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Halacha vs Constitution destined for Equality Court

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The Cape Council of the South African Jewish Board of Deputies this week rejected a compromise offer made by the three claimants who are taking the Council to the Equality Court of the Western Cape High Court, arguing that it is unconstitutional to not allow women to sing at Jewish secular events. It now seems, the question of whether religious law trumps constitutional law, will probably be decided in the next few weeks by the Equality Court. Read the story - see the video.
by ANT KATZ | Apr 20, 2016

Four years ago WIZO (Women’s International Zionist Organisation) members, SACRED and other groups and individuals held the above, rowdy, placard-wielding protest outside the entrance to Beyachad – the Raedene campus that houses most of Johannesburg’s major secular Jewish organisations. The protest was held prior to Yom Ha’atzmaut in and this video was published on  August 24, 2012



The Cape Council of the South African Jewish Board of Deputies this week rejected a compromise offer made by the three claimants who are taking the Council to the Equality Court of the Western Cape High Court, arguing that it is unconstitutional to not allow women to sing at Jewish secular events.

This case is being deemed urgent as the claimants want it settled before the Board-hosted Yom Hashoah (Holocaust Remembrance Day) event on May 5. Papers were originally lodged on April 1 in the Equality Court by Advocate Anton Katz SC on behalf of two Orthodox Cape residents, Gilad Stern and Sarah Goldstein.

Kol IshaThe Cape Board was named as respondent. Stern and Goldstein were subsequently joined in the matter by The South African Centre for Religious Equality and Diversity (SACRED) which is chaired by Progressive Rabbi Julia Margolis. The SA Union of Progressive Jewry (SAUPJ), to which SACRED is affiliated, has distanced itself from the legal action.

At issue is the halachic principle of “Kol Isha”, which denies men the opportunity to hear a woman’s voice. This is “correct according to halacha”, a respected local rabbi who asked not to be named, told Jewish Report.

While he agreed that it was accepted in the past, he pointed out that Orthodoxy had relied on “a number of dispensations”, to exclude certain events in the past.

However, the rabbi said, the current trend among Orthodox Jewry worldwide reflects a “general shift to the right”, adding that no Orthodox rabbi in this community would support the perception of applying dispensations to bypass halacha on an issue such as this.

The papers were served on the Cape Council on April 6 notifying the Council that it was being sued for “discrimination of women on the basis of gender”. The Cape Council’s chairman, Eric Marx, told Jewish Report earlier this month that a compromise had been proposed and that he was hopeful that an accommodation could be reached.

SAJBD National Director Wendy Kahn issued a statement early last week advising that a conflict of interest over this case had forced the Board to suspend Rabbi Margolis from attending Board meetings - to which she had been invited as a guest of the Board - until matters were resolved.

The Board had “invited the SAUPJ to replace Rabbi Margolis during this time”, said chairman of the Gauteng Council of the SAJBD, Shaun Zagnoev, and the Progressive Union did so, in the person of their Gauteng chairman, Monica Solomons.

Last week Thursday, the SAUPJ’s national chairman, Alvin Kushner, issued a statement that Rabbi Margolis had acted on her own and he distanced his organisation from the Equality Court action. Kushner had to walk a fine line as SACRED is an SAUPJ affiliate.

Kushner made it clear that while the SAUPJ was not part of nor had prior knowledge of the action against the Board, he acknowledged that the SAUPJ does “share the frustration felt by women who are prohibited from singing” (at secular communal events). Kushner (who also sits on the executive of Progressive Jewry’s world body, the WUPJ) said the SAUPJ agreed with the sentiments expressed by the plaintiffs, if not their methodology.

As no common ground could be found between the parties, the complainants sought to moderate. They proposed nine points and asked the Board to either agree with them or give reasons why they do not agree.

The Cape Council of the Board responded to the claimants this week rejecting the nine-point compromise plan. The terms of the “settlement offer (were) not acceptable”, the Board replied, and stated that the Board’s reasons for rejecting it would “be dealt with in (the) replying affidavit”.

