FASTEN YOUR SEAT belts. I am about to take you on a wild and challenging ride. This chapter deals with the legal conflicts within Israel over who is a Jew.
For most American readers this will be a journey into unfamiliar territory. It’s hard to imagine Congress passing a law defining who counts as a Jew and even harder to imagine how such a law would pass constitutional muster.
But Israel is different. There, a person’s status as a Jew affects issues central to civic life: whether she can come to Israel and become a citizen, whether and how she can marry and divorce, how she must register with the state her nationality and religion, and where she can be buried.1 For Americans, who treasure respect for religious pluralism and a constitutionally mandated separation of church and state, the status of religion and state in Israel is complicated and difficult to understand.2
The central tension that drives this story is between secular Israelis, who have typically favored flexible interpretations of who counts as Jewish, and Orthodox Jews, who have pressed for narrow halachic definitions. These two groups have been fighting for control of the steering wheel since Israel’s founding, and the conflicts have involved every branch of government.
The reason to examine Israel’s experience is because there is much to learn from Israel’s struggles in trying to decide who is entitled to membership in the tribe. It is not because Israel has found a single right answer to who a Jew is—it hasn’t. Nor can Israel’s answers provide a model for America. Nevertheless, I’ve discovered some lessons in Israel’s struggles that I’ve found useful in developing my own standard.
As a first step in our journey, let me describe the three different contexts in which the question “Who is a Jew?” matters in Israel. These three contexts constitute the legal framework that has been in place since the state’s early days.
1. Homecoming and Citizenship. At the heart of the Zionist project was the notion of the “ingathering of the exiles” (Kibbutz Galuyot)—the idea that the Jewish people deserved a state of their own as a refuge from discrimination and hostility.3 Israel’s Declaration of Independence boldly stated this purpose: “THE STATE OF ISRAEL will be open for Jewish immigration and for the Ingathering of the Exiles.” Consistent with this idea, the 1950 Law of Return gives “every Jew” anywhere in the world a right to immigrate to Israel as an oleh (someone who makes Aliyah, the migration to Israel). Under the 1952 Citizenship Law any oleh qualifies for citizenship automatically and is eligible for resettlement subsidies. Non-Jews, by contrast, face a much more onerous process: they must receive permission to immigrate, and they have no automatic right to become citizens. Among other things, they must learn Hebrew and live in the country for at least three years before they can even become eligible.
2. Personal Status Issues. In matters of marriage and divorce, all Jews—whether observant or not—are subject to the exclusive jurisdiction of the Rabbinical Courts, manned by Orthodox rabbis who apply traditional religious law.4 To marry in Israel, the couple must satisfy the rabbinate that both are Jewish, and a rabbi must officiate in a religious ceremony. There is no civil marriage. As a result of these restrictive rules, many Israeli Jews either get married outside of Israel or simply live together without marriage.5 One’s halachic status as a Jew also controls whether one can have a Jewish funeral and where one can be buried.6
Let’s pause a moment to appreciate the contradictions here. Given the secular roots of the Zionist movement7 and the large number of nonobservant Jews in Israel, how in the world did the Orthodox rabbinate get control of marriage, divorce, and burial? The explanation lies in history: a political deal that David Ben-Gurion, soon to become the first prime minister of Israel, made in May 1947, shortly before the new State of Israel was formed.
In 1947 the UN was considering dividing Palestine to create a Jewish state and an Arab state. The UN Special Committee on Palestine sent representatives to the region to investigate whether the Jewish and Arab communities were each capable of establishing an independent state. Ben-Gurion wanted the various Jewish groups in Palestine—religious and secular—to present a united front to the UN representatives.
A tiny ultra-Orthodox religious party, Agudat Yisrael, didn’t seem fully on board with Ben-Gurion’s plan. Its members worried that if a new Jewish state were formed, it would be so secular that it would erode the role of religion. Ben-Gurion feared that without some sort of deal, this religious minority might undermine his delicate negotiations with the UN. To buy off this small political party, Ben-Gurion wrote a letter promising to maintain the “status quo”8 with respect to certain issues. Among other things, Ben-Gurion promised that once the new state was established, it would retain the so-called millet system used by the Ottoman Empire and continued by the British, which delegated control over marriage and divorce standards to the religious communities (Jewish, Christian, and Muslim).9
The implementation of this so-called status quo deal was to produce, in the words of the Hartman Institute’s Micah Goodman, “a spectacular irony: the state created by secular rebels now enshrined religious legislation; the state conceived as a revolt against religion betrayed elements of religious coercion.”10 As we shall see, this concession, which may have seemed modest to Ben-Gurion at the time, would have significant repercussions.
