Love Suspended
| DOI | 10.1177/0964663912472095 |
| Published date | 01 September 2013 |
| Date | 01 September 2013 |
| Author | Mazen Masri |
| Subject Matter | Articles |
Article
Social & Legal Studies
22(3) 309–334
Love Suspended:
ª The Author(s) 2013
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DOI: 10.1177/0964663912472095
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Palestinian Couples in the
Israeli Supreme Court
Mazen Masri
York University, Canada
Abstract
This article considers a recent decision by the Supreme Court of Israel dealing with the
right to family unification of Palestinian citizens of Israel (PCI). By situating the decision in
the broader debate on Israel’s constitutional definition as a Jewish and democratic state,
the article examines patterns where the definition plays an important role in defining the
nature of the citizenship held by PCI and the limits of their rights. This examination
focuses on three main issues that arose in the case: the scope of the protection of the
right to family life, the comparative method used by some of the Justices to limit that
right, and statements about the legitimacy of demographic considerations in devising
immigration policies. This analysis demonstrates how the arguments and justifications
used by the Court may provide building blocks for a legal framework that is proceeding
in the direction of institutionalizing separate hierarchical categories of citizenship.
Keywords
Israel’s definition as a Jewish and democratic state, Palestinian citizens of Israel, right to
family life, family unification, demography, comparative law
Introduction
In January 2012, the Supreme Court of Israel issued its long-awaited decision on the con-
stitutionality of the Citizenship and Entry to Israel Law (Temporary Order)-2003 (the
Corresponding author:
Mazen Masri, Osgoode Hall Law School, York University, 4700 Keele Street, Toronto, ON, M3J 1P3, Canada.
Email: mmasri09@gmail.com
310
Social & Legal Studies 22(3)
Citizenship Law) and its amendment. The decision in Galon v. Attorney General [2012]
upheld the constitutionality of the law that imposes a sweeping prohibition on the family
unification processes between Israeli citizens and Palestinians residing in the Occupied
Palestinian Territory (OPT), residents and citizens of Syria, Lebanon, Iraq and Iran.1 The
overwhelming majority of those affected by the law are Palestinian citizens of Israel
(PCI).2 The 232-page decision confirmed an earlier decision by the same Court from
2006 (Adalah v. Minister of Interior). It was delivered by 11 Justices and was described
by one of the Supreme Court Justices as one of the most important cases ever discussed
by the Supreme Court (Galon v. The Attorney General, 2012: para 47, Levi). It dealt
with a number of issues of constitutional importance, mainly the right to family life,
immigration policy and equality. More importantly, the decision provided some indica-
tions about the nature of the relationship between the State of Israel and its Palestinian
citizens, and the future trends in this relationship.
In this article, I will engage some of the arguments relied upon by some of the majority
Justices and situate this decision in the broader debate on Israel’s constitutional definition
as a Jewish and democratic state. This is a debate which has been ongoing since the Israeli
parliament (the Knesset) introduced this definition in the Basic Laws enacted in 1992. The
‘Jewish and democratic’ definition combines two ideas: a democratic state understood to
be one that is based on the idea of equal citizenship; an inclusive attribute that guarantees
equal membership to all members of the polity included in the state, and acceptance of dif-
ference. It usually implies a state whose legitimacy is based on the consent of the governed.
On the other hand, a Jewish state implies exclusion of non-Jews on the basis of religion
and/or ethnicity. It also implies homogenization by designing the polity along religious and
ethnic lines as well as a role for religion in shaping the state. This definition highlights the
question of the status of the PCI, as a national homeland minority that inhabited the area
before the creation of the state.
There was little open discussion in this particular decision on the meaning of Israel’s
definition as a Jewish state and the impact of this definition on the Palestinian minority.
