The nation-state law, however, does not build on the Law of Human Dignity—rather, it takes that earlier law as a foil. In spite of (or, rather, because of) the size of Israel’s Arab minority, already twenty per cent of the population, and the fact that the Druze community—which numbers almost a hundred and fifty thousand—is subject to the draft, the nation-state law seeks to provide the Supreme Court with guidance to preëmpt further egalitarian menace. “There are places where the character of the State of Israel as a Jewish state must be maintained,” the justice minister, Ayelet Shaked, one of the law’s chief sponsors, said last winter, “and this sometimes comes at the expense of equality.” Thus, the nation-state law holds that the “right of national self-determination” in Israel “is unique to the Jewish people”—in effect, a state of international Jewry, not of its citizens. It extends to every Jew the right to aliya—code for automatic citizenship, under the Law of Return, passed in 1950. It commits the state to “secure the welfare of world Jewry.” Hebrew, in the law, is the only official language (though Arabic is accorded a “special standing”). Most importantly, at least to critics concerned that the law will unmoor the state from liberalism and the peace process, it holds that “the development of Jewish settlement” is a “national value”—fudging what “Jewish” means, but implying the obvious—and establishes Jerusalem, “whole and united,” as the capital of the state, reinforcing an earlier basic law, from 1980, after Likud first took power.
Indeed, critics have been vocal. The law passed on a party-line vote—virtually the entire center-left opposition voted against it—and has riled liberals from the head of the Israel Democracy Institute to the head of the Reform movement in the United States. On Saturday, the Israeli Arab Knesset member Zouheir Bahloul, of the opposition Zionist Union, announced his intention to resign. Druze leaders speak of betrayal. Israel’s Declaration of Independence, which David Ben-Gurion, the founding Prime Minister, proclaimed in 1948, committed to “insure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.” The nation-state law would set up a rival standard, valorizing discrimination in favor of Jews collectively, as individuals, and as performers of Orthodox Jewish law. “The Zionist ambition of forming a just society based on the value of equality is called into question,” the Israel Democracy Institute’s Mordechai Kremnitzer notes. The law, Haaretz’s Chemi Shalev writes, is “loathsome, damaging, divisive and mainly superfluous.”
Yet criticism of the law as a legal watershed can also be somewhat misleading, and Shalev’s word “superfluous” is a kind of giveaway. Shalev is, perhaps inadvertently, calling attention to a deeper, more persistent crisis in Israel’s democracy, which is that the nation-state law actually changes very little. It was twelve years before that Arab family was finally allowed to move into Katzir. Indeed, resistance to even affluent Arabs moving into Jewish communities is still so widely taken for granted that the government, national and municipal, will rarely enforce integration against the will of current residents. Successive Netanyahu coalitions failed to pass an egalitarian conscription law that puts the same burden on Orthodox youth as it does on secular youth; the current coalition is even considering a law that will empower future Knesset majorities to pass laws that are immune to Supreme Court review.
Since Israel’s founding, Orthodox rabbinic control has presided over many aspects of private life, from marriage, divorce, and burials to legal definitions of “Jew” in crafting regulations for immigration, the awarding of citizenship, land purchase and settlement, schooling, and cultural funding. The Israel Land Authority and quasi-governmental organizations, such as the J.N.F. and the Jewish Agency, discriminate in extending financial support only to “Jewish settlement.” Kremnitzer is admirably disquieted by what he calls the “Judaification” of the land, but apparently not by a Law of Return that rests “Jewish” on rabbinic law, Orthodox conversation, and blood descent. (I wrote about such existing discriminatory institutions when Netanyahu proposed an earlier version of the nation-state law, in 2014, which was reportedly blocked by President Obama.)
It is no wonder that, in 2016, the per-capita allocation of public funds for the residents of Arab towns was ten per cent less than that set aside for the poorest Jewish towns and forty-five per cent less than for affluent ones. Injury to Israel’s non-Jews is a fact of existing Israeli law and institutional practice. The nation-state law only adds insult to it. Nor did this pattern begin with Likud governments. Last week, Max Fisher wrote in the Times that the nation-state law suggests what a corrupting force the occupation of the West Bank and Gaza has been, inflaming nationalism and prompting Israelis to corrode their democracy with xenophobic attitudes, much like the electorates in Hungary and Poland have done. David Ben-Gurion, Fisher writes, “emerged from retirement in July 1967 to warn Israelis they had sown the seeds of self-destruction.” Actually, Ben-Gurion refused to consider withdrawing from either the Golan Heights or greater Jerusalem. But, more importantly, Israel’s democracy had already been compromised before the occupation, and, tragically, the original sin was Ben-Gurion’s, reinforced by a series of expedient, or simply cowardly, decisions by the same Supreme Court upon which liberals now rely.
In the winter of 1949, Ben-Gurion declined to adopt the liberal-democratic constitution that he had himself commissioned, in order to govern with the national-religious parties—instead of with leftist or rightist rivals. He also began advancing the idea that the “Jewish nation,” leom yehudi—or leom ivri, the “Hebrew nation,” as it was then often called—was more or less identical to the historic, elect, persecuted “people of Israel,” am yisrael, living in Torah culture and by covenantal law. In effect, Ben-Gurion confused the holy people, am, with the modern Hebrew nation, leom, as if the latter were not a secular Zionist effort to supersede the former. Ben-Gurion was a secular Jew drawn to Buddhist spirituality. But he nevertheless reinforced theocratic notions of what a “Jew” is, elevating Orthodox rabbinic courts, and ministers who enforced them, while seducing diasporic Jewish leaders—many of whom liked thinking of Israel as an extension of synagogue life—and whose political and financial power, he assumed, might be useful for state-building.