3. Registration and Identity Cards. In 1949 Israel enacted the Registration of Inhabitants Ordinance, which required every person, citizen or not, who lived in Israel for more than thirty days to register his or her nationality, religion, marital status, and other personal details. Each resident received an identity card containing this information.11
The meaning of nationality in Israel is a direct product of Zionism. It refers to one’s ethnicity or people, not citizenship. Jew, Arab, and Druze are among the different choices. This notion of nationality is a pre-modern one, foreign to Americans. If I were asked my nationality, I would never say Jew. I would say “American” because I am a US citizen. In Israel no one is allowed to register his nationality as Israeli.12
Religion is a separate matter—for example, Jew, Christian, or Muslim. In other words, for registration purposes in Israel, being a Jew is both a religion and a nationality.13
IN ISRAEL’S EARLY DAYS all three sets of laws used the word Jew, but none of them defined it. For personal status issues, since the rabbinate was in charge, it was commonly understood that the rabbis would apply the matrilineal standard, which required a Jewish mother or conversion to Judaism. But the two secular laws, the Law of Return and the Registration Ordinance, which reflected Zionist notions of a Jewish people, left the issue open to administrative interpretation. I suspect the Knesset, the Israeli national legislature, hoped to avoid the inevitable conflict that would arise if this sensitive issue had to be addressed head-on. That hope would be in vain.
The Ministry of the Interior had the task of administering the two secular processes: immigration and registration. During Israel’s first decade the Ministry adopted an informal policy of simply accepting as Jewish virtually anyone who declared himself or herself a Jew. If you stated on an application that you were Jewish, that was good enough for the Ministry—no questions asked.
The effect of this lenient policy was to allow families of mixed heritage to enter and become fully integrated into Israeli society. For example, a Jewish man who was a Holocaust survivor could come to Israel with a non-Jewish wife and their children, and all of them could register as Jews. After the tragedy of the Holocaust, “bickering about ‘who is a Jew?’ appeared tasteless and inappropriate,” according to the scholars Asher Cohen and Bernard Susser.14 Israel was eager to expand its Jewish population, and if a person was willing to throw his or her lot in with the “young state struggling with difficulties and hurdles,” as the distinguished Israeli law professor Ruth Gavison puts it, he or she was welcome to do so.15
For several years this system worked without much controversy. But in 1957 a bureaucrat in the registration department of the Ministry of the Interior—a member of the National Religious Party (NRP), composed of religiously observant Zionists—objected to simply taking an applicant’s word that he or she was Jewish. This low-level administrator thought that an immigrant’s claim to being Jewish should be subject to proof that the applicant had a Jewish mother.16
The Minister of the Interior, Israel Bar-Yehuda, disagreed with this suggestion. Bar-Yehuda issued a formal directive spelling out the policy on nationality: “An individual who in good faith declares that he is a Jew, will be registered as a Jew, and no additional proof will be required.”17 Particularly controversial was a second aspect of the directive, which provided that all parents, including intermarried couples, could register their child’s nationality and religion based on the parents’ own declaration.18 In issuing this directive, the Interior minister relied on an opinion of the Israeli attorney general (at the time Haim Cohn, who later became a Supreme Court justice), which explicitly acknowledged that the definition of a Jew under secular statutes did not have to match the religious law definition. “It is inevitable,” the attorney general had written, “that at times the religious determination will be different in content and nature from the secular determination.”19
Once the registration policy was set in black and white, it provoked a political firestorm.
The Orthodox religious groups objected to the self-declaration policy for obvious reasons: it was inconsistent with traditional religious law. Without a Jewish mother, according to halacha, a person can become Jewish only through a formal religious conversion controlled by a rabbi. Bar-Yehuda’s directive made explicit the possibility that a person could be registered as having a Jewish nationality and thereafter claim to be Jewish when, according to halacha, they were not. The Orthodox feared this approach would divide the Jewish people into two groups: one group would meet the halachic standard but the other would not. No longer could any Jew assume he or she was free to marry any other Jew. Indeed, the Orthodox groups argued, the government’s willingness to register as Jewish a person without a Jewish mother risked legitimating intermarriage.20
Two members of the NRP, who were ministers in Ben-Gurion’s cabinet, demanded that the standard for Jewish nationality be debated in a cabinet meeting. They got their debate but not the result they wanted. Only one uncontroversial clause was added to the directive: that to be registered as a Jew, you could not be a “member of another religion.”21 In protest, the two NRP ministers withdrew their support for Ben-Gurion’s government, prompting a political crisis.
