Law, Religion, and Immigration: Building Bridges With Express Lanes

• Citation: Vol. 32 No. 2
• Publication year: 2018
• topic: Constitutional Law,Immigration Law

Law, Religion, and Immigration: Building Bridges with Express Lanes

Gideon Sapir

Mark Goldfeder

LAW, RELIGION, AND IMMIGRATION: BUILDING BRIDGES WITH EXPRESS LANES

Gideon Sapir^* Mark Goldfeder^**

Abstract

This Article asks whether it can ever be moral or legal to use certain criteria, including nationality and/or religion, in formulating preferential immigration policies. In order to answer the question, it presents an in-depth look at the controversial "right of return," focusing in particular on the example of the Israeli Law of Return. It contains a detailed history of the law and its development; a defense of the right of return in general; the principle and contextual arguments in favor of an amendment to or abrogation of Israel's law; and a theoretical and practical defense of the law, with some ideas for potential modification.

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Introduction.............................................................................................203

A. Overview....................................................................................204

I. History of the Law........................................................................208

A. The Law of Return (1950)......................................................... 208
B. The 1970 Amendment ............................................................... 210

II. The Principled Argument.............................................................213

A. The Argument ........................................................................... 213
B. Discussion ................................................................................ 214

1. Insufficient Answers............................................................ 214
2. Preferential Immigration Policy and the Right to Self-Determination..................................................................... 219

a. The Right to Culture and Its Justifications .................. 219
b. Does the Right to Culture Entail a Right to Nation-State? ........................................................................... 219
c. The Right to Culture Does Entail a Right to a Nation-State .............................................................................. 220

i. A Nation-State Is Necessary for Realization of the Right to Culture .............................................................. 220
ii. The Harm to Members of Minority Groups Is Minimal and Many Are Willing to Accept It ....................... 221
iii. No Harm Is Done to Global Justice ...................... 222

d. Justification on the Basis of Persecution..................... 223

C. Application ............................................................................... 224
D. The Law of Return and the Geo-Political Reality..................... 225
E. Conversion and Ethnicity ......................................................... 229

III. The Contextual Argument .........................................................233

A. The Argument ........................................................................... 233
B. Discussion ................................................................................ 235

1. The Right of Return as an Identity Characterizer .............. 235
2. The Question of Time and Motivation ................................ 237
3. The Question of National Interest ...................................... 239

a. The Nature of Immigration in Recent Years ................ 240
b. The Effect of the Change on the Nature of Israeli Society .......................................................................... 243
c. The National Interest Against Changing the Law ....... 245
d. If We Do Need to Limit, Who Should Be Limited? ...... 246

4. The Relevance of the Justification Based on Persecution .. 249

Conclusion.................................................................................................252

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Introduction

On February 18, 2016, Pope Francis gave an in-flight interview on his way from Juarez, Mexico to Rome, Italy.¹ The interview went viral² because when asked about Donald Trump's plan to build a wall between Mexico and the United States, the Pontiff responded that, "[a] person who thinks only about building walls, wherever they may be, and not building bridges, is not Christian."³

The comment ignited a firestorm of media attention as well as a back-and-forth between the Vatican and Trump's political camp that focused on context, the role of religion in immigration policies, and what the Pope actually meant.⁴ While much has been written about the legal and religious implications of keeping a particular religious group or nationality out of a given country⁵ —a question that was recently revisited when Trump called for a temporary ban on all Muslim immigrants⁶ —relatively little has been written about the opposite idea: whether, to use the Pope's analogy, a person can build a bridge that has an express lane in for a particular nationality or religion.

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This Article argues that while it may not be moral or legal to keep a group out of a country based on their nationality or religion, it can, at times, be both moral and legal to use the same criteria to build an express lane in a country. While this idea is one that has implications for countries all over the world, the example that we use to make this point is the somewhat controversial, oft-debated Law of Return in the State of Israel.

To begin, we move back in time just thirteen months before the Pope and the current President had their through-the-media exchange, to a darker moment in world history that led people to ask all kinds of questions about immigration, law, and religion.

A. Overview

To all the Jews of France, all the Jews of Europe, I would like to say that Israel is not just the place in whose direction you pray, the state of Israel is your home. . . . All Jews who want to immigrate to Israel will be welcomed here warmly and with open arms. We will help you in your absorption here in our state that is also your state.⁷

With those words, Israeli Prime Minister Benjamin Netanyahu called for the Jews of Europe to take advantage of Israel's Law of Return.⁸ His instruction came at the heels of the January 2015 Charlie Hebdo terrorist attack which left more than a dozen people killed—including four Jews who were slaughtered not for anything they had allegedly done, but simply for what they were.⁹ Netanyahu's words were echoed later in the day by Avigdor Lieberman, the Israeli Foreign Minister, and Defense Minister Moshe Ya'alon; they both agreed that the safest place for the Jews of Europe is Israel.¹⁰ On February 15, 2015, just over a month later, a gunman in Copenhagen, the capital of Denmark, attacked a synagogue where a Bar Mitzvah was being celebrated.¹¹ Speaking from his Cabinet meeting in Jerusalem, Netanyahu once again repeated the following:

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Jews have been murdered again on European soil only because they were Jews and this wave of terrorist attacks—including murderous anti-Semitic attacks—is expected to continue . . . . Of course, Jews deserve protection in every country but we say to Jews, to our brothers and sisters: Israel is your home. . . . I would like to tell all European Jews and all Jews wherever they are: Israel is the home of every Jew.¹²

Over the last couple of years, the rise of anti-Semitic attacks in Europe, and the public call for European Jewry to take advantage of Israel's Law of Return, has coincided with the international focus on the legality and morality of letting people in, or keeping people out, based on religious and national criteria. The time has come for an in-depth look at the oft-criticized Law of Return itself, from both a legal and moral standpoint.

The Law of Return, which was passed by the Knesset in 1950, gives all Jewish people an unconditional right to immigrate to Israel and gain citizenship.¹³ For many years, the law has been considered one of the foundational stones in the ongoing construction of Israeli law¹⁴ and has enjoyed wide consensus amongst the citizens of the State.¹⁵ In recent years, however, voices from inside and outside of Israel have begun questioning its legitimacy and wisdom.¹⁶

For simplicity's sake, critics of the Law of Return can be usefully sorted into two main categories. First, there are those who attack the law from a moral standpoint, claiming that the law unfairly discriminates against non-Jewish citizens of the State as well as immigrant applications from other nationalities.¹⁷ Second, there are those whose claims are focused not on the legitimacy of the Law at the time it was passed, but rather on the continued legitimacy and usefulness of such a law today.¹⁸ Critics point to two major changes that have

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taken place since the founding of the State that, in theory, might obligate Israel to revisit its immigration policies.

First, in contrast to the circumstances around the founding of the State, the Jewish people today are no longer openly and systematically persecuted.¹⁹ Second, in the early years, the economic situation and security concerns in the State of Israel left the country quite weak;²⁰ however, today, both the economy and the security of the nation are strong.²¹ Accordingly, the nature of those seeking to immigrate to Israel has changed. In the first decades, immigration was motivated by Zionistic aspirations and a desire to find sanctuary from hate and persecution, whereas today, a substantial number of immigrants do so mainly out of a desire to improve their quality of life.²² Critics of the Law of Return claim that if these assumptions are true, they erode, or even entirely erase, the moral basis for the right of those eligible to return.²³ If correct, these assumptions also make the current arrangement undesirable from the perspective of the State of Israel's interests.²⁴

This Article will consider these two types of challenges. Ultimately, we reject the fundamental...