Can equality be enshrined in an Israeli constitution now?

The protest movement seems to have succeeded in preventing the situation from worsening. But there is a significant difference between “avoiding evil” and “doing good.”

It is hard to believe, truly inconceivable, that equality is not an entrenched constitutional value in the State of Israel. Our commitment to shaping Israel’s identity as a “Jewish state” cannot be fully realized when we turn our backs on the basic biblical commandment: “You shall have one manner of law for the stranger and home-born alike” (Leviticus 24:22). Our commitment to shaping Israel’s identity as a “democratic state” cannot be fully realized when we refuse to honor the commitment to this noble human right.

If it were up to me, the very first section of the country’s future constitution would affirm that the State of Israel is “a Jewish, democratic, and egalitarian state.”

Therefore, as a matter of principle, I unhesitatingly add my voice to the many contending that we should not be satisfied with simply enacting a “thin constitution” that establishes the rules of the game between the branches of government, as I earlier proposed (The Jerusalem Post, June 12). It must be accompanied by a constitutional anchoring of the principle of equality, in the spirit of Israel’s Declaration of Independence.

I wholeheartedly support this; enshrining equality in the constitution would be great news for the citizens of Israel, as it would allow judicial review of laws that undermine equality on the basis of race, color, gender, language, religion, nationality, ethnicity, social status, sexual orientation or age.

In Israel, the majority has already shown time and again that undercutting equality can wreak havoc – equality is essential for our common future. This is the case in other countries, and certainly in one torn by a culture war; a country that may be characterized, among other things, as “the state of all its minorities.”

That is the background to the fervent demand by parts of the protest movement against the judicial overhaul, who seek to take advantage of the current crisis to rectify flaws in our constitutional regime, and that the right to equality be enshrined as a supreme constitutional value. For them, this is a fundamental principle that must not be compromised in any way. But can this demand be met in the real world?

The constitutional instrument is powerful: through it, one generation, the one that establishes the constitution, obligates future generations to accept the values embedded in it. The use of this special power can only be justified if it is supported by broad public consensus in the enacting generation.

This is why the ambition of the current 64-member coalition to modify Israel’s political system and preserve that change for generations to come is illegitimate (regardless of the nature of the change). Endorsement by two-thirds of the electorate – represented by 80 Knesset members – is imperative.

Tens of thousands of Israelis protest in front of the Knesset in Jerusalem in favor of the proposed changes to the legal system. Apr 27, 2023. Photo by Yoav Dudkevich/TPS

It is also preferable that any future constitution be put to a public referendum in which a significant majority would be required. This is the only way the constitution would enjoy legitimacy for generations to come.

Consequently, those demanding “equality now” must overcome a factual obstacle: Is there a broad consensus in Israel at this time for making the right to equality an entrenched constitutional value?

The shock we have experienced over the past six months has convinced many of the need to establish an Israeli “common denominator.” There have been pleasant surprises from some outside the classic Israeli political Center, who are willing to accept a commitment to equality.

Even so, precisely because the scope of the right to equality is so wide, and because its impact on our lives – were it to become an entrenched constitutional norm – would be so significant, I do not think it is possible to reach a broad consensus for a constitutional initiative of this kind, desirable as it may be.

There is quite a gap between general statements in favor of “equality” and the positions that will be revealed once a real discussion gets underway. Equality is replete with ramifications for the interests and values of Israel’s various identity groups.

ATTEMPTS HAVE been made in the past by the Knesset to enshrine the principles of the Declaration of Independence in law. On the face of it, there should be no opposition to a Declaration of Independence Act.

The founding fathers were prepared in 1948 to grant “complete equality of social and political rights” to all citizens, including Arabs, at a time when the fledgling state’s Jewish majority was shrinking and it was embroiled in a war of survival against Arab armies. Then why should today’s strong and mature Israel, with its solid three-quarters Jewish majority, be unable to commit to equal treatment for its Arab minority?

Yet again and again we have seen that even a simple Knesset majority cannot be mustered in support of such an initiative, much less a broad consensus.

The Israel Democracy Institute’s “Israeli Democracy Index 2022” confirms this assessment. The survey examined the extent of support among the Jewish public for granting special rights to Jews in Israel, by virtue of its being a Jewish state. About half (!) of the country’s Jews support this.

The distribution, as expected, was by political camp (support on the Right, 62%; the Center, 33%; the Left, 11%), and according to religiosity (support among the ultra-Orthodox, 69%; among the National Religious, 67%; among the Masorti-religious, 67%; among the Masorti-non-religious, 52%; among the secular, 29.5%).

These are findings that pertain to a single topic. As noted, equality has many other important implications for a wide array of issues that divide and frustrate Israeli society. Thus, for example, it is absolutely clear that “equality” as a constitutional value would mean a dramatic change in the status quo relationship between religion and state. Is there a broad consensus in Israel today for such a change?

Jerusalem LGBT Pride Parade. Photo by TPS

The protest movement seems to have succeeded in preventing the situation from worsening. But there is a significant difference between “avoiding evil” and “doing good.” Empirical findings from across the democratic world show that the majority can be kept from harming the minority through determined action by the minority (provided it is carried out in nonviolent ways).

But in a liberal world, it is not possible to impose a constitutional value on a sizeable part of the citizenry opposed to it. Insisting on the unattainable can prove dangerous. It could exacerbate the acrimony of the culture war we are experiencing and cause it to boil over. It raises expectations among the liberal public that cannot be fulfilled, and intensifies fears and concerns among the conservative public.

It is worth noting that even in our current situation, in the absence of a dedicated constitutional right to “equality,” the Supreme Court finds ways to promote equality. It will be able to, and I believe it will, continue to do so in the future. “Going to battle” for equality could drag us to a decision that will result, ironically, in its diminution.

When parts of the protest movement set the condition of “equality or nothing,” they lose a very important opportunity – more modest than desired, but more ambitious than currently found – for improving our public life: a thin constitution that would establish rules of the game for managing the ideological discord in Israeli society.

The solution requires a combination of forces. Let us promote, on the legal-constitutional level, a thin constitution that incorporates values conducive to the fair management of the political-public debate (such as freedom of expression).

At the same time, let’s promote recognition of the importance of equality in the other spheres of our national life – the educational, public, ideological, and religious ones – in order to win hearts and minds for its transformation, by broad consensus, into a constitutional value. Success in this last task is a prerequisite for the establishment of a constitution worthy of us.

First published by The Jerusalem Post.