In the momentous housing discrimination hearing on Tuesday before a maximum
panel of nine justices of the High Court of Justice, presided over by Supreme
Court President Asher D. Grunis, one could clearly see two starkly different
worldviews at work.
The stakes could scarcely be higher, with the future
of housing policy in 434 small communities with special characteristics in the
Negev and the Galilee, making up almost half of the such places in the country,
At the core of the dispute lay different conceptions of the
balance of democracy and minority rights as well as attitudes about judicial
Neither side is claiming that the law in dispute was
discriminatory on its face. Nor could they, being as that the law itself has an
explicit prohibition against discriminatory practices.
Israel, as a
country born after race and gender equality were widely accepted, started off
with much less open discrimination than many older democracies such as the US,
founded when discrimination was legal.
Over the years, narrower means of
discrimination against minorities have been stamped out by the High Court,
including its 2000 Ka’adan ruling striking down open discrimination in
communities that were the subject of Tuesday’s hearing.
The current law
in dispute has been interpreted by many as a way to preserve the status quo of
homogeneity in those communities in a legal manner that does not violate the
Rather, the arguments about whether to nullify the law
or not were more subtle.
On one hand were the petitioners, some of the
most prominent human rights groups, claiming massive discrimination against
Arabs, homosexuals and the disabled.
Justice Salim Joubran appeared to
take their side.
Their worldview was that the proper balance of democracy
and minority rights includes a defense of minority rights as its central
They have no problem with allowing the system of special
communities in the Negev and the Galilee to continue to exist, but their biggest
priority is that Arabs, homosexuals and the disabled be accepted into these
communities on an equal basis.
The fact that the communities may be
concerned that their brand and main attraction may fail and become unsustainable
if the petitioners succeed in pushing for opening up the communities to
minorities, is a lesser concern.
In other words, the majority must not
only not suppress a minority in centralized government practices and services,
but must also sacrifice to ensure that minority rights are not restricted in
The same philosophy leads to the conclusion that if a
law has a discriminatory impact, it is basically just as bad as a law that is
This philosophy also urges the courts to intervene
to prevent discrimination even before it happens, if there is evidence (the
court already ruled against a particular community in September 2011 for abusing
the new law) of discrimination and if there are indicators that the
implementation of the law is being done on a discriminatory basis.
that light and based on past practices, the petitioners warned the court of a
dark storm of discrimination just over the horizon that the court could stop
before it was too late.
On the other side of the equation was the state,
the Knesset and, it appeared, four of the justices, including
Their worldview appeared to be that the balance of democracy and
minority rights should focus more on whether open discrimination was taking
For that reason, over and over again they referred to the law’s
prohibition against discrimination in response to the petitioner’s arguments
that its implementation was and would be inherently discriminatory in its
This stance also holds that protection against discrimination in
central spheres of life should not lead to undermining the rights of the
majority on more peripheral issues.
Promoting specialized communities is
considered by many to be a strategic interest of the majority in the country in
order to settle the peripheral Negev and Galilee regions.
undermining the viability of these communities by intervening in a way that
might strike at their character is viewed as overcompensating and going too far
to satisfy minorities.
If the law does not openly discriminate, then the
bar to judicial intervention based on alleged discriminatory impact will be
This is why the justices pressed the issue of the extent of
concrete cases of discrimination, preferring not to infer conclusions about
discrimination from reports of policies which could lead to discrimination, such
as demanding that potential residents observe Jewish holidays.
intervention is also something not to do hastily, certainly not because of what
might happen down the road.
The petitioners seek a bold defense of
minority rights combined with an interventionist judiciary, while the state
pushed for a more minimal defense of minority rights, applying a more formalist
and cautious judicial approach to interpretation and intervention.
particular debate and the predicament of Arabs in Israel is somewhat unique, but
the overall debate is not.
After decades of success during the height of
the civil rights movement in the last century, more conservative approaches to
judicial action on minority rights have taken hold in the US as
Open discrimination is still off-limits, but issues such as
affirmative action for increasing minority attendance in universities, which had
been solidly accepted, have been chipped away at over time, and majorities have
looked for more subtle ways to preserve special privileges without openly
discriminating against minorities.
Tuesday’s hearing was another
milestone in this trend, and unless the justices were trying to fool the public,
the law will be upheld for now.
The big question now is whether down the
road enough communities want to and will abuse the law in a way that can be
detected, and whether enough “victims” will come forward at that
If so, the law may still fall in the future. If not, though it
would only entrench the status quo, it would be doing so with new-found High
Court approval from a panel of nine justices.
This would establish a new
constitutional balance of democracy and minority rights in housing.