IMMIGRATION TO ISRAEL ACCORDING TO THE LAW OF RETURN AFTER CONVERSION TO ANOTHER RELIGION?
“Is it possible to make Aliyah after conversion to Christianity”? This conundrum derives from the basic question “Who is a Jew”? This question confounded the Jewish people throughout their shared history and became more relevant than ever after the reestablishment of Israel as an independent state. In August 2010, the High Court of Justice issued a significant ruling on the matter. The Zevidovsky verdict adds an important element to the discussion of the question above. This ruling relates to the essence of the definition of “Jew” in the laws of the State of Israel and especially the term Jew in the law of return. In this article, Adv. Joshua Pex, an immigration attorney to Israel at the law firm of Cohen, Decker, Pex, Brosh, will review the Zevidovsky ruling and the criteria for defining the term “Jew” in the Law of Return. The article will focus on the possibility of returning to Judaism and making Aliyah after conversion to Christianity as decided by the Israeli Supreme Court.
WHO IS CONSIDERED A JEW – ENTITLED TO IMMIGRATE TO ISRAEL UNDER THE LAW OF RETURN?
The debate over who is a Jew gained momentum and acquired concrete significance after the establishment of the state of Israel. It became particularly important in the context of the Law of Return, a law which was enacted in 1950, only two years after the State of Israel was established. The formerly theoretical question, which had purely religious implications for Diaspora Jewry, suddenly had far reaching implications for the Zionist state, and especially for anyone who wanted to immigrate to Israel. The Israeli legislature had to decide who would be entitled to receive a “key” to the National Home. On the other hand the decision regarding the criteria that defines a Jew would force some to remain in exile. Which descendant of Jewish ancestors is entitled to immigrate to Israel and who does not have the right to make Aliyah after leaving Judaism?
It should be noted that from the very start, the Law of Return explicitly refrained from defining the very term “Jew”. The reason behind the lack of definition was to avoid the complex and divisive debate over “who is a Jew”. Therefore, article 1 of the Law simply states: “Every Jew is entitled to immigrate to Israel.” But the state, deliberately, did not restrict itself to the rabbinical Halakha (Jewish religious law) definition, i.e, a person who was born to a Jewish mother or converted to Judaism.
SUPREME COURT RULINGS – WHO IS A JEW UNDER THE LAW OF RETURN?
Over the years, the Supreme Court, sitting as the High Court of Justice, has been required to carry out a task of interpretation in order to define and explicate the question of “who is a Jew” in Israeli law, via a series of precedent-setting rulings.
In 1962, in the affair of Rufeisen (Brother Daniel), the High Court of Justice ruled (by majority opinion, versus one dissenting opinion) that a Jewish Catholic monk may not make Aliyah after conversion to Christianity. Brother Daniel was a Holocaust survivor who was born and raised as a Jew, but the Supreme Court ruled that he was not entitled to immigrate to Israel under the Law of Return, since he had converted to Catholicism of his own free will. The argument of the majority judges was that after his conversion to Christianity he is a member of a non-Jewish religion, and is not allowed to immigrate to Israel.
In 1970, following the Shalit affair, in which the High Court of Justice ruled that the children of a Jewish father and a Christian mother would be listed as Jews in their identity papers, the law of return was amended. The decision of the High Court of Justice in the Shalit case caused a public and political uproar, therefore the Knesset amended the Law of Return. The definition of “Jew” for the purposes of making Aliyah was now an orthodox religious one – the child of a Jewish mother or a person who has converted to Judaism. Furthermore, the definition was amended to include the clause “who is not a member of another religion”. On the other hand, the scope of the right of return has also been extended to spouses, children and grandchildren of Jews.
The decision to grant eligibility to immigrate to Israel to the descendants of Jews until the third generation holds a symbolic significance. The rationale was to counter the Nazi racial laws (the Nuremberg Laws), which also saw the grandchildren of Jews as having Jewish blood.
Since then, for over 40 years, despite many changes in the State of Israel, the Law of Return has remained unchanged. The High Court of Justice, in turn, filled the void left by the legislator and continued the development of the interpretation of the law. Cases brought before the Supreme Court addressing the question of who is a Jew entitled to Aliyah, especially regarding Messianic Jews, or various conversions to Judaism which are not Orthodox.
To summarize: in judicial precedent, those who undergo a Reform or Conservative conversion to Judaism are counted as Jews for the purpose of the Law of Return. However Messianic Jews are not considered as Jews for the same purpose, rather are regarded as Christians who don’t have the right to make aliyah after conversion to Christianity.
