Will drafting ultra-Orthodox to fight upend Israel's gov't?

The Israeli Supreme Court has ruled — again — that ultra-Orthodox men can no longer claim their customary exemption from national military service.

This has sparked massive protest and speculation that it will lead to the collapse of Prime Minister Benjamin Netanyahu’s governing coalition should he comply with the court’s ruling. The underlying hopes, or fears, depending on one’s view of the government, is that Netanyahu will have no choice but to implement the ruling and that, if he does, the religious and ultra-right parties will have no choice but to bolt. Not so fast.

When Israel’s first prime minister was assembling a workable government after establishment of the state, he made a deal with the ultra-orthodox community to secure the exemption of students in religious academies (yeshivas) from military service. The deal was incorporated into the framework of defense regulations under the 1949 Defense law. The terms of the deal were simply that students would be exempt until the age of 40 when they were no longer liable for military service. After that, they could seek employment outside of the world of Torah study.

As a practical matter, they were allowed to leave their yeshivas and find employment when they were 30 years old. This was a good deal, but affected only the very few males who were studying in those days in yeshivas, perhaps about 40 in number.

As the number of Haredis grew and organized politically, they became powerful swing parties, prepared to help push the coalition most prepared to meet their demands over the top following close elections. Even politicians who swept into office would still reward religious parties who joined their governing coalition as, for example, Likud Prime Minister Menachem Begin did in 1977, when he toppled the prevailing Labor ascendancy in an astounding victory. In so doing, however, he seeded a backlash that lay mostly dormant until the late 1990s, when Labor returned briefly to lead the country.

In 1998, in the case of Rubenstein v. Minister of Defense, the High Court of Justice ruled that the defense minister had no legal authority to exempt Israeli Jews from military service. The Labor government appointed Zvi Tal, a High Court justice, to develop a durable legal solution to what was, in essence, a political problem. As the then Chief Justice framed the issue, he wrote “the current situation, in which a significant portion of these individuals of service age do not risk their lives for the security of the State is very discriminatory.” This study led to the Tal law enacted by the Knesset in 2002.

The law was meant to be a temporary measure, to be renewed by the Knesset every 5 years, pending a long term solution to the conundrum the Chief Justice had spelled out four years before. It provided that exemptions could be made until the age of 23 — a 5-year span beginning with the normal age of conscription at 18, to be followed by a 16-month enlistment, half the normal time, a year of civilian service, or full time Torah study. This was catnip to Haredim, who seized it as a blank check for their men to evade military service permanently by enjoying subsidized devotional scholarship. The High Court of Justice shared this view of the law, although not from the same perspective, and shot it down in 2012 for violating the Human Dignity section of Israel’s Basic Law.

When Netanyahu formed a government with a secular centrist party, Yesh Atid, in 2012, he embraced the Yesh Atid slogan that the ultra-orthodox should “share the burden.” Once again, a commission to find a way out of the legal and political cul de sac was formed by the science and technology minister, Yaakov Peri. Pending his report, the High Court allowed the defense minister to set the rules for service exemptions.

In 2014 another bill was passed that gave the Haredi community three years to usher 60% of hitherto exempt students into military service. If that goal were not met then all Haredi men eligible for service but not in uniform would face criminal and financial penalties. During the three-year runup to implementation, however, there would be no penalties. The following year, the Haredi parties were back in government and got the 2014 law amended to make it friendlier to Haredi interests. Criminal penalties were dropped, and additional three years were added to the time frame preceding implementation.

The High Court of Justice, by that point, was fed up and struck down the amended law and instructed the government to come up with yet another one.

The Court’s demand coincided with a long period of political instability. There was a moment when Likud’s then leader, Naftali Bennett, and centrist Yair Lapid paired up to form a government and tasked the defense minister, Benny Gantz to come up with a plan to make progress toward Haredi conscription. His approach took a page from older playbooks and stipulated that exemptions expire at the age of 21. The bill however went nowhere, reflecting as it did the government’s evident weakness.

When Netanyahu came back in 2022 at the helm of a far right government, the Haredim were in a position to push back. The plan was to pass a law that would enable the Knesset to override High Court rulings. For the far right generally and the Haredim in particular, this would be the universal solvent. The move to draft and pass the law, however, sparked widespread demonstrations against “judicial reform” as the Knesset coup was called, and highlighted the question of Haredi exemptions.

Hamas’ October 7 attack temporarily pushed the issue to the back burner, but as the fighting dragged on, had the opposite of effect. As the IDF command was complaining that it lacked the personnel to prosecute the war effectively even as Israeli casualties climbed, questions about Haredi exemptions once again came to the fore. Public protests swirled around the issue and combined with demands that the government focus more on release of the hostages. The High Court and the attorney general both warned that the government would have to begin conscripting Haredi students in the near future.

The latest ruling included a firm deadline, which in turn has raised questions about the viability Netanyahu’s government. The narrative goes something like this: Netanyahu’s coalition depends on the religious far right, which opposes conscription, and the Haredi parties themselves. If therefore Netanyahu were to heed to court’s ruling, these parties would bolt, bringing down the government.

But this narrative ignores inconvenient facts. The first is that Netanyahu has some maneuvering room vis a vis the demands of the court and his own attorney general. He can meet these through partial compliance, assurances that he will bring to the Knesset a new bill that will make both the Haredis and the court happy, or stall in ways that don’t come immediately to mind of observers but are under consideration within the government.

Second, the Haredis and the religious far right understand the public resentment regarding Haredi exemptions — even Bezalel Smotrich, the leader of a far-right religious party in Netanyahu’s coalition — has made conciliatory noises. And they understand that however much Netanyahu might move to accommodate to the requirements of the court and attorney general, he’s not going to go as far as the center or center right.

They are therefore unlikely to bolt. And the mainstream Likud party leaders would rather work with Netanyahu to fashion compromise solutions than see the government fall and themselves in the opposition or in a tortured and torturous coalition with centrist parties. So those anticipating the fall of the government, are advised to wait sitting down.