Opinion | Israel’s Nation-State Law Is Not Just Bark

photo: Dafna Talmon

After the passage of Israel’s nation-state law, which anchors the Jewishness of the state in Israel’s “basic law” or constitution, the Israeli right and its American fellow travelers were quick to tell us that the law was no big deal—that it merely codified what was already social reality in the State of Israel. (Of course, beforehand they had trumpeted its passage as of existential importance to prevent the demise of the Zionist dream.)

This notion that the law is of little significance is belied by the reaction to it, and not just on the left (which dreams of Israel as a “state of all its citizens”). Druze officers resigned from the Israel Defense Forces. An Arab MK resigned from the Knesset, and the only permanent former Arab Supreme Court justice, who had just retired, begged his former colleagues to overturn the law. Perhaps more importantly, the law has already served as a dog whistle to Jewish exclusivism, encouraging manifestations such as border interrogations of American liberal Jews, settlement expansion and denigration of Arab citizens.

Responding to Druze complaints that the law denied their validity as a community, Likud officials suggested they would seek amendments to accommodate the Druze, perhaps in separate legislation. They could not, of course, privilege the Druze by name, so a legal workaround may be proposed, stipulating that those who served in the armed forces—as the Druze do—get the benefit of the legislation. The very suggestion underscores the bad faith involved, since it makes it clear that the legislation is actually directed against the 18 to 20 percent of the population who are Arab and excused from conscription.

To exempt the Druze makes them in a sense “honorary Jews,” rather as Hitler made his Japanese allies honorary Aryans. Similarly, Virginia’s old Racial Integrity Act of 1924—found unconstitutional in the iconic 1967 case Loving v. Virginia—made marriage between the races illegal except for descendants of Pocahontas and other American Indians. Why? Because so many of the first families of Virginia (FFV, as they used to be called) had married Native Americans on arrival. The Virginia law in effect made those mixed-race progeny honorary whites.

What does the nation-state law actually do? It states that the right of self-determination in Israel “is unique to the Jewish people”; it enshrines Hebrew as Israel’s “official language,” consigning Arabic to “special status,” whatever that means; it declares Jerusalem the undivided and unified capital of Israel; and it declares “Jewish settlement” a “national value” and says that the state “will act to encourage and permits its establishment and consolidation.” (There is no indication whether this applies to Israel within the Green Line only or includes settlement in the West Bank.)

The law is a response to two changes in Israeli society. The first is an increased ethno-tribalism that uses Judaism (in its variety of meanings) as an icon for identity. But second, and counterintuitively, the law is an act of weakness if not desperation. Despite their political success in recent years, Israeli “statists” fear a vast secular conspiracy that will take away their territorial inheritance. Thus Yoaz Hendel, a right-wing activist, noted, “The danger is the future: If we do not define who we are now, the generations to come will fight one another.”

What Hendel is saying, of course, is that future generations of Israelis may not choose to privilege Judaism in the State of Israel, so the rot has to stop before it can pick up speed. It’s a far cry from Theodor Herzl’s call to arms: “If you will it, it is no dream.”

Although defenders of the law analyze its text to prove it is largely declarative and symbolic, they miss the larger point that Israel has a choice of symbols it can deploy—those that are inclusive or those that are exclusivist if not xenophobic; those that seek to integrate minorities and those that underscore to them that they live in Israel on sufferance at best. Even in the euphoria of the state’s creation, the framers of Israel’s Declaration of Independence understood this tension. They explicitly stated that Israel was to be a Jewish state but one that envisioned the “complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture.”

Although Israel was thus legally a “Jewish and democratic state,” the political balance remained to be played out. As a sociological matter, the state has a Jewish lifestyle and rhythm, but at the legal level it upheld equality. The new law alters this political balance in very concrete ways. After the supposedly symbolic demotion of Arabic, for instance, the speaker of the Knesset made clear it was meaningful by refusing to accept the resignation letter of an Arab MK because it was written in Arabic. And it reinforces existing practices that go against equality: The enshrinement of Jewish settlement as a value may be symbolic, but as a factual matter, no new Arab settlement has been approved in Israel proper since 1948.

Contrast that with the way then-Chief Rabbi Yitzhak Herzog in 1948 expressed the nation’s values in responding to a question about whether Jews could sell land to Arabs. In an essay titled “Rights of the Minorities According to the Halacha,” he argued that until the creation of the state, there was a religious duty to keep land under Jewish control to help create the Zionist vision. But after the creation of the state, there was another value—equality under the law—and the sale of land from Jews to Arabs was a sign of a country that lives under the rule of law.

The supporters of the new nation-state law don’t want this messy balancing of democracy and Judaism. They fear the explicit statement of equality. Indeed, the only good thing about the nation-state law is that it is far better than earlier drafts, some of which codified practices that in any other country would be called apartheid. But that is a very low bar, and one we should not be proud of.

Marshall Breger is a law professor at Catholic University.