The Proclamation of Independence of May 14, 1948 declared the "establishment of a Jewish State in Eretz-Israel, to be known as the State of Israel." As a democratic, nontheocratic state, Israel would, the Proclamation pledged, "...uphold the full social and political equality of all its citizens, without distinction of religion, race or sex; (and would) guarantee freedom of religion, conscience, education and culture...."
But as a self-declared Jewish State, Israel has struggled with the question of what role the Jewish religion would play in the governing of the secular state, how that Judaism would be expressed, and even how Judaism would be defined. Today's controversy over religious pluralism in Israel is the most recent chapter of this struggle.
For Americans, who treasure respect for religious pluralism and a constitutionally mandated separation of church and state, the status of religion and state in Israel is complicated and seemingly unfathomable. In Israel, it is the secular state which determines crucial decisions on religious law through the secular parliament (Knesset) or in the secular courts. It is the secular state which until today only recognizes Orthodox practices in matters of conversion, marriage, divorce and burial for its Jewish citizens. It is the secular state which determines the religious law exercising authority over its citizens.
For the first 25 years of Israel's existence, religion and state debates focused primarily on state observance of the Jewish sabbath, dietary laws, and other related issues. While political battles on these issues persist, since the late 1960s efforts by secularists to express their beliefs, and by Reform and Conservative institutions to gain a foothold in Israeli society, have shifted the focus. In recent years, the most contentious debates have been how the Jewish state defines a "Jew" for purposes of immigration, citizenship and identification, how a Jewish citizen may marry, divorce and be buried in a manner sanctioned by the state, and how the state recognizes those who have become Jewish through conversion.
These debates have played out differently in the courts and in the legislature. When called upon to decide these issues, the judiciary has tended to rule in favor of a broad, and not necessarily halacha (Jewish law) based, definition of state-recognized Judaism. Often these notable Supreme Court rulings have not resulted from an ideological support for religious pluralism, but on legal technicalities, such as the legality of clerks requesting specific conversion certificates from applicants to the Israeli population registry. Nevertheless, it is through the court challenges that secularists, and the Reform and Conservative movements, have managed to chip away at Orthodox control over state-recognized Judaism in Israel.
Meanwhile, legislation passed in the Knesset has tended to codify precise, halachic, religious definitions and practices for the State. It is the Orthodox parties in the Knesset, through their involvement in government coalitions, who have used the legislative process to legally fortify the long-standing Orthodox religious practices of the State.
The current controversy surrounding pending Knesset legislation barring non-Orthodox conversions to Judaism in Israel is only the most recent attempt to determine by pre-state custom, legislation, judicial decision, or political compromise the definition and expression of Jewishness and Judaism in the Jewish State. Five decades later it is this process which continues to shape religion and state in Israel.
Pre-State Jewish Life
Under the rule of the Ottoman Empire (1517-1917), the religious communities in Palestine operated under the so-called "millet system," whereby each religion determined issues of personal status such as marriage, divorce, burial and inheritance according to its own religious practices. Under this system, the Jewish, Christian and Muslim communities established religious councils, generally appointed by the Ottoman government.
Under the British Mandate (1917-1948), Ottoman religious community policy continued. The Jewish community of Palestine was headed by a Rabbinical Council, led by Sephardic and Ashkenazic chief rabbis, who were elected by an assembly of rabbis and lay people. The Council in turn appointed members of rabbinical courts throughout the country. Under Ottoman and then British rule, Rabbinical Councils were comprised solely of Orthodox clergy. Marriage, divorce, and other issues of personal status were determined strictly on the basis of halacha (Jewish law).
It is important to note that while the Conservative and Reform movements in Europe and North America were enjoying tremendous growth during this period, these movements had little or no presence in Israel until the 1960s. In pre-State and early-State years debates on religious issues were between Orthodox (Zionist and non-Zionist) and secular.
Creation of the State of Israel
With the establishment of the State of Israel in 1948, the Jewish dimension of the Jewish State became a pressing, practical matter. From the beginning, there were tensions between those who advocated a strict division between religion and state, those who believed halachic Judaism should be the guiding principle of the state and those who sought a middle ground.
