The Law of Return & Who is a Jew?

 

There has been a lot of heated discussion about Israel’s Law of Return. Passed unanimously by the Knesset in 1950, it explicitly stated that "every Jew has the right to come to Israel as an oleh, immigrant."

This moment of unanimity was short-lived. Let the arguing begin!

What happens if someone is born Jewish but identities as a Christian? That was the case of Brother Daniel in 1962. Oswald Rufeisen was a Polish Jew who converted to Catholicism during the Holocaust. He later became a Carmelite monk and saved many Jews. When Brother Daniel applied to immigrate to Israel under the Law of Return, the Israeli Supreme Court ruled that he was ineligible because the Law of Return does not include Jews who practice another religion. While technically and halakhically Jewish, sometimes, as Rabbi Aharon Lichtenstein wrote (Leaves of Faith: The World of Jewish Living, p. 67) there is such a thing as a “Jew without Jewishness.”

Next, in 1969, came the case of a child born in Israel to a Jewish Israeli father and non-Jewish mother. In the Shalit case, the Israeli Supreme Court ruled that that the child could be registered as Jewish in Israel’s Population Registry. Since this ruling ran counter to the traditional Jewish legal definition of a Jew - someone born to a Jewish mother, controversy ensued.

 This led to the 1970 amendment of the Law of Return, which expanded the right of return to include the child or grandchild of a Jew, and the spouse of a child or grandchild of a Jew. For the purposes of this law, “Jew” was defined as someone who has a Jewish mother or who converted to Judaism and is not a member of another religion. By including the children and grandchildren of Jews, the 1970 amendment is reminiscent of the Nazis’ Nuremberg Laws. Any person who would have been targeted by the Nazis for being Jewish deserves the right to come “home” to Israel.

 

The saga continued. Since the 1970 amendment, the ultra-Orthodox parties in Knesset have advocated limiting the Law of Return to Orthodox converts. What are the standards to be used in deciding someone’s Jewish identity? Who decides what constitutes a proper conversion? Only Orthodox converts? Who decides what is considered “Orthodox?” What happens when patrilineal descent is used by Reform Jews in determining Jewish status?

 

In 1988, Yitzhak Shamir tried to convince the ultra-Orthodox parties to join his coalition by offering them the prospect of amending the Law of Return to include only those converts who converted to Judaism “according to Jewish law.” The leaders of Jewish Federations in America understood this as delegitimizing the non-Orthodox branches of Judaism. They threatened that American Jewish support of Israel cannot be taken for granted, and Shamir withdrew his offer. Then in 1989, the Israeli Supreme Court ruled that anyone who converted to Judaism in a non-Orthodox conversion outside the State of Israel is included in the Law of Return. Orthodox leaders, particularly the Israeli rabbinate, were outraged at the Supreme Court’s ruling.

 

The mass influx of immigrants from Ethiopia and the former Soviet Union kept the Law of Return and “Who is a Jew?” issues high on the agenda. Were these immigrants halakhically Jewish? Did that matter? What about the non-Jewish relatives who qualified under the Law of Return? There are currently hundreds of thousands of Israelis who are not halakhically Jewish. This compounds the issue and arouses increased enthusiasm to amend the Law of Return, which, in turn, leads to even more anger and controversy. This week, the heads of top international Zionist groups sent a joint letter to Prime Minister Benjamin Netanyahu, warning him against any attempt to alter the Law of Return to restrict immigration to Israel by descendants of Jews who are not themselves Jewish.

 

“Who is a Jew?” is not a new issue.

 

Yosef brings his sons, Menashe and Efraim, to be blessed by Yaakov before he dies. Yaakov explains that the boys will be considered among the twelve tribes. Yosef brings them close, and Yaakov says, “Mi eileh – Who are these boys?” Yosef explains that these boys are, in fact, Menashe and Efraim, the sons “asher natan li Elokim ba-zeh - God has given me here.” Yaakov then blesses the children. (Bereishit 48:5-9)

 

Why doesn’t Yaakov recognize Menashe and Efraim? How do we understand Yosef’s response?

 

The Midrash explains that Yaakov wasn’t sure Menashe and Efraim were spiritually worthy. In a sense, when Yaakov asked “mi eileh,” he was asking “Are they Jewish?” To confirm the boys’ status, their mother is called in to show her ketubah, marriage contract. With the question resolved, Yaakov can then bless the boys.

 

Yaakov is the first person to be bothered by the question of “Who is a Jew?” He is not satisfied with knowing the boys are Yosef’s children. He needs proof that they are Jewish.

 

Now, this Midrashic take on the blessing of Menashe and Efraim may seem similar to the view of those who wish to limit the Law of Return to Halakhic Jews. At the same time, it also tells us something very important about Jewish identity. It is possible for one’s Jewish identity to be hidden or go unrecognized. At such moments, Jews might rightly be asked “Mi eileh – Who are you?” In these moments, it is important for Jews to demonstrate they are part of the nation.

Rabbi Joseph Soloveitchik describes two components of Jewish belonging. There is the acceptance of Jewish law, and the acceptance of Jewish identity and a willingness to be part of Jewish history. The Rav called these, respectively, brit ye’ud, the covenant of destiny, and brit goral, the covenant of fate. Destiny is what we do. Fate is what happens to us. Today, many Jews – while not halakhically Jewish or Jews who follow halakhah – still want to be part of the Jewish nation. Do we circle the wagons and cut off Jews who don’t fit into the classic mold? Can we find room in Jewish tent for those who identify as Jews even if they do so in a non-traditional fashion? 

This question is why the Law of Return such a political hot potato.

From a technical perspective, changing the Law of Return will have a limited practical impact. Tens of thousands of Jews have made aliyah from the US in the past decade – and only sixty-seven of them did so under the grandparent clause, according to research by Dr. Netanel Fisher. The battle is one of ideology.

Yossi Klein Halevi, in his powerful op-ed in the Times of Israel, notes that there are two competing visions for Israel. Is Israel the state of Judaism or is it the state of the Jewish people? In the former, there is only room for a Jewish definition based on Jewish law. For the latter, there is room in Israel for those who identify (or have been identified) as Jewish in a broader sense. The more traditional approach sees danger in any definition outside of Halakhah. The other approach is trying to address a very different Jewish reality, one in which the majority of Jews are non-Orthodox and more and more Jews today aren’t halakhically Jewish.

Mi eileh? Who is a Jew?

I imagine that we’ll keep fighting about this issues the way we have since 1950. At the same time, especially in an age when many are removed from traditional Judaism, we need to make room in our nation for all. I believe we need more engagement and education. We need to talk about what it means to be a Jew today – what it means to be a Jew in the Diaspora and what it means to be a Jew in Israel. Can we find a way to keep the Law of Return the way it is while also addressing the growing population of non-Jewish Israelis? Can we find a way to make Israel a Jewish State for competing visions of Judaism? That is the Zionist dream, and, as Herzl famously stated, “Im tirtzu ein zo agadah – If you want it, it is no dream.”

Let’s resolve that we’re all Jews so that, like Yaakov, we can all come together in blessing.