Equality with a vengeance: female conscientious objectors in pursuit of a voice and substantive gender equality.(Israel)

In December 2002, Shani Werner, a member of a group of young Israeli women who refused to serve in the military because of their conscientious objection to the occupation of the West Bank and Gaza, wrote an open letter to the other members of her group:

 
   When we drafted our first protest letter as high school seniors (in 
   the summer of 2001), we drafted it together--male and female 
   conscientious objectors alike. We didn't ask ourselves whether 
   both [of] these refusals to serve (the men's and the women's) 
   belonged together. It was clear to us that a woman's refusal was 
   identical in its importance to a man's, and therefore we were not 
   aware of the significance of the letter that we wrote, which placed 
   male and female conscientious objections on an equal footing.... 
 
   A great deal of time has past since then.... As time passed, 
   frustration built up in me. I started feeling that within our 
   [sheltered environment]--that of high school graduates in 
   particular, and of the Israeli left in general--we created a mirror 
   image of the very phenomena we are fighting against. We created 
   a militarization of draft resistance. 
 
   The extremely upsetting image of the good woman who awaits 
   the return of "her" soldier from the front and who irons his 
   uniform--[the image] against which we are fighting--we have 
   not changed it. We have created a mirror image of her--a woman 
   who is yearning for the quick release of the male conscientious 
   objector from prison, and who in the meantime encourages him 
   from a distance.... 
 
   We have stopped debating the significance of the 
   phenomenon of women's conscientious objection, and we have 
   almost completely ceased to promote it in the public sphere.... 
   Nonetheless, we keep debating the issue of imprisoned male draft 
   resisters over and over again. 
 
   My refusal to be drafted, which I viewed in the past as a 
   public-political stance, has today turned into a private 
   one.... Because the public discourse is not aware of it and the 
   left-wing discourse ignores it, the conscientious objection of 
   young women has stayed a private matter, not to mention a silenced 
   one. (1) 

When Shani wrote this letter, the phenomenon of women's conscientious objection had not received significant exposure or recognition in Israeli public or legal discourse. Conscientious objection was identified strictly with male draft resistors: conscripts and reservists who refused to serve on grounds of general pacifism or their specific opposition to Israeli policies in the Occupied Territories of the West Bank and Gaza. (2) Furthermore, not only did the Israeli public discussion of draft resistance focus on the refusal of these men and the jail terms they received, but it also created an overlap between conscientious objection as a social and legal phenomenon on the one hand, and the incarceration of the male conscientious objectors on the other. The fact that women also signed the 2001 High School Seniors' Letter (3) and refused to be drafted into the military on grounds of conscience did not penetrate public or media awareness. The public eye also ignored the fact that these women, although not incarcerated for their beliefs, were nonetheless active draft resistors and performed alternative forms of civilian national service. This situation resulted in part from the structure of the Defense Service Law that governs the issue of conscientious objection to military service in Israel. (4) The statute contains separate provisions for dealing with male and female conscientious objectors. Under its terms, women, unlike men, enjoy the explicit right to be exempted from military service on grounds of conscience. Consequently, throughout the past, female conscientious objectors have received exemptions from military service quite easily, whereas similar requests made by men have usually been denied. Moreover, those men who continued to resist the draft were tried before military tribunals and imprisoned. (5)

However, since Shani Werner wrote her letter, changes have taken place. These changes have reshaped the character of the public and legal discussion of the issue of conscientious objection. Specifically, women's conscientious objection has started to gain wider public recognition, (6) and no longer remains a private matter of concern only to female objectors. But it appears that women's draft resistance has won recognition only because it has adopted the characteristics of the parallel male phenomenon. In 2004, the military authorities decided to reinterpret the different legal provisions that address conscientious objection, and enforce a stricter policy towards female objectors. (7) As a result, some women have served sentences in military prisons for their refusal to serve. (8) Subsequently, Israel's Supreme Court endorsed this new policy. Following the petition of a female conscientious objector who was denied exemption and then imprisoned, the Court ruled that women's separate right to conscientious exemption should be abolished, since the principle of sex-based equality required formal equality between men and women. (9) In other words, in order to "equalize" conscientious objection, the Court decided that women should receive precisely the same strict legal treatment as men. (10)

This Article will investigate the process by which women's conscientious objection has been simultaneously "masculinized" and formally equalized. The story of female draft resistors in Israel serves as a case study, providing important insights into the inherent constraints of contemporary legal discourse in promoting substantive gender equality and into the relationship between specific legal arrangements and the invisibility of women in the public sphere. This case study also sheds a more nuanced light on the nature of separate legal arrangements for women, and raises important questions about the appropriate feminist agenda for social and legal change. As this Article will analyze and explain, the formal reference to equality that legitimized the denial of the separate right granted to women has far reaching consequences from a woman's perspective. When those consequences are compared with the old regime of gender separation, it is unclear whether women were better off before or after the change. In this sense, it seems that Shani Werner underestimated the significance of her conscientious objection with regard to its transformative potential. True, in the framework of the original legal structure, women's "voice" of resistance was weak and largely ignored; however, it was not meaningless in the public sphere. Rather, considering the central role of the military in Israel in shaping the meaning of citizenship in a male-biased manner, the practice of women's conscientious objection to the draft appeared to hold the promise of reconstructing the commitments of citizenship in a non-militaristic vein that would have been a significant step toward substantive gender equality. Given the Supreme Court's recent decision, (11) however, the possibility that this form of conscientious objection would win recognition has been completely undermined, as has its growing influence in the public sphere.