Also from the beginning, many of these crucial state-building decisions were made out of political expediency, with prime ministers from
David Ben Gurion on acceding to the demands of the religious parties in their ruling coalitions in return for political support on other issues.
Partially out of a desire to formalize the Jewish character of the state and partially out of political considerations, Prime Minister Ben Gurion decided to maintain the status quo with regard to religious jurisdiction, meaning that matters of personal status would continue to be directed by the Orthodox Chief Rabbinate. Jewish marriage, divorce and other issues continued to be performed according to strict Jewish law. In 1953, an act of Knesset placed all Jews in Israel under the jurisdiction of the rabbinic court for issues of personal status including Jews who are not citizens of Israel but who seek to marry or divorce in Israel. Christian and Muslim religious councils or courts also continued to determine issues of personal status based on their own religious law.
In later years, Ben Gurion explained his decision:
The new state also established a number of principles for the public observance of Jewish law. On the Jewish sabbath, stores, offices, and public transportation were shut down. All food served by government institutions, including the military, abided by the Jewish dietary laws. A Ministry of Religion was established with departments for Jewish, Christian, Muslim and Druze affairs. The ministry oversaw and subsidized places of worship. The department for Jewish affairs, which was the largest, was charged with building synagogues and yeshivas, providing religious services for new immigrants, the religious courts and supervising dietary laws.
In addition to submitting to the Rabbinic courts for personal status issues, the secular state expected Israeli Jews to designate themselves as "Jews" for state bureaucratic purposes, specifically for immigration and identification. According to the 1950 Law of Return, "every Jew has the right to come to this country as an oleh" (immigrant) and be granted automatic Israeli citizenship. Potential immigrants, therefore, had to attest to their Jewishness. The Law of Return did not define "Jew," a vagueness that would lead to contentious legislation and court rulings. Identity cards for citizens of the State of Israel were issued by the Ministry of the Interior, with two categories: "religion" and "nationality." Again, Jewish citizens of Israel were expected to attest to their Jewishness, and list "Jew" as both their religion and nationality. And again, the definition of a "Jew" by religion and nationality would be further defined by legislation and the courts.
Testing the Principals
Throughout the decades, a tug-of-war ensued between the religious and secular communities, and more recently between Orthodox and non-Orthodox denominations, to further interpret, legislate and implement state definitions and observances of Judaism and Jewish practices. Judicial challenges were initiated by individuals seeking state recognition as Jews, including Jews-from-birth practicing other religions, Jewish men married to non-Jewish women who sought to have their children recognized by the state as Jews, and individuals who converted to Judaism under Reform or Conservative auspices. Legislative responses were often initiated by Orthodox parties in the Knesset seeking to codify the status quo. The most significant developments in the courts and in the Knesset related to the Law of Return and state identity cards.
The Law of Return and Brother Daniel:
The first legal challenge to the Law of Return came in 1962 with the "Brother Daniel" case. Brother Daniel (born Oswald Rufeisen), a Polish Jew who had converted during the Holocaust and had subsequently become a Carmelite Monk, sought to immigrate to Israel under the Law of Return as a Jew. Rufeisen, who had been active in Zionism youth groups and who had saved many Jews during the Holocaust, claimed that his nationality was Jewish even if his religion was Catholic. Complicating the issue was that according to Jewish law, as the child of a Jewish mother, Brother Daniel was indeed Jewish. The State refused his application and he appealed to the Supreme Court. The court ruled that while the national term "Jew" did not necessarily imply the practice of religious Judaism, "in common parlance" it could not be applied to someone who practiced another faith. As a practicing Catholic, therefore, Rufeisen could not be recognized by the State of Israel as a Jew and thus could not immigrate under the Law of Return.
Identity Cards and the Shalit Case:
This regulation was challenged in the Shalit Case. Benjamin Shalit, an Israeli Jewish naval officer, married a Scottish woman abroad and returned with her to Israel where they had two children. As native-born Israelis, the Shalit children were automatic Israeli citizens. However, in the early 1960s the Shalits, considering themselves atheists but part of the Jewish nation, attempted to register their children as Jews under the "nationality" designation, while keeping the "religion" category blank. The Ministry of Interior refused, and instead wanted to keep both "nationality" and "religion" blank.