At the heart of the issue will be the question of whether religious rights trump Constitutional rights, or whether every such case will be judged on its own merits.



The claimants sent the Cape Board the following offer of compromise: 

1. We note your written e-mail letter to our client, Mr G Stern of today 5 April, 2016

2. Our clients continue to share a preference that this matter be settled for all the obvious reasons.

3. In the circumstances, our clients have prepared a proposal which is attached hereto for the Board's consideration.

4. The proposal consists of 9 paragraphs which would reflect an agreement between the parties.

5. We do not regard our clients' proposal as being without prejudice. It is our clients' view that their proposal be made available to the Court hearing the matter.

6. In this regard, we invite the Board, were it to reject our clients' proposal, to explain, in any answering affidavit it may file, which of the 9 paragraphs contained in our clients' proposal, it does not agree with, and why.


RELATED READS AND LINKS ON JR ONLINE


The compromise offer that was rejected:


Stern, SACRED and Goldstein v South African Jewish Board of Deputies (Cape Council) ("the Board")

The parties have agreed to the following:

1. The Board accepts that it is unlawful and unconstitutional to discriminate against any person on the basis of his or her gender.

2. The Board accepts that to discriminate on the basis of gender constitutes a clear violation of the rights to equality and dignity.

3. The parties agree that the protection of the right to dignity constitutes an affirmation of the inherent worth of all human beings, irrespective of their gender.

4. The Board undertakes to refrain from discriminating on the basis of gender in the future, and to make representations to the National Board to follow suit.

5. The Board, in consultation with the complainants, will forthwith undergo an audit of its laws/rules, policies and practices with a view to eliminating all discriminatory practices thereof.

6. The parties recognise the importance of the Holocaust not only as a crime against humanity, but acknowledge that Hitler and the Nazi party targeted and exterminated millions of Jewish persons, irrespective of their gender. Hitler and the Nazi party treated and murdered men, women and children without any discrimination between men and women.

7. The parties agree that at the Yom Hashoah memorial service ("the event") to be held in Cape Town on 5 May 2016 to memorialise the Holocaust, women shall be permitted to sing solo. The parties further agree that they will collaborate in preparing the programme for the event so as to minimise any interruptions caused by those attendees who wish to leave the event whenever a woman sings at the event.

8. The Board agrees to invite Aviva Pelham to sing an appropriate memorial song at the event.

9. Stern, SACRED and Goldstein agree to withdraw their application to the Equality Court.

This is the offer that was rejected this week. The matter is now expected to be heard by the Cape Equality Court.

5 Comments

  1. 5 nat cheiman 20 Apr
    Not a good idea. Surely what happens in Jewish circles stays in Jewish circles.
    How on earth can a bunch of goyim deliberate on halachic matters? 
  2. 4 Rav Shalom 20 Apr
    The Board has disgraced itself by not being able to comply with these points.
    Who does it represent?
    Whose agenda is being followed and to what pupose?
    I would expect the Board to be at the forefront of protecting rights and expanding access to the formely discriminated rather than protecting and perpetuating discriminatory practises.

    The law is clear. They know they will lose the case.
    I believe they understand this and their legal advice suports this view.

    Going to court is their strategy to avoid directly confronting the Rabbinate.

    Shameful and cowardly.

    SAJBD please stand up against bigotry no matter its source.
  3. 3 Gary Rewald 21 Apr
    The issue of Kol ISha has been debated for years and will never be resolved to everyones satisfaction. What is true however, is that there is definately difference of opinion EVEN in orthodox circles. 

    I refer everyone to the website of the Liverpool Hebrew Congregation website at www.princesroad.org where the following is found about the choir.