Part I of this Article outlines the legal foundation of the Defense Service Law and explains the role of the military and military service in Israel. It also examines the legislative history that shaped the separate legal provisions applied to female and male conscientious objectors. Part I explores how this particular sex-specific legislation was born, rationalized, and consolidated, and what its implications for women were. This Part argues that, while this legislation was clearly shaped by problematic gendered perceptions, the separate legal arrangement for conscientious objection would eventually grant women an important right to resist the draft. This right would become especially significant in light of the problematic link between military service and citizenship in Israel and the adverse effect this link has on the status of women. More specifically, the argument is that not only did the separate right to conscientious objection protect women's freedom of conscience, but it also held transformative potential. This right opened the door for a feminist practice of civil community service, which would replace military service and potentially demilitarize the commitments of citizenship in Israel, thereby promoting substantive gender equality.

Part II explores the further consequences of the separate legal arrangements for male and female conscientious objectors. Specifically, it focuses on questions of law and voice, examining the influence of various legal arrangements on women's ability to be heard and have a significant influence and presence in the public sphere. This Part argues that the prevailing masculine legal order under which women exercised their separate right to conscientiously object interfered with their ability to articulate a meaningful public voice of protest in terms of both visibility and presence in the public sphere. Hence, while women exercised a more significant right to conscientiously object, the Israeli public discussion of draft resistance focused only on the phenomenon of male draft resistors.

Part III evaluates the significance of the recent legal changes to the interpretation and application of the separate provisions of the Defense Service Law. It highlights the potentially detrimental consequences of a legal reform that undermines existing separate legal arrangements for men and women in the name of sex-based equality. It also raises important questions regarding the relationship between feminist lawmaking and the courts.

This Article concludes with the claim that the story of female conscientious objectors in Israel provides an important case study regarding the limits of the law, its unexpected effects, and the often-overlooked potential for social change. This story also sheds light on the inseparable link between feminist agendas and legal outcomes.

I. THE GENDERED CONSTRUCTION OF CONSCIENCE

A. Exemptions from Military Service: The Israeli Legal Framework

Israel was the first--and is still the only--Western democracy to have mandatory conscription of women. (12) The 1986 Defense Service Law, (13) which replaced the 1959 version, (14) mandates military service for both men and women while differentiating between the sexes in the terms of conditions of service. Article 1 states that the law applies to men between the ages of eighteen and fifty-four and to women between the ages of eighteen and thirty-eight. (15) Gender-based differentiation is also made with regard to the length of mandatory service and the extent of reserve duty obligations. (16) In addition, as far back as 1949, the original version of the Defense Service Law created a gender-based distinction regarding the legal grounds on which a person could file for exemption from military service. The Law granted women exemption from military service on three basic grounds: family status (marriage, pregnancy, or motherhood), religious belief, and conscientious objection. (17) These exemptions were subsequently integrated into the consolidated version of the Defense Service Law in 1959 and continue to apply to all women who might otherwise be called to serve in the military. (18)

Similar exemptions from regular and reserve military duty have never been formulated for men. Rather, the only legal basis for exemption of this kind is pursuant to a different section in the Defense Service Law of 1986, which grants the Minister of Defense a general discretion to exempt "a person of military age" from the duty to perform military service "for reasons connected with the requirements of education, security, settlement or the national economy or for family or other reasons." (19) Thus, the case of every man who wishes to be exempt from military service falls within this paragraph, and the grant of that exemption--on whatever grounds it might be based--is not defined as the individual's right, but rather as a discretionary matter solely dependent upon the consent of the Minister of Defense. By contrast, a woman's exemption from military service is not subject to discretionary approval and is based solely on the submission of proof that she meets the specific conditions established by law. (20)

B. Historical Background

Why did the law create this distinction between men and women with regard to their military service? A close analysis of the legislative history of the Defense Service Law reveals that the law reflects a great deal of ambivalence toward both women's military service and women's equality in general. Expressions of this same ambivalence can be found in other legal provisions enacted in the early years of the State as well. (21)

Formally speaking, the founding fathers of the State of Israel saw themselves as dedicated to the principle of gender equality. The Proclamation of Independence announced that the State of Israel "will ensure complete equality of social and political rights to all its citizens irrespective of religion, race or sex." (22) Further, the first elected government's official objectives established a more detailed endorsement of the equality of women. (23) Despite the declarative statements regarding equality, however, the political establishment and the legal system were guided by deeply-rooted stereotypical and patriarchal perceptions of gender and gender roles. Women were perceived first and foremost as mothers and wives whose primary role was the bearing and rearing of children. This perception was fed in part by the image of women in Jewish religious law. (24) It was also supported by the national ethos that accompanied the foundation of the State, according to which the State of Israel was predestined to bring about the rejuvenation of the Jewish people in their homeland. The perception of women as child-bearers and mothers was ascribed a central role in the fulfillment of that vision. (25)

