The trouble with Israel’s Jewish nation-state law
A few words could have made all the difference, but the government didn’t want them
David Horovitz is the founding editor of The Times of Israel. He is the author of "Still Life with Bombers" (2004) and "A Little Too Close to God" (2000), and co-author of "Shalom Friend: The Life and Legacy of Yitzhak Rabin" (1996). He previously edited The Jerusalem Post (2004-2011) and The Jerusalem Report (1998-2004).
In an Army Radio interview on Sunday, Israel’s incoming opposition leader, Tzipi Livni, said she had repeatedly urged government legislators in the run-up to July 19’s passage of Israel’s new Jewish nation-state law to add in a single crucial phrase.
She had, she made clear, no objection to the text declaring Israel to be “the national home of the Jewish people.” Quite the reverse. But to ensure that the law fully reflected modern Israel’s founding principles, she argued, it also needed to include Israel’s commitment to “equality for all its citizens.” In the Declaration of Independence, she noted, Israel promises “complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.”
Few if any of Israel’s Arab Knesset members would have voted for the bill even in the form she wanted, Livni acknowledged — since rather than a Jewish and democratic state, they seek to designate Israel as the state of all its citizens. But had that “equality” phrase been inserted, most or all the rest of the opposition would have supported it, and the law would have garnered about 100 of the 120 Knesset members’ votes, rather than squeezing through, as it did, by 62 votes to 55. How impressive such overwhelming support would be, she argued to coalition members, how resonant an endorsement of Israel’s central principles.
Livni said coalition MKs derided her for her naivete. Prime Minister Benjamin Netanyahu didn’t want opposition support for the law. Rather, she said they told her, he wanted to send a message to the Israeli public that he and his coalition colleagues were the dependably nationalist defenders of Jewish Israel.
Echoing her assertion, Yohanan Plesner, a former Kadima MK and today the head of the Israel Democracy Intstitute, charged Sunday that Likud legislators had sought to create a picture of “patriots and non-patriots” by means of the law and its divided support in the Knesset. “The current legislation was politically motivated, as a precursor to an election campaign where Netanyahu and the Likud could create a situation of patriots and non-patriots,” he claimed.
In the 10 days since the law was passed, the controversy surrounding it, rather than dissipating fairly quickly, as most controversies do, has intensified. Some critics consider the law to constitute the legislative codifying of discrimination, and therefore bitterly interpret it as the beginning of — or another slip in the continuing slide toward — the end of Israeli democracy.
Others share Netanyahu’s declared assertion that it marks a positive “pivotal” moment in the history of the modern state, with the belated formalized legislation of Israel as the state of the Jews, and argue that Israel’s democratic principles are already entrenched elsewhere, in existing legislation such as the Basic Law: Human Dignity and Liberty of 1992. This Basic Law establishes “the values of the State of Israel as a Jewish and democratic state” and provides that “there shall be no violation of the life, body or dignity of any person as such.” (A 1994 amendment to the law also states that “fundamental human rights” in Israel be upheld “in the spirit of the principles set forth” in the Declaration of Independence.) While none of Israel’s Basic Laws specifies “equality,” this 1992 law is considered by some jurists to provide for it.
Until Saturday night, the most resonant objections to the law came from Israel’s 130,000-strong Druze community. While several MKs from the Joint (Arab) List protested the law as discriminatory, vowed to seek international intervention, and even enlisted Palestinian Authority President Mahmoud Abbas in their battle against it, their criticisms made little impression on the Israeli Jewish mainstream; they are not Zionists.
But complaints of discrimination from the Druze, who fight alongside the Jews in the Israel Defense Forces and have paid a heavy price in lost lives in the defense of the nation, were internalized and even endorsed by some government ministers. Finance Minister Moshe Kahlon (Kulanu) called the final wording of the law hasty and mistaken; the hawkish education minister and Jewish Home leader Naftali Bennett said the government had to find a way to heal the wounds it had inflicted on “our brothers who stand shoulder-to-shoulder with us on the battlefield and made a covenant with us.” Both ministers called for the law to be amended. Netanyahu, who held a meeting Friday with Druze leaders, and another on Sunday, made no commitment to doing so.
If some ministers consider the law problematic and a mistake because of Druze objections to its purported discriminatory provisions, why are those provisions any less problematic, and any less mistaken, for any other Israeli minority?
The empathetic response in government to the heartfelt complaints from the Druze community may be understandable, but it is not particularly logical. If some ministers consider the law problematic and a mistake because of Druze objections to its purported discriminatory provisions, why are those provisions any less problematic, and any less mistaken, for any other Israeli minority?
