By a razor-thin majority, the High Court of Justice on Wednesday upheld a law that hundreds of small villages may be using to exclude Israeli Arabs, homosexuals, disabled people and members of other groups.
In one of the most important housing discrimination cases in years, five justices voted to uphold the law, while four voted to strike down parts of it.
The five who voted in favor were Supreme Court President Asher D. Grunis, Deputy President Miriam Naor and justices Elyakim Rubinstein, Esther Hayut and Hanan Melcer, on the grounds that the petition to strike down the relatively new legislation was premature.
Justices Edna Arbel, Salim Joubran and Yoram Danziger voted to strike down the part of the law that allows “acceptance committees” to refuse to accept certain applicants, while Justice Neal Hendel voted separately to strike down the existence of the “acceptance committees” entirely.
The rare nine-justice panel heard the case in December 2012, with at least four of the nine judges, including Grunis, battering the petitioner- human rights groups, including Adalah: The Legal Center for Arab Minority Rights in Israel and the Association for Civil Rights in Israel (ACRI).
The petitioners asked that the court nullify the Acceptance Committee Law, which allows approximately 434 small communities (yishuvim) in the Negev and the Galilee almost unlimited discretion in turning down requests of persons who want to move into them.
The rights groups claimed that, in practice, the law allows the communities to discriminate against Arabs, homosexuals and the disabled.
In his typical formalistic tone, Grunis said that his ruling against the discrimination arguments was purely procedural, since, he said, all cases of discrimination that had occurred were under an old law already struck down, and that he would consider striking down the new law if discrimination occurs in the future.
In a rousing and passionate dissent, Joubran said that the majority was ignoring the historical context in which Israeli Arabs and others had been blatantly discriminated against by communities under the old, struck-down, law, which had not explicitly prohibited such discrimination.
He said that the new law was not really new and just continued the old law’s impact without saying explicitly that discrimination was permitted.
Joubran added that the law was so vague in defining criteria for the basis for the acceptance committees to declare someone unfit, that, in light of the history, it needed to be presumed discriminatory as well as having a “chilling” effect on minorities even bothering to file applications.
Naor said she recognized Joubran’s objections, but that she believed the new law deserved a chance until cases of discrimination arose, since it contained a procedure for oversight of the acceptance committees and since minorities in Israel have not been shy about suing for discrimination.
Arbel said she recognized that yishuvim and special private communities have rights and are valuable.
However, she said that such rights were upheld mainly where they did not violate individual rights or where a yishuv could be massively threatened by another, which was not the case here since the new law could have had better defined criteria and avoid discrimination claims.
At the December 2012 hearing, the justices focused on the fact that the law being attacked expressly prohibits discrimination.
They also hit the petitioners’ arguments about possible discrimination, contending, if taken to their logical conclusion, that the same arguments could be used to overturn the Income Tax Law as discriminatory for categorizing persons into income classes.
The petitioners had responded with a number of arguments.
The arguments had ranged from arguing that the criteria used by the yishuvim are too vague and liable to abuse, to arguing that the court must step in before massive discrimination takes place, similarly to Joubran’s arguments.
Under this argument, all in the courtroom knew the background for the law was to entrench discriminatory practices using careful wording.
Adalah has said that the law applies to 434 communities in the Negev and Galilee regions, representing 42 percent of all of the yishuvim in Israel. It covers 90% of the state’s communal yishuvim and 57% of its agricultural yishuvim.
The state’s Ori Kedar had contended that the petitioners all ignored the clause prohibiting discrimination as if it was irrelevant to the debate, whereas he claimed that that clause should be central to deciding if the law was discriminatory.
He said that the case was really about whether yishuvim as a special and limited model of living for some in Israel could be possible under any circumstances or whether the petitioners were saying that the existence of such communities was discriminatory.
In another of the rare events that marked the case, Knesset Legal Adviser Eyal Yinon had spoken extensively and separately on behalf of the Knesset, rather than leave defense of the law to the State Attorney’s Office.
Yinon had joined Kedar in arguing that the law had extensive legislative history in which the Knesset was careful to ensure its provisions were not discriminatory.
On the other hand, Yinon, unlike Kedar, made an explicit admission that he recognized that the law could still be abused and misused for “bad purposes.”
However, Yinon said that the court should give time for the review processes built into the law to fix any abuses.
Joubran had slammed the state, asking it sarcastically to describe who exactly were the unbalanced or problem people that the state thought the yishuvim were trying to keep out if not Arabs, gays and the disabled.
Joubran took aim at the state’s vague descriptions of the need for harmony in the communities, inquiring if there was “any research” showing that in the yishuvim “everything is perfect and there are no fights” among the residents.
The justices pushed ACRI attorney Gil Gan-Mor to acknowledge that there were court precedents for allowing special communities to vet potential residents at their own discretion, citing haredi – and classical- style kibbutz examples (where all economic issues were still handled communally).
Rubinstein said that the petitioners were essentially proposing doing away with yishuvim as an idea.
Gan-Mor moved away from this allegation, trying to re-center the court on the question of the law’s “problematic” criteria, which ACRI head Dan Yakir seconded, suggesting that the court focus on the inherently problematic selection process that the law encouraged, rather than demanding concrete, current examples of problems.
Adalah attorney Souhad Bashara gave a spirited attack on the law, citing a long list of persons who could be discriminated against if one just focused on the law’s text.
She implored the court to focus on the realities surrounding the law, which she described as not being a question about if one yishuv can decide who lives there, but rather about a large system of communities systematically excluding minorities.
The Abraham Fund Initiative’s attorney Orna Lin vigorously attacked the law, warning the court that if it did not strike down the law now, it would be rehearing the same issue years down the road.
The only difference between now and then, Lin said, would be that now the court could prevent harm to large numbers of minorities.
The hearing had ended with Joubran taunting the state to give an example of an Arab yishuv to show that the situation on the ground was truly equal, with Yinon responding that even if there was not one now, the law allowed there to be one.