The decision, however, exemplifies patterns in which the state’s definition, even if not
explicitly mentioned, plays an important role in defining the nature of the citizenship
held by the PCI, and in the demarcation of the limits of their rights.3 It is useful, there-
fore, to consider the Court decision through the lens of Israel’s definition as a Jewish and
democratic state and the status of the PCI. I offer to do so by examining three main issues
that arose in the case: the scope of the protection of the right to family life, the compara-
tive method used by some of the majority Justices to limit this right, and statements made
about the legitimacy of demographic considerations in devising immigration policies.
When situated in the broader question of Israel’s definition, the examination of these
three aspects confirms that despite the rhetoric of the Supreme Court about citizenship
and equality, the Israeli authorities, including a significant number of Justices in the
Supreme Court of Israel, see and treat the Palestinian citizens as an immigrant group
(Jabareen, 2002). Indeed, in this case the approach of some Justices went beyond this and
was akin to treatment as non-citizens. Furthermore, this examination also shows that
arguments and justifications used by the Supreme Court in the Galon case provide the
building blocks for a legal framework that is proceeding in the direction of explicitly
institutionalizing separate hierarchical categories of citizenship.
Masri
311
I will begin with providing some background on the Citizenship Law that the decision
dealt with, including the first decision in 2006 by the Supreme Court which upheld the con-
stitutionality of the Law, and an overview of the most recent decision, the Galon decision. I
will then examine in depth the three main issues that were dealt with in the decision. The
first, which is one of the main points of disagreement between the majority and minority
opinions, is the disagreement on the scope of the right to family life. Second, I will exam-
ine the arguments provided for restricting the right to family life and excluding family uni-
fication from it, focusing mainly on the use of comparative law by some of the majority
Justices. The third issue will examine the approach of some of the Justices to the question
of demographic considerations. I will then situate the decision and the arguments provided
in the context of the status of the PCI and the impact of Israel’s constitutional definition as
a Jewish and democratic state. The final part will provide concluding comments.
Background: Family Unification in Israel
The family unification process under Israeli law is controlled by a combination of the Citi-
zenship Law 1952 and the Entry to Israel Law 1952. A non-Jewish foreigner married to an
Israeli citizen or resident who wishes to acquire resident status or citizenship in Israel has
to go through what is called the ‘gradual process’ where she or he ‘gradually’ goes up the
scale starting with a temporary permit to live in Israel, then temporary resident status, then
residency and finally citizenship – depending on the status of the sponsoring spouse. Enter-
ing into the process and getting the ‘resident status’ is contingent on security and criminal
background checks. Historically, the number of marriages among Palestinians across the
‘Green Line’ – the line which separates between Israeli sovereign territory and the OPT –
is high. PCI and Palestinians in the OPT are considered historically, culturally, politically
and geographically as belonging to the same nation that was abruptly and arbitrarily sepa-
rated by a line drawn on a map in 1949, which became the border line. In some places, this
line divided villages into two. The (relatively) easy access of the PCI (from Israel to the
OPT) also contributes to the high number of marriages across the Green Line. This makes
the family unification process an essential channel for many PCI to unite with their spouses
from the OPT. According to the Ministry of Interior, about 130,000–140,000 OPT Pales-
tinians acquired status in Israel through family unification from 1994 to 2002 (Galon v.
The Attorney General, 2012: para 1, Levi).
In 2002, during the height of the Second Intifada, the Israeli Government put a freeze
on all family unification applications between Israeli citizens and their Palestinian
spouses who are residents of the OPT. This decision came after a suicide bombing in
a restaurant where the bomber acquired resident status through family unification. This
decision, also known as Decision 1813, was justified by security concerns. Later on, the
Knesset enacted the Citizenship and Entry to Israel Law (Temporary Order) 2003. The
Law was first enacted for the period of 1 year but was periodically and consistently
renewed with some amendments.4 It imposed an almost absolute prohibition on family
unification between Israeli citizens (most of whom are PCI) and their spouses who are
originally residents of the OPT – areas which have been under Israeli occupation since
1967. This prohibition did not include the Israeli settlers in the OPT and was justified
based on security concerns.
312
Social & Legal Studies 22(3)
Section two of the Law provides that:
During the period in which this law shall be valid,...
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