The "Who Is a Jew?" Controversy

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The predominance of halakah and religious courts in adjudicating matters of personal status--and for that matter, the privileged position of the Orthodox minority in Israeli society--date back to arrangements worked out between the Orthodox and Labor Zionists on the eve of statehood. In June 1947, the executive committee of Agudat Israel received a letter from Ben-Gurion, then chairman of the executive committee of the Jewish Agency, who was the predominant political leader of the Yishuv. Ben-Gurion, wishing to have the support of all sectors of the Yishuv in the dire struggle he knew was soon to come, asked Agudat Israel to join the coalition that would constitute the first government of the State of Israel. In return for Agudat Israel's support, Ben-Gurion offered a set of guarantees relating to traditional Judaism's place in the new society. These guarantees formalized the customary arrangements that had developed in Ottoman times and continued through the British Mandate; hence they came to be known as agreements for the "preservation of the status quo."

The core of the status quo agreements focused on the following areas: the Jewish Shabbat, Saturday, would be the official day of rest for all Jews; public transportation would not operate nationwide on Shabbat and religious holidays, although localities would remain free to run local transportation systems; kashrut would be maintained in all public institutions; the existing religious school system would remain separate from the secular one but would receive funding from the state; and rabbinical courts applying halakah would decide matters of personal status. Both Agudat Israel and the Zionist Orthodox party, Mizrahi (later the National Religious Party), accepted the agreements and joined the first elected government of Israel in 1949.

Ben-Gurion's concern that a more-or-less united Israel confront its enemies was answered by the status quo arrangement. But this arrangement--particularly the educational and judicial aspects--also set the stage for conflict between Orthodox and secular Jewish Israelis. This conflict became quickly apparent in the wake of the first flood of Jewish immigration to the new state and as a direct result of one of the first laws passed by the new Knesset, the Law of Return.

The Law of Return, passed in 1950, guaranteed to all Jews the right to immigrate to Israel. Along with the Nationality Law (1952), which granted Israeli citizenship to people (including non-Jews) who lived in the country prior to 1948, the Law of Return also extended to Jewish immigrants (unless they specifically deferred citizenship or renounced it) immediate Israeli citizenship. Non-Jewish immigrants could acquire citizenship through a slower process of naturalization.

The problem of what constitutes Jewish "nationality" (leom) was essentially new. Before the modern era, one was a Jew (in the eyes of Jews and gentiles alike) by religious criteria; to renounce the religion meant renouncing one's membership in the community. In modern nation-states membership (citizenship) and religion were formally and, it was hoped, conceptually independent: one could be a British, French, or American citizen of the "Jewish persuasion." But the modern State of Israel presented special opportunities to Jews--the right to settle in the country and claim Israeli citizenship as a right, in Ben-Gurion's words, "inherent in being a Jew." With these opportunities have come problems, both formal and conceptual, about the definition of "a Jew."

A halakic definition is available: a Jew is one who is born of a Jewish mother or who converts according to the halakah. The traditional criteria thus consist of biology (descent) and religion. In a sense, biology dominates religion, because, according to halakah, someone remains a Jew if born of a Jewish mother, even if he or she converts to another religion, although such a person is referred to as "one who has destroyed himself."

Another problem is that of defining "nationality". Such an issue is of concern to a modern state and its minister of interior. Moreover, a modern state is interested in the nationality question as part of the determination of citizenship, with all its associated rights and duties. The Orthodox, however, are less concerned with nationality as a guide to citizenship and more concerned with nationality as it determines proper marriage partners, with the attendant legitimacy of children. In Orthodox Judaism an illegitimate child (mamzer; pl., mamzerim) is severely limited in the range of permissible marriage partners; the children of mamzerim are ("even to the tenth generation," according to Deuteronomy 23:2) themselves illegitimate. Furthermore, a woman who has not been divorced according to halakah will have mamzerim as the children of subsequent marriages. Rabbis would never knowingly sanctify the marriage of improper or forbidden partners, nor would such improper unions hold up in rabbinical courts. For the Orthodox, therefore, to know, as assuredly as one can, the status of a potential marriage partner as a "full and proper" Jew is crucial. Any doubts, even in principle, would have the effect of dividing the Jewish community into endogamous groups, that is, groups that would marry only within the confines of assurance against bastardy (mamzerut). This threat of sundering the "whole Jewish community" into mutually nonintermarrying segments has been used by the Orthodox to great effect.

Against this background one can understand much of the "Who is a Jew?" question and the vehemence with which positions have been taken. In 1958 the Bureau of the Registration of Inhabitants, under the minister of interior (from a left-of-center party), was directed to register individuals and issue identity cards that had separate categories under nationality and religion, according to the "good faith" declaration of the individual. Thus a non-Jewish mother could declare herself or her children to be Jewish and would be so registered. The rabbinate and the religious political parties were incensed, especially after they were told that population registry and identity cards were civil matters and need never affect marriages and divorces, which, under the status quo arrangements, would continue to fall under the jurisdiction of rabbinical courts. Orthodox Jews reasoned that if they had to deal with questions of Jewish nationality in a modern society, they could not allow nationality to be separated from religion in the Jewish state. The National Religious Party precipitated a cabinet crisis, and Prime Minister Ben-Gurion responded by forming a committee of Jewish "sages" (including non-Orthodox Diaspora scholars) to study the question.

