Fredrika Shavit v. Rishon Lezion Jewish Burial Society

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7. As mentioned, Justice Witkon held the minority opinion in Gideon [1]. Disagreeing with the above approach, he said: It seems to me that when faced with the respondent, the appellant has nothing to say. The Jewish burial society runs its affairs in the spirit of its ideology and sets the rules for gravestones as it sees fit in cemeteries under its management. It is immaterial if we agree or disagree with its views. It is not our place to argue if they are well-anchored in law or in Jewish Law or the spirit of the Jewish religion in our times. It is true that the ban on the standard calendar is not one of the 613 commandments of the Torah, and it is possible that the respondent is being too rigid. It is also true that even the document bearing the ruling of the honorable Chief Rabbi, Rabbi Ovadia Yosef, upon which the respondent relies, displays the Gregorian date. Not only are these dates used on every official and ceremonial document issued in the State of Israel, but they are often found even on documents issued by the Rabbinate. Similarly, it has been determined that in the past, Jewish burial societies allowed Gregorian dates on gravestones, and it seems that they did not then consider it an affront to the sensibilities of religious Jews. Today, we consider testimony offered on the respondent’s behalf, that in the public domain of which it is in charge – and we are referring to a public domain and not a private domain (see HM 545/67 (Jer) Arnon v. Israel Lands Administration, IsrDC 67 284) – there must be one standard custom, and that is to carve birth and death dates on gravestones according to the Hebrew calendar only. In this sensitive issue, who can tell us if one approach is ‘reasonable’ or not? Id. at 15-16. 8. In CA 294/91 (Kestenbaum [6]), the issue arose again, again the justices’ opinions were divided, and again the dispute was to a large extent ideological. The central questions are: What are the sensibilities that need to be defended? Who has the burden of being tolerant? And
Shavit v. Rishon Letzion Jewish Burial Society CA 6024/97 who must give in? Of course, for the sake of finding a solution to the problem, the Court uses legal principles and conceptual tools through which it can adjudicate the opposing demands of the litigants. Here, briefly, is a list of those tools: public law that overrules the general Contracts Law; a discriminatory condition in a standard contract; human dignity and freedom; and public policy. But these conceptual tools cannot succeed in getting to the root of this ideological dispute. 9. President Shamgar aspires to be objective, and he says it beautifully in his judgment in Kestenbaum [6]: As long as the issue is the essential nature of the harm, which would make it a legitimate reason to limit personal liberty, its extent will be measured from the viewpoint of the average rational person, that is using objective criteria and not subjective sensibilities and reactions. Id. at 482. President Shamgar goes on to apply his “objective” test in the following way: We can’t conclude from what has been said above that someone who erects a gravestone should be allowed to do whatever he or she likes. Supervision is necessary so that the character of the cemetery and the sensibilities of others will not be harmed. Nevertheless, as mentioned above in a general way, when evaluating the harm to others, the appropriate path is to establish criteria based on logic and tolerance and not extremism. The right of the individual to erect a monument which will allow him to commune with his loved one, and record upon it whatever is significant in his eyes or, in his opinion, the eyes of deceased, must retreat before the sensibilities of another only if it is clearly inevitable that the inscription will arouse the strong and justified opposition of a reasonable person. One who erects a gravestone and another who comes to visit a different grave in the cemetery
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Fredrika Shavit v. Rishon Lezion Jewish Burial Society

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