial society refused to do so it would be held in contempt of court.
Rabbi Ya'acov Ruzah of the Tel Aviv burial society said that while there was no restriction against allowing women to eulogize, in most religious communities, whether Hassidic, Lithuanian or Sephardi, it was not customary for women to enter the cemetery at all.
He said there were all sorts of restrictions that effectively discouraged women from taking part in the burial procession.