Monday, March 06, 2023

Opinion
How Israel’s culture war turns America’s upside-down


By Jason Willick
Columnist|
March 5, 2023 a

TEL AVIV — Israel and the United States each declared statehood amid wars of independence whose outcome was uncertain, and swiftly embraced the principle of popular sovereignty. As Neil Rogachevsky and Dov Zigler show in a new book, an early draft of Israel’s declaration of independence borrowed heavily from America’s. Both countries drew large-scale immigration first from Europe, and later from other corners of the world, growing more ethnically diverse over time.

So perhaps it was no surprise that I could hear echoes of polarized U.S. politics as I recently watched a major protest against Prime Minister Benjamin Netanyahu’s conservative government and its proposed changes to the judiciary.

The slogan that protesters chanted — de-mo-crat-yah, or “democracy” in Hebrew — is also on the lips of American liberals. As in the United States, a more secular coalition, rooted in the nation’s prosperous coast, is squaring off against a more religious and traditional bloc found in the nation’s inland. The pink Israeli flags at the protest, interspersed in a sea of traditional blue ones, recalled the iconography of the Women’s March in Washington and elsewhere in 2017.

But for all the similarities, Israel’s culture war is being fought on terrain very different from America’s. Recent decades have seen a dramatic decline in Christian identification in the United States, while traditional Jewish practice in Israel has ticked upward. If some Christians fear becoming a minority in the United States, it’s secular Israelis who worry about the country’s increasingly religious demographic trajectory.

In both countries, unelected supreme courts play a key role in calibrating the balance between religious and secular morality. Israel’s 15-member high court is seen as a bulwark of secularism, standing against the tide of religious opinion. It has ruled that more Tel Aviv businesses can open on Shabbat and that Israelis can’t be barred from bringing leavened bread into hospitals on Passover. The court has also limited gender separation in public spaces and circumscribed exemptions to military service for Yeshiva students. For many of Israel’s observant Jews — the ultra-Orthodox are expected to rise to 16 percent of the population by 2030, from 10 percent in 2009 — the court is an anti-democratic obstacle to a more authentically Jewish state.

That’s one key motivation for the Netanyahu government’s judicial overhaul. The prime minister’s career has been defined by security measures and economic policy, not religion, but his Knesset coalition — which broke years of gridlock by winning 64 of 120 seats in last November’s election — depends on increasingly powerful religious parties. Some of the coalition’s proposed judicial reforms are moderate, such as giving the elected government more control over judicial appointments. But one reform would allow a legislative majority to override the court, dramatically aggrandizing the power of the prime minister’s coalition. That proposal is driving the current wave of protests and deepening political crisis.

Judiciaries are designed as a check on political majorities. If Israel’s Supreme Court is defending the prerogatives of secular Jews in a religious country, the U.S. Supreme Court is keeping room for traditional Christian values in a secularizing country. “As recently as the early 1990s,” Pew Research noted last year, “about 90% of U.S. adults identified as Christians. But today, about two-thirds of adults are Christians.” Key Supreme Court decisions in recent years have pared back pandemic restrictions on religious worship, made religious schools eligible for state funding on the same footing as other private schools and, of course, allowed voters to set policy on abortion.

In response to this conservative direction, some Democrats have threatened to pack the U.S. Supreme Court, and the Dobbs v. Jackson Women’s Health Organization abortion ruling overturning Roe v. Wade was preceded by waves of unlawful protests at conservative justices’ homes. The American judiciary is not (yet) under the sort of majoritarian political assault that Israel’s is absorbing. But judicial review doesn’t come naturally in democracies, where power lies with the people. Respect for the legitimacy of unelected courts must be conjured through judicial realpolitik — the balancing of judges’ power against the power of elected officials, which can win popular acceptance over time.

Israel’s modern system of energetic judicial policymaking dates only to the 1990s, when Justice Aharon Barak led a revolution on the high court. That revolution — the project of an older, secular Israeli establishment — might not survive the country’s religious transformation, and it might not deserve to. There’s an obvious path forward: For the ruling coalition to drop the override clause, pass the other provisions and accept a more gradual tempering of judicial power.

That outcome would probably align more closely with the preferences of most Israelis. But the opposition, having sent hundreds of thousands of supporters to the streets, might rather use the issue to bring down the Netanyahu government and win the next election. And Netanyahu, having burned many bridges in his long career, might be too reliant on the coalition partners on his right to credibly negotiate.

Religious versus secular morality, and minority rights versus majority rule — these are the inexorable contradictions of American and Israeli democracy. The two countries’ approaches might be drifting apart. But the test for both is whether the clash of voters’ preferences can create incentives for politicians to reach for something like the public interest. Sometimes it appears that the stronger incentive, especially for political coalitions that believe they are on the right side of history, is instead to see what they can get away with.


Opinion by Jason WillickJ
 writes a regular Washington Post column on legal issues, political ideas and foreign affairs. Before coming to The Post in 2022, he wrote for the Wall Street Journal and the American Interest. Twitter

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