Liberal Logic

Formulating an Alternative to the ‘Jewish State Law’

Israeli law professor Ruth Gavison has been tasked with forming a moderate alternative to the right-wing Jewish State Law. But her previous positions prove she’s the wrong person for the job, says Raphael Magarik.

If only I were more grateful for small favors. Take the “Jewish State Law” currently under consideration in the Israeli Parliament. Right-wing Knesset members Ayelet Shaked and Yariv Levin have reintroduced the bill, which “emphasizes foremost the affinity of the Jewish people to the state and the land, above that of other nations” and lists democracy only secondarily. For a country whose citizens are 20 percent Palestinian, this bill, which “does not recognize that the land may be the homeland of other nations,” is bad news. But on the bright side, Justice Minister Tzipi Livni asked respected law professor Ruth Gavison, a founding member of the Association for Civil Rights in Israel (the Israeli parallel to the ACLU) to formulate an alternative. As an added benefit, Haaretz reports that Prime Minister Netanyahu was miffed by Livni’s move. Sounds promising.

Unfortunately, Professor Gavison, like so much of the centrist Israeli establishment, consistently disappoints. Gavison is one of many Israeli liberals who drifted right in disillusionment after the second intifada. Her ideas show that lurking in the shadow of Shaked and Levin’s virulent ultranationalism, hides the deeper, broader threat of an ever-expanding Israeli security state.

One of Gavison’s positions is illustrative. In a 2009 interview with Haaretz, she supported the Israeli Supreme Court’s upholding the Citizenship Law, which denies living permits to many Palestinians in the Occupied Territories who marry Israeli citizens. Now, I think there are plausible arguments (with which I disagree) for the legality of the Citizenship Law. The European Red Cross documents the wide support in international law for family reunification, including in the United Nations Convention on the Rights of the Child. Nonetheless, it is important to remember that the Citizenship Law was first enacted, in 2002, “after a suicide bombing in a restaurant where the bomber acquired resident status through family unification.” Obviously, Israel has a deep, valid interest in securing its citizens from terror. The question should have been, as the law was periodically renewed and challenged in courts, whether the security interest remained compelling enough to override the rights of Palestinian citizens of Israel to live with their spouses.

What’s troubling about Gavison is that she anchored her support for the Citizenship Law in Israel remaining a Jewish state, saying, “I believe I express the thinking of a large majority of people who wish to keep this country both Jewish and democratic.” In so doing, she innovated ahead of even some of the most right-leaning Israeli Supreme Court justices. In a 2006 case, the majority held that security interests justified the law. But by the 2012 decision, though the upholding justices all discussed security, some were also talking demography—that is, because Israel needs to remain a Jewish state, Palestinian families should be reunified, well, somewhere else. So, on the one hand, Justice Grunis’s widely quoted remark “Human rights are not a recipe for national suicide”—itself a quotation from one of liberal Justice Aharon Barak’s decisions from 2002—was not, contrary to overblown anti-Zionist interpretations, about the so-called “demographic threat,” but the more concrete threat of Palestinian terror. On the other hand, as York University Professor Mazen Masri argues, in 2012 some of the justices considered, for the first time, demographic arguments. Worse yet, they quoted, as conceptual justification, the legal writings of Ruth Gavison.

Intuitively, the logic of the 2006 case makes much more sense. Before the 2002 temporary order, after all, Israel permitted family reunification (roughly 140,000 from 1992-2002). Presumably, the law’s status as temporary order indicates that everyone agreed that someday its limitations would cease (I think they should have years ago). Gavison, on the other hand, thinks the state has a legitimate interest in splitting Palestinian families even when there’s no security risk. Over a decade, a temporary and regrettable security policy has morphed into an expression of Israel’s deepest national values. I don’t think this is the only time that’s happened. The erection of the security barrier, for instance, around West Bank Palestinians, surely fuels the discourse of containing the “demographic threat.”

But it’s particularly distressing to see someone of these views touted as a moderate alternative to the right-wing Jewish state law. Gavison’s rationale could easily extend to many problematic, even discriminatory government policies. If we’re comfortable splitting families to preserve a Jewish state, why not deny Arab citizens inside Israel a school in their city, in order to help Judaize the Galilee? That’s not a hypothetical; it’s the position of Nazareth Illit Mayor Shimon Gapso. Which is just one more reminder of why, when it comes to civil rights and Israeli democracy, we shouldn’t settle for mediocre compromises.

CORRECTION: Because of an editing error, this article contained a misstatement about grants of citizenship versus living permits. The sentence has been removed.