The ‘Who Is A Jew?’ Question

In The Death of The Hired Man, poet Robert Frost famously writes, “Home is the place where, when you have to go there, they have to take you in.” When Ben-Gurion drafted the Law of Return in the shadow of the Holocaust – during which six million Jews were exterminated because they had no Jewish home – he intended Israel to be the place for Jews where “they have to take you in.”

In the early years of the new Jewish state, it seemed unimaginable that anyone but a Jew would claim to be a Jew. When the Knesset proved unable to agree on a definition of the term “Jew” under the Law of Return, it ducked the issue, expecting the question to resolve itself over time. However, through this inaction, an ambiguity in statutory interpretation of the law was created that has raised significant problems that plague the state to this day.

Two years later, the Knesset adopted complementary legislation: The Nationality Law of 1952, which provided that Jews and non-Jews could obtain citizenship in four distinct ways: (1) by automatic citizenship under the Law of Return; (2) through residence within Israel; (3) by birth; or (4) by naturalization. Through this Nationality Law, non-Jews could also become full citizens of the Jewish state.

The first major challenge arising out of the “Who is a Jew?” question was the case of Shmuel Oswald Rufeisen (1922-98), born to a Jewish Polish family near Auschwitz. Rufeisen was active in a religious Zionist youth movement and helped save hundreds of Jews in the town of Mir from deportation to concentration camps. After escaping Nazi imprisonment and hiding in a convent, however, he was baptized.

After WWII, he joined the Carmelite Order – deliberately chosen because it had a chapter in Eretz Yisrael – became a friar and, later, a Catholic priest and took the name “Father Daniel.” Having survived the Holocaust, and disgusted by the continuing anti-Semitism of the Polish government, he immigrated to Israel, where he sought registration as a Jew under the Law of Return.

Pursuant to an internal administration order that it had issued for its own purposes, the Israeli Immigration Authority defined a Jew as “any person who professes to be one and who has not embraced any other religion.” As such, it denied citizenship to Father Daniel. He appealed to Israel’s Supreme Court, citing the Talmud (Sanhedrin 44a – “A Jew, even if he has sinned, is still a Jew”), arguing that, even under the strictest Orthodox interpretation of Jewish law, he was a Jew as the descendant of Jews.

However, in a 4-1 decision in Rufeisen v Minister of the Interior (1962), the court upheld the government’s decision to deny him citizenship under the Law of Return. Writing for the Court, Justice Moshe Silberg beautifully stated:

From the extreme Orthodox to complete freethinkers, there is one thing common to all people who dwell in Zion: we do not sever ourselves from the historic past and we do not deny the heritage of our forefathers… The lowest common denominator is that no one can regard an apostate as belonging to the Jewish people.

Justice Cohen, the lone dissenter, argued that when the Knesset enacted the Law of Return, it meant to extend rights to any person declaring himself to be a Jew. All five justices, however, agreed to define “Jew” according to secular standards.

Anti-Semitic critics, including, conspicuously, the Palestinian Authority and the UN, continue to perpetrate the lie that the Law of Return is the ultimate in undemocratic, institutionalized ethnic discrimination and institutionalizes “offensive demographic engineering.” However, it is beyond dispute that Israel’s citizenship laws for non-Jews are equivalent to those of other liberal democracies, and are wholly consistent with the 1965 Convention on the Elimination of All Forms of Racial Discrimination, pursuant to which a nation may enact laws that extend preferential immigration treatment to some groups. Thus, for example, Germany, France, Japan, China, and Ireland all provide immigration privileges for their respective diasporas.

Ironically, it may be Father Daniel who best made this point. After the Israeli High Court ruled against him, he stated that “my rights as a future subject of Israel [pursuant to Israel’s non-Jewish naturalization laws] have not been affected in the least by the outcome of the case, and to exploit the occasion for vilifying the State of Israel is unwarranted.”

In fact, Father Daniel immigrated to Israel and acquired Israeli citizenship through naturalization, as per the Nationality Law of 1952, and he lived the rest of his life at the Stella Maris Carmelite Monastery in Haifa.

On January 23, 1970, the Israeli Supreme Court ruled that children born in Israel to Lt. Commander Benjamin Shalit and his non-Jewish wife could be registered as Jewish in Israel’s Population Registry. Soon after, an amendment to the Law of Return, passed overwhelmingly by the Knesset (the vote was 51-14), formally defined a Jew for the first time: “a person born of a Jewish mother or having converted to Judaism, not being a person affiliated with some other religion.” The Population Registry Law was also amended. It now stated:

The rights of a Jew under this Law and the rights of an oleh under the Nationality Law, as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his/her religion.

The 1970 enactments empowered the Minister of Interior to deny Israeli citizenship to, among others, applicants who pose a threat to the security of Israel; have a past criminal record involving a serious crime and pose a danger to the well-being of Israel; may pose a serious public health risk to Israelis; or actively engaged in any campaign that vociferously attacks the Jewish people and undermines their cause.

