This summer, as Americans anticipated a slate of Supreme Court decisions involving the freedoms of religion, speech, and association, Israel was busy limiting all three.  In July, Israel passed the Nationality Law defining Israel as a Jewish state and the Breaking the Silence Law prohibiting groups critical of the Israeli Defense Force (I.D.F.) from speaking in schools. This October, the Knesset is set to pass a law essentially outlawing the Palestinian flag. While Israel’s Basic Laws, its de facto constitution, do not name the freedoms of religion, speech, or association, they do declare that Israel is a democracy.  But these three laws clearly violate fundamental democratic freedoms and thus undermine Israel’s claim to be a democratic nation.
Israel’s new Nationality Law states that Israel “is the nation state of the Jewish people,” and that “the right to exercise national self-determination in the State of Israel is unique to the Jewish people.”  The law clearly violates the freedom of religion that is essential to any democracy and highlights the inherent tension in Israel’s attempt to maintain a state that is both Jewish and democratic. At least one Israeli court has already demonstrated the discriminatory nature of the Nationality Law. In September, an Israeli judge awarded increased compensation to a man who witnessed a terror attack twenty years ago, and who has since suffered from post-traumatic stress disorder, because he was Jewish.  The judge cited the portion of the Nationality Law that declares “[t]he state will strive to ensure the safety of the members of the Jewish people in trouble or in captivity due to the fact of their Judaism or their citizenship.”  By that logic, any Palestinians who witnessed the same attack and suffered the same injuries as the Jewish man would have received less compensation simply because they weren’t Jewish. Unequal treatment of similarly situated persons undermines the rule of law and seriously weakens Israel’s claim to be a true democracy.
The “Breaking the Silence” Law is so named because it targets left-wing organizations like Breaking the Silence, an N.G.O. comprised of I.D.F. veterans who oppose Israel’s occupation of Palestine, and B’Tselem, which also advocates ending the occupation to achieve lasting peace.  This new law prohibits organizations that criticize the I.D.F. or that work to delegitimize Israel from holding lectures or activities at schools.  Education Minister Naftali Bennett made the intent of the law clear: “Breaking the Silence long ago crossed red lines beyond legitimate discourse when they started libeling Israel in the international arena.”  Such overtly political censorship in schools blatantly violates the freedom of speech. When a government designates itself the arbiter of which views are acceptable and which are unwelcome, freedom suffers. The views a government favors today are only an election away from falling into disfavor.
A majority of Knesset legislators have pledged to support a law to be introduced this October that bans raising flags “of states that are hostile to Israel,” flags of “non-friendly states,” and the flags of organizations “that do not allow the raising of the Israeli flag on their premises.”  The law also contains a troubling provision that prohibits groups of three or more from gathering, even to promote a lawful purpose, if they act in a manner that provokes or that leads others to believe that public safety is jeopardized.  Both laws punish violators with up to one year in prison.  Flags are among the most potent symbols of political expression. Restricting flags for political reasons violates the core democratic value of freedom of expression. Imagine a liberal administration outlawing the “Don’t Tread on Me” flag or a conservative administration banning the LGBT Pride flag because each side believes the other’s flag “provokes” or jeopardizes public safety. The law also infringes on the freedom of association. The law’s vague prohibition against “provok[ing]” or “lead[ing] others to believe that public safety is jeopardized” is an invitation for discriminatory application. Beside the danger of discrimination is the danger inherent in giving the government power to suppress political views or groups by labeling them provocative or threatening. Passing this law would further weaken Israel’s claim to legitimate democratic rule.
Israel plays a critical role as a U.S. ally and as the freest state in the Middle East.  Some believe those are reasons to be less critical of Israel. They are, instead, reasons to hold Israel to higher standards. Laws such as those previously discussed leave Israel vulnerable to legitimate criticism and questioning of its status as a democracy. The freedoms of religion, speech, and association are essential to democracy, and without them, Israel’s claim to be a democracy rings hollow.
 Masterpiece Cakeshop, Janus, Minnesota Voters Alliance, and National Institute of Family and Life Advocates