By: Harel Kopelman  | 

Israel’s Post-Secularist Nation-State Law Upholds Democracy

By: Harel Kopelman

Lost in the conversation over Israel’s nation-state law, a bill that seeks to define Israel primarily as a Jewish state before its democratic designation, is an oft-overlooked question: what is democracy?

Democracy’s earliest, most notable iteration comes from Athens. It was the fruit of a class struggle against tight-fisted aristocratic rulers who imposed draconian laws (such as the death penalty for loitering) on the general populace. The premier archon at the time was poet-statesman Solon, who expanded the definition of the ruling aristocracy to include eligible Athenian citizens, giving working-class citizens representation in legislature and government. Indeed, the very term “democracy” derives from the original Greek demokratia, a compound of demos (the people) and kratia (power, or rule); it came to be used in contradistinction to the prior form of government, aristokratia, or “rule of the elite.”

The foundation of the State of Israel was, according to this definition, an unabashedly democratic endeavor. The horror of the Holocaust was still uncomfortably fresh for the Western world which had stood by while Jews were systematically deprived of basic rights and their lives. Intensive lobbying by Zionist organizations and British sympathy towards the Zionist cause, therefore, led the United Nations to give its blessing to the self-determination of the Jewish people in the majority-Jewish portion of mandatory Palestine in 1947.

Democracy’s central appeal, a citizenry’s right to self-determination, was central to the Partition Plan that the United Nations approved: two states for two peoples, each of which would run its own affairs. Jews needed a state of their own that would represent their Jewish interests, and the Arabs living in Palestine at the time would gain their own such state as well.

Jumping forward nearly seventy years, Israel seems to be thriving as a democratic society like any other with its citizens participating in national elections. Prime Minister Benjamin Netanyahu wants to enshrine Israel’s status as a Jewish state for its majority-Jewish citizenry in law, strengthening Jews’ right to self-determination and, by extension, the country’s democracy. So why are many people, from the New York Times’ editorial board, the Obama administration, and members of the opposition in the Knesset, fighting against the proposed legislation, calling it a narrowing of Israel’s democracy?

The answer lies in two uncomfortable words: ‘secularism’ and ‘equality.’

Many seem to confuse secularism with atheism, a negation of religion entirely, but secularism in public policy discourse usually refers to separation of church and state so that religion is not used to form public policy. Only a society that is secular and ensures that religion does not inform its public policy and legislation has, historically, been able to ensure the religious freedom of all its constituents. True secularism, in this view, entails fighting for freedom from religion so that religious freedom can flourish.

The political left in both Israel and in the United States objects to the nation-state bill because it fears the bill would circumvent Israel’s tradition of governance granting religious and ethnic minorities equal rights before the law.

Israel’s 1992 Basic Law (the Basic Laws are Israel’s equivalent of a constitution) states that: “Human Dignity and Freedom already provides grounds for the judiciary with grounds to establish equality as a basic tenet of Israeli law...none may harm the life, body or dignity of a person inasmuch as they are a person,” and Supreme Court justices have long interpreted “dignity” as guaranteeing equal civil rights for all citizens irrespective of religion, sex, or age. Right-wing politicians fear that adding “equality” to the new bill would give the judiciary new power over state-religious institutions which adhere to Halakha or Sharia, by providing it with stronger footing to strike down decisions of religious courts, which do not take into account modern, secular principles of equality.

The only government document that officially employs the term “equality” is Israel’s Declaration of Independence. It reads: “The State of Israel shall… realize absolute equality in social and political rights for all its citizens without regard to religion, race or sex… [and] will ensure freedom of religion, conscience, language, education and culture; will protect the holy places of all religions; and will be loyal to the principles of the United Nations Charter.”

Netanyahu’s bill states that its purpose is to “define the identity of the State of Israel as the nation state of the Jewish people, and anchoring the values of the State of Israel as a Jewish and democratic state, in the spirit of the principles contained in the Declaration of the Establishment of the State of Israel.” The kerfuffle over the nation-state bill should therefore be seen as a tug-of-war between those who want to expand the Supreme Court’s judicial powers to knock down what it perceives as unethical or illegal, and Israel’s elected legislature.

