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Lessons from "Who is a Jew" by Orrin Tilevitz
Lessons from "Who is a Jew" by Orrin Tilevitz

Volume 2 , Issue 3

Now that the proposal to amend the Law of the Return has temporarily been shelved with the formation of a Labor-Likud coalition, it is time to reflect on the misnamed ?Who is a Jew?? controversy and learn some lessons from it.

The principle that all Jews have the right to citizenship in Israel for the asking is as old as the Jewish state. The original 1950 statutory codification of this principle as the Law of the Return did not define the term ?Jew,? leaving the definition to judicial interpretation. After several well-publicized cases involving apostate Jews and others with doubtful claims to the law's protection, the law was amended about 20 years ago to define a ?Jew? as either the child of a Jewish mother or a convert to Judaism, and who was not practicing another religion. Left undefined, and therefore still to the courts, was the term ?convert.?

Religious parties in Israel and their American sympathizers have ever since continually attempted to amend the Law of the Return to define a convert as one converted kehalakha. in accordance with Jewish law, only to be thwarted by non-religious Israelis and their American sympathizers. The present controversy is just the latest skirmish in a 40 year-old battle for a limited objective: The proposed amendment would not otherwise redefine a ?Jew,? and opponents of the amendment have not themselves proposed redefining the term. The issue here is thus not ?Who is a Jew?? but, at most, ?who is a convert??

Let us first digress to the non-issue. Under Jewish law, halakha, a ?Jew? is either a child of a Jewish mother or a convert. How or even whether one practices Judaism has no effect on one's status as a Jew under halakha. Even a convert from Judaism, an apostate, is still a Jew in the eyes of halakha (although he might be required to immerse himself in a mikvah before a rabbinical court, before being reaccepted into the fold of Judaism). A fortiori, a Reform Jew, Conservative Jew, Reconstructionist Jew or plain unaffiliated Jew has the same status as a Jew under halakha, provided of course the person is either the child of a Jewish mother or a convert. Because very many of its members marry non-Jews and thus beget halakhically non-Jewish offspring at a prodigious rate, Reform Judaism also recognizes as a Jew the child of a Jewish father even if the mother is not Jewish. Conservative Judaism currently accepts the halalchic definition of a Jew, although many of its leaders support accepting the Reform definition. In any event, the definition of a Jew under the Law of the Return is thus basically the halakhic definition, except that an apostate is a Jew under halakha but not under the Law of the Return. Furthermore, in contrast with Reform Judaism, the Law of the Return does not recognize as a Jew the child of a Jewish father and a non-Jewish mother. Again, the proposed amendment to the Law of the Return would leave the basic definition of a ?Jew? unchanged.

Under halakha, to convert to Judaism one must immerse oneself in a ritual bath. a mikvah, before valid witnesses, accept the mitzvot, the commandments, and show that the conversion was the result of a sincere attachment to Judaism and not due to ulterior motives; a male convert must also undergo ritual circumcision. Reform Judaism subscribes to neither ritual circumcision for converts nor to the entire notion of a mikvah, and generally does not view mitzvot as obligatory; hence, it dispenses with the technical requirements for conversion. Conservative Judaism, in theory, accepts the technical requirements for conversion kehalakha. Therefore, in theory, under halakha, all conversions under Reform auspices are invalid and all those under Conservative auspices are valid.

At least as to Conservative conversions, this is not so simple, even assuming that the Conservative convert undergoes ritually correct immersion and circumcision (which, given the lax attitude of Conservative Judaism towards observance generally, can hardly be assured). Acceptance of the mitzvot implies acknowledgment that one is Divinely required to perform them. But Conservative Judaism at times apparently denies the Divine origin of at least some portion of the Torah; does little to encourage observance by its members of such basic mitzvot as Shabbat and family purity; and has actually abrogated certain Jewish laws with such rulings as permitting one to drive to the synagogue on Shabbat, permitting a kohen to marry a divorcee, and tacitly sanctioning marriages and divorces witnessed by women. Therefore, in many cases one must question precisely what ?accepting the mitzvot? means to a Conservative con?vert. Despite these reservations, it would appear likely that if the Law of the Return were amended to require that conversions be kehalakha and the matter were litigated in an Israeli court (a virtual certainty), given the apparent technical compliance with halakhic requirements, the court (a secular body) would find that Conservative conversions were, in fact, kehalakha within the meaning of the statute.

