Like millions of Americans, this week I watched the reaction in Ferguson, Missouri to a grand jury’s refusal to indict a police officer who killed an unarmed black man last summer. As expected, there was violence and chaos. Community voices called for long-term solutions to the problem of racism in law enforcement, and President Obama went on television, looking tired and sad, to try to calm the waters.
This brought home to me a signal truth about democracies and minority relations: Nobody gets it right. Not one liberal democracy has all the answers to the thorny questions about minorities — whether indigenous, immigrant or taken as slaves — and their collective and individual rights vis-a-vis their state.
So let us stipulate at the outset that Israel is far from alone in trying to resolve issues of majority vs. minority rights and how or whether to align ethnic identity, national identity and the rights of all citizens. Let us also stipulate that Israel is often held to standards unachieved by other democracies, whether they be European nations with large Muslim minorities or the US and its long unresolved history with our African-American citizens, not to mention our treatment of Native Americans.
But the Jewish nation-state bill now sitting on the front burner of the Knesset, possibly threatening the stability of the government coalition and riling tempers on both sides of the ocean – that’s not a grand jury decision or an episode of police brutality. It’s not a temporary policy. It’s not ephemeral. If this law is passed in any of its formulations, including the so-called “liberal” option favored by some, it will essentially change the nature of the State of Israel.
Superficially, a Basic Law declaring Israel to be the nation-state of the Jewish people should seem uncontroversial – and probably does, to a lot of Israelis and Diaspora Jews. Our own funding guidelines at the New Israel Fund describe Israel as the place where the Jewish people achieve sovereign self-determination, and we are not usually accused of nationalist excess.
But Israel was founded to be more than just the homeland of the Jewish people. It was also founded to be a modern liberal democracy. Just check Israel’s founding document, the Declaration of Independence, which states that Israel is to be “a nation that confers equality on all of its citizens without regard to ethnicity, religion or gender.” That means that although Israel is intended to serve as both a refuge and homeland for the Jewish people in which Jewish identity is preserved and protected, it cannot and must not align the rights of citizenship with being Jewish. Israel can and does offer special rights to Jewish non-citizens who want to become Israeli; they are fast-tracked by the Law of Return. But it does not presently state as a matter of constitutional law that once those Jews become citizens, their ethnicity grants them rights not available to Israel’s Arab minority or other non-Jewish citizens.
This is a terribly important distinction. Even the most liberal version of the Jewish nation-state bill could be interpreted by the courts as conferring special privilege on Jewish citizens and thereby establishing a legal, two-tier set of rights. This is confirmed by many of the more honest nationalist commentators and politicians. Yoaz Hendel, a military historian closely identified with Benjamin Netanyahu, calmly states, for example, that the rejection of family unification for Palestinians and the Jewish National Fund’s discrimination in land policy would be legally justified through this new Basic Law. Jewish Home party minister Naftali Bennett opined that it would provide the legal rationale for continuing to incarcerate or deport African refugees.
They’re telling the truth. And it’s a truth that could be fatal to the Zionist project. As NIF’s former president, political scientist and former Knesset member Naomi Chazan, wrote some years ago: “Past the intricacies of Jewish self-definition is the problematic concept of a state that uses its majority population as the defining element of its political system. Although Jewish self-determination is the raison d’etre for Israel, in a democracy the state itself must be the neutral arbiter of its people’s interests.”
And that includes the interests of Jewish Israelis. A barely-noted clause in every proposed version of this bill allows Jewish tradition and religious law to influence Israel’s legal structure in the absence of a clear determinant in civil law. Trained as an attorney myself, I know that that is a legal loophole through which one could drive a truckload of Halacha. For those of us in America and Israel already concerned about the power and influence of the more extreme brands of ultra-Orthodoxy over various aspects of Israel’s civil life, this should serve as a red flag.
So the dangers of this bill go far beyond the now extraordinarily sensitive issue of minority rights. OK, you say, the New Israel Fund opposes the bill, but you’re leftist progressives who fund human rights organizations, religious pluralism projects and Palestinian-Israeli civil rights groups. (And we are.) That’s why we welcome the growing chorus of voices from the Israeli and American center, from the Orthodox community and the seculars, from legal experts and political scientists, who oppose every version of this proposed legislation.
True, Israel is not alone in wrestling with issues of nationality, minority rights and identity. But, given its growing isolation and military rule over millions of non-citizens, it is far more vulnerable to a major mistake than are liberal democracies that do not confront long-term existential crises. Israel cannot afford to get this wrong. We can only hope that the sane and rational voices will be strong enough to overcome those determined to make a fatal mistake – for Israel, for the Jewish people, and for all who care about equality and justice.