I
n 2011, a one-time Shin Bet security agency chief and minister of public security submitted a bill to the Knesset in his role as a member of the opposition Kadima Party. The rationale behind Avi Dichter’s bill was simple. Everyone knows Israel is the Jewish state. But shouldn’t there be a law that says so, to protect that status? And shouldn’t something so essential to the national character be a “Basic Law,” meaning, in Israeli terms, a building block of the state’s eventual constitution?
The Jewish Nation-State Bill “is especially necessary at a time in which there are those who seek to cancel the Jewish People’s right to a national home in its land and the recognition of Israel as the nation-state of the Jewish People,” Dichter wrote. It will “allow us to reach a broad agreement in the future over a full and comprehensive constitution.” The bill had been conceived in 2009 by the Institute of Zionist Strategies, a right-wing think tank especially alarmed by the way in which Israel’s unelected Supreme Court had been handling issues of Jewish nationhood.
In the ensuing years, Dichter was voted out and back into the Knesset, and multiple versions of his bill were floated. Ahead of the 2015 election, Prime Minister Benjamin Netanyahu sought to help secure his position with the right flank of his support by making a campaign promise to pass it. After another three-plus years and many hours of intensive discussion in the Knesset, it finally happened on July 19. The law is “a defining moment in the history of Zionism and the history of the State of Israel,” Netanyahu said after the bill’s passage. “One hundred and twenty two years after Herzl published his vision, we have stated by law the basic principle of our existence.”
The path from bill to law had been far from smooth, and the aftermath of its passage was even rockier. Jewish organizations in the Diaspora condemned it openly and full-throatedly. A New York Times news story on the bill’s passage stated flatly that “none of [Netanyahu’s] expressions of raw political power has carried more symbolic weight than the new basic law.”
The questions that the bill seeks to address, and the questions that are being asked about it in the wake of its passage, go to the core of what Israel is about, as both a Jewish country and a democracy.
T
he Jewish Nation-State Law begins by declaring that “Israel is the historic homeland of the Jewish people in which the State of Israel was established…in which [the Jewish people] fulfills its natural, religious, and historic right to self-determination.” The law describes the flag and the national symbol, as well as the national anthem and national holidays, and reaffirms that Shabbat and Jewish holidays are days off. Israel’s openness to “Jewish immigration and the gathering of the exiled” is mentioned, as well as Israel’s commitment to helping and nurturing Jewish communities around the world. In addition, “Jerusalem, complete and unified, is the capital of Israel.
Other parts of the bill have been the focus of criticism. “The fulfillment of the right of national self-determination in the State of Israel,” it reads, “is unique to the Jewish people.” Hebrew is deemed “the language of the state” while Arabic has a “special status” that does not detract from its current status. Moreover, “Jewish settlement as a national value” is something the state will promote.
But that’s it. Really. That is the whole law.
The legislation reflects the de facto condition inside Israel since its establishment 70 years ago and should not be earth-shattering for anyone with the slightest familiarity with the Jewish state. Those who support it have done so because they believe, as Menachem Begin once said in a different context, that “even the obvious needs to be said sometimes.”
The law’s opponents have read far beyond its simple text in finding reasons to be against it.
Opposition leader Tzipi Livni objected to the bill from day one, and as leader of Dichter’s Kadima in 2011, forced him to shelve it. As justice minister in 2014, she vetoed versions of the bill that were similar to Dichter’s, but there was enough pressure in the coalition for her to appoint the renowned law professor Ruth Gavison to help her draft her own version. That never went anywhere because an election was called. Then Livni was back in the opposition again, speaking out forcefully against the bill.
Livni’s criticisms have remained steady over the years, and she is a good weathervane for both the content and the tone of the center-left opposition to the Jewish Nation-State Law over time, which more recently has been reflected in comments on the new law from major U.S. Jewish communal organizations.
When she vetoed the bill in 2014, Livni wrote on Facebook: “Who doesn’t want to preserve Israel as the Jewish nation-state? That’s the purpose of Zionism….Therefore, we need a constitution, and the Law of Return should be its first article, and therefore, I will oppose any proposal that tries to break the balance between the values of Israel as a Jewish state and a democratic state.”
