Issues facing the Law of Return almost 70 years after its enactment

By Nicole Maor

The Law of Return is one the shortest laws in Israel’s legislature – just over one page long.  It exemplifies the Zionist dream and the cornerstone of Israel’s right to exist. Its original version was simple: All Jews are eligible to make Aliyah, to obtain Israeli citizenship and to live in Israel, unless they are criminals or may otherwise endanger Israeli society.

At the time it was enacted – two years after the creation of the State of Israel – Israel’s lawmakers did not and could not have envisioned that this law – this “statement of intent”– could create so many issues and in many ways cause so much havoc and uncertainty amongst Jews and their families around the world.

Background

Since 1950, the Law of Return has only undergone one major amendment – in 1970 – following a line-up of petitions served to the Supreme Court regarding the question who is the “Jew” referred to in the Law of Return. Can a “Jew” be in fact a priest who was born to two Jewish parents? Can a “Jew” be born to a Jewish father and non-Jewish mother? Does the Law of Return reflect Jewish Law (halacha)? And if so, who determines this halacha? When the Supreme Court held (6 judges against 5) in 1970 that a “Jew” could include a person born to a Jewish father and not a Jewish mother, the Knesset decided that it had to interfere and to specifically define a “Jew” for the purpose of the Law of Return.

Since 1970, a “Jew” as prescribed by the (amended) Law of Return, is a person born to a Jewish mother, or has converted to Judaism, and is not a member of another faith. After much debate, the word “halacha” was not mentioned. In addition, in order to balance this new limitation, and arguably in light of the Nuremberg Laws, the Law or Return was broadened to include immediate family members of a Jew – his/her spouse, child (and spouse) and grandchild (and spouse). All of these people became eligible to make Aliyah, to live in Israel and to receive automatic citizenship. The family members, however, are not recognized as Jews. This does not affect them on a day-day level, but they are unable to get married in Israel, as there is no civil marriage and no framework for the marriage of those who have no religious denomination.

Who is a convert?

The 1970 amendment did not, however, end the list of questions arising under the Law of Return. Although there was now an answer to the question, “who is a Jew”, there was no clear answer to the question, “who is a convert”. As there was no other law determining the interpretation of “convert”, this question fell into the lap of the Supreme Court. Throughout the years, (since 1986) the Supreme Court has consistently sidestepped the question by holding that the question of “who is a convert” has to be determined in the context of the Jewish community in which the conversion takes place. Therefore, if the “Jewish community” is “recognized” then a conversion that takes place under its auspices, will also be recognized.

So rather than asking “who is a convert”, we need to ask what is a “recognized Jewish community”. As far as the Israeli authorities are concerned, (with help from the Supreme Court), the answer to that question, in relation to diaspora communities, is easy. There are three recognized “streams” of Judaism in the Jewish World – Reform, Conservative and Orthodox. Any Reform, Conservative or Orthodox congregation that is a member of an “umbrella” organization – like the WUPJ[1] or Masorti Olami[2] – is considered “recognized”. Funnily enough, many Orthodox converts find themselves unable to prove that their congregations are “recognized” because there is no “agreed” roof body in Orthodox Judaism. The Israeli Rabbinate sees itself as the ultimate authority, but it does not recognize many well-established Orthodox congregations, especially in the Americas. So often Orthodox converts complain that dafka the State of Israel accepts non-Orthodox converts more easily than Orthodox ones!

However, in today’s Jewish world, not only are there a growing number of “unaffiliated’ congregations, but there are also new “streams” of Judaism – “Renewal”, “Post denominational” and even Karaite Judaism, which have yet to “prove themselves” and until they do – they will not be deemed “recognized”.

Nevertheless, the bigger problem (and we still haven’t touched upon conversions performed in Israel) is the disconnect between the digital age and the concept of community. More and more Rabbis and teachers are opening on-line courses for Introduction to Judaism and even for the entire conversion program in order to cater for the needs of people living far away from congregations. Congregations perform “live-streaming” in order to enable people to “participate” from afar. The State of Israel will not recognize such conversions, as they do not have the required element of community.  Judaism is not a “theoretical” religion; it cannot be “learned”. It has to be experienced with other Jews in a congregational framework.

