Beginning from the year 2002 and until today, there have been in Israel 11 private draft laws submitted, amending two sections of the criminal law. These draft laws decree that any persuasion made to change a person’s religion would be considered a criminal offence. Furthermore, advertisements of any sort that have persuasive motives to change people's religion- from a leaflet up to a website- would be considered as a criminal offence. These draft laws also expand the sanctions which already exist in the criminal law.

They may seem unreasonable in a democratic nation that believes in freedom of speech and freedom of religion. In the United Stated, for example, religious persuasion is a right protected by the first amendment of the constitution which promises that Congress shall not prohibit the free exercise of religion, or abridge the freedom of speech, of the press, or the right of the people to peaceably assemble. Therefore, in the event wherein two rights interconnect, the freedom of speech and religion will almost always overrule. For example, in the famous court ruling wherein it was forbidden for the Jews for Jesus organization to distribute religious leaflets in the airport, Board of Airport commissioners of the City of Los Angeles v. Jews for Jesus (1993), the American Supreme Court viewed the airport's management decision as an unconstitutional decision and therefore void.

The nation of Israel views the freedom of religion as an important value which has already been determined in the Israeli Declaration of Independence wherein it is indicated that the Israeli nation will grant equal civil rights to all its citizens without indifference of religion, gender and sex. The nation of Israel has also signed and ratified international treaties which declare that ‘Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching’. These treaties determine, however, that the freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, morals or the fundamental rights and freedoms of others.

In light of the above, I will endeavour to examine whether or not the two existing sections in the Israeli criminal law, which limit the freedom of religion, corresponds with the democratic nature of the Israeli nation. As indicated hereinabove, there are two existing sections in the criminal law that deal with religious persuasion and that limit the freedom of religion: sections 174 and 368. Even though, no one was ever convicted of these crimes, the first section determines different criminal sanctions for anyone who conducts a religious ceremony of conversion to a minor which stands in opposition to the law, and to anyone who directly persuades a minor to change his religion. The second section determines that anyone who grants or receives a benefit in courtesy of or as a reward for a religious conversion is considered criminally offensive.

An incident occurred in the Beit El Mission v. the Minister of Welfare in the year 1967 regarding the first section of the criminal law that prohibits religious persuasion to minors. This decision dealt with an Evangelical Christian organization that requested to establish an orphanage for children of all religions and then train them according to the Christian faith. The minister of welfare prohibited to licence such an orphanage even if both parents of such a child that are not Christian gave their approval. In his court decision Justice Cohen emphasized that freedom of religious expression exists in Israel, however, this right is limited as it relates to minors. In his words- ‘There is no doubt that just as any person in Israel, regardless of his religion, has the right to change his religion, so does every person have the right to distribute and preach his religion in public in any legal way that he desires- including by way of teaching. However, this is only relevant as it relates to a qualified adult that has the ability to consider the different religious beliefs. On the other hand, a person who is not able to weigh the different religions one against the other because he is a minor or because of some defect, is not able and therefore is not entitled to convert from one religion to another.’ Furthermore, Justice Cohen indicates that the Israeli legislator is secular and therefore the concern for the child has do be viewed by secular motives only, and that the issues which pertain to the afterlife are not legitimate claims in the Israeli courts. Such a ruling is obviously difficult for those who believe in the afterlife and obviously for such a believer, the consideration of the afterlife will always overrule the secular considerations of the legislator.

No issue has ever been brought before the Israeli courts regarding the second section of the criminal law dealing with different benefits granted in exchange for religious conversion, and therefore it is very difficult to determine which of the values is being protected that necessitates limiting the freedom of religion.

In any case, I will point out that this section appears unbalanced and problematic when the democratic and Jewish State promises and grants many benefits, such as aliya rights, tax benefits, benefits regarding ownership of property, etc., to anyone wishing to join the Jewish religion.

Regarding the abovementioned 11 draft laws which were submitted before the Knesset, it is obvious they stand in opposition to the international treaties ratified by the State of Israel and are in opposition to Justice Cohen’s decision which determined that any qualified adult has the right and the freedom to change his religion in any legal way. It is not surprising that all these draft laws were initiated by Knesset members from the religious sector, except for one that was submitted by an orthodox Knesset member and a secular Knesset member (Tomi Lapid).

In order to totally extinguish any chance for such draft laws to ever be accepted by the Israeli Knesset, the rights of freedom of speech and freedom of religion must be anchored as a basic law.

Therefore, just as many draft laws infringing freedom of religion and freedom of speech are being submitted by those who are short-sighted and don't seem to care about these important democratic values, many draft laws which anchor freedom of religion and freedom of speech as basic laws must also be submitted by those who respect and cherish these values as important and necessary in a democratic Jewish State.

This article first appeared in Kivun magazine.

Mike Decker is an associate intern at the Jerusalem Institute of Justice
and a paralegal at the law offices of Yehuda Raveh & Co