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.

1. The Law of Return and Brother Daniel
2. Identity Cards and the Shalit Case
3. Defining a Jew ­ Amending the Law of Return
4. 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 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.

Section Table of Contents

Defining a Jew ­ Amending the Law of Return:
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... a Jew (is) defined as "a person who was born of a Jewish mother or has become converted to Judaism."

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 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."

Section Table of Contents

Next