Ben-Gurion managed the conflict as best he could. He appointed a cabinet committee to draft guidelines for the registration of children of mixed marriages. That effort produced no agreement. Hoping to find a path forward and perhaps provide some political cover, Ben-Gurion’s government next asked a cabinet committee to consider “statements of opinion by Jewish scholars in Israel and abroad.”22
In October 1958 Ben-Gurion wrote a letter seeking advice from eminent rabbis, scholars, and jurists drawn from both Israel and the Diaspora. The goal, he wrote in lofty language, was “to formulate registration rules ‘in keeping with the accepted tradition among all circles of Jewry, orthodox and non-orthodox of all trends, and with the special conditions of Israel, as a sovereign Jewish State in which freedom of conscience and religion is guaranteed, and as the center for the ingathering of exiles.’”23 Ben-Gurion’s letter posed the following specific question: “How to register under the heading of ‘Religion’ and ‘Nationality’ children born of mixed marriages, when the father is a Jew and the mother is not a Jewess and has not become converted as a Jew… but both she and the father agree that the child shall be Jewish?”24
An impressive cast of fifty luminaries responded, including Isaiah Berlin, the Latvian-British social and political theorist; and Rabbi Mordecai Kaplan, a founder of the American Reconstructionist movement. It was, of course, preposterous to think anyone could come up with registration rules “in keeping with the accepted traditions among all circles of Jewry.” Remember the expression, “Ask two Jews, get three opinions”? The views from this group were all over the lot.
But the effort did produce a clear majority view, if not a consensus. Most respondents suggested relying on traditional Jewish law for the answer: for both nationality and religion, a child should be registered as a Jew only if the child’s mother was Jewish, absent a religious conversion.25 This outcome wasn’t surprising given the composition of the group: nearly half the respondents were rabbis, and all but one favored the traditional standard.
A spirited minority argued against that view.26 On what ground? They really struggled to articulate a secular standard for nationality. Some argued that because Israel was a modern secular state, a religious law standard was not necessary and flexibility on the issue was desirable. Berlin fell into this camp.27 A few supported the self-declaration standard on the ground that parents should have the right to decide the nationality of their children.28 Others, including Kaplan, insisted that children of mixed marriages be registered as Jews, perhaps under a new category of “Jewish resident.”29
Once the results were in, Ben-Gurion conceded defeat on the issue and the Interior minister’s directive was canceled. In December 1959, after an election, Ben-Gurion formed a new government and appointed a member of the NRP as minister of the Interior,30 essentially handing control of the issue to the religious right. The new Minister of the Interior moved quickly to make the matrilineal definition official. A month after he was appointed, in January 1960, he issued a new directive: for registration purposes, a Jew was “one who was born to a Jewish mother and did not belong to another religion, or who has converted according to Halacha.”31
There was still plenty to fight about, however. The directive did not change the underlying statutory language relating to registration, nor did it apply to the Law of Return or citizenship standards. So it was only a matter of time before somebody sued. In the 1960s the matter of who was a Jew went to the Israeli Supreme Court in two controversial cases. The first involved a Catholic priest, born a Jew, who desperately wanted to be considered a Jew for purposes of both the Law of Return and registration of nationality. The second case involved the registration of children with a Jewish father but a non-Jewish mother. As a result of these decisions, the Knesset would be forced into action.
Brother Daniel was a Catholic priest with a perfect Jewish bloodline: both of his parents were Jewish. He was also a Holocaust survivor. Had he simply been an atheist—that is, a Jew with no religious convictions—he would have sped through the citizenship and registration processes without a hitch. But before reaching Israel he had converted to Catholicism and even become a priest. For purposes of citizenship and registration, could he still be a Jew? This was the issue posed by Oswald Rufeisen v. Minister of the Interior, commonly called the Brother Daniel case.32 It was the first legal challenge to both the Law of Return and the Registration of Inhabitants Ordinance.
