The opinions of the nine Justices of the Supreme Court
are summarized here by The Jerusalem Post Law Editor DORIS LANKIN
IN THE SUPREME COURT SITTING AS
HIGH COURT OF JUSTICE
Before the President (Justice Agranat), the Deputy President (Justice Silberg), Justices Sussman, Landau, Berinson, Witkon, Cohn, Many and Kister.
Binyamin Shalit, Petitioner, v. 1. Minister of Interior, 2. Haifa Registration Officer, Respondents (H.C. 58/58).
The High Court, by majority decision, made absolute an order nisi calling upon the Minister of the Interior and the Haifa Registrar of Inhabitants to show cause why the petitioner's children should not be registered as being "Jewish" by ethnic affiliation.
The petitioner, Binyamin Shalit, a Jew born in Haifa, married a non-Jewish Scots woman in Edinburgh. He brought his wife back to Haifa, where two children were born to them--a son in 1964 and a daughter in 1967.
When the petitioner, who is now an officer serving in the Israel Navy, came to register his children in accordance with the demands of the Registration of Inhabitants Ordinance, 1949, in the case of the boy, and the Population Registry Law, 1965, in the case of the girl (both of which require that the particulars with regard to religion and ethnical affiliation (leoum) be given), he declared that his children were without religion but Jewish by ethnic affiliation. The registration officer, however, wrote "no registration" against the latter item, in accordance with directives issued by the Minister of Interior to all registration officers in 1960.
When the petitioner's efforts to get this registration changed proved of no avail he petitioned the High Court of Justice and was granted an order nisi.
An unprecedented bench of nine Justices was constituted to decide the issue.
On the return day, Mr. Shalit appeared on his own behalf and Mr. M. Shamgar, the Attorney General, Mr. Z. Terlo, Senior Adviser to the Minister of Justice, and Mr. Y. Barsela, Assistant State Attorney, appeared for the respondents.
JUDGMENT
Justice Cohn
[...]
Justice Cohn then went on to recall previous cases in which the High Court had held that the registration officer is not a judge or policy-maker and that his duty is to register the facts given him by the citizen only.
[...]
According to the latter, he pointed out, a registration officer may not correct an entry, or fill in an omission, in the register in respect to ethnic affiliation, religion of personal status, save with the consent of the person to whom the entry relates or on the basis of a declaratory judgment of a District Court. It is, therefore, of no significance whatsoever that a registration officer may be convinced, on the basis of instructions of directives from the Minister of the Interior, or on the strength of his knowledge of law of Talmud, that he knows exactly how the ethnic affiliation of the citizen concerned should (or should not) be registered. He must simply register it as the citizen wants.
[...]
In short, held Justice Cohn, the legislature had deliberately refrained from giving the registration officer any powers of decision in matters of ethnic affiliation, religion and personal status, or from vesting the Minister of the Interior with the right to give registration officers instructions and directives as to how to register these particulars. Instead, it had elected to deprive the registration of these particulars in the Population Registry of any probative value.
[...] In short, concluded Justice Cohn, the question of the ethnic affiliation of the petitioner's children had not been a matter upon which the registration officer was entitled to decide and justice demanded that he be prevented from trespassing on the citizen's preserves and arrogating authority to himself without any basis in law. For this reason the order nisi should be made absolute.
Justice Silberg
[...]
However, in the circumstances, the High Court had no alternative but to determine, to the best of its ability, the attitude of Jewry as a whole to the problem.
[...]
At this stage, Justice Silberg digressed in order to explain the difference between the present case and the Rufeisen (Father Daniel) case, in which the High Court had held that the question of whether the petitioner was a Jew ethnically should be decided according to the secular law and not according to Halacha. The Rufeisen case, he noted, dealt with the extreme example of a Jew who had converted to Christianity but still wished to be regarded as Jewish for purposes of the Law of the Return. As this latter Law had been enacted by the Knesset, which talks in the language of the ordinary man, it was only right that the ordinary man's concept of a "Jew"--which could certainly not be equated with a convert to Catholic monasticism--should be given preference over the halachic rule of "once a Jew always a Jew." In the present case, however, there was no question of interpreting the term "Jew" according to any secular law, since the Population Registry Law does not contain the word "Jew" at all. But it does talk of "ethnic group" and thus raises the question of whether a person can be said to be Jewish from an ethnic viewpoint even though his mother is not Jewish. If, in answering this question, no general, effective definition for "Jewish" can be found anywhere else except in the Halacha, then there would be no alternative but to adopt the halachic test, even though the Registration Law is a secular one.
[...] The consequences of adopting the petitioner's definition of "Jewishness," continued Justice Silberg, would be clear and catastrophic. For anyone who argues that a person can be Jewish ethnically without being Jewish by religion must inevitably be forced to the conclusion that Christians and Moslems, if they feel a close affinity with Israeli-Jewish culture and values, can also demand to be registered as ethnically Jewish.
