Who Counts as a Jew?

Posted in: International Law

Last week, the Supreme Court of Israel held that people who have undergone Conservative or Reform conversions in Israel qualify as Jews under the Israeli Law of Return. The Law of Return says all Jews in the world are automatically eligible to become Israeli citizens. Non-Jews who have one Jewish grandparent are eligible as well. This law is controversial for a variety of reasons. But until the recent ruling, people in Israel would not, for purposes of immigration and citizenship, count as Jews if they were born outside the faith and converted to Judaism in Israel under the auspices of a Conservative or Reform Congregation.

The process of Reform or Conservative conversion is less demanding than Orthodox conversion, so a non-Jew will now have a far less onerous path to conversion than she did under the old regime. And Conservative and Reform Jews will not have to convert at all in order to become citizens. This column will consider some of the downsides that remain in the Israeli approach to who counts as a Jew.

Jewishness and Eligibility for Israeli Citizenship

Controversy over the Law of Return overlaps considerably with contests over Israel’s character and very existence. At one end of the spectrum are those who believe there should be no Zionist/Jewish state at all. Some of them take the position that the State should be a multinational secular entity and that descendants of Palestinians who lived there before statehood (1948) and had to leave at that time, should have a “Right of Return.”

Many supporters of Israel believe that a majority Jewish population in the country is essential to maintaining the country’s character as a Jewish state. Some such supporters take this view for religious reasons. They point to God’s Biblical promise to Abraham. Secular supporters think that Israel, born in the wake of the Holocaust and persecution throughout two millennia in the Diaspora, serves an essential function as a haven for Jews in a world that has not moved past antisemitism. Whatever their ultimate reasons, Israel’s supporters see the Law of Return as useful and a Palestinian Right of Return as antithetical to Israel’s character as a Jewish State.

To appreciate the centrality of the Law of Return to the identity of the State of Israel requires a bit more than my glib reference to the Holocaust and two millennia of persecution. The Holocaust proved to the small number of surviving Jewish individuals and families in Europe that virtually no country would generously open its doors for Jewish refugees from Jew-hating mass murder. Most famously, in 1939 the U.S. turned away from its shores a boat filled with refugees from the Third Reich, despite their dire need and the lethal nature of the threat they faced and to which nearly a third of those onboard eventually succumbed.

During his recent confirmation hearing to become Attorney General, Merrick Garland eloquently and movingly expressed gratitude for the U.S. taking in his grandparents. But the truth is that prior to the attack on Pearl Harbor, the U.S., while supplying material aid to Britain, did not enter the war against the Nazis. Even when Japan attacked, the U.S. responded by declaring war on Japan alone. Only after Germany reacted by declaring war on the U.S. did the U.S. declare war on Germany. And then, even as the war and the Holocaust raged, the U.S. did not welcome more than a handful of the Jews desperate to flee a regime that eventually exterminated six million and whose goal was to murder them all.

For many Jews, the lesson of the Holocaust was that their people needed to have their own country or else face the constant risk that their enemies would once again rise up and visit homicidal violence upon them. Instead of feeling like weak victims who simply had to hope for the grace of other nations, having their own State would empower the Jews to defend themselves independently (or through diplomacy with other friendly nations).

The Law of Return is bound up in Israel’s historical mission. It both induces Jews living elsewhere to become Israelis and provides some assurance to those who choose to remain in the Diaspora that should they or their descendants need to escape persecution and murder, they will not find themselves at the mercy of unreliable countries that turned Jews away in their darkest hour. They could simply show up in Israel and find acceptance as equal citizens.

Jew/Not a Jew

Having a place where one can go to flee persecution, no questions asked, offers a sense of safety and security. When the next massacre came, Jews would have a home. Yet this promise required the State of Israel to decide which people qualified as Jews and which did not. Reflecting its roots in the Holocaust, the Law of Return counts as Jewish anyone with at least one Jewish grandparent—the definition used by the Nazis.

What makes for a Jewish grandparent? Israeli law begins with Judaism’s matrilineal rule: a person born of a Jewish woman is Jewish. The law does not stop there, though. Converts to Judaism also qualify under the Law of Return. Yet that extension raises a further question: which conversions would the State count as valid?

