Regev Responds

Commitment to the principles of the Declaration of Independence?

The religion-state aspects of Israel's Nation-state bill

Next week the Knesset Special Committee on the Nation-State Bill (formally, 'Basic Law: Israel - The Nation-State of the Jewish People') will be deliberating on the revised draft bill, which was initiated by fourteen MKs from the Likud, Jewish Home, Yisrael Beiteinu, and Kulanu parties.

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The committee will be finalizing the language of the bill for its first reading after it has been already approved by the Knesset in its preliminary form. This highly controversial bill has been the topic of domestic and international debate since prior to the 2015 elections and in recent months. It is being bulldozed forward by Israel’s current governmental leadership from PM Netanyahu on down.

The debate over the bill covers many of its diverse aspects, many of which are not within Hiddush's purview (namely: they go beyond matters of religious freedom and equality). The bill also addresses religion-state issues, making it desirable for Hiddush to shed further light on their meaning, significance, and whether they should be supported, as well underscoring a key building block that the bill's proponents have chosen not to include.

To remove any doubt/misunderstanding as to where Hiddush stands, we would like to underscore the fact that Hiddush's starting point in relating to the State of Israel is its unique character as a Jewish and democratic state, which we wholeheartedly embrace.

Given the highly controversial nature of the proposal, the question is: why go through it, and why now? Looking at the proposers’ rationale, it is clear that they base the necessity for this basic law upon external challenges (Palestinian and other international voices) to the right of the Jewish People to a national homeland and recognition of the State of Israel as a Jewish State. While this argument is widely and frequently repeated, it does not seem to carry much logic, since we are dealing with domestic legislation, which will not carry any weight with those who challenge Israel’s identity as a Jewish state; and for those within Israel who view it as such, it does not seem to add anything of substance.

Notably, the proposed bill in its current state expresses commitment to the "spirit of the principles in the Declaration of the Founding of the State of Israel." What remains to be examined, though, is whether the specific provisions are in keeping with this part of the bill's stated purpose.

While the proposal emphasizes, as an extension of viewing Israel as a nation state of the Jewish People, the commitment to strengthen the bonds between Israel and Jewish communities in the Diaspora, it does not use this opportunity to ensure Diaspora Jewry’s full and equal rights in Israel beyond the right of return. In a reality in which the majority of children growing up in the North American Jewish community and elsewhere are treated as second-class Jews and second-class citizens in Israel by virtue of being denied the right to marry in Israel, one wonders about the extent of the integrity of such a commitment, and whether it aims at paying lip services to Jewish Peoplehood, rather than embracing the contemporary diversity of the Jewish People, at a time when Israel chooses to anchor its identity as the nation state of the “Jewish People”. Without ensuring such full equality to all Jews, the present legislation raises serious questions, as to the extent to whether Israel is genuinely committed to the totality of the Jewish People, and which Jews’ heritage and culture it aims to preserve and nurture. It seems that a clear commitment to Jewish pluralism and diversity should also precede such constitutional legislative initiatives.

Symbolic of this questionable sincerity to Jewish unity and Jewish religious diversity is the fact that one of the originators of this bill (the Chair of the Knesset Domestic Affairs Committee MK David Amsalem) only recently reiterated his commitment to undo the Western Wall agreement and his disdain toward Diaspora Jewry, saying – “If we are going to be Reform in the Land of Israel, our children are not going to remain here. We are destroying Judaism, and this cannot be disregarded. The first Reformer was Jesus - he was Jewish, and, by the way, a Talmid Chacham; and Christianity developed from him.” [link]

Among other provisions, the proposed bill states:

  1. The state will act to strengthen the bonds between Israel and Diaspora Jewry
  2. The state will act to preserve the Jewish people's cultural, historical, and religious heritage among Diaspora Jewry

On the face of it, this looks great, and it is certainly a welcome and necessary aspect of Israel's unique Jewish character. It could be further seen as a welcome commitment, given PM Netanyahu's repeated public statements that he is personally committed to making all Jews feel at home in Israel, be they Reform, Conservative, or Orthodox.

As most recently demonstrated by this and by the Western Wall debacle, we can hardly take seriously the reference to Diaspora Jewry or to Jewish religious heritage which the State of Israel will work to enhance, as respecting or embracing the overwhelming majority of present day Diaspora Jewry, which is non-Orthodox.