Shalit went to the Supreme Court which ruled in his favor in 1970 by 5-4. The court's decision was based on technical grounds, specifically questioning the legal right of a clerk to question a registrant's application. However, the court recognized that many would read great significance into their decision, assuming that the court was in fact stating that an individual who is not Jewish according to Jewish law could still be considered a national Jew. In its decision, the court cautioned, "it is in fact a mistake to think that the matter under consideration requires us to determine who is a Jew."
Following the decision, in 1970 the National Religious Party introduced legislation in the Knesset to amend the Population Registry Law to decree that individuals registering as Jew by "religion" or "nationality" must be a "person who was born of a Jewish mother or who has converted to Judaism." In 1972, when the Shalits attempted to register their third child as a Jew in the "nationality" category, the Supreme Court referred to this amended law and denied the request.
Defining a Jew Amending the Law of
According to the new law, any Jew may immigrate to Israel, with a Jew defined as "a person who was born of a Jewish mother or has become converted to Judaism." Significantly, the manner of conversion was not defined, an imprecision that would lead to contentious court challenges and legislative action in the next two decades.
In addition to defining a "Jew," the new law created a new class of immigrants who would have the "rights of a Jew." These individuals would be able to immigrate under the Law of Return but would not be recognized as Jews by the state. These individuals include any child or grandchild of a Jew (male or female), the spouse of a Jew, the spouse of a child of a Jew, and the spouse of a grandchild of a Jew. Following the "Brother Daniel" precedent, "a person who has been a Jew and has voluntarily changed his religion" is exempted from the Law of Return.
The amendment noted that individuals enjoying the "rights of a Jew" would be eligible as citizens of Israel under the law, but could not be registered as Jews either by "ethnic affiliation or religion if they do not fulfill the definition of Jews." Thus, those individuals who immigrated to Israel under the Law of Return but who are not Jewish could not be registered by the Ministry of Interior as Jews. As non-Jews, these individuals would be barred by the Ministry of Religion from marrying Jews or being buried in a Jewish cemetery in Israel. Twenty years later, this situation would affect tens of thousands of non-Jews from the former Soviet Union, who by virtue of their familial relationship with Jews immigrated to Israel under the Law of Return.
Who is a Jew? The Miller Case:
In the late 1980s the issue again became a cause célèbre with the Shoshana Miller case. Miller was an American who converted to Judaism in the United States under the auspices of a Reform rabbi. In 1985, she immigrated to Israel, and as a Jew as defined by the 1970 amendment to the Law of Return ("has become a convert to Judaism"), automatically became a citizen. In registering as a citizen with the Ministry of Interior, Miller then sought an identity card designating her as a Jew. She was told that to obtain such a designation she would have to provide a conversion certificate from an Orthodox rabbinical court.
Miller, supported by the Movement for Progressive Judaism and the Association of Reform Zionists of America, took her case to the Supreme Court. The Court ordered Interior Minister Yitzhak Peretz to show just cause for refusing to register Miller as a Jew. Seeking a compromise, Peretz recommended designating all converts to Judaism as "convert" on their identity cards. In 1986, the Supreme Court ruled unanimously in favor of Miller, stating that she should be registered as a Jew on her identity card. The court also rejected Peretz's recommendation for the word "convert" to appear on the identity card, claiming such a designation would divide those living in Israel "into two peoples, Jews and Israelis" and would "run counter to the national aspirations for which the state was established." The decision served to validate the Jewish status of immigrants to Israel who had converted under non-Orthodox auspices.
