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The Law of Return and the Law on Citizenship

as expressions of the Jewish and Democratic nature of the State of Israel

Law of Return: Backgrounder

Summary of Definitions on Who is a Jew?

by Barbara Weill, WZO, Jerusalem, 1987, revised 1997

Citizenship and ethnic community

Israeli nationality is uniquely characterized by its division into two concepts: citizenship and ethnic community.

"Citizenship" in fact corresponds to the western definition of nationality, conferring all the rights and obligations of the members of a State, without distinction of sex, ethnic community or religion.

The concept of "ethnic community" is a specifically Israeli notion which consists in the inscription on the individual's identity card of the religion to which he or she belongs: Jewish, Moslem, Christian or Druze. Alongside the rights and obligations incumbent on all citizens, the members of the different communities are subject to those applying to their specific groups (for marriage and divorce, for instance, they appear before their own courts).

It is possible to acquire Israeli nationality, even without being Jewish, if the conditions determined by the law are fulfilled: several years' residence in Israel, or birth to an Israeli father or mother, a pledging of loyalty to the State of Israel, etc.
These dispositions may be resumed in the following diagram:

NATIONALITY	CITIZENSHIP	ETHNIC COMMUNITY
(Israeli) =	(Israeli) +	(Jewish, Moslem, Druze, Christian)

N.B.: 'Nationhood' or 'nationality' is closer to the Hebrew term ('LE'OM'). We have however employed the term 'ethnic community', since the concept of 'Le'om' does not correspond to the western connotation of 'nationality' and may lead to confusion.

The Law of Return

The Law of Return applies only to individuals belonging to the Jewish ethnic community.

The Law of Return, passed in 1950 and amended in 1954 and 1970, stipulates that "Every Jew has the right to settle in Israel as an oleh". This means that Jews have a preferential status, since Israeli nationality is automatically accorded to them on request and if their Jewish status is recognized by the authorities. Assistance is also accorded to help them settle in Israel.

Two notorious cases highlight the contradictions which sometimes emerge between the civil and the religious conception of Jewish identity in Israel.

The Rufeisen - Brother Daniel -Case

Oswald Rufeisen, a Polish Jew, converted to Christianity during World War II, and became a monk named Brother Daniel. After the war, he applied to immigrate to Israel, requesting to be registered as belonging to the Jewish community and to settle in Israel under the terms of the Law of Return. His request was refused by the registration office, and subsequently his petition to the Supreme Court in 1962 was rejected.

Consulted by the Court, the Chief Rabbi of Israel confirmed that Brother Daniel must be considered Jewish. Nonetheless the judge refused to accord Jewish nationality to any individual who had been born Jewish but who had voluntarily converted to another religion. This decision was based not on any legal criterion but on a criteria of public opinion (subsequently to become law). In the words of Judge Berensohn: "An apostate Jew cannot be considered Jewish in the sense understood by the Knesset in the Law of Return and in the popular acceptation of today."

The Shalit Case

Commander Shalit, a Jewish, non-believing navy officer born in Israel, married a non-Jewish, Scottish woman. When the registration offices refused his request to register his two children as Jewish, he appealed in 1970 to the Supreme Court which supported his claim, and ruled that according to the Law of Return, his children were to be registered as belonging to the Jewish ethnic community.

Who is a Jew in Israel?

In the Rufeisen case, a man considered Jewish halachically is not accepted as Jewish under Israeli civil law. On the other hand, the Shalit children are considered Jewish under civil law, but not by the Halacha.

The definition of Who is a Jew is thus very problematical and one of the basic bones of contention in the opposition between the religious and secular parties today.

· The religious and ultra-Orthodox parties demand that the Law of Return be amended to correspond to the halachic definition of Who is a Jew. It may however be argued that if the Law of Return accepts a broader definition than the halacha, it is because Israel also has the vocation of a national home, a refuge for the Jews of the whole world, Jews sometimes subjected to antisemitic persecutions even when they are not recognized as Jews halachically (as was the case in Nazi Germany).

· The secular parties would like to see the creation in Israel of a civil status independent of the religious authorities. In particular, they argue for the institution of civil marriage which would allow the resolution of the problem of mixed marriages. Here it may be objected that such a step would endanger the Jewish character of the State of Israel.

In practice, certain population categories are specifically affected by these contradictions: namely, immigrants who are recognized as Jewish by the Registry Office and not by the Halacha -

• in particular, immigrants who have a Jewish father but a non-Jewish mother, and
• immigrants who have converted to Judaism, particularly outside Israel, by synagogues not recognized by the Chief Rabbinate of Israel (Reform and Conservative Synagogues, for instance).

All these are eligible for citizenship as Jews under the Law of Return but cannot contract a religious marriage in Israel.

The Future of Judaism

At first glance, this appears to be a purely Israeli problem, but it does also concern the Diaspora. If there are henceforth two definitions of the Jew, one national and the other religious, the distance between these two definitions may become wider in the future. A situation may be reached where the Jews of the Diaspora will not recognize Jews coming from Israel as Jews and vice versa.

What will remain of the unity of the Jewish people?

In addition, there is a preference for the right to self-definition of personal status in the West in general, which opposes any form of externally defined formulae.

There is also a positive side to this question: the granting of 'Jewish nationality' to individuals for whom the Jewish religion and tradition have no meaning, makes it possible to save the Jewish identity of people who were heading for total assimilation. Likewise, this attempt at a 'secular' definition may open the way for a broadening of the concept of Who is a Jew.

Bibliography

• Le caractere juif de l'Etat d'Israel, Professeur Claude Klein, Editions Cujas.
• University of Illinois Law Review, Vol 2002
  Israel's Law of Return and the Debate of Altering, Repealing or Maintaining its Present Language, Mark Altschul
  Explains the Law of Return and its historical setting in the State of Israel and Zionism. Presents the change in reality, particularly with regard to the immigration from Russia and the issues this raises. Explores different viewpoints on amending terms of the law and recommends a joint conversion institute for converts from all streams of Judaism.
  http://www.marccohenbobair.com/Altschul.pdf