The response of the scholars--even the non-Orthodox ones--was that it was premature to define who was a Jew in such a way that religion and nationality were separate. If not born of a Jewish mother, then a person must undergo a conversion to the Jewish faith to become a Jew. On the basis of this agreement, as well as Ben-Gurion's own political considerations, a new minister of interior from the National Religious Party, which rejoined the government, was appointed. In 1960 the new minister redirected the Bureau of the Registration of Inhabitants to define a Jew by administrative fiat as "a person born of a Jewish mother who does not belong to another religion, or one who has converted in accordance with religious law." This definition, advanced by an Orthodox minister, is not strictly halakic, since an apostate is still a Jew according to halakah but not according to this definition. Such was the criterion used to deny automatic Israeli citizenship to Brother Daniel, a Carmelite monk who was born Oswald Rufeisen, a Jew, but who converted to Christianity and then tried to claim citizenship under the Law of Return. The Supreme Court in 1962 upheld the ministry's definition, since according to the "commonsense" definition of who is a Jew of the "average" Israeli, "a Christian cannot be a Jew." (Brother Daniel later acquired Israeli citizenship through naturalization.)

The "Who is a Jew?" question still vexes the Knesset and the Supreme Court, and it has brought Orthodox and secular Israelis into sharp conflict. Sometimes, as in the Brother Daniel case, the issue has arisen as individuals tested the directives in terms of their own predicament. In 1968 Benjamin Shalit, an officer in the Israeli navy who was married to a non-Jewish naturalized Israeli citizen, sought to register his children as "Jewish" under the nationality category, but to leave the category under religion blank. This would have the effect of separating religion from nationality but not violate the "commonsense" notion that one cannot be an adherent of another religion (as was Brother Daniel) and still be Jewish. Shalit was claiming no religion for his children. The citizenship of the children was never in question: they were Israelis. What was at stake was their nationality.

The court's first response was to ask the government to drop the nationality category from registration lists; the government declined, ostensibly for security reasons. Finally, after the 1969 national elections, the court ruled by a five-to-four majority in 1970 that Shalit could register his children as "Jews" by nationality with no religion--invalidating the directives of 1960. Orthodox Jews rose up in defiance; Prime Minister Golda Meir backed down, and in 1970, after fierce debate, the Knesset passed an amendment to the Law of Return that revalidated and legalized the 1960 administrative directive; thus: a Jew is one "born to a Jewish mother, or who has become converted to Judaism, and who is not a member of another religion." What the Orthodox did not win, at this time, was the proviso that the conversion to Judaism must have been carried out in conformance with halakah. Thus the status of conversions carried out by Reform or Conservative rabbis in the Diaspora remained in question in the eyes of the religious minority in Israel.

Another way in which the "Who is a Jew?" issue arose involved the status of entire communities. Among these were the Karaites (a schismatic Jewish sect of the eighth century that rejected the legitimacy of rabbinic law), the Bene Yisrael (Jews from near Bombay, India, who immigrated in large numbers in the 1950s), and from the 1970s onward, Jews from Ethiopia--Falashas. The controversy arose over the fitness of these Jews, according to halakic criteria, for intermarriage with other Jews--not over whether they were Jews. The question was whether, because of their isolation (Bene Israel or Falashas) or schismatic deviance (the Karaites), their ignorance or improper observance of halakic rules had not rendered them essentially communities of mamzerim, fit only to marry each other or (according to halakah) Jewish proselytes.

These community-level disputes have had different outcomes: the Orthodox Jewish authorities have not relented on the Karaites, who were doctrinal opponents of rabbinic law, despite pleas to bring them fully into the fold. The Karaites thus remained, according to halakah, a separate community for purposes of marriage. Young Karaites sometimes concealed their affiliation to "pass" in the larger Jewish Israeli society, where they were in all ways indistinguishable. In the mid-1960s, the Orthodox backed down on the Bene Yisrael, changing the rabbinate's special caution against them in the registration of marriages between Jewish ethnic groups to a general caution. The Ethiopian Falashas, among the newest additions to the Israeli Jewish mix, still faced some uncertainty in the 1980s--again, not so much in terms of their Jewishness, which was accepted, but with respect to marriage to other Jews.

Halakah provides many other stipulations and constraints on proper marriages and divorces. Among others these include the biblical levirate, whereby a childless widow must first obtain the ritual release of her brother-in-law before she may remarry; laws restricting the marriage of Cohens, the priestly caste of Israelites, who today have few corporate functions but whose putative individual members are recognized; and laws governing the status of agunot (sing., aguna), married women "abandoned" by their husbands whose remarriage is disallowed until the man files a proper bill of divorce or until his death can be halakically established. This last law has made it difficult for women married to soldiers listed as "missing in action" to remarry within halakah, because the requisite two witnesses to their husband's death (or other admissible evidence) are not always forthcoming. People involved in such hardship cases can get married outside Israel, but then the status of their children, in the eyes of halakah, is tainted. Although such cases arouse the sympathy of Orthodox Jews, the principle followed is that halakah, being divine and eternal, cannot be modified.

It is in regard to the principles of the divinity and immutability of halakah that Orthodoxy opposes Conservative and Reform Judaism. Conservative Judaism affirms the divinity of halakah, but questions its immutability. Reform Judaism denies the authority of both principles. Because of these views and their control over the religious establishment, Orthodox Jews have been able to keep rabbis of either persuasion from establishing full legitimacy in Israel. But because the majority of Jews in the Western democracies, if they are affiliated at all, are affiliated with Reform or Conservative congregations, and because of the high intermarriage rates, as of 1988 Orthodox Jews have been unable publicly to invalidate Reform or Conservative conversions to Judaism under the Law of Return by amending the law again to stipulate specific conformance with halakah as the sole mode of conversion. Yet many new immigrants (and some long-time residents) whose status is in doubt have undergone Orthodox conversions--often added onto their previous Reform or Conservative ones--once resident in Israel.

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Source: U.S. Library of Congress