There were several explanations advanced for these changes in the law. First, many secularists, egged on by the non-Orthodox rabbinical leadership, argued that just as the infamous Nuremberg Laws did not employ a halachic definition of “Jew,” the Law of Return should not either. In other words, if a person was “Jewish enough” to be executed as a Jew, then he or she is sufficiently Jewish to live in Israel as a Jew.

Second, in response to an anti-Semitic campaign by the Polish government, a large wave of Polish Jews left for Israel, including many assimilated Jews accompanied by non-Jewish family members. Splitting up families by denying entry to people fleeing anti-Semitism who weren’t “Jewish enough” would have created a monumental public relations nightmare.

Third, many secularists argued that a broadened definition was necessary to increase immigration levels to offset the growing demographic threat presented by the growing Arab population.

For obvious reasons, the controversial 1970 amendment particularly upset Orthodox Jews, including worldwide rabbinic leadership. Observant Jews were deeply troubled by the law’s deliberate failure to define conversion as “giyur k’halacha” (halachic conversion). Moreover, they understood that the true purpose of the change in the law was to address an entirely different “growing demographic threat”: the disproportionate growth of the Orthodox Jewish population in Israel, whom Ben-Gurion once predicted would die out within a generation or two after the birth of the state.

In the Book of Exodus, Pharaoh fears the Jews “being fruitful, increasing abundantly, multiplying, growing exceedingly and greatly and filling the land.” In Israel, an overwhelmingly secular leadership feared a demographic takeover by observant Jews. (This concern is even greater today as the Orthodox Jewish birthrate is dwarfing that of secular and non-observant Jews.)

Rav Moshe Feinstein, president of the Agudas Horabonim, famously urged all Jews who care about the continuity and survival of the Jewish people to “scream out” to the Israeli government to unambiguously define a Jew as a person born of a Jewish mother or who converted in accordance with halacha, which mandates the full acceptance by the prospective convert of the entire Torah and all its commandments. In the historic correspondence exhibited here, Rav Feinstein addresses the “disgraceful law of the State of Israel concerning the matter of who is a Jew”:

For a long time now, ultra-Orthodox Jewry in general and the Rabbinical Assembly in particular have been waging a difficult battle against the infamous law of the State of Israel concerning the matter of “who is a Jew.” Our society has invested much effort in this struggle, and its time, its powers and its actions, knowing that this law undermines the essence of the foundations of Judaism. As is known, this status has not changed and this disgraceful law has not been repealed.

Therefore we are calling a large gathering of rabbis in town on Tuesday, the 22^nd of Shevat, may it come upon us for good. In this assembly will be heard the unified voices of the rabbanim and leaders from all over the Jewish world against the above-mentioned law that destroys the sanctity of the family in particular and the fundamentals of religion in general and endangers Torah observance and our people.

We hereby invite you to come and participate in the assembly. Your presence at this gathering is very necessary. There is a holy obligation for you to expend the effort necessary to come and participate actively in this gathering.

Please advise us immediately if you will participate, so that we may be able to make the necessary arrangement for you.

Let us hope that, with God’s help, we will be able to nullify the law discussed above.

Rav Feinstein (1895-1986), of course, was one of the greatest adjudicators in the post-Holocaust era and was widely regarded as the gadol hador (greatest rabbinic leader of his generation). Known for his series of responsa sefarim, Igrot Moshe, “Reb Moshe” served as president of the Union of Orthodox Rabbis, chair of Agudat Yisrael’s Council of Torah Sages in the United States, and rosh yeshiva of Mesivta Tifereth Yerushalayim in New York. On a personal note, he was my cousin and served as the mesader kiddushin at my parents’ wedding.

In response to Rav Feinstein’s call, thousands of Orthodox Jews, among them heads of yeshivot, leaders of the Agudath Israel, Mizrachi, and Lubavitch movements, conducted a mass protest against Israel’s handling of the “Who is a Jew?” issue.

However, Israeli law to date has not been kind to halacha in this regard. Israel’s Supreme Court has ruled that anyone who converted to Judaism in a non-Orthodox conversion outside the State of Israel is included in the Law of Return (1989); that a “Messianic Jew” (the ultimate oxymoron) is eligible for citizenship under the Law of Return if he can claim Jewish ancestry (2008), thereby ignoring its own ruling in the Father Daniel case that “the terms Jew and Christian are mutually exclusive”; and granted citizenship to the Catholic male spouse of a Jewish gay man (2011).

Earlier this year, Israel’s Central Bureau of Statistics announced that, for the first time, non-Jewish olim outnumbered Jewish immigrants. Consequently, any Jew concerned about the Jewish status of someone – particularly a prospective spouse – should not rely on the Israeli government’s determination of the question.