First published on Times of Israel
By YEHUDA KURTZER
The decision by the Israeli Supreme Court to permit the Jerusalem Day march through the Muslim Quarter of the Old City – where it has notoriously bred nationalist violence against the property of its residents, and spread terror and fear in its wake – is deeply disappointing. The triumphalist and inevitably racist character of the march is beneath the dignity of what could be Zionism’s noble goals and accomplishments, and makes explicit how the juxtaposition of celebrating a military victory with the language of religious superiority can together become a dangerous breeding ground for fundamentalism.
It is one thing to celebrate one’s own meaningful historical days and even to transform those days into permanent holidays; it is another to attach to that fervor a power imbalance over the “losing” minority and parade one’s superiority through its close quarters. It is bad theology translated into bad public policy.
But this court decision is also disappointing because the calculus of balancing the sensitivity toward minorities with the right of public access is different in the Israeli legal system than in ours, and the court had its own license to do something well beyond what Justice Elyakim Rubenstein called having a “heavy heart.” The cases involving the closing of Bar-Ilan Street on Shabbat and the Gay Pride parades in Jerusalem established a body of jurisprudence which sought to balance the rights of the majority against the need for tolerance that was sought by the minority, a need that former Justice Aharon Barak rightly called “a basic tenet of democratic theory, vital to a pluralistic democracy.”
A democratic society is not overreaching when it considers limiting the rights of some in order to protect the tolerance it owes to others. With such a history and likelihood of violence directed toward the minority population, the court had an opening here that it simply failed to exploit.
The instinct of those who would defend the court’s ruling in this case here – or also the New York City judge who denied the right of the Metropolitan Transit Authority’s attempt to reject Pamela Geller’s odious anti-Islam advertising campaign on city buses – is to make recourse to the freedoms of expression and congress that we consider essential to our liberty and our democracy.
I am of course sympathetic to this, and it can be awe-inspiring to see how deeply Jews have internalized our own historical marginalization, such that we become the most vigilant about protecting the right to speak and assemble – even when that right is exercised in potentially violent ways toward ourselves or others.
But there is an inherent paradox here, in how our democracies are failing us in amplifying the voices of hatred over tolerance under the guise of tolerance. And whether or not it is perfectly legal or appropriate to limit speech or the freedom to march in a vacuum, it is scary to think of the risks to ourselves and to others, to both our moral sensibilities and physical existences that a fundamentalist allegiance to freedom of speech may be engendering. The question cannot merely be, “Do I have a right to march?” Our courts must also be asking who is powerful and who is powerless, and in what ways are the freedoms afforded to some, literally endangering the lives of others.
This Sunday I am speaking at a local synagogue’s celebration of Jerusalem Day, which it is marking with a Day of Study. I had some hesitations, for this is just not a Jewish holiday that I celebrate. I think it is a day of deep significance, as the Six Day War was a big deal in the evolution of the State of Israel, and a day of reckoning for both the blessings that it bequeathed and the problems it either created, amplified, or magnified.
Ultimately, I decided to participate rather than protest, in appreciation of the community’s apparent willingness to create meaningful discourse around a day that otherwise – as in the case of this Jerusalem march – could turn into a meaningless and jingoistic pep rally. Jerusalem has been literally and metaphorically at the heart of our consciousness as a people for a long time, so spending a day talking about it – what we have gained and what we have lost in the conquest of Jerusalem – feels like a worthwhile activity.
But it was not without pause, and on days like this we would all best be careful. In both the Muslim Quarter and in the courtrooms defending the rights of the Muslim Quarter marches – and separately in New York courtrooms defending the Islamic hate campaign that is said to be in our name – our people is playing with fire, and some of our own are pyromaniacs.
I wish the courts would act; instead, all we have at our disposal is the urgency of working on behalf of peace, love, and tolerance (all of which, incidentally, could be the real legacy of Jerusalem). The Supreme Court’s decision was a missed legal opportunity; the burden falls on us to not allow moments like this to be lost moral opportunities as well.