Testing the Principals
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
- Identity Cards and the Shalit Case
- Defining a Jew Amending the Law of Return
- Who is a Jew? The Miller Case: Non-Orthodox
Conversions and the Law of Return
The Law of Return and Brother Daniel:
As stated above, the Law of Return allowed all Jews to immigrate freely to
Israel. In the first few decades of the state, no official definition of "Jew"
guided aspiring immigrants or the state.
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.
Section Table of Contents
Identity Cards and the Shalit Case:
In the late 1950s a debate began on the "religion" and
"nationality" designation in the identity cards of all Israel citizens. Faced
with scores of cases of Jewish men (often Holocaust survivors) who had brought their
non-Jewish wives to Israel, the Ministry of Interior often registered the offspring of
these marriages as Jewish by "religion" and "nationality" if the
parents declared their child to be Jewish. The attitude of the Ministry was that while as
the child of a non-Jewish mother the child was not halachically Jewish, the Rabbinate
would make that religious determination when the child was ready to wed. The Orthodox
parties in the government coalition demanded that those designated as a Jew must be so
according to halacha those born to a Jewish mother or converted to Judaism according to
Orthodox practice. In 1960, new regulations by the Ministry of Interior stated that an
individual registering as a Jew by "religion" and "nationality" must
be Jewish according to halacha and, in response to the "Brother Daniel" case,
must not practice another religion.
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
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.
Section Table of Contents
Defining a Jew Amending the Law of
In 1970, in reaction to the controversy surrounding the "Shalit
case," a monumental amendment of the Law of Return was passed by the Knesset
officially defining a "Jew" for immigration purposes.
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.
According to the new law... a Jew (is)
defined as "a person who was born of a Jewish mother or has become converted to
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.
Section Table of Contents
Who is a Jew? The Miller Case:
Non-Orthodox Conversions and the Law of Return:
Since 1970, Orthodox parties have sought to further amend the Law of Return, specifying
that converts seeking to immigrate to Israel as Jews must have undergone a conversion
under Orthodox auspices. In 1981, the National Religious Party and Agudat Yisrael key
coalition partners for Prime Minister Menachem Begin sought to introduce this so-called
"who is a Jew" amendment in the Knesset. The bid failed but led to a great
uproar among Diaspora Jews. In particular, North American Jews, affiliated with the Reform
and Conservative movements, considered this legislation an effort to delegitimize their
Judaism. Repeated attempts by Orthodox parties to reintroduce the "who is a Jew"
amendment have failed.
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
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
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."
Section Table of Contents