By SETH J. FRANTZMAN

I keep seeing this theory: “[The US] pressures another democracy [Israel] to continue to curtail religious freedom for one group, goes beyond hypocrisy. This is not the first time that this administration has pushed for discriminatory policies in Israel that would be simply unthinkable in the US.”

The theory that prayer on the Temple Mount (al-haram al-qudsī ash-sharīf) is an issue of religious freedom is based on a massive misunderstanding of the nature of religion, holy sites and property.  Let’s first examine the theory that “religious freedom” is being curtailed and that America is being hypocritical in some stance of not supporting “religious freedom.”

There is NO freedom of religion when it comes to freedom of place of worship.  You can’t decide, suddenly, that you can worship everywhere and anywhere.  Your work station at work can’t become a Church for services suddenly.  Maybe you’ve discovered a Rastafarian holy site at a Subway station, well too bad, you can’t decide you’ll just now impede everyone else by having prayer sessions.

The Temple Mount (The Haram al-Sharif)

Religious freedom is predicated on the theory of government not interfering with one’s faith, government not having religious quotas for certain jobs or not discriminating unduly against specific faiths. But government can zone an area residential and curtail whether churches, mosques and other places of worship can be constructed there.  Under the doctrine of freedom government usually can’t interfere with your right to have religious services in your home.  But it can interfere in the ability of students to have prayer before a game or for religious groups to use state property.
Property is a major arbiter of one aspect of religious freedom.  A church property or mosque property is owned by a group for the use of that group’s religious rituals.  Where, in the “religious freedom” debate did it suddenly become up for grabs for any group that wants to use it?  An Orthodox Jewish synagogue doesn’t have to allow services from Christian, Muslims and other groups.

So how did the Temple Mount become an issue of religious freedom?  Why is there a question of “freedom of worship” when the question should be who owns and administers it and for what.  If the Temple Mount is owned by the Islamic Wakf, why is there any debate about access?  Why is this an issue of “freedom” and not “ownership”?  One doesn’t have the religious “right” under “freedom” to simply pray wherever they want.

On the Temple Mount

Now if the question about the Mount has to do with ownership and the theory is that the holy site is a shared religious site with multiple owners, then it still is not an issue of “freedom.”  Consider how the “freedom” scam works.  Does one suppose that Muslims and Christians are “free” to pray at the Western Wall (Kotel)?   No.  No one accepts the theory that Muslims, deciding to worship at the site of “Al-Barak” which is said to be located at the Kotel, should have a “right” to worship there.  But it’s about “freedom”?

No one supposes Protestants have a “right” to conduct religious services in the Holy Sepulchre.  Why?  Because they have no ownership stake in the Sepulchre and thus have no rights to any part of it.  Of course Protestants are allowed, by permission of the other faiths who run the Church, to enter the Sepulchre, but not to conduct services.

If the question about the Temple Mount is about ownership, then where does the supposed Jewish ownership interest begin and the Wakf’s end?  At the doors of the mosque?  Or is that part of the “freedom to worship” aspect also?

That is where the lie of the “freedom” campaign becomes clear.  Ask, where does the freedom of Muslims to worship begin and end?  Oh, is it supposed to be a “shared” site?

No one wants to answer that question.  Because it is easy to talk about “discrimination” and “freedom” on the Temple Mount.  There is no “discrimination” against Jewish worshippers anymore than there is against Muslim worshippers at the Kotel.  The Temple Mount is administered by the Wakf whose authority and de facto ownership has been conferred upon it by Israel and, previously, Jordan.  As a religious endowment, it manages as a form of religious trust.  Because of the tourist aspects of the area, there is an understanding with the Wakf to allow non-Muslims to enter the site, similar to some other religious holy sites in the world that also have a tourist component.

PART II- thoughts and discussion

Religious rights to shared holy sites are always complicated.  There are a dearth of such sites in the world, but there are several examples of them in Israel and the Palestinian territories.  We know that many of these sites have undergone changes in control/ownership due to conquest, just like the dispute over the Ayodhya Temple/Babri Masjid in India.  At Nabi Samwil and in Hebron a form of shared control has been imposed after 1967.  In neither case was it really about “freedom.”

What is the nature of religious freedom in a shared site?

We know the Europeans went to war over the status of ownership of the Church of the Nativity.  These are not simple things relating to “freedom” but rather clear rights that have to be demarcated and spelled out.  Holy sites are not simply “shared” and where one worshipers rights end another’s begins.

Does the Wakf actually own the Mount

People point out the Wakf is a religious endowment granted authority as a custodian or trust over the area in an agreement with Jordan and Israel.  Much of this is semantics.  Wakf’s a normal way to put religious property in trust in the Middle East.  It isn’t like because it is run by the “Wakf” that makes the Mount different than other types of sites.  The fact that Israel wrested control over the Kotel and administers it through its own paradigm doesn’t diminish the Wakf’s authority.  The Wakf acts as a type of owner, whether that is at Israel’s pleasure, or it entails only “control” and “administration” is largely irrelevant.  The National Park Service in the US administers state land as a park.  Fine.  It doesn’t own it.  But it can also restrict certain activities on it.

Rights to prayer

In a contentious example in the 1990s Muslims “discovered” a holy site near the Church of the Annunciation in Nazareth and demanded rights to build a giant mosque next to the church.  This was not a surprise.  In many instances mosques and Muslim “rights” to prayer appear next to Churches or holy sites of others, an issue I have written about.  The debate over “rights” go hand in hand with power and politics.  But the state has to arbitrate these “rights” and there seems no compelling reason to always allow every decision by worshippers to impose their “rights” where they please.

PART III Responses

Mirabelle at Israellycool has responded to this piece.  She writes that “in the US, rules that regulate conduct in public spaces must apply equally to all religions.”  This is the crux of the argument, the Temple Mount is not a “public space.”  There is no discrimination by the state regulating a public park, or subway station because the Haram al-Sharif isn’t a public area.  It is a consecrated Islamic Wakf administered holy site and area and mosque (the site includes numerous elements).  This is the confusion that creates the “religious liberty” issue.  Is this just an issue of “interpretation,” such that Jews who advocate prayer there “dispute” with Muslims over whether this is a public space?  No.  Because it has not been and was not treated as a form of state property.  The dispute might be on whether Israel should declare it a public space and administer it as state property or a tourist attraction (like Turkey does the Hagia Sophia).  But, if Israel does that, it is primarily a change in property status, which then brings up issues of religious freedom relating to that new status.

But since that is not the status and it is not a public space, then it is not an issue of religious freedom.

Mirabelle raises this issue of Christians visiting the Kotel (“Seth’s claim that Muslims and Christians are not permitted to pray at the Kotel, I will respond simply by providing an example of a prominent Christian praying at the Kotel.”).  But no one honestly suggests organized Christian prayer groups, with crosses and singing and a pastor leading a prayer would be acceptable at the Kotel.

Muslims and Christians are permitted to pray at the Kotel to the degree that the Jewish and state-sanctioned managers of the Kotel permit them to pray there.  By custom, for instance, they wear a head-covering or women cover their shoulders.  This example of restrictions of prayer is perfectly made in looking at issues like Women of the Wall, who have long been banned from certain types of prayer at the site.  The very fact that Jews are forbidden from praying in certain ways at the Kotel, should illustrate my point quite well, namely that “religious freedom” is not the real issue here.  Administering the rules of a holy site by an authority tasked with managing it and/or with rights of ownership to it, is the issue.  No one has “rights” and “freedoms” to do whatever they want at the Kotel.