It is a struggle that has been long underway. The Israeli Supreme Court has repeatedly placed the human rights of minorities, illegal immigrants, and even terrorists above the interests of the State, as expressed by the Knesset. Just this past September, the Supreme Court knocked down the Knesset’s “infiltrator law,” which allows for the holding of African migrants for up to a year, claiming it violated the migrants’ basic human rights. In 2005 it prohibited the “neighbor procedure”, the use of Palestinian civilians by the IDF to engage, even voluntarily, with terrorists holed up in a house or building in order to peacefully neutralize a dangerous situation.

Drafting Israel’s Declaration of Independence into the country’s constitution, which the left would like to do, would grant the Supreme Court even more power to rule according to secular ideals of equality, a proposition anathema to right-wing lawmakers who fear that would leave religion with little to no viability in public discourse.

But Israel has largely been successful in its integration of religious elements into public life. The country’s three main religious constituents- Jews, Muslims, and Christians- all receive funding for religious institutions. Ethnic and religious minorities living in Israel proper are eligible for citizenship, public healthcare, pensions, voting rights and civil rights protections. Arab Knesset members regularly advocate for Arab interests, and the government recognizes diverse religious national holidays such as Ethiopians’ Sigd celebration. Religion is actively supported by the government, but it is largely non-coercive.

Secular positions on some civil rights issues, detailed below, are largely unpopular in what is a largely socially-conservative Israeli society which looks to religion to define the parameters of daily life. Democratic solutions to these dilemmas lie not in the direction of the secular moral compass as determined by the supreme court, but in the majority opinion and its legislative manifestations.

Such democratic solutions do not deny that countries need a detached, secular judiciary which limits the legislature. In the United States, it was the Supreme Court which took the first decisive steps in confronting and dismantling institutionalized racism against blacks in educational settings with its decision to desegregate schools in Brown v. Board of Education, a decision that a majority of Americans vehemently opposed at the time but which has since garnered sacrosanct legal and social support.

Such far-reaching top-down civil rights decisions have not been necessary in Israel, but calls against state-favored religion and laws benefitting Jews specifically have come from Israelis who wish to live in a post-religion Israel. These Israelis wish to live in a society where their marriages, divorces, and personal statuses are not determined by the Chief Rabbinate, where the government does not impose its definition of Shabbat onto other people and businesses, and where the state does not offer Jews special incentives over Christians and Muslims to come live in Israel, as it currently does.

The nation-state bill should thus be seen as a clash between democracy and secularism. Some Israelis want a post-religion, secular society. These secularist Israelis want to live in an Israel where Judaism plays no role in the public sphere, an entirely valid political interest they will continue to pursue.

However, to the best of my knowledge, Jews have never imposed Halakha to oppress other peoples, and most Israelis support the state’s Jewish character. Halakha will most likely continue to influence and “inspire,” to borrow from Netanyahu’s current version of the bill, Israeli legislation and culture, unless the left’s version of the bill is passed and the Supreme Court’s right to curtail such efforts is strengthened.

Israel is right now possibly the world’s first post-secular society, where religion has been placed at a democratic forefront which largely has not trampled on the civil rights of minorities. The freedoms Israel’s minority Christian and Muslim citizens enjoy are unparalleled in the Middle East, and stand on par with the benefits minorities enjoy in the United States and European countries, despite the central role Judaism plays in crafting Israeli legislation and creating government institutions. This is in stark contrast to Israel’s Arab neighbors, where Islamicism or perversions of Sharia allow for religiously-driven human rights abuses and minority persecutions.

Israel is a post-secular democracy, however, and that means it is run by groups of people with varying interests. The battles between the religious and secular sectors of Israeli society will continue to dominate it for some time. The nation-state bill controversy reflects that battle. Israel has granted an oppressed people the religious and cultural self-determination they so desperately desired throughout the millennia of their dispersal, in addition to the political rights the Holocaust showed they deserved. The passage of the nation-state bill will prove decisive in determining what that self-determination will look like.