As of Saturday, however, argument over the law shifted into the familiar battleground of partisan politics. In a live television interview that night, Zouheir Bahloul, an Arab member of a Zionist political party, the Zionist Union, announced his resignation from the Knesset — branding the law a “drastic act… that makes the Arab population officially, constitutionally outside the realms of equality in Israel.”
Bahloul was a somewhat controversial figure within the Zionist Union. Its leader, Avi Gabbay, had reportedly indicated last year that he did not see a future for Bahloul in the party, after Bahloul said he would not attend a Knesset ceremony marking the 100th year anniversary of the Balfour Declaration because that would mean celebrating the Zionist character of the state when part of his own identity as a Palestinian remained unrecognized. “I do not think it would be appropriate to participate when I myself am not free,” Bahloul said.
Tellingly, while the former Zionist Union leader Isaac Herzog expressed dismay at Bahloul’s departure, stating that “the voices of the minorities in Israel have to be heard,” Gabbay did not rush to empathize with Bahloul when he resigned on Saturday, and was refusing interview requests on Sunday.
The opposition’s discomfort and division may be music to the ears of the Netanyahu coalition — and a welcome distraction from the central question of the law’s threat to Israeli democracy.
Netanyahu, at the weekly cabinet meeting on Sunday, robustly insisted that criticism of the law, which he called the “essence of the Zionist vision,” was “nonsense.” “The State of Israel is the nation-state of the Jewish people, with full equality of rights for all its citizens,” he said. “This is the meaning of the words ‘Jewish and democratic state,’” he said. “Does the fact that our flag has a Star of David invalidate the individual right of any Israeli citizen? Nonsense — this statement ensures that there will be no other flag,” he added. “Does the statement that ‘Hatikva’ is our national anthem detract from the personal rights of anyone in Israel? Nonsense — it says there will be no other anthem.”
Except, of course, that those phrases — “full equality of rights for all its citizens” and “Jewish and democratic state” — do not appear in the Jewish nation-state law, despite the efforts of the likes of Livni and the maverick Likud MK Benny Begin.
Netanyahu on Sunday also rounded on his critics from the Left, calling their objections to the law hypocritical. “Over decades the opposition has preached to us that we must withdraw to the 1967 lines in order to ensure that Israel remains the national state of the Jewish people in which there is a Jewish majority in the state. Then suddenly when we pass a basic law to ensure exactly this, the Left cries out in protest? What hypocrisy.”
He also sought to portray his left-wing opponents as ostensibly “ashamed” of Zionism: “The Israeli Left must search within itself. It needs to ask itself why the basic term of Zionism, ‘a Jewish national state of the Jewish people in its land’, has become a rude term for it — a rude word, a principle that one should be ashamed of. We are not ashamed of Zionism,” said Netanyahu. “We are proud of our state, that it is a national home for the Jewish people, which strictly upholds – in a manner that is without peer – the individual rights of all its citizens.
The Knesset’s new Jewish nation-state law is, inevitably, being appealed to the Supreme Court, which may find a basis to intervene, or may consider the law’s provisions to be declarative and/or not contradictory to Israel’s already legislated Jewish and democratic principles. In this context, it might be noted that the composition of the Supreme Court has been slowly changing in recent years, with Justice Minister Ayelet Shaked, a member of Bennett’s Orthodox-nationalist Jewish Home party, working to advance justices who she considers to be broadly comfortable with her political philosophy.
Enshrining in Israel’s Basic Laws, the closest thing we have to a constitution, principles such as Israel as the “historical homeland of the Jewish people” with Jerusalem as its capital, the Star of David on its flag, and Hatikvah as its anthem, may well have been overdue. But in a country that, absolutely legitimately, grants automatic citizenship under the Law of Return to Jews, the equality of all Israeli citizens is a commitment that also requires the firmest establishment.
There is no contradiction in being a Jewish state that opens its doors wide to all Jews, and in being a democracy that stands for full equality for all who live here. Indeed, the capacity to reconcile those two principles goes to the heart of Israel; it makes Israel unique and rightly celebrated.
Those foundational principles must flourish together. Passing a piece of landmark legislation that needlessly and deliberately — as shown by the legislative process — omitted one of them is plainly harmful to Israel’s reputation. Time will tell if it has practical implications, as a legislative cover for discrimination, but it is also, by dint of what it omits, potentially harmful to Israel’s sense of itself and what we stand for.
Earlier iterations of the legislation did include references to Israel as a democracy. And three years ago, Begin drafted a proposed text of the law that stated: “Israel is the homeland of the Jewish people, based on the foundations of freedom, justice and peace as envisioned by the prophets of Israel, and upholds equal rights for all its citizens.”
In its final, very deliberate wording, the law smacks of narrow political interest outweighing the national good. Rush-writing the nascent state’s core principles 70 years ago, amid pandemonium and with war imminent, Israel’s founders, patriots all, did a far better job.
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