Minorities at Risk in Israel
By Yuval Yoaz
The constitution now taking shape in the Knesset Constitution, Law and Justice Committee is liable to weaken the rights of homosexuals and other minorities, Committee Chairman Menahem Ben-Sasson (Kadima) acknowledged at a meeting last Tuesday with members of the Israel Bar Association’s national council.
That outcome would contradict what some scholars view as the primary role of a constitution in a democratic state - protecting minority rights by anchoring them in the constitution, so that the courts can enforce them and thereby prevent a political majority from infringing on them.
Ben-Sasson’s surprising remark was made in reply to a question by the chairman of the IBA’s national council, attorney Amos Van-Emden, who is a declared homosexual. "I am a member of a minority, the minority of gays and lesbians," Van-Emden said at the meeting. "And a constitution and a Supreme Court are classically supposed to protect structural minorities, groups that will always be minorities. Won’t the constitution that is taking shape reduce us [structural minorities] to the status of ’oil on the wheels of revolution,’ or the sparks that fly for the sake of a big historic compromise?"
Ben-Sasson acknowledged that the political compromises needed to enable the adoption of a constitution would indeed come at the expense of the rights of minorities, among them gays and lesbians. "The answer is yes," said Ben-Sasson. "The current willingness of a large majority of the Knesset to arrive at a constitution will definitely be at the expense of those who have found succor in the court. When a constitution is written 60 years after a state is established, it contains much more than a photostat of the status quo. In our status quo, these minorities - liberals, religious minorities and ethnic minorities - feel more comfortable with the court, and as a result, I fear that they are likely to feel less comfortable with the constitution."
No clear statement on rights
"If anyone thinks the constitution will make a clear statement about homosexuals and lesbians - I believe he is wrong," the committee chair added. "I know that what the constitution will offer national minorities in the article on collective rights will be stated explicitly. Right in the constitution’s preamble, we said that Arabic is an official language of the state of Israel, but this is not enough for some [Knesset] members, because they don’t want Israel defined as a Jewish and democratic state - the word ’Jewish’ bothers them. But I think that no damage at all would be done if we provided a solution for the ultra-Orthodox, a solution for homosexuals and a solution for the Bedouin."
IBA President Yori Geiron, in response to Ben-Sasson’s remarks, said: "If this constitution does not protect people on account of their sexual preferences, in my view it will be a bad constitution. The constitution has to protect weak sectors of the population. The price cannot be paid at the expense of minority groups within the population, though perhaps it can be paid at the expense of the degree of protection they will receive."
Ben-Sasson stated that according to his planned timetable, a draft of the constitution will be brought before the Knesset within a year. If the Knesset approves the constitution, he added, it will ultimately be brought to the public for ratification, either by a plebiscite or by means of elections.