Oswald Rufeisen was born in 1922 in Zadziele, a village in southern Poland. His parents kept a kosher home. His parents spoke German at home and sent him to a Jewish school where classes were taught in German.33 As a teenager he became fervently involved in the Zionist youth movement and made plans to become a “pioneer” who would help build a new Jewish state in Palestine. When he was seventeen, however, those plans were interrupted by the German invasion of Poland.
He survived the war by relying on his wits and his fluency in German. He was arrested by the Gestapo but escaped. Using forged documents, he began to pass himself off as a Christian of Polish nationality and German ethnicity. He found work with the police chief of the city of Mir, Belarus, who was working under Nazi direction and needed a translator.34 Later Rufeisen became the official secretary of the police station, where he took advantage of his position to gather information and help Jews. When he learned of the Nazis’ plans to wipe out the city’s Jews, he organized a massive escape from the ghetto: around three hundred Jews fled with his help, armed with German weapons he had smuggled to them.35 The Germans discovered his treachery and arrested him, but he escaped once again, this time taking refuge in a Catholic convent.
While at the convent Rufeisen converted to Catholicism. As he later told his biographer, a spiritual need to make sense of the Holocaust inspired his conversion. In Jesus, he said, he saw “a crucified Jew who through his crucifixion offers redemption.”36 In 1943 he left the convent to join the Polish partisans fighting the Nazis.
After the war Rufeisen returned to the monastery and became a Carmelite monk—Brother Daniel—and then a priest, officially ordained in 1952. After serving in a parish, he returned to a Carmelite monastery. But Brother Daniel never stopped thinking of himself as a member of the Jewish people. He publicly identified himself as both Jewish and Catholic and remained a devoted Zionist.37
Brother Daniel yearned to go to Israel to help build the Jewish state. After becoming a priest, he periodically applied to Church authorities to be transferred to a Catholic monastery in Israel, but his requests were denied. The determined priest didn’t give up. Finally, in 1958, the Church authorities authorized his transfer to a Carmelite monastery in Haifa.38
With the Church’s transfer in hand, his next challenge was to secure an exit visa from the Polish government. This was no easy task because the Communist government severely restricted foreign travel. But in the late 1950s, eager to rid itself of its few remaining Jews, Poland was facilitating Jewish emigration.39 Brother Daniel applied for an exit visa, writing that he loved Poland “with all my heart,”40 but because of his Zionist upbringing, he considered it his duty to go to Israel and help build a state for his Jewish people.41 The Polish authorities allowed him to leave Poland as a Jew, but only on condition that he give up his Polish citizenship.42
The final hurdle was to get permission from the Israeli ambassador to Poland to immigrate to Israel as a Jew. The ambassador said, “I cannot give you a visa as a Jew,” citing uncertainty and disagreement in Israel over whether a Catholic convert would qualify.43 Instead, the ambassador eventually arranged for a temporary visa allowing a one-year stay in Israel.44 Thus, in the hope of living permanently in Israel, Brother Daniel took the perilous step of severing his links to Poland, becoming stateless, and entering Israel on a temporary visa.
Once in Israel, Brother Daniel applied to immigrate as a Jew under the Law of Return and to be registered as a Jew by nationality and a Catholic by religion. The Ministry of the Interior refused both the immigration and registration requests, pointing to its directive on registration that to be a Jew, one could not be “a member of another religion.”45
Brother Daniel appealed to the Israeli Supreme Court, making three arguments: (1) that the Law of Return contained no legislative definition of who was a Jew, (2) that he was a Jew under traditional Jewish law, and (3) that he had demonstrated a lifelong commitment to the Jewish community, the Zionist project, and the State of Israel.46
In 1962 a divided court ruled against Brother Daniel, four to one, holding that neither the Law of Return nor the Registration Ordinance could embrace a Jew who had converted to Christianity.47
Two members of the majority were clearly distressed by the outcome. Justice Moshe Silberg, the author of the majority opinion, wrote that the case caused him “great psychological difficulty”48 because he felt “deep sympathy and great sense of obligation”49 to Brother Daniel, who had demonstrated an abiding commitment to the Jewish people and Israel and a desire to be “identified with the people which he loves.”50 Justice Zvi Berenson expressed similar admiration for Brother Daniel:
An exceptional man, for whom material comforts and worldly pleasures have no attraction, he is a Jew by birth and as a Jew he grew up, suffered and conducted himself. Even after embracing Christianity, he did not spurn his people. Of himself he says, and his deeds prove it, that in consciousness he remained a Jew in the national sense, and he claims that nothing in the Christian faith which he has embraced prejudices his belonging nationally to the Jewish people.… Even after he became a Christian he never ceased both by inner conviction and in external manifestation to regard himself as a national Jew bound heart and soul to the Jewish people.51
Justice Berenson added that if he had felt free to “follow my own inclination” rather than interpret the law, he would have ruled in Brother Daniel’s favor.52
For those who wonder how the court could have ruled against Brother Daniel, the justices’ reasoning provides a glimpse into the fluid world of legal interpretation. Four justices wrote opinions in this case, and each opinion reveals a different approach to interpreting the meaning of a word that had not been explicitly defined in the statutes.