The effect on the Jews of the Diaspora would be equally traumatic. If the High Court of Justice in Israel were to rule that a Christian or Moslem could still belong to the Jewish community, this would weaken the defences against assimilation set up by the Jewish communities abroad and destroy their communal structure.
[...] In conclusion, Justice Silberg responded to the petitioner's question as to how it was possible that the son of a Jewish mother who joins the Fatah and aspires to destroy Israel, should be deemed to be ethnically, Jewish, while the son of a non-Jewish mother, who sheds his blood for Israel and is prepared to sacrifice his life for his country, should be considered a stranger and a gentile. He said that the Fatah son of the Jewish mother is a bad and wicked Jew, of whom there are many in the circles of the Jewish New Left, whereas the petitioner's children are good, charming non-Jews who because of their parents' obstinate aversion to religion have been
denied an entrance to the Jewish nation. "Jewishness," he continued, is not a prize, like an honorary doctorate, to be conferred on someone for his efforts on behalf of the Jewish people. On the contrary, "Jewishness" is a religious, legal description bestowed only under certain specific conditions, which the petitioner's children unfortunately have not met. If the petitioners had not been so fanatically atheistic, he continued, they could have arranged for their children to be converted. For as they are minors they could be converted by the rabbinical court, without any demands being made on them or their parents, and having been so converted they would have the option, once they reached maturity, of renouncing their conversion if they wished to do so.
In this way, Justice Silberg said, the petitioner would have avoided raising an issue which could split the nation at a time when it is fighting, on the battlefield and in the Security Council, for its physical existence amongst the nations of the world. For the search for a new test for national identification constitutes an absolute denial of the continued existence of the Jewish people. It signifies the aspiration to build a new nation, without any past or tradition, on the eastern shores of the Mediterranean, and it is not for this purpose that we undertook the great task of spreading the doctrine of Zionism.
Justice Sussman
[...]
Furthermore, continued Justice Sussman, it should be remembered that in 1958, when there was a different Minister of the Interior, the registration officers had been instructed to register a person as Jewish if he declared that he was Jewish and was not a member of any other faith. Since then the law had not changed, but the Minister of the Interior had--and so had the directives to the registration officers. However, the significance and purpose of the law could not be affected by changes in the Government, and if a citizen bases his evaluation of a fact which he, and not the registration officer, has to establish, on the viewpoint of a previous Government and not on the directives of the present Government, he cannot be said to be applying an unreasonable test. For changes of Government are political changes and do not warrant the conclusion that whatever was done by the previous Government was unreasonable.
Justice Sussman summed up: The registration officer must register the particulars contained in the notification of birth submitted to him unless he has reasonable cause for concluding that the notification is incorrect; the test of religion, on which the registration officer had based his conclusion that the petitioner's notificatino of his children's ethnic affiliation was not correct, was not the proper test to be applied for such purposes; and thirdly, the considerations on which the petitioner had relied justified his request, particularly since he had acted in accordance with those same directives laid down by the Government and practised by it until 1960.
The order nisi should, therefore, be made absolute.
Justice Landau
[...]
Because of the extreme emotions and conflicting ideologies involved, Justice Landau said, the High Court had taken the unprecedented step of advising the Government to remove the item referring to ethnic affiliation from the population registry. The Government, however, had rejected this advice out of hand and had placed the controversial issue squarely in the lap of the High Court. Justice Landau said that this decision would benefit no one, and the public damage attached to it must be obvious to all. For what could the High Court contribute to the solution of an ideological problem of this nature which is splitting the nation? Nothing. And whoever expects some magical formula from its judges is simply deluding himself.
[...]
Justice Landau did not think that the court had sufficient legal grounds for concluding that the directives issued by the Minister of the Interior were invalid, since opinions were so divided on the subject and the Knesset ahd not seen fit to override them. As for the registration official, he was bound to act on the basis of these directives, in obedience to his administrative duty, and must therefore be held to have had reasonable grounds for concluding that the petitioner's notification of his children's ethnic affiliation was incorrect.
Therefore, the order nisi should be discharged.
Justice Many
Justice Many, in concurring that the order nisi should be made absolute, said that in his opinion the question of whether the petitioner's children are members of the Jewish nation or not was not at issue and he would not purport to express any opinion on it. All that he thought it necessary to hold was: first, that neither the Registration of Inhabitants Ordinance nor the Population Registry Law empowered either the registration officer or the Minister of the Interior to lay down criteria for deciding the question of whether any particular person is a member of any particular nation or not; and, secondly, that in the circumstances of the case under consideration, and for the reasons set out by Justices Cohn and Sussman, the registration officer had no alternative but to register the petitioner's children as ethnically Jewish.
