Understanding the Israeli Nation-State bill

Andrew Rehfeld, Ph.D., is President and CEO of Jewish Federation of St. Louis.

By Andrew Rehfeld

On July 19, the Israeli Nation-State bill passed as a basic law in Israel. The law establishes constitutional-level protections for the Jewish people and its culture in Israel, defining what it means to be a Jewish State. 

The Nation-State law is intended to define the Jewish character of the state of Israel. The bill passed with 52 percent of the vote of the Knesset and 46 percent opposed, with two abstentions. Opposition was primarily based on the concern that the bill goes too far to protect rights for Jews at the expense of Arabs and other minorities. 

Overall, the law is less damaging to principles of democracy than earlier proposed versions. Some of its effects are more symbolic than material. However, many believe its provisions still set a tone of discrimination against Arabs. Many American Jewish organizations, including Jewish Federations of North America, AJC, and three major religious movements (Reform, Conservative and Reconstructing Judaism) have all expressed their opposition to the law as passed. (As of this writing neither of two major Orthodox organizations — the Orthodox Union and Agudath Israel— have issued public statements about the law.)

I am writing to explain the general significance of the law, what some of its provisions do (and do not do) and explain what the Jewish Federation of St. Louis is doing to continue to promote a strong and secure democratic and Jewish State.  

What is a basic law and why is this one controversial?

Israel does not have a constitution. Instead, it establishes “basic laws” that provide a foundation for all other legislation. These must be passed by an absolute majority of members of the Knesset (unlike ordinary Israeli law that requires a majority of those present). Once established, basic laws provide a standard that courts use to judge the legitimacy of other laws, much as our courts use the U.S. Constitution to judge the legitimacy of laws established by the U.S. Congress. 

 “Basic laws” establish the government’s structure and power, and express its core values as a Jewish and a democratic state. There are now 14 such laws.  

The historic significance of the bill

The Nation-State law helps define what it means for Israel to be a “Jewish State.” It creates or secures certain rights and privileges for Jews that many believe come at the expense of its democratic character. It is important to put the tension between these two pulls of “Jewish” and “democratic” in context. 

The state of Israel was founded to protect the Jewish people in the face of historic and catastrophic persecution. It was further established to promote the flourishing of Jewish culture and protect the collective rights of our people to self-determination. To achieve these aims, Israel afforded special rights and privileges to Jews so it could be a refuge for the Jewish people and create a home that fostered the promotion of its culture (including language, religion and cadence of life). In this way, Israel is an ethnocultural nation.

The Jewish people’s experience of 2,000 years of persecution as a minority and its own prophetic tradition led Israel’s founders to reject a narrowly Jewish state. Israel has thus historically constrained its ethnocultural nationalism by establishing legal protections for all minorities. These include commitments to human rights and justice as expressed in its Declaration of the Establishment of the State of Israel (1948) and the Basic Law of Human Dignity and Liberty (1992). 

Israel’s commitment to balancing its commitment to maintaining a distinctively Jewish state with the demands of justice for all found in our own prophetic tradition has been a consistent source of pride for the Jewish people.  

The current Nation-State law appears to upset that balance by establishing provisions that favor the Jewish nature of the state at the expense of the rights of non-Jewish citizens. Areas of concern include language use, symbols and possibly areas of residence. Some of these provisions are already the law of the land, so the immediate impact of the law is uncertain or merely symbolic. But it could mark a profound tilt toward ethnocultural nationalism and away from its commitment to universal principles of justice.

What the Nation-State bill actually does (and does not) do

The Nation-State law has five key areas that are important to track: Jewish settlement; the establishment of Hebrew as the sole official language; the declaration of Jerusalem “complete and united” as Israel’s capital; provisions about Israel’s national symbols; and language about the relationship between Israel and the Diaspora.

Jewish settlement. The Nation-State law explicitly supports Jewish settlement and instructs the government to “encourage and promote its establishment and consolidation.” Yet the active promotion of “Jewish settlement” is raising a number of concerns.

One of these is that the settlement clause may still allow future residential segregation laws to be deemed legally permissible by the courts. Also, while the law does not refer to settlements in the disputed territories, some are concerned that the language will provide constitutional-level support for expanding them there. Finally, this language may provide additional support to new Jewish communities being built in the Negev (within the Green Line) that are, in certain places, on land claimed by Bedouin tribes.

