Jewish Law Should Not Be Above Israel's Democratic Values, Knesset Counsel Says

Legal opinion comes as committee convenes Monday to discuss controversial nation-state bill

Two men march in Tel Aviv's Gay Pride Parade in 2011.

The legal team helping an ad hoc Knesset committee to prepare the nation-state bill has urged it to grant Israel’s democratic values a status equal to its identity as the state of the Jewish people.

The current version of the so-called nation-state bill gives the state’s Jewish identity priority, saying that all other laws must be interpreted in light of Israel’s identity as the nation-state of the Jewish people.

In a legal opinion disseminated in advance of Monday’s meeting of the panel, the legal advisors recommended “including some expression of democratic values, of partnership among all the state’s citizens or of the equality granted all citizens as individuals in the article on fundamental principles, as is accepted in other nation-states around the world.”

The paper also noted that the definition of Israel as a “Jewish and democratic state,” which grants both halves of the equation equal status, already appears in two existing Basic Laws, which have quasi-constitutional status.

The document also recommended that the committee consider the bill’s “implications for the state’s non-Jewish population and the tension between the national character of the phrase ‘Jewish state’ and the religious character of this phrase.”

The legal team noted that the bill’s explanatory notes say it is intended to give the state’s Jewish identity a status equal to its democratic identity. But the language of the bill itself grants clear superiority to its Jewish identity.

MK Roy Folkman, the Kulanu party whip, told Haaretz his party has decided it won’t support subordinating Israel’s democratic character to its Jewish national identity. This decision, coupled with the legal advisors’ recommendation, is likely to thwart one of the main goals of the bill’s sponsors: forcing the courts to prefer Israel’s Jewish identity to democratic values and human rights when these values clash.

But attorney Debbie Gild-Hayo of the Association for Civil Rights in Israel said that even the legal advisors’ proposal, “which seeks to preserve the state’s definition as ‘Jewish and democratic,’ doesn’t change the bill’s overall spirit, which emphasizes and prioritizes the state’s Jewish characteristics over its democratic ones. Given this, we fear the bill will undermine the human rights of all Israeli citizens by eroding the status of democracy.”

Moreover, Kulanu is expected to support another controversial provision, which requires the courts to rule “in light of the principles of Jewish law” if an issue isn’t covered by existing legislation or legal precedent. This provision has been criticized because Jewish law discriminates against women, gays and non-Jews. But Folkman pointed out that a similar provision already exists in the Foundations of Law Act, and said that as long as the wording in the current bill is identical to that in the earlier law, Kulanu will support it.

Kulanu hasn’t yet decided whether to demand that a provision on equality be added to the bill.