Kol isha heading for the Equality Court

ANT KATZ

The Cape Council is being sued by Gilad (Gerald) Stern and Sarah Goldstein and later joined by SACRED on the basis that the Board’s policy amounts to “discrimination of women on the basis of gender”. 

The claimants originally tried to use urgency to lift the ban on women singing at Yom Hashoah, which took place earlier this month, and at future Jewish secular communal events, but were unsuccessful for the recent ceremony.

The Western Cape High Court Judge President has appointed Justice Lee Bozalek of the High Court, sitting as the Equality Court, to hear the case which has been set down for August 22 and 23.

The outcome of this serious challenge between religious rights and a host of constitutional rights, could become a legal reference case in South Africa.

In their answering affidavit, Cape Board Chairman Eric Marx, sums up the pending legal tussle thus: “While I accept that the (Constitutional) right to equality is implicated in the present matter, so too are the rights to dignity, freedom of association, religious freedom and freedom of choice.”

Marx says his legal advice is that on a “proper balancing of these competing rights”, Stern’s application will fail.

It also seems a distinct possibility that should the parties remain as “immovable” as they are at present, the loser of the Equality Court matter may well challenge the decision in higher courts. Given the high calibre legal counsel involved on both sides, even assuming they are acting at “reduced rates”, the cost is going to be considerable.

In their replying affidavit, Stern et al submitted that, having read the answering affidavits of the Cape Board, SAJBD National President Mary Kluk and Chief Rabbi Warren Goldstein, they still believe that “a proper case has been made out that the Board has committed unconstitutional discrimination on the basis of gender, and has violated the law”.

The matter has been aired in the mainstream media this month, with Stern having written an op-ed in the Sunday Independent of May 14 and SAJBD National President Mary Kluk responding in the same publication this past weekend. All of the Independent Group newspapers have carried the story.

While Stern states in his replying affidavit that “a large portion” of the Board’s answering affidavit would be dealt with in court, he accuses the Board of “not being entirely candid” in their application. He also questions “certain aspects” of Rabbi Goldstein’s affidavit and maintains that his “entire affidavit is irrelevant to the application”. 

Stern states under oath: “In every other facet of the Board’s operations and activities, it has demonstrated its complete commitment to gender equity.” 

Women, he says, participate at all levels in the Board, including holding leadership positions, and “there is full participation, including women singing at other events under (the Board’s) aegis”.

The Board, in turn, takes Stern to task in its affidavit over a TV interview on ENCA, with Leigh-Anne Jansen. The two quotes highlighted by the Board are: 

• “My problem is not with the rabbis that don’t want to hear women sing. I regard that as quite quaint, A bit weird;” and
• “If a rabbi has got a problem with women singing, they think it is going to affect them in the mind or in their heart or in some other part of their anatomy, they need to take a cold shower.”

The Board of Deputies, on the other hand, say it carries out a range of functions on behalf of Jewry, including:

• “Safeguarding the religious and civil rights, the status and the welfare of the Jewish community”; and
• “Furthering respect for and the application of fundamental human rights for all sections of the population.”

• Marx explains that the community comprises two main groupings: Orthodox and Reform. The Board, says Marx, “treads cautiously and carefully preventing discord between both these groups of the Jewish community”.

The Cape SAJBD ensures harmony and cohesion in the community and ensures it does not act “in a way that is divisive or undermining either grouping”. The Board “represents no particular brand of Judaism” and it “exhibits no doctrinal preferences or allegiances”.

In fact, says Marx, the Cape Board has had two “female chairpersons” and the current national president and immediate past chairman is Mary Kluk.

He goes on to say that he can state without reservation that, should Stern’s order have been granted before Yom Hashoah, “many, if not all, Orthodox” Jews would not have attended. This, he told Jewish Report, had been categorically conveyed to him by the Orthodox rabbinic leadership.

He said he believed the court case was premature in that the Board had undertaken to hold a colloquium of Cape Jewry on the matter in June. Marx’s affidavit is supported by affidavits from Board National President Mary Kluk and the Chief Rabbi. 

Stern himself explains in an op-ed in this week’s Jewish Report that he considers himself to be a “Shomer Shabbat Orthodox-ish Jew” and explains to the community why he is litigating.

In a written statement to Stern last month, the Board suggested “it’s caught between a rock and a hard place; either affect women or the Orthodox rabbinic leadership”.