At the same time, we must realize that Israel already invests tens of millions of dollars in funding Chabad and Aish HaTorah as a vehicle towards preserving the Jewish identity of the next generation of Diaspora Jewry. As most recently demonstrated by this and by the Western Wall debacle, we can hardly take seriously the reference to Diaspora Jewry or to Jewish religious heritage which the State of Israel will work to enhance, as respecting or embracing the overwhelming majority of present day Diaspora Jewry, which is non-Orthodox. Most exemplary on the list of ramifications of this exclusionary governmental approach is the fact that unlike anywhere else in the democratic world, Israel does not recognize the right of non-Orthodox rabbis to officiate at weddings in Israel, nor does it grant equal recognition and entitlement to non-Orthodox Jews-by-choice, whether converted in Israel or overseas. One thing should be clear: this offensive state of affairs not only undermines the "bonds with Diaspora Jewry," but it also antithetical to the will of the overwhelming majority of Israeli Jews who support religious pluralism and equality (unlike Israel's politicians who spurn these cardinal principles of democracy and Jewish unity and intend to further undermine them under the guise of this new legislation).

Another problematic element of the new legislation is the introduction of "Jewish law" into this Basic Law. This was in done parallel as an amendment to the 1980 "Law on the Foundations of the Law" that has already been approved by the Knesset's Law and Constitution Committee and is scheduled for its first reading this Monday. The insertion of "Jewish law" intends to add to the existing legal provision that states that when there is a lacuna in the law, the court will decide the legal matter in light of "the principles of liberty, justice, equity, and peace of the Jewish heritage." What is proposed is that "Jewish law" would be inserted before "liberty, justice..." Since this is done in the context of potential lacunae, the frequency of instances where this will acted upon is limited.

Still, this is indicative of a growing trend and a systematic push by many in the current leadership of the Coalition for greater reliance on religious Jewish law. So while the immediate impact both bills, in terms of the role of "Jewish law" may be limited, its symbolic significance is tantamount to an earthquake and a radical change of direction from Israel's constitutional route to date. Israel's Declaration of Independence deliberately omitted reference to "Jewish Law", the Shulkhan Arukh, or even the Talmud.

It chose a selective list of Jewish values, which the state would be guided by, and it emphasized these principles (liberty, justice, and peace) being anchored in the teachings of the Prophets. While slightly expanded in the 1980 "Law on the Foundations of the Law" the selective choice of principles and staying away from "Jewish law" was nevertheless the deliberate preference. As mentioned above, it dealt with instances of lacunae in Israeli law, and it added one additional principle to the Declaration of Independence's list (namely: equity). Instead of narrowly referring to the "Prophets of Israel", it refers to the wider corpus of "Jewish heritage". The current pending legislation deviates from this deliberate path from 1948 until today, and it attempts to bring Israel "back" to reflect the theocratic undercurrents that are prominent in the Coalition and pose a growing threat to the core principles of: freedom of religion and conscience, as well as equality, regardless of religion, which serve as key foundations of Israel's Declaration of Independence.

While this trend contradicts both the founding principles of the State of Israel and PM Netanyahu's passionate pronouncements to Diaspora Jewish leadership, it is also in stark contradiction to what the overwhelming majority of Israelis want Israel to pursue. We included an explicit question regarding the Nation-State bill in Hiddush's 2017 Index [link], and the findings are compelling.

The Israel Religion & State Index this year examines the extent to which the public supports anchoring the principle of freedom of religion in the Nation-State bill. We therefore asked as follows: "The proposed Basic Law: 'Israel - The Nation State of the Jewish People' is being debated in the Knesset and there is disagreement over how the law will establish the State's Jewish identity in relation to its democratic identity. In your opinion, should the law include or not include the promise of the Declaration of Independence for 'freedom of religion and conscience'?"

A large majority of 65% (80% of those who expressed an opinion on the issue) believe that the Nation-State bill should include the anchoring of the Declaration of Independence's promise of freedom of religion and conscience. Only 16% (20% of those who expressed an opinion) opposed this (19% did not express an opinion). Support for the inclusion of the principle of freedom of religion and conscience was expressed by 79% of secular Israelis, a large majority of the "traditional - not so religious" (67%), as well as the traditional - close to religion" (62%).

The Nation-state bill will undoubtedly generate major headlines in the weeks to come. One may find different reasons to support or oppose it, which go beyond concerns over matters of religious freedom and equality, but one thing is clear to us and is in keeping with the will of the majority of Israelis and that of Diaspora Jewry: if the bill is to be adopted, it should include an explicit provision for religious freedom and equality, and it should ensure that in Israel's interaction with world Jewry and pursuit of strengthening the Israel-Diaspora bonds, it is the diversity and pluralism of Diaspora Jewry that should be respected and upheld, as Israel's shapes its Jewish character.

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