In short, the Law of Return, in so far as conversion is concerned, is light years away from the digital age. Skype and Facetime, webinars and other online study will not replace participation in Shabbat services at the synagogue. Some flexibility exists only when a person attends a synagogue but there is no person knowledgeable enough at the synagogue to teach. Only then will Israel take on-line learning into account.  But then, the study process must be longer than usual.

And what about conversion in Israel? Take all of the above and add politics to the equation! In Israel, there are of course Reform and Conservative congregations that are members of their umbrella organisations. There are Orthodox (Haredi) congregations that don’t accept the Rabbinate as an authority. The Supreme Court has ruled that Haredi conversions (overseen by a well-known Haredi Rabbi) have to be recognized for the purpose of the Law of Return. However, for over 10 years it has refrained from ruling regarding non-Orthodox conversions[3]. When it became clear earlier this year that it must rule, and it was clear that in light of its judgement regarding Haredi conversions, the Supreme Court must logically rule in our favour, the Knesset raced to try to pass a law giving the Rabbinate exclusive jurisdiction regarding conversion in Israel. The result? Stalemate…and much frustration to Reform, Conservative and moderate Orthodox movements and converts. The next decisive date in this tug of war is December 2017, after the government of Israel undertook in July of this year to try to reach a compromise by that time, otherwise the court is free to rule. No guesses as to how many meetings have (not) taken place until the date of the writing of this article to reach such a compromise.

Does adoption affect who is a Jew for the purpose of the Law of Return?

Not only does the question of conversion trouble the courts, the Law of Return also raises issues regarding adoptions, single-sex relationships, elderly parents, and more.

Take Ruven and Shimon for example. Ruven was born to a Jewish mother and a non-Jewish father. His mother passed away and his father remarried a non-Jewish woman, who decided to adopt him. Therefore, neither of Ruven’s legal parents is Jewish. Shimon was also adopted, but he was born to a non-Jewish mother and a Jewish father who passed away. Can Ruven and/or Shimon make Aliyah under the Law of Return?

In general, adoption does not automatically change the religion of the adoptee. So therefore, Ruven should have no problem in making Aliyah, as he was born a Jew. However, Shimon was not born a Jew, he was born to a Jewish father, who then “lost” his parentage. In theory, he should not be considered eligible under the Law of Return. However, because of numerous arguments in the courts on this topic, it would appear that “blood is thicker than law” as far as the accepted interpretation of Law of Return is concerned. Even if Shimon is not considered the legal child of his Jewish father and was not born to a Jewish mother, therefore is not Jewish, it appears that he will be able to make Aliyah unless either he has actively adopted another religion. But this situation is very tenuous and subject to change and uncertainty.

Single-sex relationships:  Who is a spouse for the Law of Return?

Obviously, if both partners are Jewish, the Law of Return is not concerned in any way whether a couple is homosexual or heterosexual. However, if only one of the partners is Jewish, and the Interior Minister in Israel is Ultra-Orthodox, then there is a definite question regarding “who is a spouse” when a Jew is in a single-sex relationship for the purpose of the Law of Return. Luckily, the drafters of the amendment to Law of Return used different terminology from their predecessors who drafted the Israeli Citizenship Law in the 50s. In the latter Law, the drafters used the terms “husband” and “wife”. However, in the Law of Return, the drafters used the term “partner”. Although the courts have not ordered the Interior Ministry to interpret “partner” as including a common law partner, the Interior Ministry (under threat of court action by our office) conceded that the only reasonable interpretation of “partner” must include both heterosexual and homosexual marital partners.