Basic Law: Human Dignity and Liberty, the core civil-rights legislation in Israel, describes the country as “Jewish and democratic.” The idea of balance between those core values is at the heart of the criticism from the more moderate members of the Labor Party and Yair Lapid’s centrist Yesh Atid Party.
And the criticism about the lack of the word “democratic”—and for some critics, the lack of the word “equality”—in the Nation-State Law is less about the government than it is about the rights of non-Jewish minorities in Israel. The idea of making Israel a de jure Jewish State, some believe, could impinge on the legal rights of Israeli Arabs. And saying that Arabic has a “special status” but is not equal to Hebrew as the national tongue supposedly adds insult to injury. Those concerns in particular were emphasized by Jewish-American organizations.
Parts of the bill, the Anti-Defamation League warned, “could undermine Israel’s cherished democratic character, exacerbate relations between Israeli Jews and Israeli Arabs as well as those between Israel and Diaspora Jews, and indeed, impair Israel’s international reputation.” The ADL did express qualified support: “The law does represent an important step forward to enshrine the Jewish character of the country, notably with regard to state symbols like the anthem, flag and capital Jerusalem; as well as in reaffirming that the State of Israel is open to Jewish immigration.”
The American Jewish Committee was “deeply disappointed” by the law, which it called “unnecessary” in the sense that it mostly reaffirms “well-established facts.” It cited the change in status of Arabic and worried that the wording affirming the “development of Jewish settlement as a national value…could be read as a euphemism for…support for Jewish-only communities in Israel.”
The concern that the bill will damage the Israel-Diaspora connection comes from the part stating: “the state will act in the Diaspora to maintain the connection between the state and the Jewish people.” A previous draft had said it would develop that connection with “the Jewish people, wherever they are.” The ultra-Orthodox parties in the coalition asked that “wherever they are” be removed, so it could not be used as a weapon to petition for Jewish pluralism inside Israel. The AJC and ADL both mentioned the clause in their statements, and Jewish Federations of North American CEO Jerry Silverman told the Jerusalem Post that he found the change to be “patronizing” and was concerned that the phrase “in the Diaspora” would lead Israel’s Supreme Court to rule against progress on matters such as egalitarian prayer at the Western Wall.
Then there was the outright rage. Members of the Joint List, the Arab bloc in the Knesset, ripped up the law while shouting “apartheid.” J Street and other leftist Jewish organizations penned a letter saying the Knesset voted to “enshrine discrimination.” Even Livni took a manic tone, getting herself thrown out of one of the last committee meetings on the bill for repeated interruptions, including shouts that “this government is racist.” After the law’s passage, she accused Netanyahu of incitement against the law’s opponents. Livni also argued that, in light of talk about an early election being called later this year, Netanyahu is trying to sow divisions in order to get more votes.
There were intensive debates about the bill in Knesset committees for over a year, far longer than most legislation. Opponents of the bill were given repeated opportunities to air their objections, and in some cases their concerns were taken into consideration.
And yet the response reverberating through the Israeli and international mainstream-media coverage has been that the bill was a total victory for the right and a total loss for Israelis who care about democracy and pluralism. But two polls taken the week after the law passed showed that a majority of Israeli Jews support the law. The public response has been surprisingly muted. Protests in Tel Aviv and Haifa, organized by Israeli Arab or coexistence-focused organizations and activists, brought in only a fraction of the 100,000 protesters who came out to support gay rights the week before.
Nonetheless, the criticism of the bill is a serious matter and warrants serious examination.
Starting with what is probably the simplest issue, the Talmudic parsing of the article about Israel-Diaspora relations makes little sense. First of all, the law does not forbid working on the Israel-Diaspora connection within Israel, which makes the legal situation on this matter very similar to what it has always been. Until this one, there had never been a law mandating an Israel-Diaspora connection, other than the Law of Return, which allows all Jews to immigrate to Israel. And yet, there is a Diaspora Ministry. To the extent that the change in language was the result of ultra-Orthodox pressure, that goes to the nature of Israel’s electorate.