Reform Converts

Since conversions performed under Orthodox auspices are, or at least would be found to be. kehalakha by definition and since a court would likely find Conservative conversions also kehalakha, then the proposed amendment would affect almost exclusively converts under Reform auspices. Also, the official Israeli rabbinate, all of whose members are in theory of the Orthodox persuasion, in theory already control all matters of Jewish personal status in Israel, such as marriage, divorce and conversion. (That this control is more theoretical than real is shown by reports that representatives of the Chief Rabbinate periodically visit non-religious kibbutzim to perform mass marriage ceremonies.) Therefore, the ?problem? which the amendment would address consists almost exclusively of converts under Reform auspices outside of Israel who wish status as Jewish immigrants under the Law of the Return.

Magnitude Hard to Understate

The magnitude of this ?problem? is hard to understate. The vast majority of immigrants to Israel are not converts. The vast majority of converts to Judaism under Reform auspices become Jews in order to marry Jewish spouses, not to undergo the comparative material hardship and deprivation of being a religious Jew. Given Israel's chronic economic woes and military insecurity, life in Israel is also a life of comparative material hardship and deprivation. (This is why most rational people who choose to move there and stay have some strong religious motivation for doing so). It follows that one would not expect a person who chooses Judaism essentially out of convenience to choose to live in Israel. Also, some converts under Reform auspices later realize the limitations of Reform Judaism and undergo halakhic conversions, particularly when they discover that they are not treated as Jews in Israel for purposes of marriage. Accordingly, the ?problem? which the amendment addresses consists almost exclusively of the handful of people who undergo Reform conversion and decline to undergo halakhic conversion as a matter of principle, yet are so spiritually motivated that they are willing to suffer material hardship and deprivation to live in Israel.

Some might assume that all people in this class ought to be kept out of Israel. But given the monumental practical insignificance of the ?problem,? the dispute is clearly over symbols, not substance. Halakhic Judaism does not recognize the validity of Reform and some Conservative conversions and generally declines to recognize Reform and Conservative Judaism as legitimate expressions of religious Judaism; and those who advocate amending the Law of the Return simply wish to use this statute to make those positions clear. By the same token, Conservative and Reform leaders object to their lack of status in Israel, and view the proposed amendment as simply another attempt, however symbolic, to denigrate them. And symbols are important.

But how important? The insistence--to no avail--by the religious leadership, both here and in Israel, that a symbolic amendment be adopted had two major practical consequences, both disastrous. First, recall that the recent Israeli election ended in deadlock with the religious parties holding the balance of power. In a coalition with either Likud or Labor, the religious parties would have been given several ministries, giving them control over disbursement of funds to yeshivot and the ability to promote greatly religious observance in Israel. Instead, largely because of a single-minded devotion to a symbol, Labor and Likud were forced to cooperate, and the religious parties were left out in the cold with no control over anything.

Worse, the ?Who is a Jew?? controversy was reported and misreported in the media, including The New York Times, for weeks. Conservative and Reform leaders found an ideal excuse to belittle religious Judaism. to advocate reducing support for Israel and its religious institutions, and to urge their members to cease contributing to American religious institutions such as the Lubavitch organization. Leading Orthodox leaders found it necessary to take out a full-page advertisement in The New York Times, of all places, to explain their position and contradict Conservative and Reform disinformation. The upshot of this chillul hashem was that Jews in general and religious Jews in particular were made to seem contentious, inflexible and irrational.

One unfortunately expects this sort of conduct from the Israeli religious establishment, which has an almost unblemished record of generating adverse publicity for religious Judaism and religious Jews. Not many years ago an article appeared in The New York Times chronicling the petty quarrels of then-chief rabbis Shlomo Goren and Ovadia Yosef. On many occasions, The New York Times has reported the exploits of one chief rabbi or another dramatically flying over an archaeological excavation and banning further work for the reason that the site is supposedly a cemetery. And the American public probably knows by now that those who drive through certain neighborhoods of Jerusalem on Saturday will be the target of non-Arab rock throwers. Other examples are legion.

But should we not expect greater sophistication from American Jewish leaders? Do they not realize that publicity can be a bad thing; that non-Jews, too, read The New York Times; that giving religious Judaism a bad name will do nothing to promote Torah observance? Doesn't anyone, either here or in Israel, read the newspapers other than to see that his name is mentioned?

The major lesson of this round of ?Who is a Jew?? is that responsible Orthodox Jewish leadership in the United States needs to take more seriously its obligation to present religious Judaism in the best possible light, and to avoid at almost all costs internecine warfare, which degrades Judaism. It needs to figure out a way to educate the great majority of Jews who know nothing that halakhic Judaism is the only normative Judaism, not to attempt to cram this concept down their throats. If a sufficient number of Jews are properly educated, the ?Who is a Jew?? controversy will go away all by itself.

Orrin Tilevitz is an attorney in Brooklyn.



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