Friday November 11, 2022 – י״ז חֶשְׁוָן תשפ”ג
By now, the Israeli election results are old news as many in the U.S. have moved on to the now-passed midterm elections. The Israeli political parties have begun the ritual and obligatory sit-downs with President Herzog to endorse their preferred party head to form a coalition. While some have speculated about the possibility of a National Unity government, most understand it to be a foregone conclusion that the coalition will be formed by the Likud/Netanyahu and will include the Religious Zionism party, Shas, and United Torah Judaism (32 + 14 + 11 + 7 = 64 seats). As has also been stated, this will be Israel’s most right-wing and religious government to date. So, what are the real implications for that, and what do you need to know?
What Are We So Afraid Of?
Well, a lot…
This new government (even before it’s officially formed) brings with it the threat of a halakhic state – totally reforming the basic structure of Jewish life in the Jewish State. While an actual halakhic state is not really a thing, Religious Zionism head Betzlalel Smotrich began this week with the threat of canceling a stalwart of Israeli culture, Shabbat soccer games. I don’t think anyone really thinks that this will pass – including many of his and Likud’s voters who are known to be avid soccer fans but let us see this as a sign of what could come.
Beyond that, we are afraid of the possibility of what is known in Hebrew as the פסקת ההתגברות (piskat hahitgabrut) or the “Override Clause,” which is a proposal to allow 61 (the narrowest majority possible) of the Knesset’s 120 lawmakers to override Supreme Court rulings. Those in the know warn that such a move would essentially abolish the separation of powers, eliminate protections for minority rights, and enable the government to do as it pleases with no oversight.
Those who support the “override clause,” argue that if there is a majority in the Knesset for a piece of legislation, then, by proxy, it is the will of the people and the voters and appropriately reflects the values and the will of the majority. If that is indeed the case, they argue, it is then irrational and even undemocratic that another group of people, such as Supreme Court justices – who are neither elected by nor represent the people – could take a decision that would overrule the opinion of the majority.
While this may give the impression of being logical, this is a big problem (as MK Rabbi Gilad Kariv explains in Hebrew) and brings with it a threat to democracy and human rights. In Israel, the High Court of Justice is the only defender of human rights and minorities (forging the distinction between a democracy and a liberal democracy). The High Court of Justice’s (HCJ) role is to look closely at Israel’s Basic Laws (its unwritten constitution – Israel has no constitution), as well as other Knesset and government actions, and to ensure their compliance with those Basic Laws. At the core of a democratic government is the separation of powers – creating checks and balances that ensure protection against the tyranny of the majority and the rights of minority groups and are established to prevent the majority from abusing power at the expense of minorities. A 61-lawmaker override would permit the majority “to do whatever it wants, ignore Basic Laws and High Court rulings – not just to legislate with no limits, but to act with no limits,” said Prof. Suzie Navot, Vice President of the Israel Democracy Institute.
As the Reform Movement and other progressive/liberal streams, we are of course deeply concerned generally about the threat to democracy. We are specifically worried about threats to the ruling on the recognition of non-Orthodox conversions and about any significant change to the Law of Return known as the grandchild clause. According to the Law of Return, naturalization rights are afforded to anyone who has one Jewish grandparent. As the coalition negotiations are ensuing, the Religious Zionism and Haredi parties are demanding that the Law of Return be modified to prevent non-halakhic Jews from using it to immigrate to Israel. Not only would this cause a huge rift between Israel and Diaspora Jewry, as it will cause large numbers of self-identifying Jews to be alienated from the Jewish state, but it would stymie a point of pride for the Israeli government in welcoming in thousands of Jewish Ukrainian refugees to Israel many of whom qualify based on this critical grandchild clause. The irony of this demand by the Religious Zionism and the Haredi Parties is that they made the demand on Kristallnacht. The grandchild clause was inserted into the Law of Return in 1970 and was based on the Nazi definition of Jewish identity as being anyone with at least one grandparent.
In March 2021, the High Court of Justice ruled that anyone who converts to Judaism in Israel through the Reform and Conservative movements must be recognized as a Jew for the purpose of the Law of Return and is thus entitled to Israeli citizenship. The Override Clause could upend this ruling, thus barring Reform and Conservative conversions. Such an occurrence would be disastrous to liberal Judaism around the world. The Prime Minister has to understand that by including these parties in his coalition he risks a tremendous backlash from around the world.