The first issue the court had to decide was whether, for purposes of the Law of Return and the Registration Ordinance, the word Jew should be interpreted according to religious law standards. All five justices agreed that religious law standards should not control because the laws in question related to secular matters. Unless the Knesset stated a clear intention to apply religious law to such legislation, the justices said, the court lacked the authority to do so.53
If halacha did not control, the more difficult issue was: How should the word Jew be interpreted? The justices were in uncharted territory now; the Knesset had never offered any guidance on the matter. Although four justices managed to agree on the result, their paths differed and their struggle is evident.
Justice Silberg favored an “ordinary meaning” standard: What would the Jew on the street think? Silberg thought the answer was “sharp and clear—a Jew who has become a Christian is not deemed a ‘Jew.’”54 In reaching this conclusion, however, Silberg offered no evidence of such a consensus: no poll, no survey, not even an indication that Silberg had put the question to his neighbor. To bolster his argument, Silberg cited what I consider to be a non sequitur: the historic persecution of the Jews by the Catholic Church. “Although the Church has both in theory and in practice ceased to be our mortal enemy,” he wrote, “it can no more deny its past than we can deny ours, and a Jewish Catholic will forever remain a contradiction in terms.”55
Justice Berenson agreed with Silberg that the term Jew should be interpreted according to its “popular meaning”—again without offering any evidence of consensus. A Jew who has changed his religion is “lost to the nation,” Berenson wrote dramatically. “His family mourn for him, rending their clothes, as they would for someone who had really died. All ties with him are broken as if he were indeed dead.”56 Most Jews would agree, Berenson said, that “a Jew and a Christian cannot reside in one person and certainly not a Jew who is a Catholic priest—to them that would be a contradiction in terms.”57
Justice Moshe Landau took a different approach, somewhat akin to a heresy argument applied to ethnicity. By converting to Catholicism, Landau wrote, Brother Daniel had deliberately “denied his national past” and “erected a barrier between himself and his brother Jews.”58 Landau also scoffed at the idea that Jewishness might be based solely on a good-faith declaration: “It was certainly never intended by the Legislature that any person might declare himself to be a Jew for purposes of the Law of Return and, at his pleasure, be a Jew or cease to be a Jew according to his ever-changing mood.”59
The lone dissenter was Justice Haim Cohn, who argued that Brother Daniel should have prevailed on both the immigration and registration issues. Cohn began by asserting that because the Law of Return didn’t explicitly exclude converts to other religions, the law “must be construed and applied as it stands literally, without attributing to the term ‘Jew’ any religious significance or qualification.”60 Absent an explicit legislative definition, Cohn claimed, a good faith self-declaration should suffice because the Knesset had not excluded this possibility. He further argued that it is not the job of Interior Department bureaucrats to investigate the basis of the applicant’s claim or assess their good faith. He concluded that, on the facts of this case, there could be no doubt that Brother Daniel’s declaration that he was a Jew had been made in good faith. (However, the opinion never addressed how the “good faith” of other immigrants could be assessed if authorities could never look behind the declaration.)