It is against this backdrop of tension between deeply entrenched beliefs regarding the distinctive differences between men and women, on the one hand, and, on the other, the pronounced commitment to the principle of equality in general and to sex-based equality in particular, that one should understand the structure of the Defense Service Law. (26) This law, first enacted in 1949 (one year after the establishment of the State of Israel), was the first law to cope with this tension and accommodate it legally. Thus, the Defense Service Law imposed the draft on women and men both, making some Jewish women's voluntary practice of participating in pre-state Israel's defense activities a mandatory state rule. (27) However, married women, pregnant women, and mothers were exempt from military service, and hardly any members of the Knesset (the Israeli legislature) protested against this all-inclusive exemption or critically debated the gendered assumptions underlying this exemption. (28) An explicit expression of this ambivalence with regard to the appropriate legal treatment of women can be found in the words of David Ben-Gurion, the first Prime Minister of Israel and the first Minister of Defense, who introduced the proposed draft of the law to the Knesset. Ben-Gurion praised the principle of gender equality as expressed and exercised by the new statute:

 
   Women have been equal partners with regard to all rights and 
   duties in the Zionist movement and in the Yishuv [the pre-state 
   Jewish community], in all of the Yishuv's projects, in 
   construction and in defense, in the founding of the State and in 
   the establishment of the Israel Defense Forces, and they have 
   done their share in our War of Independence. (29) 

Nevertheless, Ben-Gurion explained:

 
   When debating the status of women, two things must be 
   remembered--and both at the same time. The first--the special 
   mission of the woman--is the destiny of motherhood. There is no 
   greater mission than this in life.... We should honor and value 
   motherhood, and place the woman in the most comfortable and 
   appropriate conditions when she is to be a mother.... [W]omen 
   should not be assigned roles that are incompatible with 
   motherhood. (30) 

Ben-Gurion concluded by stating that "women are not disqualified from any kind of service, they are not deprived of any right, and they are not exempt from any duty unless it interferes with their motherhood." (31)

Furthermore, even when Ben-Gurion addressed the military service of single women--those who were supposed to serve in the military on equal terms with men--it is clear that he was not seeking full equality in the military, but rather a framework of military service founded on a separate basis for each gender:

 
   We do not intend to draft women [in]to combat units.... [T]he 
   training that we see necessary for women is basic military 
   training and agricultural instruction.... I fully agree with those 
   who pointed out the importance of our birth rate, but for that 
   reason there is a need to train women.... [I]f we want our 
   young women in their places of settlement to get married and 
   have babies--we have to allow them to protect themselves and 
   their babies. (32) 

It is important to note that these basic perceptions of the unique role of women as mothers united almost all Knesset members. The rhetoric of Ben-Gurion and other secular parliamentarians merged with the similar rhetoric voiced by representatives of the religious parties. Likewise, the arguments of both secular and religious Knesset members revealed underlying patriarchal views regarding the unique role of women; those views laid the ideological groundwork for the first type of exemption that was granted to women under the law, the exemption on the grounds of family status. (33) This exemption released married women, pregnant women, and mothers from military service. Yet, while Knesset members from secular parties still endorsed a mandatory draft for some women, (34) representatives of the Jewish religious parties objected to the conscription of women altogether. (35) The religious position was that drafting women might pose a real threat to the Jewish family and to Jewish tradition, not only because of women's distinctive role as mothers, but also for moral and religious reasons related to modesty.

Member of Knesset (MK) Shag from the United Religious Front best articulated this perception of difference when he stated:

 
   [W]hy haven't most of the civilized nations of the world imposed 
   this obligation on women up until today? ... [First,] because 
   women, due to their nature, due to their physical temperament--after 
   all, we ourselves call them the weaker sex physically 
   speaking--cannot perform combat duty. The second reason is 
   this: because this might create a breach with regard to morality 
   and modesty. And the third reason is that the mandatory draft of 
   women might lead to a lower birth rate. (36) 

Moslem Knesset members also endorsed this formulation of gender difference and expressed similar objections to the conscription of women. MK Jarjura from the Democratic List of Nazareth explained:

 
   Imposing obligatory military service on women is an innovation 
   that is contradictory to the laws of nature ever since the creation 
   of the world, and it is against the laws and views of religion and 
   the principles of society and its norms.... A young woman has 
   special rights in society[.] ... [S]he is the housewife who 
   educates the future generation. She stands out in her compassion 
   and in other emotional sensitivities.... Surely she can be of help 
   in other areas that fit her condition and her special 
   characteristics. (37) 

The strong objection of all religious members of the legislature to any form of military service for women led to the creation of the second type of exemption for women: an exemption on the grounds of religious belief. (38) This exemption was included in the first draft of the bill, apparently by secular Knesset members in the hope that integrating it into the bill would resolve the religious and secular dispute over women's military service. (39) But…