The Loyalty Oath: Where Is Our Common Sense?

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On October 10, 2010, the Netanyahu government passed an amendment to the Israeli Citizenship Act that replaced the requirement that naturalized Israeli citizens pledge allegiance to "the State of Israel" with a requirement that they take an oath of loyalty to the State of Israel "as a Jewish and democratic state." In the following op-ed, which was originally published in Hebrew in Haaretz on October 11, 2010, IDI Vice President Prof. Mordechai Kremnitzer questions the wisdom of this amendment and the motivations of its originators, arguing that it is discriminatory and ultimately undermines the Jewish character of the State.

At the start of this week, the Israeli government passed a bill that makes the receipt of Israeli citizenship contingent upon an oath of loyalty to Israel as a "Jewish and democratic state." This expanded the existing law, which only required allegiance to "the State of Israel." The new legislation only applies to aspiring citizens who are not Jewish; as such, it is invalid because it is discriminatory. However, even if the bill were to require an oath of loyalty to Israel as a "Jewish and democratic state" from all aspiring citizens—Jews and non-Jews alike—the legislation would continue to be tainted.

The loyalty oath bill is an anomalous piece of legislation. While laws are generally intended to offer solutions to problems, there is no problem underlying this one. In the last few years, Israel has not been facing a problem of new citizens who demonstrate a lack of loyalty to the state. It is also clear that this type of oath will not serve as a deterrent to disloyalty—not in the slightest. Rather, amending the Citizenship Act to require an oath of loyalty to the "Jewish and democratic state" was intended to create or intensify a problem.

The background for this law includes a number of indicators that point to the true purpose of this law. These include the conversion reform bill of MK David Rotem, with its far-reaching implications; a series of bills intended to harm Israel's Arab population; and Foreign Minister Avigdor Lieberman's condemnation of MK Haneen Zoabi of Balad, who participated in the Gaza flotilla, which he issued as an explanation of the need for the law. These examples all indicate that the real intention of the loyalty bill is to cast a shadow of disloyalty on Israel's Arab citizens, many of whom presumably would not be able to sign a statement attesting to their loyalty to Israel as a "Jewish and democratic state." Their inability to take such an oath would stem in part from the fact that the State of Israel has taught them that the term "the Jewish state" is a code word that justifies discrimination against Arab citizens, and in part from the fact that the response to the Palestinian demand for self-determination in an independent Palestinian state is still not clear.

If an oath of loyalty to a "Jewish and democratic state" is required for Israeli citizenship, the practical implications of this are that Arab couples of mixed Israeli and non-Israeli nationality—for example, an Israeli Arab man and an Arab woman from Judea and Samaria or anywhere else in the world—who wish to marry and set up a home in Israel, will encounter difficulty in obtaining citizenship for the non-Israeli partner. Right from the start, the new law fails the "proper purpose" test. Its purpose is worthless and invalid. Raising a question about granting citizenship to Israeli Arabs when that citizenship is the very basis of their rights is a provocation that is intended to incite the Arab population of Israel. It is unreasonable for the Israeli government to have a hand in such provocation.

Unlike other countries, in addition to the contingent element of a Jewish majoirty, Israel's identity has a particularistic and ideological element. Moreover, the nature of Israel as a Jewish and democratic state has yet to be determined, and is still subject to debate in Israeli public life. Some people interpret this term as having a great deal of religious or national significance, and very little democratic meaning. Because of this ideological element, legislation requiring an oath of loyalty to a "Jewish and democratic state" creates serious problems in terms of freedom of conscience and opinion. The principle of freedom of conscience and opinion—a primary, universal principle that is also grounded in Israel's Declaration of Independence—precludes forcing a non-Zionist, ultra-Orthodox Jew to pledge allegiance to Israel as a "Jewish and democratic state," which some interpretations understand as a reference to a Zionist and democratic state. Similarly, the principle of freedom of conscience and opinion precludes forcing an atheist or a devout believer in separation of church and state to take an oath of this nature. Forcing such people to take an oath of loyalty to Israel as a Jewish and democratic state is no more acceptable than requiring a Jew in a country outside of Israel to pledge allegiance to that country as a Christian and democratic state as a prerequisite for citizenship.

Israel's character as a "Jewish state" also introduces a religious element to the definition of "Jewish and democratic," since entry into the Jewish people is through conversion. Requiring an oath of allegiance to a Jewish and democratic state may thus present an obstacle when non-Jews seek citizenship. Passage of this legislation, for example, could prevent Righteous Gentiles from receiving Israeli citizenship.

A person must not be forced to take an oath of allegiance—even indirectly—to a particular ideological outlook, religion, or nationality as a condition for becoming a citizen. It is enough to pledge allegiance to the state.

There is no good reason why Israel should present itself to the world as a country that is exclusionary, withdrawn, and separatist—as a country that closes its gates to people who are willing to pledge allegiance to the state and its laws, but not to commit to a specific ideological concept that underlies it. While this legislation does not have any potential benefit, it has the potential to do great damage to the fragile and emotionally charged relations between the State of Israel and its Arab minority, as well as to Israel's image and status in the family of nations.

Given the events of Jewish history, there is no nation in the world that has greater justification for having a nation state in its historic homeland than the Jewish people.

It is both odd and troubling that the Israeli government should take such decisive action to undermine the obvious—beginning with the peculiar notion that the Palestinians must recognize Israel as a Jewish and democratic state, as if our self-definition depends on their recognition, and ending with an attempt to strengthen the character of the state by requiring an oath of allegiance from new citizens.

More than anything else, the amendment is an expression of a lack of confidence in Israel's clear identity as the state of the Jewish people - a lack of confidence that is completely unjustified. In passing such legislation, Israel is simply asking for criticism. This legislation will also arouse internal controversy within Israel, which will, in turn, give the world the false impression that even among the Jews of Israel, there are many who dispute the Jewishness of the state.

If a cost-benefit analysis of this legislation were to be conducted, the results would be as follows: The benefit of the law is negligible, whereas the damage that it does is high. Accordingly, the question at hand is: Where is our common sense? 

Professor Mordechai Kremnitzer is Vice President of Research at the Israel Democracy Institute and a professor of criminal law at the Hebrew University of Jerusalem.

This article was originally published in Hebrew in Haaretz on October 11, 2010 and has been translated and reprinted with permission.