If I had been on the Israeli Supreme Court, I would have dissented but on different grounds. First, as American law professor Marc Galanter has pointed out,61 the majority opinion did not address which “ordinary usage” of the word Jew should apply to Brother Daniel. (Indeed, the majority didn’t even acknowledge that more than one “ordinary usage” might exist.) As the responses of Jewish intellectuals to Ben-Gurion’s letter had demonstrated, contemporary Jews had many different views on who should count as Jewish. Whose view should count, and why? Second, like Galanter, I am troubled by a logical inconsistency in the ruling. Under religious law a Jew by birth who has no religious beliefs is still a Jew. If beliefs are irrelevant, then why should a Jew by birth be disqualified for having the “wrong” sort of religious beliefs?62
My approach to this problem would have been to ask: What was the purpose of the Law of Return? What was the Knesset’s goal in keeping the definition of Jew wide open? As I mentioned in the previous chapter, one goal—the bedrock purpose of Zionism—was to offer any Jew, anywhere in the world, a refuge from persecution. Another goal was to encourage Jews to move to Israel—instead of, say, the United States—by offering them a fast-track immigration process that included interfaith couples, their children, and virtually anyone else with ties to the Jewish people. Did Brother Daniel qualify as a Jew for either of these purposes? I think he qualified for both. If the Nazis had discovered Brother Daniel’s Jewish heritage, they would have killed him. He had strong ties to the Jewish people: he was ethnically Jewish, he was a lifelong Zionist, he had bravely risked his life to save Jews during the Holocaust, and he had given up his Polish citizenship to move to Israel. The only question left: Was his conversion to Catholicism such a grievous offense that it should negate all these factors? I see no logical reason to set up the “Jew on the street” as some kind of secular authority on immigration law, much less to assume that Israeli social norms precluded Brother Daniel from being classified as ethnically Jewish.
I acknowledge, of course, that Israel, as a sovereign state, has the right to decide for itself who qualifies for special immigration rights and nationality. It pleases me that in the end Israel allowed Brother Daniel to become a citizen—not as a Jew under the Law of Return but under the standard for naturalization. However, Brother Daniel was never fully satisfied with this outcome. As he once said, rather bitterly, “I am just an Israeli. Jewish national belonging was denied to me.… In my identity card, opposite to the word ‘nationality’ it says ‘turn to page 10’ where the all-powerful official wrote ‘Nationality: Not clear.’”63
Brother Daniel spent the rest of his life at Stella Maris, a Carmelite monastery in Haifa. There he always introduced himself as a “Jew of Catholic religion.”64 This didn’t make life easy for him. He never completely fit in at the monastery, where he was considered “the convert,” and although he was warmly embraced by a large group of survivors who had fled the Mir ghetto and made it to Israel,65 the larger Jewish community never fully accepted him. He spent the rest of his life trying to create a bridge between Judaism and Christianity. He conducted Mass in Hebrew and supported Hebrew-speaking Christians, including the spouses of Jews. Once, when asked whether he would ever return to Judaism, he replied, “But how can I return? I never left!”66 He died in 1998, leaving a will in which he had included this parting note: “I don’t know if I am to be doomed or spared, but from all the things you may know about me, I would like you to remember that I was born a Jew, and died a Jew.”67
Not many Jews convert to Catholicism, become priests, and publicly declare they are Jews.68 A much more common situation involves a mixed marriage where a child with a Jewish father but no Jewish mother wants to be identified as a Jew. This was the basis of the Shalit case, which, unlike the Brother Daniel case, was seen as a profound threat to the matrilineal standard. The case led to an unexpected Supreme Court ruling that provoked an intense political controversy.
Major Benjamin Shalit, a naval officer in the Israeli military, was born in Israel to Jewish parents. In 1958, while in Europe, Shalit met and subsequently married Ann Geddes, a Scottish woman with a non-Jewish mother and a Jewish father. Geddes never converted to Judaism and did not identify with any religion. The couple moved to Israel, where they had two children. Because both children were born in Israel and their father was Israeli, they automatically acquired Israeli citizenship.
Ann and Benjamin considered themselves atheists. In 1968 the Shalits tried to register their children’s nationality as Jewish while leaving the religion category blank. The Ministry of the Interior was willing to leave the religion category blank, but it rejected their application with regard to nationality. Citing the directive of 1960, the Ministry ruled that neither child could register as a Jew because their mother was not Jewish; instead, “nationality” should be left blank for each child.
Shalit challenged that decision in the Israeli Supreme Court. It was the first legal challenge to the directive’s narrow religious standard for nationality. Given the court’s reluctance to give an expansive definition of Jew in the Brother Daniel case and the clarity of the directive, one might have expected a short, straightforward ruling in which the court simply affirmed the Ministry’s decision.
Instead, the court split five to four in Shalit’s favor, ignoring the directive and ordering the Ministry to register the children as having a Jewish nationality. It was a stunningly liberal result, but not because the majority held liberal views on who was a Jew. To the contrary, the Court was in complete disarray, producing nine separate opinions, none of which represented the views of a majority. The closest the Court could come to agreement was this conclusion by three justices: that only the Knesset—not the Ministry—had the power to require that religious law be applied to a secular statute.69 The five-man majority agreed only on the result, not the reasoning.
