There was a very interesting court decision concerning Messianic Jews regarding an informative advertisement written by Dr. David Stern. When Stern attempted to publish the advertisement in the Jerusalem Post, he was met with a stubborn rejection.

The Jerusalem Post refused to publish Stern's article on the grounds that it would offend their customers, whom they claim are, for the most part, religious and traditionally observant Jews. The newspaper's management also claimed that such an advertisement would do financial harm to their business. They figured that their reputation would be at stake if they published the article and that they would lose their clientele, including their publishers. It is important to clarify that Stern's advertisement was no more than informative, with no missionary associations.

The Jerusalem Post has an open policy that welcomes the public to publish advertisements, according to a price list. In other words, anyone is free to publish an advertisement as long as they pay the required fee.

Stern, who felt discriminated against, lodged a petition against the newspaper before the Magistrate's Court. Stern's main claim, among others, was that in the advertisement proposal made by the Jerusalem Post, a binding agreement had been essentially made. He asserted that The Jerusalem Post had taken advantage of their monopoly by exploiting and abusing their market power. Furthermore, the newspaper should be legally subject to public obligations of operating in equality and fairness. In spite of these claims, which were raised by Stern, his petition was rejected. Stern then appealed the Magistrate's Court decision at the District Court. Stern's appeal was presented and reviewed before a composition of three District Court judges, who also rejected Stern's petition, in a majority of two judges, verses one minority decision.

I do not wish to focus on the majority opinion of the court decision. However, I will briefly mention the logic behind their decision. In their opinion, the appellant's right to freedom of speech was not detracted under the circumstances, even though the appellant is forced to find different revenues for his advertisement. The explanation for this is that the Newspaper has the freedom of engagement. Their argument that such an advertisement might distance its readers and in effect, create financial damages to the newspaper was deemed sound by the judges.

Justice Ukon disagreed with the Majority's opinion. To begin with, Justice Ukon made an historical survey regarding freedom of contracts. This basically means that one party of a negotiation is entitled to decide that he does not desire to contract with the other party in the same negotiation and that he can choose to desire to contract with a different party altogether. Justice Ukon criticizes this view as he exposes the severe damages that such a view creates to a person's honor and dignity. As an example, Justice Ukon refers to a court decision that was made in the United States (Timothy v. Simpthon) wherein a seller at a clothing store refused to sell a clothing item to the appellant merely because he was a Jew. Justice Ukon explains that this view is now archaic. In his opinion "Maintaining a non-interference view…supported very damaging actions…which armed the strong against the weak...and many times it meant- freedom to the wolves and death to the sheep".

Justice Ukon also notes the famous decision that was made in Namana v. the Kaliya Kibbutz. This court decision discussed whether the Kibbuz's water park was allowed to refuse the entry of Arabs. During the time of the Kalia and the Stern cases, the Anti discrimination Act in Public Services and Products and in the Entrance to Entertainment and Public Places ("Anti Discrimination Act"), had not yet been issued. If this act had been in effect during this time, it would have provided a clear legal solution to both cases. In the Kalia decision, the Magistrate Justice of the Peace (Justice Mizrachi) decided that any racial discrimination is considered damaging to the human integrity, and that the constitutional right to human integrity is not only binding to the State but also to individuals, and this is regardless of the fact that there is no specific act which bans such discrimination. Justice Ukon was of the opinion that the discrimination that was made against the Arab family is very similar to the discrimination that was made against Stern, except that the one was based on racial discrimination while the other was based on religious discrimination.

After Justice Ukon voiced his opposing opinion, he made reference to the damages affected upon the Jerusalem Post in relation to the damage affected upon Stern, and in his own words he states: "The disqualification of the advertisement was based on religious reasons. According to the newspaper, such an advertisement would damage its audience, and indirectly damage the newspaper financially. However, such a disqualification harms Stern's rights to equality, freedom of religion and freedom of speech. This is a severe damage which penetrates into the identity of the advertiser as a human being. Such an offense cannot be justified only for the reason of not offending the newspaper's audience. Such an attempt to reject the proposal, which was made as a result of an invitation published to the whole public, stands to be unfaithful."

Furthermore, Justice Ukon claimed that although the Anti Discrimination Act was issued 5 years after Stern's petition, it is still an applicable and necessary solution which can be derived from the Basic Law of Integrity and Freedom.

Despite the positive minority decision on behalf of Stern, it can appear that he has prudently bowed out of the fray as though he despaired of ever convincing the majority to see how he had been wronged. He, therefore, did not attempt to appeal the District Court's decision at the Supreme Court.

My personal opinion is that if Stern would have appealed, the case would have been returned to the Magistrate Court for the purpose of deciding an appropriate compensation. Even though Stern missed an opportunity which may have determined a meaningful precedent for the Messianic Jewish community, he has nonetheless, determined a very important precedent for other associated religious minority groups, and even for minority groups which are not well acquainted with the Messianic Jewish community, such as the Jehovah's Witnesses.

By the end of the year 2005, a similar incident transpired in Amutat Hamitzpe for Israel v. the International Congressional Center of Haifa Ltd. In this case, the Congressional Center refused to extend a rental agreement with the Jehovah's Witness' community, due to pressure that was exerted by different Religious organizations.

Similar to the Jerusalem Post's claims, the Congressional Center also insisted that such a rental extension would result in causing them financial loss, and that it would offend the general public to let them continue using the auditorium.

The Court decided that the Congressional Center is a public body which is subject to public obligations, and therefore any kind of discrimination must be banned. It was also determined that business related claims cannot justify discrimination, and that the Congressional Center acted in contrary to the Anti discrimination Act. This law was of great contribution to the Jehovah's Witness' during their court case, contrary to when Stern's case had been relevant, at which time this law had not yet been issued.

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