What Are The Palestinians Afraid Of (and all those who wish to uphold democracy)?
In this week’s Torah portion Va’era, we read about Abraham casting away his son Ishmael and his handmaiden Hagar because his wife Sarah insisted that he do so. He also brings his son Isaac to Mt. Moriah, the exact spot on which Jewish legend affirms that the Temple stood, and the Al-Aqsa Mosque stands today. The parashah deal with exactly the two issues which instill fear after the elections.
For Palestinian citizens of Israel, their two greatest fears are a Jewish demand for prayer on and authority over the Temple Mount, and the implementation of a “Transfer” plan of Palestinians out of Israel. Neither of these two fears, however, has been realized or taken seriously by the Israeli mainstream – until now.
Regarding the transfer of Palestinian Israelis, Ben Gvir said in August: “I’m not going to get a truck and expel everyone. It’s not democratic.”
Yeah, no kidding.
As for who would be the first targets for his emigration ministry, he declared: “Whoever is not loyal, whoever hates, I will encourage to emigrate.”
Asked about what the threshold for loyalty to the State of Israel should be, Ben Gvir replied: “Someone who throws stones, I know is not loyal. Someone who throws a firebomb, I know is not loyal… You don’t need any test for that.”
In case it is not clear, this standard only applies to Palestinian-Israel citizens but not to Jewish-Israeli citizens.
Is “transfer” likely? No. However, it would not be out of the realm of possibility for this next right-wing government to institute practices, laws, and pieces of infrastructure with the intent to enable them to enact a policy of transfer in the future. This week, Ben Gvir spoke at the memorial ceremony for the late Rabi Meir Kahane marking his 32nd yahrtzeit (which received public condemnation from the U.S. State Department), in which he reiterated his commitment to not transfer Palestinians, but was quoted using euphemistic language like “relocation” to describe the phenomenon.
In a conversation with then Minister of Education Naftali Bennett several years ago, Bennett related a meeting of Arab-Israeli high school principals in the Galilee. Mostly secular educators, they began discussing something fervently in Arabic amongst themselves. When Minister Bennett inquired as to the controversial nature of the uncomfortable kibbitzing, he was informed that most people in their communities – themselves included – believed that there was an Israeli government plan to subvert Muslim control of the Temple Mount and to demolish the Al-Aqsa Mosque, Islam’s third holiest site. Despite Bennett’s attempts to put them at ease by vehemently denying this, and as a member of the Cabinet he could safely say that this theory had absolutely no basis in reality at any point in time, they were still skeptical. Fast forward to today and it is well known that Otzma Yehudit leader Itamar Ben Gvir is a strong advocate of increased Jewish rights on Jerusalem’s Temple Mount where the activities of non-Muslims — including the right to prayer — are strictly limited.
As Times of Israel’s Jeremy Sharon reported, “Ben Gvir has been a frequent visitor to the Temple Mount for many years, and other members of his party — and the Religious Zionism party with which Otzma Yehudit is allied — are, like him, ardent advocates of expanding Jewish rights and Israeli control at the site.” Although the High Court of Justice has affirmed the right of Jews to pray at the mount, it has ruled that the police are entitled to restrict this right if they believe allowing Jewish prayer could endanger public security.
Religious Zionism Party leader MK Bezalel Smotrich has, in the past, called for the establishment of a synagogue on the Temple Mount. Just prior to last week’s elections, Ben Gvir repeated his call for equal Jewish rights on the Temple Mount.
“There is a problem of racism on the Temple Mount, which violates the status quo,” he told The Times of Israel, pointing out the large discrepancy in visiting hours for Jews and Muslims.
“A Jew who prays on the Temple Mount gets arrested,” he continued. “Why are Arabs allowed to pray and Jews are forbidden to pray? This is racism against Jews. I want equal rights. It can’t be that [the rights] of Jews are harmed just because they are Jews.”
We must turn our fear into action. We must raise our voices. We must vigorously support our Israeli Reform Movement in their work to prevent these things we are afraid of. Too many mainstream organizations celebrated Israel’s democracy without mentioning the fears that it now triggers. Our voices matter. Let’s raise them loudly.
 “The rights of a Jew under this Law and the rights of an Oleh under the Nationality Law, 5710 – 1950, as well as the rights of an Oleh under any other enactment, are also vested in a child and grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion.” The Law of Return, 5730-1970: 2nd Amendment