The ultra-Orthodox chokehold on matters of religion and state in Israel has been an eternal political headache for everyone who is not ultra-Orthodox, and it’s unlikely to change as long as there is a coalition government system. Haredi lawmakers have been able to use their political weight to prevent change for decades. The battle for Jewish pluralism in Israel does not come down to one line in this law. And, by the way, the law also has no clear impact on matters of religion and state, since it refers only to Jewish peoplehood and not religion (beyond establishing the Jewish holidays on the national calendar).
It is, however, true that the bill might adversely impact the Israel-Diaspora connection—if some U.S. Jewish organizations, echoing the Israeli left, are under the impression that this law makes Israel less of a democracy, and therefore potentially less worthy of support. But the concern about weakening democracy raises doubts as to whether those voicing it have actually read the law. Nothing in the law’s text impinges on the individual civil rights of Israeli citizens, and it does not add any individual privileges for Jewish Israelis. Nor does the law take away the rights of Israel’s minority groups as a collective, because—for better or worse—there never have been officially recognized minority groups in Israel.
As Northwestern University law professor Eugene Kontorovich argued in the Wall Street Journal, the Jewish Nation-State Law is not so different from the constitutions of many European democracies. Yet there doesn’t seem to be much outrage about the Latvian constitution citing the “unwavering will of the Latvian nation to have its own state and its unalienable right of self-determination”—even though a quarter of Latvia’s population is Russian. Kontorovich found seven European democracies with “nationhood” in their constitutions, and he pointed out that many European countries with large minority groups have only one official language. Spain’s official language, for example, is Castilian Spanish, not Basque or Catalan.
There has been a great gnashing of teeth over the supposed demotion of the Arabic language in the new law. This ignores the fact that the law specifically says: “This clause does not harm the status given to the Arabic language before this law came into effect.” There has never been a clear-cut law establishing Arabic as a second official language, though a British Mandatory Law did say that Hebrew, Arabic, and English had to be used on government documents. (The British Mandate ended, of course, in 1948.) Anyone who has spent a little time in Israel can see clearly that not only is Arabic not a de jure official language, but it never served as a de facto second official language. Many government services are not available in both languages. Judicial rulings on this matter have gone both ways—but it should suffice to say that the nation’s Supreme Court exempted itself from having to use Arabic in addition to Hebrew.
An early draft of the law would have made it legal for religious and national groups to establish their own exclusive towns. It was removed and rewritten to read: “The state sees the development of Jewish settlement as a national value and will act to encourage and promote its establishment and consolidation.” The AJC, among others, says this is merely a euphemism for allowing Jewish-only towns.
While many of Israel’s cities are mixed Jewish and Arab, the smaller towns and villages in Israel tend to be separate, despite the lack of a law mandating that it be so, for the simple reason that some people choose to live in homogeneous communities. (The High Court of Justice has ruled that Arab towns can keep Jews out but did not allow the reverse in a separate case.) The more amorphous language of the final draft is a fair middle ground, which gives constitutional backing to the important strategic policy Israel has always had of encouraging Jews to live in all areas of the country, but it stops short of allowing groups to ban people from living among them based on ethnic or religious lines.
Then there is the criticism that the law doesn’t include the word “equality” or “democracy.” That was a mistake on the part of the coalition supporting the bill. It would in no way have detracted from the law to have included the phrase “Jewish and democratic,” which is used in Basic Law: Human Dignity and Liberty—or to have had it said that “Israel is the Nation-State of the Jewish People with a democratic government,” which was the phrasing in Dichter’s original version of the bill.
But the idea that not including “equality” or “democracy” in this specific law undermines those values in Israel doesn’t hold water. The argument only makes sense when looking at the Jewish Nation-State Law in a vacuum. In fact, it is part of a compendium of 14 constitution-level Basic Laws.
The Supreme Court has repeatedly talked about equality in its interpretations of Israel’s Basic Law: Human Dignity and Liberty. Israel’s Basic Laws allow all citizens to vote and run for office, protect the “life, body, and dignity of any person,” and ban the “deprivation or restriction of liberty.” They guarantee a citizen’s freedom to leave the country—something that Israel’s many immigrants from the former Soviet Union surely know the value of—and the right of privacy, as well as the right of “every citizen or inhabitant to engage in any occupation, profession or trade.”
