Discrimination is the solution
If a court rules against an Arab cafe that refuses to hire former soldiers, that will only be to Arabs' benefit.
A Jewish family from Moshav Nevatim sought to rent its home for a year to close friends, who happen to be an Arab family also from the Negev. The moshav's committee objected and turned to the district court, arguing that the lease had been struck in violation of the moshav's procedures, which require the committee's approval. The Jewish family argued that this process was not standard procedure at the moshav and that this was not the first time that a home had been rented without prior approval, especially for a short term.
The district court was convinced that this indeed was not standard procedure at the moshav. Members of the moshav spoke openly to the media about how they were entitled to block the rental because it would harm the "cultural character" of the moshav. The moshav's committee appealed to the Supreme Court against the district court?s decision, and this month the court ruled that the rental agreement did require the committee's approval.
Surprised by the ruling, lawyers continue to ask Adalah, the Arab human rights organization, which represented the Jewish family, questions such as: How could the Supreme Court rule against the findings of the district court? How could it disrespect the right of the Jewish family to rent its home to whomever it chooses?
In any event, in this case the Supreme Court has shown a consistent approach: It discriminated not only against the Arab family, but also against the Jewish family that chose Arab friends over Jewish ones.
Azzad, an Arab-owned cafe in Haifa, denied service to a soldier in uniform, arguing that the cafe opposes military symbols, whether worn by Arabs or Jews. The soldier submitted a torts case to the court. The law prohibits discrimination in providing services, but it does not explicitly prohibit discrimination based on external appearance. Parallel to the civil case for damages, the Haifa Municipality initiated an administrative proceeding to shut down the cafe for discriminating against the soldier.
This case is a historic turning point: For the first time, Arabs are discriminating against Jews in the Jewish state. If the soldier wins the tort suit and the court prohibits discrimination on the basis of external appearance, this ruling will only benefit religious Arab women, who are often discriminated against on the basis of their external appearance (the hijab head covering) by being body-searched before or even sometimes prohibited from entering shopping malls.
If the municipality wins its case and is allowed to shut down the cafe, the decision will only provide comfort to Arab citizens, who are frequently discriminated against when attempting to gain entry to restaurants and pubs, but it would also lead to the closure of dozens of Jewish cafes, pubs and restaurants in Haifa.
And here we discover a possible new Arab strategy: In order to fight discrimination, Arabs should begin to discriminate against Jews. For example, an Arab cafe could publish a help-wanted notice requesting "candidates who did not serve in the army." The courts would rule against it and declare that military service is not a relevant criterion for the job. The ruling would only benefit Arab citizens, who are discriminated against in employment on a daily basis for not having served in the army.
Similarly, a friendly Jewish family could be found to seek to rent a home in an Arab village. The Arab local council could refuse to register the rental on the grounds that it would harm the village's "cultural character.' The courts would rule against the Arab local council and prohibit housing discrimination on the basis of nationality, thereby reversing the Supreme Court's ruling on the Moshav Nevatim case. There are many other possible examples that are best kept under wraps for now. (For the sake of proper disclosure, Adalah is representing the Azzad cafe in the administrative proceeding against the municipal closure order.)
Journalist Ben Caspit wrote, in a recent column in Maariv, that human rights organizations, led by Adalah, had organized and participated in the worldwide "Apartheid Week against Israel" last month.
Close friends were very angry at Adalah. How dare Adalah, which did not participate in the events and is not a member of the boycott movement, steal the credit for something it did not do?
We responded to this criticism by saying that we were not behind Caspit's column, that the author had not checked his facts with us, and that his remarks were not written with the intention of praising Adalah. On the contrary, his intention was to present Adalah in a negative light to Hebrew readers. If Tel Aviv-based members of the boycott movement submit a torts suit against Maariv for distorting the facts, would the Tel Aviv court rule in their favor?
Or perhaps it would be better to choose Azzad's strategy in this case, too?
Hassan Jabareen is the founder and director general of Adalah: The Legal Center for Arab Minority Rights in Israel.