Skeptical justices hear housing discrimination case

Justices lean toward upholding law, rights groups mount vigorous attack claiming it blocks housing for Arabs, homosexuals.

By YONAH JEREMY BOB
High Court of Justice panel 370 (photo credit: Yonah Jeremy Bob)
High Court of Justice panel 370
(photo credit: Yonah Jeremy Bob)
The High Court of Justice, with a rare full panel of nine justices, heard on Tuesday a case that goes to the heart of alleged massive housing discrimination against Arabs, homosexuals, disabled people and other groups.
The panel was skeptical of the charges, with at least four of the nine justices, including Supreme Court President Asher D. Grunis, battering the petitioners, human rights groups, including Adalah: The Legal Center for Arab Minority Rights in Israel and the Association for Civil Rights in Israel.
Only Justice Salim Joubran appeared to openly side with the petitioners, although it was unclear where the other four justices stood.
The petitioners in the historic constitutional battle asked that the court nullify the Acceptance Committee Law, which allows approximately 434 small communities in the Negev and the Galilee almost unlimited discretion in turning down requests of persons who want to move into them.
The human rights groups claimed that, in practice, the law allows the communities to discriminate against Arabs, homosexuals and the disabled.
The justices focused on the fact that the text of the law being attacked expressly prohibits discrimination. They also hit the petitioners’ arguments, contending that if taken to their logical conclusion, the same arguments could be used to overturn the income tax law as discriminatory for categorizing persons into income classes.
The petitioners responded with a number of arguments, ranging from saying that the criteria used by the communities are too vague and liable to abuse, to arguing that the court must step in before massive discrimination takes place.
This argument holds that everyone in the courtroom knew the motivation 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 such settlements in Israel. It covers 90% of the state’s communal settlements and 57% of its agricultural communities.
The state’s Ori Keidar reiterated the state’s position that the petitions were premature, that the law was new and that time was needed to see how the law played out.
Keidar contended that the petitioners all ignored the clause prohibiting discrimination as if it were irrelevant to the debate, whereas that clause should be central to deciding if the law was discriminatory.
He said that the case was really about whether communities 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 rare event, Knesset legal adviser Eyal Yinon spoke extensively and separately on behalf of the Knesset, rather than leave defense of the law to the state attorney.
Yinon joined Keidar in arguing that the law had extensive legislative history in which the Knesset was careful to ensure its provisions were not discriminatory.
But Yinon, unlike Keidar, made an explicit admission that he recognized the law could still be abused and misused for “bad” purposes. He said, however, that the court should give time for the review processes built into the law to fix any abuses.
Joubran slammed the state’s representative, asking it sarcastically to describe who exactly were the unbalanced or problem people that the communities were trying to keep out if not Arabs, gays and the disabled.
Joubran also 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 communities “everything is perfect and there are no fights” among the residents.
But most of the hearing consisted of Grunis, Supreme Court Deputy President Elyakim Rubinstein, and justices Hanan Melcer and Neal Hendel battering the petitioners.
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, noting haredi and classical-style kibbutz examples (where all economic issues were still handled purely communally).
Rubinstein said that the petitioners were essentially proposing doing away with the idea of specialized communities.
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 a question about deciding who can live in a community, but rather about a large system of communities systematically excluding minorities.
Attorney Orna Lin, representing the Abraham Fund Initiatives, another petitioner, also vigorously attacked the law, seemingly warning the court that if it did not strike it down now, it would be rehearing the same issue years down the road.
The only difference, said Lin, would be that by acting now the court could avoid harming the lives of large numbers of minorities.
Lin also discussed the state’s argument, seemingly endorsed by some of the justices, that the prohibition on discrimination in the law must be at the center of analyzing the statute.
Lin implied that it should be obvious in a democratic country such as Israel that discrimination was illegal, and that there was no value to restating the obvious on paper, something that was already part of the country’s basic laws, for preventing actual discrimination.
The hearing ended with Joubran taunting the state to give an example of an Arab community using the law to restrict entry 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.
Due to the monumental constitutional implications of the law, the court is not expected to rush to make a decision in the coming days or weeks.