W
ith the passage of the Nation-State Law, there are now 13 Basic Laws focused on the workings of Israeli democracy. This one requires the courts to consider in their rulings the fact that Israel is the Jewish state, and explains what Jewish statehood means. The impetus and the target of this law is Israel’s Supreme Court. As I wrote in these pages (“Making the Jewish State a ‘Jewish State,’” October 2013): “That Israel has prospered…without a law declaring it a Jewish state is, in a sense, a testament to the force of its founding idea…But today, the absence of a legal architecture ensuring Jewish statehood is also a potential threat to the Zionist project itself.” Israel’s highly active judiciary has issued decisions that those who championed the new law saw as “erod[ing] Israel’s Jewish nature in the name of preserving its democratic one.” The Jewish Nation-State Law seeks to put Israel’s core values of Jewish and democratic back into balance, to avoid an irreconcilable conflict between them.
But some who criticize the law as a whole seem to be uncomfortable with a full-throated proclamation of Israel as the Jewish state, or they’re outright opposed to the core concept of Zionism, which is that the Jewish people deserve the right to self-determination.
Many critics seem to take their cues from Israeli Arabs—hence the focus on minority rights and the status of Arabic language. Their objections seem to suggest that in the 70 years before its passage, there was friendly coexistence in Israel that this law will now ruin. In reality, while Israeli Arabs mostly live peacefully in Israel, Jewish–Arab relations inside Israel could be a lot better. When it comes to Israel as a Jewish state, over half of Israeli Arabs are at odds with the Jewish majority. A poll by Haifa University sociologist Sammy Smooha released earlier this year shows that only 49 percent of Israeli Arabs recognize Israel’s legitimacy as a Jewish and democratic state, and only 44 percent agree that Israel should have a character reflecting its Jewish majority.
The politicians they elect share that view and take it to an extreme; members of the Knesset who ripped up the Jewish Nation-State Law and called it “apartheid” use such rhetoric often, and you’d be hard-pressed to find someone in the main Arab bloc who thinks that the Jewish state was a good idea. Quite a few of them talk about a two-state solution in which there’s a Palestinian state in the West Bank and a state where Israel is now that does not necessarily have anything Jewish about it.
Israel’s more mainstream left, and the major Jewish organizations who criticized the bill, do say they support Israel as a Jewish state. Livni and others were understandably peeved when Netanyahu called for the left to engage in introspection over its opposition to the new law and implied that it is “embarrassed by Zionism.” This is what led her to accuse Netanyahu of incitement.
To say that mainstream Israeli leftists, like the more centrist Yair Lapid’s Yesh Atid party and much of Labor, are embarrassed to be Zionists or don’t want a Jewish state does take things way too far. Since its merger with Livni’s party in 2014, the Labor Party is now literally called Zionist Union. And on a less superficial matter, these are people who strongly advocate for a two-state solution, not on the grounds of peace but because they believe that is the only way to keep Israel Jewish in the long run.
The most resonant argument for a two-state solution is the “demographic threat.” If Israel and the Palestinians don’t separate from each other, the thinking goes, there will eventually be an Arab majority, and Israel will cease to be either Jewish or democratic. The Coordinator of Government Activities in the Territories (COGAT), the IDF unit implementing government policy on civilian matters in the West Bank, reported this year that there is population parity between Jews and Arabs between the Jordan River and the Mediterranean. Many dispute these numbers, pointing out that they are based on the Palestinian Authority’s data, and even the COGAT representative speaking in the Knesset admitted that there is evidence that the PA is inflating the figures. The concern of many on the mainstream left with the demographic threat is a mark of seriousness about Israel’s Jewishness; they are willing to concede a large, strategic swath of land and provoke an almost certain threat to the country’s security in order to maintain it.
And yet they have aligned themselves with a group of lawmakers who openly disdain the Zionist vision of a Jewish state, in order to state their opposition to the idea that Israel is the Jewish state.
Zionist leftists’ focus on equality and civil rights is admirable, and in general, their role as a loyal opposition is important in a democracy. They keep the government in check. But in this case, they need to take a step back and realize that this law is not what their fellow travelers are making it out to be.
