The most interesting thing about Culture Minister Miri Regev’s bill, which seeks to set criteria for receiving financial support from the Culture Ministry, will be the High Court petition that will inevitably follow. From this standpoint, the democratic discourse needs the loyalty bill.
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Regev wants to withhold funding from cultural institutions that reject Israel’s standing as a Jewish and democratic state. Given the political and civic system in Israel, such a bill will almost certainly come up for discussion in the High Court. At this proceeding, the justices will be forced to contend with the inherent contradiction in the phrase “a Jewish and democratic state.” For how can a democratic state that purports to provide an equal governmental basis for all its citizens simultaneously declare that it is exclusively the state of the Jewish public that resides there?
Some of the finest legal minds, including Oren Yiftachel and Ruth Gavison, have written fascinating articles trying to grapple with this contradiction. Yiftachel argues that Israel is really an ethnocracy (and not a democracy), while Gavison cited the model of an ethnic democracy, which she says exists in Israel. Gavison, who was herself a candidate for a Supreme Court Justice, tried to show that the regime in Israel does meet the criteria of a democracy, as defined in academic terms. To the best of my understanding, the result is not that convincing.
So one may wonder how the justices will treat the section of the law whose two parts seemingly contradict one another. How can a law be enacted that grants access to government funding only to those who support Israel as the state of the Jewish people? Such a declaration essentially negates Israel’s standing as a democratic state, and thus should block the path to funding.
To deal with this contradiction and approve Regev’s law, the justices would have to create theoretical and intellectual congruence between the two concepts (a Jewish state and a democratic state), something that is quite tricky and difficult to accomplish.
The High Court hearing on Regev’s law could lead to three possibilities: The Supreme Court justices could strike down the law. They could adopt Gavison’s not wholly convincing arguments. Or they could offer new thoughts on the matter.
The third option is the most intriguing. It could be that, as happened with Im Tirtzu’s libel suit, Regev’s law could turn out to be a double-edged sword. The High Court will have to examine the real essence of the law, and if it has trouble forging theoretical congruence between “Jewish” and “democratic,” a ruling could emerge (though the chances of this are quite slim) that would lend real momentum to a serious discussion (a rarity in recent years) about the definition of the state.
On the other hand, the justices may succeed in forging more convincing congruence between the ostensibly conflicting concepts than Gavison was able to, and thereby provide a stronger basis for the supporters of the current Israeli democracy.
Either way, such a High Court hearing, if it takes place, will mark a significant contribution by Culture Minister Regev to the democratic discourse in Israel, perhaps without her having had any intention of that.
The writer is pursuing a master’s degree in public policy.