During the nineteen-fifties and sixties, while Ben-Gurion was still Prime Minister, the state apparatus did recognize Jewish nationality, leom yehudi, as a distinct legal designation, first to effect the Law of Return, but also to distinguish Jews from Arabs (and, in rare cases, other nationalities) on identity cards. But, in 1962, the Supreme Court upheld his government’s decision to deny citizenship under the Law of Return to Brother Daniel—formerly known as Oswald Rufeisen—a Polish Jew who had sheltered in a convent during the Second World War and later became a Carmelite monk. He insisted that he was Jewish by “nationality” and, furthermore, that he was seeking escape from a new wave of Polish anti-Semitism. The Court held that, because he had converted, he was no longer Jewish. Then, in 1968, Binyamin Shalit, an Israeli-born Jewish naval officer, who had married a non-Jewish Scottish woman when he was abroad, insisted that his two children, now living in Haifa, be registered not as Jews by religion (he was an atheist) but as nationals. The Supreme Court, in a split decision, backed him, but, two years later, Golda Meir’s government, under pressure from national-religious officials, passed a law overturning the court’s principle. Meanwhile, Orthodox ministers in charge of the Interior Ministry under Likud governments began to apply stringently Orthodox, or halachic, standards to conversion for purposes of authorizing “Jewish nationality.”
Ironically, had the nation-state law actually taken seriously the radical idea of a Jewish nation—the Hebrew civil society that cultural Zionists like the younger Ben-Gurion had once aspired to, and Hebrew cosmopolitans of Tel Aviv live out every day—it might have created a democratic revolution in Israeli law. Israel would then define national Jewish life as vested in the experiences of language, common popular culture, and geography, and, for all the predictable tensions, the state might gradually assimilate willing members of its Arab minority, asylum seekers, and others. This is just what the Druze are calling for.
But, again, it was the Supreme Court that failed here, long before the nation-state law was passed. In 2013, the Court dismissed a claim by petitioners, including a former education minister and an Air Force chief, to force the Interior Ministry to register them not as “Jewish” nationals (as Brother Daniel and Shalit demanded) but as “Israeli” nationals, which would have allowed secularists like themselves to elide the question of who is a Jew entirely. The justices—so they said—were not constituted to determine that a “new peoplehood has been formed, common to all its residents and citizens,” and they feared promoting “disunity,” which plainly entailed disrupting theocracy. The Hebrew University legal scholar Frances Raday has long complained about how fellow-liberals ignore the fact that the word “equality” was left out of the Law of Human Dignity, allowing the Supreme Court justices great leeway in tolerating both residual discrimination and the excesses of the settler movement.
So civil marriage—thus intermarriage—remains legally unavailable. Laws that prohibit work on the Sabbath have been introduced in most towns. A united Jerusalem has long been the state capital by law. It is already a criminal offense for Israelis to distinguish between pre- and post-1967 settlement in, say, calling for international boycott of Israeli products or universities. There is already formal segregation of state-funded Orthodox Jewish, secular Jewish, and Arab school systems, and Orthodox parties already proselytize openly in ostensibly secular schools. Judges already apply Jewish law to cases not settled by precedent—the Likud justice minister Yaakov Neeman urged this change more than a decade ago. Perhaps the most revealing thing about the nation-state law is that, on the morning after it passed, the police detained and questioned a Conservative rabbi, Dov Hayun, for allegedly conducting wedding ceremonies without the authorization of the Orthodox Chief Rabbinate. The Netanyahu coalition also withdrew legislation giving surrogacy rights to same-sex couples.
Even earlier than the attempts of Viktor Orbán, who visited Israel last week, Netanyahu has tried to control the media, disempower the Supreme Court, suborn the police, and attack the universities. But the challenge for Israeli liberals is not that their state is on the way to becoming Hungary. It is rather that their state has not yet graduated from being something like what Quebec was before the Quiet Revolution of the nineteen-sixties, when priests and nuns ran French schools and social-welfare agencies; bishops determined what most everyone could read, watch, and drink; and politicians mobilized voters by railing against les anglais. The Likud is comparable to Quebec’s old Union Nationale, whose definition of “nationale” meant ultramontane French Catholic, and whose real target was Montreal, with its more pluralistic, inevitably liberal, secular, commercial world that might not be contained. (In 1950, the future Prime Minister Pierre Trudeau co-founded a magazine in Montreal called Cité Libre.) Similarly, if the nation-state law has a target, it is the rising coastal megalopolis that stretches from Tel Aviv to Haifa—Israel’s élite coast—which, unlike Jerusalem and other poorer, peripheral towns, is increasingly a Hebrew participant in a secular, globalist, networked world.
Israel’s cultural struggles continue. Since the law was passed, Dov Hayun has been inundated by requests to perform more weddings, whether or not the state recognizes them. On Sunday night, gay-rights activists brought a hundred thousand protesters to the streets of Tel Aviv. The Druze are mobilizing for demonstrations of their own. For Netanyahu’s forces, the nation-state law is a new battle won, brushing a coat of constitutional varnish on the status quo. But it may also be an indication how frightened they are of losing the war—which did not begin in 1967, or last week.
Original Article
Source: newyorker.com
Author: Bernard Avishai
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