Israel is roiled once again in sad and needless moral controversy. Rabbi Shmuel Eliyahu of Safed, son of former Israeli Chief Sephardic Rabbi Mordecai Eliyahu, and with the support of 49 other rabbis, has ruled that it is forbidden by Jewish law for Israeli Jews to sell land or rent property to an Arab. These rabbis – many of them paid by the State – maintain that such refusal to sell or rent to Arabs constitutes neither "racism" nor "discrimination" and has the added benefit of assuring that young Jewish men will neither socialize with nor "marry Arab women."
To their great credit, Prime Minister Netanyahu, Ashkenazi Chief Rabbi Yonah Metzger, the moderate and inclusive Israeli Orthodox rabbis of Tzohar, and others have protested this decree that brings such dishonor upon the State of Israel and the Jewish people. Realizing that his is not a matter to which the rabbinic phrase, "Silence is more precious than gold," pertains, these critics have rightly proclaimed that the stance of Rabbi Eliyahu and his colleagues is unjust and unacceptable by every Jewish and human standard. I applaud their protest and would offer the following reflections while joining in their chorus of dismay.
The late Chief Ashkenazi Rabbi Isaac Halevi Herzog, in his classic work, "Legislation for the State of Israel," written more than 60 years ago when a nascent Israel was struggling to survive, wrote a significant essay, entitled "The Rights of Minorities in the State of Israel." Those state-supported rabbis who issued the prohibition against Jews renting or selling to Arabs would do well to consult and be guided by his wisdom.
In contrast to Rabbi Eliyahu, Rabbi Herzog maintained that the "Torah commands again and again that there will be one Torah and one law for the stranger and the citizen in the land."
Citing the first Chief Rabbi of Israel, Rabbi Tzvi Yehuda Kook, Rabbi Herzog stated that Rav Kook, in his famous work of Jewish case law, Mishpat Kohen, ruled "that the prohibition against selling or renting land to Muslim Arabs in our day is not in force." And he then went on to say, "And I agree with him."
Furthermore, Rabbi Herzog observed that a Jewish state that would not protect the rights of its minority populations would not and should not be tolerated in the modern world. He stated that it was unthinkable that the State of Israel would not meet this foundational precondition of any democracy.
Rabbi Herzog forthrightly observed that it was impossible to believe "that one could find any rabbi among the people Israel who possesses a brain and intelligence" who would consider creating a state that would not affirm the elementary rights of its minority citizens to live and work wherever they wished. The reputation of Israel in the world "demands we exhibit such tolerance." Just treatment of gentiles – including the sale and rental of property to them in a Jewish nation – "constitutes an act of the sanctification of God’s Name (kiddush hashem) in the eyes of the nations for the Jewish people and this supersedes any other consideration."
The posture that Rabbi Herzog adopted — that it was contrary to Jewish law to practice the type of discrimination against one’s fellow human being that Rabbi Eliyahu and his supporters propose – is surely supported by Jewish teachings. Indeed, the notion that it is both illegal and immoral to refuse a person on the basis of creed or origin the right to purchase a house or to reside wherever he or she might choose to live is surely in accord with Jewish law.
This is based on Deuteronomy 23:16-17, where it states, "You must not hand over to his master a slave who has taken refuge with you from his master. He shall settle down with you, in the place that he will choose, within one of your gates where he feels best; you must not grieve him."
Commenting on this verse, the rabbinic commentary on Deuteronomy, Sifre states, "The phrase, ‘in the place that he will choose,’ means in any place where he can find a livelihood; the phrase ‘wherever he feels best,’ means that he may choose a better over a poorer standard of living."
The great rabbinic teacher, Joseph Karo, basing himself upon this passage in the Sifre, states that this teaching applies not only to a slave in regard to his master. Rather, it applies to any non-Jew who dwells among the Jewish people. And Rabbi Karo writes, "This law must be of a general nature, applying to all the citizens of the realm." He thus echoes the teachings of Maimonides who, in his great legal work, the Mishnah Torah, Laws of Gifts to the Poor 7:1, explicitly states that the "resident stranger," i.e., Arab, has the right to dwell among Jews.
There is a principle of absolute equality – of one law for all citizens without exception – that stands as the moral and legal foundation of Jewish law and teachings. "You shall not distort justice," the Torah states in Deuteronomy 16:19. And, as Numbers 9:14 states, "There shall be one law for you, for the stranger as for the citizen." To proclaim and affirm this foundational teaching of Jewish faith is an obligation imposed upon all of us who love the State of Israel.
The highest Jewish principles of tolerance and justice demand that we reject the distortions of Jewish tradition that Rabbi Eliyahu and his colleagues have put forth. Their teachings must be condemned as the defamations they are of Jewish law and the Jewish state. They have no place in a democratic Israel that protects the inherent rights of all its citizens.
Rabbi David Ellenson is president of Hebrew Union College-Jewish Institute of Religion.