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Israel
The "Who Is a Jew?" Controversy
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 (see Education
, this ch.). 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.
Data as of December 1988
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