So, as long as a single-sex mixed-faith couple can find a way to get married before they apply for Aliyah, they will both be eligible to make Aliyah, just like a heterosexual couple. They will be registered as “married” in the Population Registry in Israel, even though Israeli internal law does not recognize single-sex unions of any sort. However, non-married couples will not be eligible – even if they have taken active steps to formalize their relationship (such as registering their relationship as a “civil union”). This still causes discrimination between heterosexual and homosexual couples, as heterosexual couples can “always” chose to marry, whereas often, homosexual couples cannot. Even in light of this discrimination, I cannot see the Supreme Court broadening the definition of “partner” under the Law of Return to include common-law couples.

Non-Jewish parents: Who is eligible to make Aliyah?

Unlike most immigration laws around the globe, which relate to the immigrant and his/her “immediate” family, which includes children and parents, the Law of Return deals almost exclusively with “descendants”. Therefore, if a new immigrant has a Jewish mother but a non-Jewish father (or vice-versa), and his/her parents are divorced, the non-Jewish parent has no entitlement under the Law of Return. However, what happens to the non-Jewish parent who becomes a widow (as opposed from divorce). The Law of Return states that regarding eligibility for Aliyah, it is immaterial whether the “Jew” (by whose right the spouse/ child/ grandchild etc requests citizenship) is still alive and whether or not s/he has immigrated to Israel.

Until recently, this stipulation was interpreted very broadly. Just like the spouse of a living Jew, the spouse of a living child or the spouse of a living grandchild of a Jew was entitled to make Aliyah, so too the widow/er was granted the right to make Aliyah. However, in recent months, the Interior Ministry has begun to interpret the above stipulation as applying to the widow of a Jew only. We have begun to receive complaints from widows of children of Jewish fathers, whose Aliyah requests were rejected. This is likely to have serious ramifications in the Reform world, which accepts patrilineal descent and so people see themselves as Jews and live full Jewish lives with their partners, but are seen by the State of Israel as children of Jews and not as Jews themselves. The same applies to many Olim[4] from the former Soviet Union, where in many cases, their registered nationality (Jewish) was determined by their father and not their mother. This issue will in most likelihood only be resolved by the Supreme Court as any amendment to the Law of Return itself is very unlikely.

The above examples are not an exclusive list of issues not clearly defined by the Law of Return. One other complex question beyond the scope of this article, but a very current one, relates to children of Israelis who are born overseas. Many new immigrants do not stay in Israel and return to their countries of origin. Many Israelis from birth leave Israel and make their homes abroad. Should their children be considered Israelis from birth even though they have never been in Israel (in which case the Law of Return does not apply to them and their families and the much more problematic family unification procedures apply) or should they be considered new immigrants under the Law of Return? And the list goes on…

In conclusion, the Law of Return was passed as a statement of principle – a message to the Jews of the world that they will always have a homeland in Israel. It has served as a fundamental tool in affecting Israel’s demography since its legislation. However in today’s reality, where intermarriage is rife, where traditional forms of relationships are changing, where the “global village” is more of a reality than a dream and virtual communication dominates so much of how we live, I would argue that a one-page law is no longer truly viable. The Supreme Court cannot always be called upon to interpret and reinterpret it and often even read into it what is not there.

The Law of Return now definitely needs “revisiting”. That being said, the major fear is that a “return of the Law” will bring with it even more problems. Especially in today’s political climate. We all – in Israel and out – need to ensure that it remains relevant and true to its original purpose. In short – the Law of Return is as much your law as it is mine. Keep a good eye on it.

This article originally appeared in Devarim, a publication by WUPJ Latin America.

Nicole Maor, Advocate, is the Director of the Legal Aid Center for Olim, a project of the Israel Religious Action Center, Israel Movement for Progressive and Reform Judaism, and one of Israel’s leading advocates in questions and litigation regarding the Law of Return, in particular in the field of conversion.


[1] World Union for Progressive Judaism
[2] The roof body for Conservative Judaism
[3] It has ruled allowing the registration of non-Orthodox converts as Jews in the Population Registry but has not ruled with regards the recognition for receiving Israeli citizenship under the Law of Return.
[4] New immigrants