Prior to the Israeli Supreme Court’s recent decision, the only in-country conversions that would count for purposes of establishing Jewish citizenship were Orthodox ones. To be fair, for a great many Jews, Judaism simply is Orthodox Judaism. After all, the Jews of Eastern Europe whose losses had helped to define the mission of the State of Israel were largely either Orthodox or assimilated and secular, with very few adherents of Conservative or Reform Judaism. As an Israeli friend put it, in Israel (because in Europe), it is to the Orthodox synagogue that secular Jews refuse to go. People who converted would not necessarily remain (or even initially be) religious, but the Eastern Europeans who largely populated the land of Israel would understandably have thought of conversions simply as Orthodox conversions.

Plainly, things have changed in the last half century, and many people who considered themselves Jewish had converted under Conservative or Reform auspices. What would happen to them? Was the State of Israel discriminating against some Jews? Was it failing to live up to its promise to admit all Jews and welcome them as citizens? The Supreme Court’s decision helps to end the indignity of having to re-convert with an Orthodox rabbi after having become Jewish already.

Nonetheless A Problem With the Jewish Test

Many would fault the State of Israel for extending its unconditional welcome mat exclusively to Jews. This column will neither defend nor critique the practice, other than to say that the persecution of Jews can sometimes feel as old as time, and the goal of the policy is to respond to that threat, not to raise Jewish lives over others’.

To be sure, some right-wing Israelis exhibit animus towards Palestinians and other non-Jews, but it greatly over-simplifies matters to identify the Law of Return with religious or ethnic bias more broadly. One can argue that the historical roots of the Law of Return as a response to antisemitism do not justify its exclusivity, and that argument is worth having, but I am not engaging in it here. Even accepting that one has an adequate response to the equality concerns that might animate Israel’s critics, the new ruling (and the law that preceded it) embroil the State in a problematic enterprise of defining who counts as a Jew.

In the United States, we have (at least on paper) an Establishment Clause that mandates some form of separation of church and state. Under the (perhaps largely defunct) “Lemon test” from Lemon v. Kurtzman, one of the attributes of a law or policy that brings First Amendment suspicion upon it is “entanglement.” It occurs when the government becomes intimately involved with religious matters.

An example might be if New York had an official rabbi, paid by the State, who would go into commercial kitchens and certify some but not others as “Kosher for Passover” based on the

State’s view of what does and what does not satisfy the definition. To those who value a separation of church and state, it is inappropriate for the government to get involved in the intricacies of what qualifies as proper religious practice, and a government overseer of Passover observance does exactly that. (New York law nonetheless forbids labeling non-Kosher-for-Passover food as Kosher for Passover, but instead of defining Kosher or Kosher for Passover, the law requires identification of who has certified the food, thus serving a consumer protection function. The U.S. Court of Appeals for the Second Circuit thus rejected an Establishment Clause challenge to the law.)

Israel’s practice of defining who is and who is not a Jew plainly entangles the State in matters of religious practice. And such entanglement is inherently contentious. Although religion is largely a community matter, it is the individual who experiences herself as part of the community, and when there are several alternatives, the individual can choose to be part of one rather than the other. When the government says “you are not Jews” to people who consider themselves Jews (because of a Reform or Conservative conversion), we have the government substituting its own religious values for those of the individual.

Hearing the government tell you that you are not what you think you are is painful. It is religious discrimination even if it discriminates between two people of the same religion on the basis of religion. Yet it is hard to know how Israel can continue to be what it aims to be if it cannot adjudicate between “Jew” and “not a Jew.” A country of Israel’s size cannot realistically accept all the world’s refugees. Its mission is to admit Jews, and admitting Jews requires it to determine who they are.

Maybe the Law of Return could defer to people who say they are Jewish, allowing the government to stay out of making that judgment. This is pretty much how the U.S. government sometimes behaves with respect to religious practice. If an employer gives people a day off for their religious holiday, the employer would not check to see whether the practice complies with what the religion really requires. The only space for intervention is where the government judges the individual to be dishonestly claiming a practice as religiously motivated. Sincerely held beliefs will receive deference. Depending on what the demand is for Israeli citizenship under a Jewish identity, such a program might work and might diffuse some of the bitterness and alienation felt by the very people whom Israel wishes to welcome. Unfortunately, I do not anticipate Israel going this route. In a country founded on the need to be vigilant, trust is necessarily in short supply.

Posted in: International Law

Tags: Israel, Judaism

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