    Liverpool Old Hebrew Congregation has a long and very proud musical tradition. Our choir was formed in the mid-19th century and led by Abraham Saqui from 1858 until his death in 1893. Saqui was one of the world’s leading composers of synagogue music in the Victorian era and trained the choir to an exceptionally high standard. It performed regularly at local and national events, in a time when many mainstream Orthodox Hebrew congregations had choirs. The repertoire included pieces by the finest composers of synagogue liturgy, including Sulzer, Lewandowski, Mombach, Naumbourg, Salaman, Alman and many more, as well as Saqui’s own work. The high standards were maintained long after Saqui’s death, notably under Rev AB Coleman’s tenure from the 1910s. In 1933, the leadership fell to the young Raphael “Rafe” Dorfman, who had been a member of the choir for some time. He served as choirmaster for an incredible 68 years, until retiring through ill-health in 2001. His brother Charles served a similar period as choir librarian until his death in 2000.​ 

    In 1941, under the strain of World War II, the decision was made to recruit a small number of women into the choir to compensate for the evacuation of many of the boy choristers and also the active service of some of the men. 

    The women who joined the choir were Rafe and Charles’ sister, their wives and young daughters. Our congregants became accustomed to the finest musical traditions, delivered by their beloved choirand spectacular chazzanim such as Rev Herman Bornstein.​

    After the war and throughout much of the remainder of the 20th century, it was not uncommon for mainstream Anglo-Orthodox congregations to retain a mixed choir of this type, however, we believe we are now the only Orthodox congregation in the UK to retain a mixed choir.

    As we reach the time of Pesach, Torah teaches us in Parsha Shemot that immediately upon the children of Israel walking on dry land following the drowning of the Egyptians "Miriam, the prophetess, Aaron's sister, took a timbrel in her hand, and all the women came out after her with timbrels and with dances. And Miriam called out to them, Sing to the Lord, for very exalted is He; a horse and its rider He cast into the sea"

    Miriam amd the woman danced and sang to Hashen in praise and in thanks in the destruction of our enemies.

    And I have no doubt that not a single man covered his eyes so as not to see or his ears so as not to hear!. 

    So to those who vehemantly proclaim halachic precedence I ask....Would you argue that listening to the Jewish Kid Gene Simmons of KISS is halachically ok BECAUSE he is a man, but Barbra Streisand singing Avinu Malkeinu is somehow a problem BECAUSE she is a a woman?

     "Its the MUSIC stupid!" is what I would shout out!.

    Listen to the music and judge the music and the performance, not simply the gender of the singer.! 

    BY NOT hearing the the G-d given talents of 50% of the population you are denying that Hashem provided women with these talents for all to share in and to be inspired from.

    Many, including myself, believe that this is the essence of Jewish Music - a talent given by Hashem used in praising Hashem. What can possibly be wrong in listening to Streisand, or Neshama Carlebach or Chava Alberstein or Ofra Haza or the mutitude of female and mixed choirs using their talents to inspire in the same way that it is done by male singers and choirs?  Note I specifically did not include Madonna, or Brittany Spears as I can see and appreciate the objection with their perfomances from a religious aspect. Surely it should be the same decision for Gene Simmons. Not his gender but the nature of his performance.

    But, even as I write this in support of choosing to listen to women voices in song, I acknowledge that to many in the orthodox world, this is still a problem and I still can appreciate and accept their decisions. 

    Therefore, I would appeal to SACRED to stop the legal challenge -  its futile and childish - kinda like peeing a dark suit - you feel better but no-one notices!. Even if you win, you will not make friends of those who do not accept your position and you will detract from the community Yom Hashoah dedications.

    Have your own event - invite the community and let them decide where it wishes to attend. By doing so you raise the issue and challenge the establishment to take note of your position without alienating the community at large. You have nothing to gain in the law suit and everything to lose. If you truly believe you have the support, prove it. And if not, continue to advocate by putting on events for the community to show its support or not of your goals. If you then succeed, its because you have won community support and not because you have kinda won on a legal challenge.
  4. 2 Joshua 02 May
    You guys are missing a crucial point - this isnt a progressive against orthodox issue - the case was brought by 2 orthodox Yidden
  5. 1 Yossi Cohen 02 May
    gary. appealing to sacred won't help 'cos they only joined the original 2 cape applicants who are both orthodox if i understand

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