A fraught civil rights case nears an end in Israel’s High Court

Rights groups are trying to strike down a law allowing residents of rural communities to screen newcomers, a challenge one state lawyer says touches on the ‘essence of our existence here’

An aerial view of Moshav Bnei Zion in southern Israel (photo credit: Moshe Shai/Flash90)
An aerial view of Moshav Bnei Zion in southern Israel (photo credit: Moshe Shai/Flash90)

Sitting in a rare forum of nine judges reserved for issues of particular importance, Israel’s High Court heard closing arguments Tuesday in one of the country’s key civil rights cases of recent years — an appeal against a new law protecting the right of small communities to bar would-be residents they deem undesirable.

The appeal by an alliance of human rights groups aims to strike down the law, which allows residents’ committees to decide who is allowed to purchase plots of state land in places defined as “communal settlements.” The bill, initiated by lawmakers from the center and right, passed in March 2011, after a fierce debate in parliament.

Both sides in the case see the appeal as a challenge to a longstanding tenet of Zionism — that Israel must be settled with Jewish communities. The current case, one of the state’s lawyers said Tuesday, touches on the “essence of our existence here.”

Supporters of the law say it preserves the social cohesiveness of small rural villages. But critics charge the communities’ so-called “acceptance committees” are a legally sanctioned way to keep out Arab Israelis, homosexuals, the disabled and members of other minority groups, and as such constitute a forbidden form of discrimination.

Villages defined as “communal settlements” make up 42 percent of the communities in Israel, according to the groups behind the appeal, though as a percentage of the population they account for far less. All are Jewish.

Communities of this kind — in idealized form, a pastoral hilltop cluster of red-roofed homes accessed by a winding road — have an oversize place in the Israeli psyche and tend to be seen as a pillar of the Zionist ethos.

Waiting for the High Court justices to arrive, December 4 (photo credit: Matti Friedman/Times of Israel)
Waiting for the High Court justices to arrive, December 4 (photo credit: Matti Friedman/Times of Israel)

At Tuesday’s hearing, the High Court judges did not seem inclined to strike down the law based on a theoretical objection. Instead, several of the judges, including the court’s influential president, suggested the court would wait for a “concrete” appeal from a victim of discrimination. No date for a final decision has yet been given.

‘There is no harm here to equality, or any unacceptable discrimination. There is permissible differentiation,’ a state lawyer said

The new law explicitly bans discriminating on the basis of religion, gender, nationality, disability and a long list of other reasons. But it allows residents to keep out anyone they think does not match the “social-cultural fabric” of the community — a vague formulation that could be used to bar anyone not to residents’ liking.

The state’s attorneys rejected the human rights groups’ criticism.

The acceptance criteria, attorney Uri Keidar told the court, “are important to guarantee the cohesiveness and the continued existence of the community.”

“There is no harm here to equality, or any unacceptable discrimination. There is permissible differentiation,” he said, calling on the justices to “reject these appeals out of hand.”

Another state lawyer, Eyal Inon, representing the Knesset, admitted, rather unusually, that the law had “the potential for misuse.”

But he said the challenge was less legal than ideological and that it attacked the Zionist idea of settlement.

“Most members of Knesset have a different ideological position than the appellants regarding the legitimacy of communal settlements in Israel,” he said. A third state lawyer suggested that disabling the communities’ ability to select residents could destroy them: “There is a national interest that these communities survive and do not disintegrate,” he said.

‘How many communal settlements has the state built for the Arab sector?’ asked the court’s only Arab justice, Salim Joubran.  The answer, everyone present knew, was zero

The groups appealing the law include the Association for Civil Rights in Israel (ACRI), the Arab Israeli group Adalah, and the Abraham Fund Initiatives, a coexistence group, as well as several residents from communal settlements in the north who oppose the admission criteria. The communal settlements, they charged, were not pioneer outposts but gated communities that had been given legal license to exclude others from a public resource — state land.

“These are suburban communities, like all other suburban communities,” attorney Gil Gan-Mor of ACRI told the court. He called the appeal “another round in a struggle that has lasted 20 years.”

“The law means that in 42 percent  of the communities in Israel it is permissible to exclude,” Suhad Bishara of Adalah said. “In the case of public land, we as private citizens cannot be given responsibility to decide who is fitting.”

The judges were vocal participants in the hearing, subjecting both sides to grilling. But the human rights groups got the worst of it, and the judges’ statements seemed to indicate that they would reject the current appeal and instead wait for a specific petition from someone who had been discriminated against because of the law.

“In my opinion, a concrete case is needed,” Supreme Court president Asher Grunis bluntly told ACRI’s attorney, a statement that appeared to leave little doubt that he would reject the appeal. Of the nine justices, at least three others seemed to echo his position.

But there were differences of opinion. The court’s only Arab justice, Salim Joubran, asked the state representatives, “How many communal settlements has the state built for the Arab sector?” Joubran’s understated sarcasm got a few uncomfortable laughs from the lawyers for both sides and from the crowded gallery. The answer, everyone present knew, was zero.

The battle against exclusionary policies in communal settlements began in 1995 with the Kaadans, an Israeli Arab family that tried to purchase a plot in the Jewish community of Katzir and was turned away. A long court battle forced the community to allow them in.

Other exclusionary decisions were struck down in court, and those rulings triggered the 2011 bill, a move meant to counter the court and enshrine the acceptance committees in law.

In court Tuesday was David Kempler, who in 2006 tried to buy a home with his wife in a new neighborhood at Kibbutz Maayan Baruch in northern Israel. He was interviewed by two kibbutz members who turned him away, he said, with the explanation that he would not fit in socially.

Kempler believes the reason was his chronic depression, which he was forced to reveal as part of the acceptance process. He appealed to the High Court, which declined to rule while the new law was being debated. The kibbutz finally relented last year.

He does not reject all screening, Kempler said, but communities cannot simply be allowed to block people they do not want.

“In my case, the only possible explanation was that they were rejecting me because of my disability,” he said.

The roots of the idea of a “communal settlement” with an acceptance committee lie in the communal farms of pre-state Israel, the kibbutz and moshav. A kibbutz, where members shared a bank account, could not accept anyone who would be a burden and thus had to have stringent admission standards. But the “communal settlements” built in recent decades involve no financial cooperation of the kind once practiced in those ideological communities.

Orna Lin, a veteran attorney representing the Abraham Fund Initiatives, said after the hearing that the 2011 law “should not stand.”

But the judges’ questions did not indicate much sympathy for the appeal, she acknowledged.

The hearing “wasn’t easy,” she said.

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