Critical Currents: The State of Israel vs love

We're the only state where not all who marry can live in it, and where many who live in it can't marry.

By NAOMI CHAZAN
May 18, 2006 14:23
4 minute read.
naomi chazan portrait 88

naomi chazan 88. (photo credit: )

 
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Israel has declared war on family life and, by extension, on its very ethical foundations. The Supreme Court's decision to uphold the provisional law denying spouses of Israel's Arab citizens the right to reside in the country comes on the heels of the coalition agreements that preclude any change in the prohibition on non-religious unions. Israel has become the only country in the democratic world where not all those who marry can live in its territory and where many of those who live in its territory cannot marry. The basic human right to fall in love and create a family is a mainstay of the contemporary ethos. Article 16 of the 1948 Universal Declaration of Human Rights proclaims unequivocally: "Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and its dissolution." Lest there be any misunderstanding, this paragraph proceeds to state that "the family as the natural and fundamental group unit of society is entitled to its protection by society and state." Israel's founders, in the Declaration of the Establishment of the State six months earlier, vowed to abide by these very same human principles, resting their commitment on Jewish sources. "The State of Israel… will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex." The firm belief in human dignity and equality is enshrined in the Basic Law of 1992 - Israel's foremost human rights instrument. COUNTRIES DO have an undisputed right to regulate immigration and impose restrictions on the comportment of their citizens. The Law of Return is one such example; the stringent limitation on citizenship, imposed by countries like Denmark, is another. Democracies, however, don't systematically limit basic freedoms, surely not through the sweeping discrimination of one particular group of citizens defined by religion and nationality. This is precisely what the Knesset did in 2003 when it forbade Arab family unification within Israel, and what the Supreme Court now confirmed in its split 6-5 decision. By suggesting that the restriction on married couples fulfills a worthy cause and is not excessive, the ruling effectively separated Israel from the global democratic consensus. Frequently cited western European cases are hardly analogous, and to suggest that there is a similarity between restrictions (however draconian) placed equally on all citizens and the Israeli situation which applies to only one (minority) group is thoroughly specious. The 11 Supreme Court justices are fully cognizant of the contradictions inherent in their own position. One of those who sided with the majority (Edmond Levy) rested his stance on a technicality: the provisional nature of the law. Another asserted that the right to family life is unquestionable, but disputed the need to safeguard it within Israel (surely such rights do not exist in cyberspace - they are subject to concrete state protection). THE SUBSTANTIVE argument for breaking up thousands of families and seriously assailing the principle of equality is the security one - voiced by retired justice Mishael Cheshin in his lead opinion (and backed by three of his colleagues). This justification, however, is far from compelling. Of the tens of thousands of Palestinians who obtained Israeli residence through marriage since 1967, only 26 have been interrogated on suspicion of any involvement in terrorist activity (much fewer than the number of east Jerusalemites annexed to Israel and suspected of similar activities). More to the point, the security rationale can neither explain the severe blow to the right to a normal family life nor account for its collective discriminatory application to one specific sector rather than to particular individuals. The demographic genie behind this decision is inescapably racist. And while most of the justices concurred with the minority opinion of Chief Justice Aharon Barak, who claimed that the injury to the human rights of mixed families was greater than the benefits accruing from its implementation and that therefore the law should be nullified, its actual legal affirmation severely compromises Israel's democratic character. THE VIOLATION of the rights of certain groups to maintain their married life and all that this entails within Israel follows on the continuous assault on the right of individual Israelis to wed inside the country. Although the citizenship of over 300,000 immigrants who came to the country in the framework of the Law of Return is not open to debate, their Jewishness, halachically, is in doubt. The state cannot stop them from falling in love (among themselves or with veteran Israelis); it can and does forbid the institutionalization of these relationships. Some of these citizens (euphemistically dubbed as "lacking any religious classification") marry abroad and return to Israel - where their residence rights are not disputed. Others don't bother to take such legal steps and have families anyway. Although they do not enjoy freedom from religion, at least they can live together even if their personal status remains unrecognized. The right to fall in love and raise a family in Israel is being consistently undermined. The reasoning behind these measures derives, purportedly, from the desire to preserve the Jewish character of the state. In the process, a mockery is made of the Jewish tradition, with its emphasis on individual dignity and the sanctity of the family. The common thread of religious freedom, personal liberty and minority rights which unites democratic regimes is also completely distorted. Above all, the unassailable belief in the vitality of the human spirit is compromised. Israel's war on marriage and family life threatens to undo its democracy and its being. A state that attacks love can never protect itself.

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