Implementation of the Miller decision was put off. Miller herself left Israel just days after the court decision, much to the scorn of her detractors, and never actually received the identity card she crusaded for. Other non-Orthodox Jewish converts who immigrated to Israel and sought Jewish identity cards under the "Miller precedent" were put off by the Ministry of the Interior. In 1988, the Israel Union for Progressive Judaism once again went to the Supreme Court on behalf of Gail Moscowitz, an American, and Julia and Claudio Varella, a Brazilian couple. The three had converted to Judaism under Reform auspices before immigrating to Israel under the Law of Return and had been refused identity cards as Jews. In 1989, the Supreme Court ruled by a vote of 4 to 1 that based on the "Miller precedent," there was no reason for the Interior Ministry to deny registering these converts as Jews in their identity cards. Moscowitz and the Varellas became the first non-Orthodox convert immigrants to receive Jewish identity cards in the State of Israel.
The following year, the Supreme Court, again citing the "Miller precedent," ruled that clerks in the Ministry of Interior were not entitled to question the status of new immigrants declaring themselves to be Jews, although they could request documentary proof of an applicant's Jewishness. In response to the court's decision, Interior Minister Aryeh Deri refused to sign identity cards for fear of being responsible for attesting to the Jewish identity of a non-Orthodox convert. Deri's solution was to add an official disclaimer to the card stating: "...the details registered in this document with the exception of categories 'nationality,' 'personal status' and 'name of spouse' shall be prima facie evidence of their accuracy."
The Conversion Crisis 1995 - Present
Non-Orthodox Conversions in Israel:
The Goldstein decision was hailed by Reform and Conservative leaders as de facto official state recognition of non-Orthodox conversions performed in Israel.
Recognizing the implications of their decision, the justices refused to comment on the validity of non-Orthodox conversions or their legitimacy in Israel. Noting that previous Supreme Court decisions (most notably "Miller") had clarified the matter of conversions performed outside of Israel and other related issues, the Court directed the Knesset to clarify the guidelines for conversions performed in Israel. Should the Knesset fail to establish such guidelines, specifically regarding state recognition of non-Orthodox conversions performed in Israel, the responsibility would fall to the Court in future cases.
The Conversion Bill:
Following the May 1996 election, Prime Minister Benjamin Netanyahu signed a coalition agreement with the National Religious Party and Shas in which the new Likud government agreed "the law of conversion shall be changed so that conversions to Judaism in Israel will be recognized only if authorized by the Chief Rabbinate." News of the agreement was greeted with great concern in the Diaspora, with the Reform and Conservative movements vowing to fight any legislative move that would take away the recognition for conversions performed under their auspices which they had earned in the courts. In response, Prime Minister Netanyahu pledged that any legislation would only deny state recognition of non-Orthodox conversions performed in Israel. Non-Orthodox conversions performed outside of Israel would continue to be recognized by the State of Israel according to the Law of Return and the "Miller precedent."
The initial bill proposed by Shas in October 1996 went far beyond the one detailed in the coalition agreement. Instead the bill banned state recognition of non-Orthodox conversions performed both in Israel and the Diaspora, stating, "there shall be no legal validity whatsoever to a conversion unless it receives the approval of the highest religious court in Israel of the religion to which the aforementioned wishes to join." In March 1997, the Cabinet formally approved a more limited legislation, mirroring that of the coalition agreement, denying state recognition to non-Orthodox conversions performed in Israel only. This legislation passed its first reading in April.
The Ne'eman Committee:
Prime Minister Netanyahu created a committee chaired by Yaakov Ne'eman, a respected lawyer (who was appointed Finance Minister one month later), bringing together Orthodox, Reform and Conservative representatives to hammer out a solution. The Reform and Conservative movements agreed to temporarily suspend their court cases pending the recommendations of the Ne'eman Committee. (At this time, a number of cases were pending before the Supreme Court including a case petitioning for state recognition of children from the former Soviet Union who were adopted by nonreligious Israeli Jews, denied Orthodox conversions, were converted to Judaism under Conservative auspices in Israel and thus were denied state recognition as Jews, as well as a petition for the inclusion of Reform and Conservative representatives on local religious councils in Tel Aviv, Jerusalem, Haifa and Kirat Tivon. Reform and Conservative movements agreed to suspend this judicial action if the Orthodox parties agreed to suspend action on a bill legislating the exclusion of Reform and Conservative representatives from serving on local religious councils.) Heralding the historic mission of the Ne'eman Committee, Prime Minister Netanyahu declared, "I do not believe that this issue can be resolved through litigation or legislation. We would rather have neither. What we need is an agreement among religious leaders of all the parties involved...."
