Who Is a Jew? Israel’s Supreme Court Expands the Answer

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In a stunning, generation-defining decision, Israel’s Supreme Court has unanimously ruled that people who became Jews through Conservative and Reform conversions must be considered as Jews for purposes of the country’s Law of Return, allowing them a fast-track to citizenship. Israel’s legislature, the Knesset, has the authority to reverse the decision and restrict the Law of Return to Orthodox converts. That may well happen — but if it does, it would represent a serious blow to relations between American Jews, most of whom are not Orthodox, and the state of Israel.

The Law of Return is foundational to Israel’s self-concept as a Jewish democratic state. It establishes the principle that Jews may become citizens of Israel simply by showing up in the country and declaring their intention to become citizens. As written, the law defines a Jew as “one who was born to a Jewish mother or converted, while not being a member of another religion.” The case before the Supreme Court involved the vexed question of the meaning of the word “converted”: Which conversions count as qualifying a person for citizenship under the law?

The answer has massive implications for the nature of Israeli identity. Israel’s large Orthodox population mostly would prefer that it be restricted to conversions performed by Orthodox rabbis. Yet the Conservative and Reform movements of Judaism, which remain very small in Israel, are popular and influential in the U.S. Laypeople in these more progressive Jewish movements insist both that their conversions are religiously valid and that the state of Israel ought to recognize them for purposes of the Law of Return.

The distinctions matter on multiple different legal dimensions. The Orthodox rabbinate maintains a monopoly on performing legal marriages for Jews in Israel. Consequently, people who have undergone Conservative or Reform conversions cannot marry other Jews within the country.

Historically, Israeli courts have treated the “Who is a Jew?” question as “national” rather than “religious.” In a famous 1962 decision, the court denied Jewish status under the Law of Return to a monk called Brother Daniel, born Oswald Ruffheisen. Ruffheisen was an Eastern European Jew who fought the Nazis during World War II and became a Catholic while hiding in a convent during the war. According to Orthodox Jewish law, Ruffheisen qualified as a Jew despite his conversion. “Once a Jew, always a Jew” is a venerable principle of Jewish law going back at least the Middle Ages. Yet the court held that the sociocultural definition of Jewishness excluded people who converted to a different religion.

This bizarre result encapsulates the extraordinary complexity of defining Jewishness for purposes of the Zionist enterprise. Some early Zionists hoped that establishing a national state would transmute Jewishness from a religion into a national identity. Yet Jewish religion and religious identity have stubbornly refused to die, so that Jewishness in Israel is now a religious identity, an ethnic identity, and national identity all at once.

The question before the court was not whether the Conservative or Reform conversions were religiously valid, but whether they counted socioculturally as “Jewish.” The court followed its own precedent, which defined Jews as people belonging to a “recognized Jewish community,” and concluded that the Conservative and Reform movements counted. The parties in the case, who underwent conversion while in Israel, were therefore deemed to be Jews for purposes of the Law of Return.

For decades, the Israeli courts have tried to avoid ruling on this question — for good political reason. The nature of Israeli politics makes it all but certain that there will now be an intense push by Orthodox parties to limit the Law of Return to Orthodox converts. Aryeh Der’i, the leading figure in the Mizrahi ultra-orthodox Shas Party, immediately tweeted that the decision was “wrong and troubling and would cause dispute and a powerful cleavage in the nation.” He added that he was taking it upon himself to get the law changed.

The difficulty is that such a law would inevitably alienate many American Jews. Conservative and Reform communities already smart that their rabbis cannot perform lawful marriages within Israel, seeing it aas a repudiation of the religious legitimacy of their movements. For the Knesset to redefine the question of Jewishness to exclude Conservative and Reform conversions would send an even harsher message.

The fact that the Israeli Supreme Court decided to include Conservative and Reform converts in the Law of Return, and did so unanimously, communicates a rather different message: that the country’s legal elites are tired of deferring to the de facto Orthodox monopoly over defining Judaism in Israel. Although the justices tried to play down the boldness of the ruling by emphasizing that it was based on precedent, the reality is that the decision is a statement in support of intra-Jewish egalitarianism.

The challenges of managing intra-religious conflict in Israeli law pale compared to the deeper challenges that face the country. Those challenges relate to the equality of non-Jewish citizens and also, of course, to non-citizen Palestinians who live under what the Israeli legal system itself acknowledges is a state of occupation.

Nevertheless, the debate over who is a Jew has enormous symbolic and political consequences for the trajectory of Zionism and the struggle for Israel to sustain its foundational commitment to being both Jewish and democratic. The Supreme Court’s decision will now trigger intense discussion and negotiation in Israel and in the American Jewish community, with major long-term implications for relations between both.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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