Offences to religious feelings in Israel: A theoretical explication of an exceptional legal doctrine

Abstract

In the Israeli public sphere we often hear claims about offences to religious feelings. For example, representatives of the three major religions have argued that having a gay pride parade in the holy city of Jerusalem offends their religious feelings. The debate about allowing motor traffic during the Sabbath on Bar-Ilan road, which is located in a Jewish ultra orthodox neighbourhood in Jerusalem, is another example in which claims about offences to religious feelings were raised. According to the orthodox view in current liberal thought, there should be no legal protection from mere insult to feelings and sensibilities, as related to sacred religious and cultural values as they may be. The Israeli legal doctrine is a unique exception. It acknowledges claims about offences to religious feelings. It is not based, however, on a comprehensive theoretical framework in political and moral philosophy. In this article, I draw on the Israeli example and argue – against the prevailing liberal orthodoxy – that some claims of offence to feelings deserve legal protection. I argue that such claims boil down to a struggle for equality in the public sphere between competing cultural identities. I conceptualize such claims from offences to feelings as claims that purport to protect one’s right in the integrity of one’s cultural identity. I argue that from this conceptualization a principle for justly regulating claims from cultural identity emerges. This is the vulnerable cultural identity principle, according to which the more vulnerable the social and civic status of one’s cultural identity is, the stronger one’s claim is to integrity of cultural identity. The vulnerable identity principle recognizes the asymmetrical social power relations between minority and majority members. It is entailed by the notion of toleration, which requires the state, according to certain conceptions of toleration, to take active steps to ensure equal recognition of different cultural identities.