The Shalit ruling did not stand for long. In 1970, prompted by the NRP, the Knesset amended the Population Registry Law. As a result, the Shalit’s third child, born in 1972, could not be registered as having a Jewish nationality because the child was not “born of a Jewish mother.” The Shalits tried to appeal the Ministry’s decision, but this time the Supreme Court, citing the amendment, declined to hear the case.
At the same time, the Knesset amended the Law of Return. As a result, both secular laws contain the same explicit language: a Jew is “a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion.” But at the same time as it narrowed the definition of Jew, the Knesset added new categories to the Law of Return to welcome family members who would not otherwise qualify. These categories included spouses of Jews, children of Jews (and their spouses), and grandchildren of Jews (and their spouses). Indeed, the amended Law of Return in one respect adopted a Nazi definition—a person with one Jewish grandparent (and no other connection to the Jewish world) qualifies under the Law of Return.
To this day the standard for immigration and automatic citizenship under the Law of Return remains far broader than the traditional religious law definition of a Jew. These important rights are extended to persons who have significant familial ties to the Jewish people, even though they do not themselves qualify as Jews by birth under the matrilineal rule. Why did Israel do so? Presumably because these persons have a sufficient connection to and identification with the Jewish community to be welcomed.
ANYONE WHO LOOKS TO the State of Israel for a neat and coherent answer to the question of “Who is a Jew?” will be disappointed. On the one hand, Israel was unable to develop a secular definition of Jew. On the other hand, the religious right has not always gotten its way. The Orthodox rabbinate and the religious political parties have achieved some successes, but so have secular forces. The story involves more than a one-way trend from the flexible self-declaration test to a strict halachic standard. Stubborn social realities have made it impossible for religious law standards to be applied in every case. Israel is not a theocratic state.
With regard to personal status issues, for example, Israeli law initially appeared to recognize only religious marriages and to give the rabbinical courts a monopoly in this realm. But over time the secular courts have created more liberal options by recognizing civil marriages performed outside Israel and cohabitation outside of marriage.70
The push and pull between secular and religious forces has played out in the other contexts as well. In its approach to the Law of Return, Israel has managed to broker a grand compromise. Since 1970 the law has included a definition of Jew that satisfies the rabbinate while also embracing family members who don’t meet halachic standards. Since 1989 this solution has allowed Israel to welcome more than a million immigrants from the former Soviet Union, about 25 percent of whom would not be considered Jewish by the Orthodox rabbinate. Some have since converted to Judaism, but many have not.
Israel now counts among its citizens several hundred thousand “non-Jewish Jews”—those who lack a Jewish mother, have never undergone an Orthodox conversion, and who remain nonreligious. They are well integrated into the large nonreligious Jewish segment of Israeli society. They think of themselves—and are widely accepted—as loyal citizens of the Jewish state. Their day-to-day lives are no different from those of secular Israeli Jews, who number in the millions.71
Now let’s return to the question of who should count as a Jew in America. In no sense should the Israeli experience be seen as controlling; I’m not about to suggest that the matrilineal principle should win out in our country. Israel and the United States are too different politically and socially for one to serve as a map for the other. In Israel, even the most secular Jew lives in a country where Hebrew is the national language, Jewish holidays are national holidays, and citizens are called upon to risk their lives to defend the continuing existence of the Jewish state. There, the fundamental challenge is political: how to remain a Jewish state with democratic values in the face of severe security threats. In America, by contrast, where most Jews don’t live in a “thick” Jewish environment, the core challenge is social and personal: how to maintain a thriving Jewish community and a strong individual Jewish identity in a culture where Jews are a tiny, well-integrated minority, intermarriage has become the norm, and religious commitment is thin.
But four lessons from the Israeli experience are worth noting.
• The meaning of the word Jew can vary by context and change over time. Being Jewish for some purposes can be defined differently from how it is defined for other purposes.
• Even in Israel, the Jewish homeland, halachic standards for who is Jewish are not fully controlling.
• Public self-identification was for a time treated as a legitimate test of who counts as a Jew.
• Ethnic identity may be different from religious identity; a Jew by birth might continue to identify with the Jewish people even after converting to another religion.