MKs worry nation-state bill may put Halacha above Knesset law
The nation-state bill could inadvertently give Jewish religious law legal standing over the Knesset’s laws, Kulanu MK Rachel Azaria warned last week as the special legislative committee working on the bill began brushing up against religious and state issues.
“The nation-state has one intention, but it can come out differently,” said Azaria.
The basic idea behind the proposed Basic Law is to declare that Israel is the nation-state of the Jewish people and include ideas of what that entails, including the national anthem and state symbol; having Saturdays and Jewish holidays as national days of rest; the Law of Return and commitment to Diaspora Jewry; and more.
However, there is one article in the bill that sparked Azaria’s concern.
It begins: “The State of Israel is the national home of the Jewish people in which it realizes its aspiration for self-determination according to its cultural and historic heritage.” Soon after, it states: “What is said in this Basic Law or any other object of legislation will be interpreted according to what is established in this article.”
Azaria pointed out that the article doesn’t say “democratic” anywhere, and says that all law should be interpreted according to it. Therefore, she understands it as saying that all laws should be interpreted according to Jewish “cultural and historic heritage.”
“What does that mean? Jews are a nation and a religion and that complicates things… We
need to clarify that the bill is not religion, it’s about heritage… If this isn’t worded properly, we will have religious law,” she said.
Azaria hopes to add the word “democratic” to the opening article of the bill, and is talking to the special committee’s legal adviser to find ways to ensure that “it’s the nation and the culture, but not the religion, not halachic rulings that come above all Israeli laws.”
If not, the Kulanu lawmaker warned that the consequences could be far-reaching: “What cultural history do we have other than the Jewish religion? For 2000 years, that meant religious law… The law in its current text will be very bad for LGBT people, women and immigrants from the former Soviet Union. For example, it used to be that inheritances could only go to men.”
Likud MK Amir Ohana, the chairman of the special committee on the nation-state bill, took issue with the argument that it impacts religion and state.
“Jews have two hats – national and religions,” he explained. “When you establish a state that doesn’t just have a Jewish symbol, anthem and flag, but also characteristics like the day of rest and a commitment to reach to reach out to any Jew in trouble or captivity, because of Judaism, these debates come up.”
The bill, he said, does not change anything in the balance between religion and state in Israel because “it says things that are already in our Basic Laws. We are Jewish and democratic in the spirit of our traditions.”
In fact, Ohana added, he is taking special effort to avoid issues of religion and state, which could prevent the bill from passing, because “if Haredim (ultra-Orthodox) try to change it, secular people will oppose, and vice versa,” he said.
“Matters of religion and state need to come up in regular laws and not in Basic Laws,” which have constitutional status in Supreme Court rulings, Ohana argued.
Ohana is openly gay, and his rights as a spouse and a parent would be violated if the bill became law, according to Azaria’s interpretation.
Yet, the Likud MK accused those who complained about the presence of Jewish Law in the bill of hypocrisy.
He pointed to the Judicial Foundations Law, which says that, if judges can’t find an answer as to how to rule on existing laws or in judicial precedent they should refer to “the principles of integrity, liberty and justice of Jewish heritage.”
“That doesn’t make us a [Jewish theocratic] state. It’s a procedural tool that can help solve conflicts. And how many times from the 1980s until today were decisions based on this? Less than a handful,” Ohana said. “The practical ramifications are very limited. What’s important is the declaration.”
Ohana also insisted that the question of “Who is a Jew?” which has plagued Israel since its establishment is not relevant to the nation-state bill.
“If anyone is being persecuted for being Jewish, Israel must help him. That is the practical expression of the saying ‘never again’,” he said.
The issue of religion and state in the nation-state bill came to a head last week in Monday’s special committee meeting with the article mentioning Saturday and Jewish holidays.
“The regular days of rest in the State of Israel are Saturday and Jewish holidays, in which a worker will not work except under conditions listed in the law. Religious groups recognized by the law may rest on their holidays,” it reads.
In current laws, every worker must have a day off, but there is no explicit prohibition of working on Saturdays.
Aside from the obvious issues for secular Israelis, Azaria pointed out to her fellow Sabbath-observing lawmakers why even they would have a problem with this part of the bill, asking: “How will we be served herring at Kiddush if people can’t work?”
Meanwhile, Shas MK Michael Malkieli pointed out that some synagogues pay people to lead prayers or read the Torah.
MK Uri Maklev of United Torah Judaism said that when it comes work on the Jewish Sabbath, “We’re not here to improve our position, and I also don’t want to harm our position. The nation-state bill shouldn’t change this for better or worse. That’s not the path I want to take.”
After the meeting, Ohana told The Jerusalem Post that no one is trying to make “concrete arrangements” about the Sabbath in a Basic Law.
“That’s not the job of a Basic Law,” he said. “It’s declarative, and says that Shabbat and the Jewish holidays are the days of rest. A Basic Law doesn’t have to say what will happen on that day and who can work or not. That’s for a regular law, not the Basic Law or a constitution.”