JERUSALEM, May 16 (UPI) -- In the single most important moment in Israel's history, the then-Prime Minister David Ben Gurion read out a clause with which this country has been grappling ever since: "The State of Israel...will provide complete social and political equality to all its citizens irrespective of religion, race and sex," said its declaration of independence.
Complete equality? Not quite.
Israel had to weigh this aspiration against its need for security. On Sunday, 58 years to date since that declaration, the High Court of Justice ruled on one such issue: Israeli Arabs' request that it cancel a law restricting their right to bring over Palestinian spouses.
The law, first passed in 2003, stipulates that the Interior Minister shall not grant Israeli citizenship to residents of the West Bank and the Gaza Strip. The military commander will not issue them permits to live in Israel. In other words: You may marry, but if you want to live with your spouse, you can't do it here.
It was a law with an expiration date but the Knesset has regularly extended its validity.
Israeli-Arab organizations, Arab politicians and some of the families split because of this law, immediately appealed to the High Court of Justice. It infringes on their right to live in Israel with their spouses, and in some cases their children, they argued.
Technically the law would apply also to a Jew who marries a Palestinian, but this is extremely rare. The Arabs claimed the law constitutes ethnic or racial discrimination.
The defense establishment maintained the restrictions were vital. Twenty-six Palestinians given the right to live in Israel under a family reunification plan had been involved in terror attacks since 2001, the government said. In those attacks 50 Israelis were killed and more than 100 were wounded. Letting more people in, and issuing them Israeli papers that allow them free movement would severely endanger security, the government maintained.
An unusually large panel of 11 Supreme Court justices considered the case and their ruling showed how divided they were: Six judges upheld the law, five said it ought to be revoked. A closer examination indicated that some of the six judges did not want to cancel a law that is anyway due to expire on July 17 unless the Knesset decides to extend it.
The court's president, Aharon Barak, stressed the civil rights aspect. An Israeli has a constitutional right to "live with the foreign spouse in Israel and raise his children in Israel...It is his primary right," Barak stressed.
The possibility that a child would have to choose whether to live with one parent in Israel or the other in the West Bank or Gaza, "is tragic," Barak added.
He cited French, Irish, Spanish, German, Swedish, Swiss and U.S. laws recognizing a person's right to marry and have a family.
Justice Dorit Beinish indicated security ought to be compromised for the sake of democracy. "A regime based on democratic values cannot allow itself steps that would provide its citizens with absolute security. A situation of absolute security does not exist in Israel or in any other country."
Not so, countered Mishael Cheshin. "At a time of war any state may prevent the entry of enemy citizens.... The Palestinians are the enemy's citizens."
During the intifada Palestinian militants carried out 1,596 terror attacks inside Israel proper. "Six hundred and twenty six Israelis were murdered near their homes, sitting in a restaurant, or traveling in a bus, buying in a shopping mall or waiting to cross a street," Cheshin wrote.
Terrorists merge into the Palestinian society so one can know who is an innocent Palestinian, a terror activist, and who is a Palestinian who might help terror. "Many terrorists get encouragement and help from their immediate surroundings and families.... Others help...out of fear that if they do not do so they or their relatives might be hurt."
Moreover, the radical Islamic Hamas won the Palestinian elections and it opposes any peaceful settlement with Israel. It believes a jihad, or holy war, will erase Israel off the face of the earth, Cheshin added.
The Arabs suggested security authorities check each request for a family reunion. However Cheshin noted that terror organizations have asked people who passed these checks, and won residency permits because until then they had no connections with terror, to help carry out attacks.
"A person's sense of loyalty to his people and homeland is natural...powerful...and is sevenfold in case he...leaves behind parents, brothers, sisters." The danger would increase sevenfold if the Palestinian authority or gangs threaten those spouses, Cheshin added.
Justice Asher Grunis concurred. The 26 people who obtained residency papers and were caught helping terrorists, had passed Israel's security checks. That proves the checks are not full proof, Grunis wrote.
Some 1.3 million Arabs have Israeli citizenship and several judges suspected the desire to maintain a Jewish majority influenced the restrictions on family reunifications.
Since 1994 some 130,000 West Bank and Gaza Strip residents received permission to live in Israel, court records note. Their rate of growth is faster than the Jews', statisticians noted.
Judge Salim Jubran, an Arab member of the bench noted many Israeli Arabs marry Palestinians. While preparing the controversial law, Knesset members from various factions discussed its demographic implications, Jubran noted.
The Knesset's minutes show the demographic issue "hovered over the entire process of legislation," confirmed Justice Esther Hayut .
Barak disagreed. Last year the law was amended to allow in male Palestinian spouses who are at least 35 years old and women 25 or more years old, he noted.
Those criteria are based, solely, on security considerations, that the danger from such people is considerably lower than from younger ones, Barak noted.
The vote was so close that Justice Minister Haim Ramon intends to initiate legislation enshrining Israel's right to deny, "Citizens of an enemy state any (legal) status in its territory," the Haaretz newspaper wrote. That would be a "basic law," part of a future constitution that the High Court of Justice could not abrogate.
