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High Court rejects petitions seeking to strike down nation-state law

Bench rules that law enshrining Israel as Jews’ national home does not conflict with the state’s democratic nature, punts on question of intervening in Basic Laws

Supreme Court President Esther Hayut and justices arrive to hear petitions against the Jewish Nation-State Law, at the Supreme Court in Jerusalem on December 22, 2020. (Yonatan Sindel/Flash90)
Supreme Court President Esther Hayut and justices arrive to hear petitions against the Jewish Nation-State Law, at the Supreme Court in Jerusalem on December 22, 2020. (Yonatan Sindel/Flash90)

The High Court on Thursday struck down a series of petitions against 2018’s controversial nation-state law, which designated Israel as a Jewish state, drawing charges that it discriminates against minorities.

The expanded 11-justice panel ruled that the law does not conflict with Israel’s democratic character and can stand as a quasi-constitutional Basic Law.

The court stated that the law “is a chapter in our emerging constitution, which is intended to anchor the components of the state’s identity as a Jewish state without detracting from the components of the state’s democratic identity enshrined in other Basic Laws and constitutional principles.”

Ten of the justices wrote that “although it would have been better if the principle of equality had been explicitly enshrined in the Basic Law,” its omission “ultimately does not detract from its status and importance as a fundamental principle in our doctrine.”

With the ruling, the court rejected 15 different petitions filed by a variety of groups and individuals challenging the legislation, including political parties Meretz and the Joint List, lobby groups Adalah and the Association for Civil Rights in Israel, and attorney Morsi Abu Moch, the mayor of Baqa al-Gharbiyye.

The nation-state law, which passed as a “Basic Law” — a type of protected legislation meant to one day form the basis of a constitution — enshrines Israel as “the national home of the Jewish people.”

But critics have argued that the law contravenes the basis of Israel’s legal system, as well as its Declaration of Independence, and solidifies inequality among its citizens.

Supreme Court Chief Justice Esther Hayut attends a hearing at the Supreme Court in Jerusalem on December 22, 2020. (Yonatan Sindel/Flash90)

The sole dissenter, Justice George Kara, wrote that portions of the law “deny the core of the democratic identity of the state and shock the thresholds of the constitutional structure,” rendering the law void.

Kara added that the law disrupts the balance of Israel as a Jewish and Democratic state, and only “intensifies the violation of the principle of equality” against Arab and Druze citizens.

But in the prevailing opinion, the bench wrote that the question of inequality can be solved by “sustainable interpretation” of the legislation in a way that does not conflict with existing laws, nor harm the rights of equality for all citizens.

The decision by the court to hear petitions seeking to strike down the law had caused an uproar when it was announced in December. A Basic Law has never been overturned by a court, and then-Knesset speaker Yariv Levin threatened to defy the court if it quashed the legislation.

At a hearing with the petitioners in December, the judges appeared to be skeptical of arguments focusing on whether the law was unjust, seeking instead to steer petitioners to the question of whether there is a legal basis to strike down a Basic Law.

However, the ruling noted that because the judges had found that the law was legally able to be included in a future constitution, they had no need to delve into the thorny question of whether the court has the right to intervene in the content of Basic Laws.

Interior Minister Ayelet Shaked, an architect and advocate of the 2018 law, and who served as justice minister when it passed in the Knesset, questioned the court’s authority to rule on the legislation.

“The High Court ruled what is obvious,” she said, adding that “the very discussion of the question of disqualifying a Basic Law was done with complete lack of authority.”

Interior Minister Ayelet Shaked speaks during a Yamina faction meeting at the Knesset on July 5, 2021. (Olivier Fitoussi/Flash90)

Justice Minister Gideon Sa’ar cheered the decision, saying the law “anchors the Jewish essence and character of Israel as the nation-state of the Jewish people” and that it does “no harm to the individual rights of any Israeli citizen.”

Joint List head MK Ayman Odeh, however, slammed the court’s decision as “racist and antidemocratic.”

“The Jewish supremacy law received a stamp of approval today from the High Court,” he tweeted. “But this is our homeland and no ruling will change that.” He said he will “continue to fight for equal rights for all citizens of the country, for the sake of true justice and real democracy.”

Joint List MK Ofer Cassif at the Supreme Court in Jerusalem on August 22, 2019. (Yonatan Sindel/Flash90)

Joint List MK Ofer Cassif railed at the High Court ruling for “legitimizing a racist law.” He tweeted that those who legislated the law will “be judged by the tribunal of history. We hope that on the way they’ll pass through the Hague,” the Dutch city where the International Criminal Court is based.

Adalah, a prominent Arab legal rights group that backed one of the 15 petitions against the law, accused the court of refusing to “protect Palestinians from laws that are among the most racist in the world since World War II and the fall of the apartheid regime in South Africa.”

The Abraham Initiatives, a nonprofit that works to advance Jewish-Arab partnership, called for the Knesset to repeal the law.

Protesters wave Israeli and Druze flags at a demonstration against the nation-state law, in Tel Aviv’s Rabin Square on August 4, 2018. (Luke Tress / Times of Israel staff)

“The ruling does not change the racist and discriminatory nature of the nation-state Law, which establishes Arab citizens of Israel as second-class citizens,” it said.

Labor MK Gilad Kariv, who heads the Knesset’s Constitution, Law and Justice Committee, indicated that the court ruling did not legitimize use of legislation to discriminate.

“The High Court was correct in not nullifying the nation-state law, and was equally correct in stating that it cannot be used to justify a violation of democratic values,” he tweeted. “It is the job of the Knesset to explicitly anchor the values of equality alongside the recognition that the State of Israel is also the home of its non-Jewish citizens. This is exactly what we’ll try to do.”

Aaron Boxerman contributed to this report.

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