Hebrew as the sole official language. The Nation-State law formally demotes Arabic from an official state language to a language with “special status.” A key concern is that the language provision will further exclude Arabs from the public sphere by creating barriers to non-Hebrew speakers.

All countries have a right to establish a common, official language that binds its people together. The original continuation of Arabic as a co-equal language (as it had been under the British Mandate) was a clear constraint on Israel’s ethnocultural nationalism. It respected the existence of Arab-speaking residents in the land who, along with Jews, had been there for centuries. 

The issue now is not the right of Israel as a nation to establish Hebrew as its official language. Rather the concern is that the loss of Arabic as an official language will create a new burden to inclusion for them in a shared society, moving Israel toward a narrowly Jewish State at a significant cost to its Arab minority.

Jerusalem. The law declares that the capital of Israel is “Jerusalem, complete and united.” This provision is unlikely to have much practical or legal effect. While it may sound like it creates a new impediment to peace, I do not believe it does. Israeli law already requires a majority of Knesset members to approve concessions in East Jerusalem. Further, most final status discussions include Israel retaining at least some portions of East Jerusalem, even as other parts would become the capital of an independent Palestinian state. The language here is vague enough to accommodate this outcome. 

National symbols. The law formalizes the existing national symbols of Israel into basic law. “Hatikvah” is already the national anthem, the Israeli flag already includes a Jewish star and the menorah is already a potent Jewish symbol of the state. These symbols celebrate Jewish cultureand connect the modern state to symbols and themes of our shared, collective history.

While the law does not change Israel’s national symbols, its inclusion marks a defeat for some civil-rights activists.

Because they celebrate specifically Jewish themes and history, Israel’s national symbols have excluded non-Jews from their inception. Arab and Palestinian Israelis, for example, generally do not sing Israel’s national anthem as its description of a 2,000-year longing for the re-establishment of Zion simply does not apply to them. The law does nothing to change that status quo.

Relationship with the Diaspora. The law asserts Israel’s responsibility to act “in the Diaspora to strengthen the affinity between the state and members of the Jewish people.” This was a noticeable “win” for those opposed to Jewish pluralism in Israel. Why? Because earlier versions of the law had instructed the government to act “wherever [Jews] may be,” which would have included acting within the state of Israel itself. By restricting their efforts to action “in the Diaspora,” the government’s responsibility to strengthen the bonds between Israel and the Jewish people stops at Israel’s borders.

It is unclear what tangible effect the Diaspora provision will have. The law does not forbid the state from promoting Jewish pluralism, it simply does not require them to do so. This was a lost opportunity to create a constitutional-level provision that might have supported Jewish pluralism in Israel. Thus, the ongoing political fights over conversion, personal status and egalitarian prayer at the Western Wall will continue as political issues for the time being. 

What we are doing

Jewish Federation of St. Louis recently set strategic priorities for its work in Israel and addressing the needs of the Jewish people around the world. They include our historic commitment to promotion of a democratic and Jewish State, the welfare of the global Jewish people, and support for the education of our own community about Israel. Additionally, we have committed ourselves to promote programs that advance civil society initiatives between Jews and Arabs in Israel, and greater Jewish pluralism.

The Nation-State law as now passed may create some challenges to our work. The Jewish Federations of North America worked hard to eliminate some of the more concerning provisions in earlier versions of the bill. We now have a responsibility of helping our community understand the ways this law might — and might not — undermine Israel’s historic commitments to justice, and its future as a stable and secure Jewish nation. 

Governments and politics change; our work to support Israel must be based on the ideals on which it was founded. These include a commitment to the three principles expressed in its own Declaration of Independence: 

•the security of the Jewish people;

•the flourishing of Jewish culture; and

•the promotion of principles of universal justice and human rights for all its citizens.

Israel has achieved remarkable and unprecedented success in its barely 70 years of existence. We will continue to work hard to promote all of these principles so that Israel may remain a strong and secure democratic Jewish State. Whatever its challenges, internal or external, we must be there as a matter of collective responsibility. I hope you will join us in these efforts.

Andrew Rehfeld is the president and CEO of the Jewish Federation of St. Louis.