Justice Berinson
[...]
According to the halachic conception, continued Justice Berinson, the head of the Fatah in Jerusalem, the son of a Jewish mother, is deemed to be a Jew, while the son and daughter of a Jewish major, who has fought in defence of Israel, are deemed to be non-Jewish. The thought of this was enough to make one's flesh creep.
[...]
In short, concluded Justice Berinson, the halachic conception of the ethnic affiliation of a citizen of Israel cannot serve as a basis for a ruling by a secular court. Nor did the legislature intend this, either in the Law of the Return or in the Population Registry Law, which are both secular laws, the latter applying equally to all citizens of the State irrespective of race or religion. In any event it is certainly not the registrar of inhabitants, who plays a strictly technical role, or his Minister, who can decide such matters. This official has one duty only: to register the citizen's particulars as they are given to him in good faith, as long as they are not patently ridiculous.
Justice Kister
[...]
In conclusion, Justice Kister noted that there was no doubt that even if the petitioner's children were not registered as ethnically Jewish this would not affect their rights as citizens of the State, as Israel treats all its citizens equally.
The children will be valued, he continued, when they grow up, in accordance with their acts and behaviour and not according to their ethnic affiliations. If they should wish to become converted they would be fully entitled to do so, and their parents' attitude to religion would most certainlyh not stand in their way.
In short, Justice Kister said, he was of the opinion that the court should not intervene with the respondents' acts, which were aimed at registering the truth, and that the order nisi should be discharged.
The President of the High Court
The President concurred with Justice Landau but added several observations aimed at highlighting his opinion that the problem before the court--of whether the registration officer was obliged to register the petitioner's children as ethnically Jewish although their mother is a gentile--could not be solved judicially, as it was purely ideological.
The judicial solution to the problem, said the President, which Justice Cohn advocated--that is that the citizen's bona fide declaration as to his ethnic affiliation should be accepted by the registration foficer--was not, in his opinion, appropriate to the particular case under consideration. Nor was the solution propounded by Justice Sussman: that is, that the bona fide declaration of a citizen as to his ethnic affiliation plays a decisive role, as long as it is based on reasonable considerations. For it was sufficient to note that in the Rufeisen case, too, the petitioner had declared his wish to be registered as belonging to the Jewish ethnic group. But the majority of the High Court had rejected such registration because of the objective reason that the petitioner had converted to Catholicism, and this precluded his being deemed to be ethnically Jewish.
In so far as the definition of "ethnic affiliation" or nationality is concerned, continued the President, this is a historical-dynamic concept which defies accurate description. One thing was clear, however (after a comprehensive survey of the subject), and that was that during the long course of its history the Jewish nation, as an ethnic concept, and Jewish religion, have been inseparable.
As to the rule of Jewish law applicable to the case, continued the President, a study of it reveals that it reflects the same recognition of the Jewish nation as an ethnic-religious entity, with the religious and ethnic elements inseparably bound together.
The question which then arises is whether this close association between religion and ethnic affiliation has become so entrenched in the history of the Jewish people as to be binding in the present, even for so narrow a statistical purpose as registration of ethnic affiliation in the Population Registry; or whether it is possible to conclude that the Jewish communityh of Israel is basically a secular, dynamic society in which the institution of religion plays no decisive part, and that, therefore, the religious rule that the child of a non-Jewish mother cannot be considered to be Jewish by religion or ethnic affiliation is not applicable to it. In other words, he continued, the question is whether it is possible, in modern Israel, to regard a child born of a non-Jewish mother and a Jewish father, as ethnically Jewish because he does have some Jewish blood in him and it can be assumed that in the course of time he would somehow become affiliated to the Jewish nation among whom he is brought up, even without a formal act of conversion.
It is obvious, continued the President, that the answer to this question lies in the ideological field because it depends, first, on the place which Jewish history fills in the consciousness of the Jewish people and on its influence on the life of the people of the present; and, secondly, on the fact of whether the Jewish people rgard Jewish Halacha as binding upon them, to some extent or other, even today. This, in turn, depends on the attitude towards religion, in which there is a wide rift between two sections of the Israel population. So that the whole question falls squarely in that field of ideology where there is no crystallised common approach, and its resolution would not, therefore, add anything towards solving the problem of registration.
The President concluded that as the question before the court was an ideological one on which the population was deeply split, therefore it was not one for the court to decide upon. For this reason, plus those given by Justice Landau, he was of the opinion that the court should not intervene with the decision of the registration officer to leave the item concerning the petitioner's children's ethnic affiliation a blank.
Order nisi made absolute by majority opinion, with IL200 costs. Judgment given on January 23, 1970.