Fredrika Shavit v. Rishon Lezion Jewish Burial Society

Shavit v. Rishon Letzion Jewish Burial Society
CA 6024/97
Jewish and democratic state.
19. Negating the power of the Court to set appropriate boundaries
to protect religious sensibilities will ultimately lead us – in a State of
Israel that is not a theocracy (HCJ 3872/93 supra [19] at 506) – to fail to
consider these sensibilities. The end result will be damage to freedom of
religion itself. Thus, it is actually the need to protect religious
sensibilities and freedom of religion that necessitates balancing different
values and principles.
These balances – which are based on the relative weight of the
principles and values – entail assessing the varying degrees of harm to
sensibilities. This assessment is also necessary to ensure tolerance. Only
through tolerance can we maintain communal life. A healthy society is
based, in essence, on mutual compromise and tolerance. CA 105/92 supra
[26] at 211. Tolerance is essentially the rejection of the “all or nothing”
approach, and the promotion of mutual compromise by assessing varying
degrees of harm to sensibilities. See HCJ 257/89, supra [32] at 354; HCJ
806/88, supra [28] at 30. Indeed, a democratic society that seeks to
recognize and protect the human rights of all its citizens must
acknowledge people’s sensibilities and balance them by considering
degrees of harm to sensibilities. Only harm that crosses the “threshold of
tolerance” will warrant protection. I remarked on this in an earlier case:
[It is] our duty to recognize a certain “threshold of tolerance”
regarding harm to sensibilities, which every member of a
democratic society accepts as part of the social contract upon
which democracy is predicated. This being the case, only when
an offense exceeds this “threshold of tolerance” will restricting
human rights in a democratic society be justified.
…
Clearly, the “threshold of tolerance” is not uniform, but rather a
function of the right and infringement in question