Its deadline extended three times, the Ne'eman Committee met more than fifty times over the next seven months, and submitted its report to the Prime Minister in late January 1997. The Ne'eman Committee set as its goal a comprehensive solution to the matter of non-Orthodox conversions in Israel which would comply with Jewish law. Ne'eman himself has stated that he hopes this solution will enable the approximately 200,000 non-Jewish immigrants from the former Soviet Union living in Israel to convert to Judaism if they so wish. According to press reports, the preamble of the proposal declares, "It is agreed by all parties that there must be a single, uniform, official conversion procedure that will be conducted in accordance with Jewish law and will be recognized by all segments of the Jewish people....The composition of the commission, which includes representatives of both the Reform and Conservative movements, reflects a desire for cooperation among all three major movements in Judaism and for Jewish unity."
The Committee proposed to create "conversion institutes," to prepare potential converts for conversion. The institutes would be sponsored by the Jewish Agency, and operated jointly by the three denominations. Aspiring converts would attend classes at the institutes but the actual conversion would be performed under the auspices of the Chief Rabbinate, according to Orthodox guidelines. With the establishment of these institutes, the Reform and Conservative movements would agree not to perform conversions outside the framework of the institutes.
The agreement brings benefits to all the involved parties. Under this proposal, every convert to Judaism in Israel would enjoy both state and Rabbinate recognition as a Jew. This convert would be free to officially immigrate to Israel under the Law of Return (even if the conversion was performed in Israel), to register with the Ministry of Interior as a Jew, marry, divorce and be buried in Israel as a Jew. The acceptance of this proposal would also mark the first time the State of Israel and the Rabbinate would officially recognize the Reform and Conservative movements in Israel in matters of personal status.
The 'Technical' Proposal:
Burg's plan calls for a replacement of the word "Jew" (in Hebrew "yehudi/a") in the identity cards of Israeli Jews, with the letter "yud" ("j"). Jews-from-birth would have the letter "yud" with the individual's date-of-birth. Jews-from-conversion, regardless of the type of conversion, would have the letter "yud" with the date of the individual's conversion stamped in their identity card.
This ambiguity pleases the Reform and Conservative movements by enabling individuals who convert under their auspices in Israel to receive identity cards nearly identical to those of other Israeli Jews.
Ultra-Orthodox parties would be satisfied since the non-Orthodox convert would not be designated as "Jew" ("Yehudi/a") but only as the letter "yud" ("j") which could stand for the word "Jew," or for the word Israeli ("Yisraeli/a"), or for any other word beginning with the letter "yud." Moreover, ultra-Orthodoxy sees no religious significance in the symbols of modern Israeli nationhood, with which it often finds itself in conflict, and thus has no problem with labeling converts as a separate designation on their identity cards.
In general, the "nationalist-Zionist" camp does not support this plan. For religious Zionists, the national and religious are intertwined. Designating converts on identity cards violates this ideology by creating different standards and classes for nationality and religion.
There are, however, many flaws to the plan. Individuals converting to Judaism under non-Orthodox auspices in Israel will still not be recognized as Jews by the Rabbinate, and thus will be barred from marrying, divorcing or being buried as Jews in Israel. Critics point out that the plan would officially label converts to Judaism, thus distinguishing them from other Israeli Jews and effectively creating two official categories of Jews.
Most Israelis acknowledge that whether the conversion bill proceeds into law or a compromise solution is accepted by the Knesset, this most recent controversy over religion and state in Israel will not be the last.
Issues already evoking dissension include the right of representatives of Conservative and Reform movements to sit on local rabbinic councils (a Supreme Court decision on the issue is pending), the right of Reform and Conservative rabbis to perform state-recognized marriages and divorces in Israel, and disputes over the allocation of Ministry of Religion to Orthodox and non-Orthodox institutions.
As tension between religious and secular Israelis increases, and as Conservative and
Reform movements in Israel grow more activist, the status of religion and state in the
Jewish state will continue to evolve.
© 2001 Anti-Defamation League