The High Court of Justice ordered the state on Monday to explain why, three decades after Israel enacted its civil burial law, Jerusalem-area residents still do not have a state-funded civil cemetery.
In a decision issued a day after a hearing on the matter, Justices Alex Stein, Khaled Kabub, and Yechiel Kasher handed down a conditional order directing the Religious Services Ministry, the Finance Ministry, and the Jerusalem Jewish Burial Council to show why they have not acted to establish a civil cemetery for Jerusalem and its surrounding area. Additionally, they have failed to allocate the required budget, grant a burial license to the lead petitioner, Menucha Nechona Jerusalem, and to remove barriers that petitioners say have made it effectively impossible for non-Orthodox groups to operate such a site. The state was ordered to respond by July 1.
The case was brought by Menucha Nechona Jerusalem, together with the Reform movement, Hiddush, the Masorti movement, and several private petitioners seeking access to civil burial. At its core is a challenge that has lingered for years: While Israeli law recognizes the right to alternative civil burial, the petitioners say that right has never been meaningfully implemented for residents of Jerusalem, forcing families who do not want an Orthodox religious burial to look outside the capital or forgo the option altogether.
The court’s move does not yet decide the petition on the merits, but it is a significant procedural step. A conditional order means the burden shifts to the state and the other respondents to justify their conduct and persuade the court why the relief sought should not be granted. In practice, it signals that the panel found the petition raised serious legal questions requiring a fuller answer.
That skepticism was on display during Sunday’s hearing.
Stein told state representatives that the law was “very clear” and left no real room for discretion on the question of providing civil burial, adding that the provision imposed a duty – not a matter of choice – and warned that absent “good news,” the court would issue a conditional order.
Kabub pressed the state over the cost issue, asking what exactly was expected of petitioners if the state itself was saying the project would require around NIS 15 million.
Kasher, for his part, pointed to the structural problem raised by the petition, suggesting that a system in which only well-capitalized religious burial companies can realistically compete risks predetermining the result. After 30 years, he said, Jerusalem residents who want a civil burial still do not have it.
The state, however, argued that the picture was more complicated.
Behind Jerusalem’s civil cemetery project
In a preliminary response filed in late March, the Religious Services Ministry, the Finance Ministry, and the Israel Land Authority (ILA) did not dispute that civil burial, such as the petitioners seek, remains unavailable in Jerusalem.
But, they argued, the law does not create an automatic obligation for the state to directly finance and build a civil cemetery in the manner demanded by the petitioners, and they said that the situation in Jerusalem was shaped by unusually high development costs at the designated site at the Har HaMenuchot cemetery.
According to the state, those costs run far higher than in other parts of the country because of the area’s terrain and infrastructure needs, with the first phase alone estimated in the millions of shekels and the broader project discussed in terms of roughly NIS 15 million.
The state also argued that the failure to establish the site could not be laid entirely at its door.
It said that the lead petitioner, Menucha Nechona, had not met the conditions tied to the allocation it received and had not secured the resources needed to develop the plot.
In the state’s telling, the law guarantees access to civil burial but does not necessarily require that it be provided to Menucha Nechona. It further suggested that an Orthodox burial society could, in principle, operate a civil-burial section through a separate arrangement – a point that became one of the central clashes in the case.
That argument was echoed by the Jerusalem Jewish Burial Council, which, in its own response, said that it had taken meaningful steps years ago to advance a civil-burial solution.
The council said that, as part of the western expansion plan for Har Hamenuchot Cemetery approved in 2011, about 10% of a roughly 50-dunam tract was allocated for civil burial, with approximately five dunams earmarked for Menucha Nechona.
According to the council, the petitioner failed to satisfy the conditions of that allocation, including obtaining a burial license and participating in the development costs. The council stressed that it was not the owner of the land and did not function as a funding body, describing its annual budget as roughly NIS 2m. and portraying its role as primarily coordinative. It also said that another burial company had expressed willingness to take on the project.
For the petitioners, that response only underscored the deeper problem.
In their April reply, they argued that the state was effectively reducing a statutory right to a market contest that only wealthy and established Orthodox burial organizations could win.
Jerusalem, they said, was not just another case of bureaucratic delay. The designated civil-burial plot was bound up with particularly costly collective development work at Har HaMenuchot, making it economically unrealistic for a nonprofit civil-burial body to carry the burden on its own. The result, they argued, was a framework in which civil burial existed on paper but remained inaccessible in practice.
They also pushed back on the state’s suggestion that an Orthodox burial society could simply step in and provide the solution. That, the petitioners said, misses the point of the law. In their view, the issue is not only whether some formal civil-burial plot can be opened somewhere in Jerusalem, but whether residents are offered a real non-Orthodox alternative rather than one dependent on the same institutions that dominate religious burial.
The legal and symbolic stakes are larger than the Jerusalem site itself.
Israel’s civil burial law was passed in 1996 to ensure that people seeking burial outside the Orthodox religious framework would have that option. Over the years, implementation has been uneven, with some areas offering alternatives and others lagging far behind. The petitioners argue that Jerusalem – the country’s capital and one of its largest population centers – has become the starkest example of this failure.
That appeared to resonate with the bench. During the hearing, the judges repeatedly returned not only to the state’s prolonged inaction but to the practical consequences of a system in which civil-burial groups must compete with long-established religious burial societies that have accumulated experience, infrastructure, and financial strength over decades.
The concern running through the hearing was that a legal right without a workable mechanism to realize it is no right at all.
At present, the case stops short of a final ruling. But the court’s decision to issue a conditional order marks the sharpest judicial signal yet that the state may have to do more than point to old land allocations, procedural obstacles, or theoretical alternatives.
The state now has until July 1 to explain why Jerusalem residents still do not have the civil-burial option the law promised them nearly 30 years ago.
Source:
www.jpost.com
