The debate began when Israel was established, and there was no legal framework for defining who was a citizen, Jewish or not
Israeli kids play next to an Israeli flag next to the Israeli-Syrian border on the Israeli-occupied Golan Heights, Israel. July 23, 2018Credit: RONEN ZVULUN/ REUTERS
On Tuesday, Israel’s High Court of Justice ruled that individuals who convert to Judaism in Israel through the Reform or Conservative movement are entitled to Israeli citizenship through the Law of Return. This was another chapter in the long and convoluted history of a never-ending debate. It relates to a single question that has not been put to rest in the 73 years of Israel’s existence: Who is a Jew?
The debate began when Israel was established, and there was no legal framework for defining who was a citizen, Jewish or not. Israel did not decide this matter of principle until the passage of the Citizenship Law of 1952. Two Knesset election campaigns were held without anyone being Israeli citizens. MK Yizhar Harari of the Progressive party amply expressed his frustration over the situation in 1950: “It’s strange that we have a country and we don’t have citizens.”
Initially the Justice Ministry drafted a neutral citizenship law barring discrimination based on race, nationality or religion, making no distinction between Jews and non-Jews. “Israeli citizenship is not dependent upon belonging to the Jewish people or Jewish religion or the Jewish national movement,” the bill stated.
But MK Zerach Warhaftig, who later served as religious affairs minister from the National Religious Party, demanded that the citizenship law express the principle that Jews returning to their homeland are not just immigrants like any other immigrants. Regarding the tension between equal rights between Jews and Arabs and the Zionist vision of the ingathering of the exiles, Warhaftig demanded “special treatment for the aliya of the Diaspora of the Jewish people and their becoming citizens.” He didn’t hesitate to acknowledge he was seeking “discrimination between Jews and non-Jews,” but he said it was “open, clear and defined discrimination.”
That paved the way for two pieces of legislation, the 1950 Law of Return and the 1952 Citizenship Law. The problem began when the Law of Return stated that every Jew was entitled to immigrate to Israel without defining who was a Jew. The Citizenship Law provided in turn that citizenship was conferred – first and foremost – by virtue of the Law of Return. Basically, the two laws provided that any Jew who wished so could acquire Israeli citizenship. They just forgot to decide who was a Jew.
The laws did not lack for lofty ideals, as noted in the Citizenship Law’s explanatory notes: “The special fact of a people gathering its dispersed and returning to its historic homeland is expressed in this law through the provision conferring automatic Israeli citizenship upon the immigrant based on the Law of Return – meaning every Jew who comes to Israel and permanently settles there and every Jew born there. They become citizens of the Jewish state by virtue of their being Jews and being natives or residents in their land and their state.”
So who in fact is a Jew? A child of a Jewish mother? Is perhaps having a Jewish father sufficient? Or maybe someone who feels Jewish or claims they are Jewish? Or perhaps only those who observe Jewish religious ritual?
Israel’s third interior minister, Israel Rokach, decided in the early 1950s that “religion and nationality would be registered according to the declarations of the child’s parents.” In other words, if a person declares their child to be Jewish, the child is Jewish. A few years later, Interior Minister Israel Bar-Yehuda added this qualification: “A Jew is someone who in good faith declares they are a Jew.” He later added: “A Jew is someone who in good faith declares they are a Jew and are not a member of another religion.”
As expected, the issue very quickly found its way to court. In 1962, a man named Shmuel Oswald Rufeisen – better known by his Christian name, Brother Daniel – challenged the system. He was born Jewish in Poland in 1922, survived the Holocaust under a false identity as a Christian and ultimately converted to Christianity and became a Catholic monk. In 1958, he came to Israel and asked for new immigrant status and to be registered as Jewish.
The Interior Ministry refused to recognize him as Jewish because, by religion, he was Christian. In a petition to the High Court of Justice, he claimed that although he had been baptized as a Christian, from the standpoint of his national identity, he had never stopped viewing himself as a Jew.
As far as the Law of Return is concerned, the question was whether being Jewish could include someone who converted to another religion and was baptized a Christian – but viewed himself as Jewish and felt Jewish. The issue was even more complicated than it appeared. According to Orthodox Jewish religious law, halakha, Brother Daniel was still considered Jewish after he converted to another religion. But in terms of nationality, the justices ruled, he was not considered Jewish – because it is impossible to convert to Christianity and still be publicly called a Jew.
Brother Daniel’s petition was denied. Based on the national-secular test that the High Court established for purposes of the Law of Return, a Jew could be an atheist, but couldn’t be a member of another religion.
“I’ve gone through everything in my life and I no long fear death,” Brother Daniel later said. “I’m afraid of the memory [of me]. I don’t know whether you will judge me harshly or mercifully, but of all the things that you know about me, I want you to remember that I was born a Jew, and I died a Jew.”
Six years later, the issue was again in the headlines over another petition to the High Court. Benjamin Shalit, an naval officer, asked to register his two children as having no religion while having Jewish nationality. His non-Jewish wife described herself as not having a religion. He filed the petition after the interior minister declined his request.
The High Court granted his petition, ordering the interior minister to leave the space for religion blank and to list his children’s nationality as Jewish – based on their father’s declaration. The justices ruled that the term “Jew” in the law’s nationality provision should not be accorded a religious interpretation, because it was secular in substance. Thus, anyone declaring themself Jewish and not a member of another religion would be registered as Jewish.
To avert a government coalition crisis, the Law of Return was amended in 1970 to state that a Jew under the law is anyone “born to a Jewish mother or who was converted and is not a member of another religion.” Did that settle it? Not at all.
That’s where this week’s High Court conversion case enters the picture. The 1970 amendment may have defined who was a Jew, more or less, but it didn’t define what conversion meant. Was it only Orthodox conversion or did it also include conversions through other Jewish denominations?
Over the years, Reform and Conservative conversions outside of Israel were recognized for purposes of citizenship under the Law of Return. Since 2002, such conversions conducted in Israel have also been sufficient to have the converts registered as Jewish in the Interior Ministry’s Population Registry.
Now the High Court has extended this definition and has ordered permitting those who have had non-Orthodox conversions in Israel to receive Israeli citizenship under the Law of Return – a step that is seemingly only technical and bureaucratic, but is actually a direct continuation of a long line of developments that began in 1948.
And it will continue for the unforeseeable future. Still to be decided, for example, is recognition of a marriage performed in Israel between a Jew and a Christian.