You Say You Want a Constitution

By Steven V. Mazie, an assistant professor of political science at Bard High School Early College, is the author of the forthcoming "Israel's Higher Law: Religion and Liberal Democracy in the Jewish State." (THE NEW YORK TIMES, 30/03/06):

NEARLY six decades after the state of Israel was founded, members of the newly elected Parliament will try to complete the job of drafting a constitution. Their greatest challenge will be to lend coherence to Israel's dual identity as a state that is both Jewish and democratic.

The old saw goes that for every two Jews there are three opinions. A new 9,000-page constitutional draft ups that ante, offering as many as four alternatives, complete with commentary, for many of its provisions. According to one version of the draft's first clause, "Israel is a Jewish and democratic state." Alternatives go on to identify Israel as "the state of the Jewish people" or "the state wherein the Jewish people are realizing their right to self-determination." Another option avoids the issue entirely, advising against making a statement about the state's character at all.

Despite this open-endedness, only 30 of 49 voting members of the outgoing Parliament suggested that their successors consider the draft constitution. Religious parties objected that the draft failed to entrench the Orthodox rabbinate's monopoly on the marriage, divorce and burial of Israeli Jews. Civil libertarians lamented that the draft lacked clear provisions for breaking this monopoly and ending commerce and transportation restrictions on the Sabbath. Arab parties refused to accept the formalization of Israel's Jewish identity and an immigration policy that favors Jews.

If there is any hope for the constitutional process, lawmakers must break free of these old dogmas and zero-sum strategies, working instead to establish a functional balance of Jewish and democratic values. Here are three starting points that should prove acceptable to most Israelis:

First, Israel's ultra-Orthodox minority, which has long benefited from state financial assistance and exemptions from military service, should be protected, but its monopoly on personal status issues must end. This monopoly chains women to husbands who refuse to grant them divorces and prevents secular, Reform and Conservative Jews from determining the character of their own wedding ceremonies. It also provides no legal marriage option for the hundreds of thousands who immigrated from the former Soviet Union under the Law of Return (which accepts anyone with at least one Jewish grandparent) but who are either not themselves Jewish or whose Jewishness the Orthodox authorities question.

Second, equality for Israeli Arabs will not be achieved through individual rights alone. Israel's Declaration of Independence promised Arab citizens — 20 percent of the population today — equal rights, and recent Supreme Court rulings have given those rights further grounding. But as important as such developments have been for Israeli democracy, Arab citizens continue to suffer from discrimination and have many concerns that remain unaddressed — among them, the desire for better schools, roads, health care and job opportunities in their towns and villages.

Israeli Arabs should be granted state recognition as a national group, not just as individual citizens or religious minorities. This would lead to better Arab representation in the ministries and on the Supreme Court, and it would entail wider use of Arabic in schools and on street signs.

Finally, although democracy requires the protection of religious liberty and civic equality, a strict, American-style separation of church and state will not work for Israel. It would alienate Israel's religious Jews, and even the country's most secular Jews would find such a separation foreign to a country founded as a Jewish state with a Jewish ethos and majority. It would also undermine the commitment Israel has made to support its Muslim and Christian communities. Israel should continue to pay for religious education and services for Jews and non-Jews alike.

It should also retain non-coercive public symbols of Jewish affiliation, like kosher government kitchens and public observance of the Sabbath. The Star of David on the flag will be more palatable to non-Jewish citizens when Arabs are treated more equitably as a national minority.

Even if the incoming Parliament manages to hammer out Israel's first complete constitution amid the country's morass of conflicting principles and commitments — a feat no state has ever undertaken so many years after its birth — no one should expect it to resolve the deepest conflicts in Israeli society. But a constitution could provide a new foundation upon which future generations can debate the terms of Israel's Jewish-democratic synthesis with less animosity and greater wisdom.