THOSE DEFINED AS “MEMBERS OF ANOTHER RELIGION” ARE NOT ENTITLED TO IMMIGRATE TO ISRAEL UNDER THE LAW OF RETURN
Supreme Court decisions regarding the right to immigrate to Israel after conversion, most notably Beresford (1987) and Kendall (1990) determined that a Messianic Jew is considered to be a Christian. Therefore, a Messianic Jew is considered a “member of another religion”, and not entitled to making Aliyah after conversion to Christianity. The Supreme Court’s rulings on the subject presented two schools of thought, representing different approaches to understanding the Israeli legal system. Justice Alon’s approach, which is based on the world of Judaism and Jewish law, contrasts with the liberal, secular, national viewpoint of Justice Barak. Despite the different theoretical approaches, both judges reached the same conclusion – a Messianic Jew (ie, the child of a Jewish mother who believes that Jesus is the Messiah of Israel) is of “another religion” rather than Judaism.
Justice Alon supported his claims with sources in Judaic tradition, which claim that a “convert” is not part of the Jewish people, and therefore is not entitled to join the Jewish state.Justice Barak expressed his opinion that even according to a secular outlook there is general agreement that “a Jew who believes in Jesus” is no longer a Jew, according to the national meaning of the term.
APPLICATION TO MAKE ALIYAH AFTER CONVERSION TO CHRISTIANITY – THE ZEVIDOVSKY VERDICT
These legal precedents regarding Aliyah after conversion to Christianity were facing Justice Hendel when he deciding the case of Ms. Zevidovsky. The applicant was born in Israel, to Jewish parents who survived the Holocaust. Later in life she was baptized – as an adult of her own free will – and married a Christian man in a Catholic church in 1975. After that she left Israel and renounced her Israeli citizenship. Years later, Ms. Zevidovsky decided to return to Israel, and asked for the right of Aliyah to Israel and Israeli citizenship under the Law of Return. She claimed she never gave up her Jewish identity. Ms. Zevidovsky primarily claim was that the conversion was merely an ostensible one, for the purpose of the marriage, so she never actually converted to Christianity, and should not be considered “of another religion.” Secondly, Ms. Zevidovsky received a ruling regarding her return to Judaism by the Rabbinical Court in Tel Aviv. If so, the question before the court was whether she was now entitled to make Aliyah after conversion to Christianity, based on the Law of Return, and to receive Israeli citizenship?
Justice Hendel mentions the unresolved dispute regarding the proper interpretation of the term “member of another religion,” but criticizes both the possibility of interpreting the Law of Return without the use of Hebrew law, while ignoring Jewish religious tradition, and a complete reliance upon religious tradition for interpreting Israeli law.
Hendel offers an alternative “practical approach”, based on Hebrew law in its broad sense, which takes into account behavior, awareness, statements and the willingness of a person to assimilate within the other religion. According to Judge Hendel, due to discomfort with the phenomenon of apostates, Jewish law does not offer an exact definition based on clear criteria for defining a Jew who converted to another religion. However, the absence of a desire to classify this category does not indicate a lack of condemnation thereof. The picture of conversion that emerges in Rabbinic literature involves the adoption of extreme measures of assimilation in the other religion, maintaining the customs, laws and way of life of members of the other religion. It should be noted that it is not enough to have shared philosophies and worldviews with members of the other religion, because the very meaning of the term “conversion” emphasizes a shared system of belief and worship. In view of the above, his honor states that the facts of the specific case indicate that the Petitioner presented herself as a member of another religion, participated in major Christian ceremonies, was aware of their meaning and belonged to the Catholic Church for years, and therefore is not Jewish under the Law of Return.
In conclusion, Hendel raises a fundamental question; Can a Jew revert to Judaism after being a member of another religion? Although the law does not address this situation explicitly, the judge argues that Jewish law recognizes the ability of each person to change, and the gates of repentance are open to all. Therefore, the judge ruled that Ms. Zevidovsky may submit a new application for immigration, which will be examined on a factual basis.
Justice Rubinstein supported Justice Hendel’s ruling, with a comprehensive historical survey of the attitude of Judaism toward converts who removed themselves from among the people of Israel. However, he also held that Jewish law did not rule out the return of the convert to Judaism. Therefore, while the ability to make Aliyah after conversion to Christianity was denied to the petitioner, the High Court allowed future applicants to retain their hopes.
The High Court of Justice ruling in the matter of Ms. Zevidovsky thus teaches that an integral part of the attempt to define who is a Jew is to delimit the boundaries by answering the question of “who is not a Jew”. Every judge approaches this complex interpretation, in accordance with his standards and his outlook on Israeli law, and especially his perception of the proper relationship between Hebrew law and the State of Israel as “Jewish and democratic.”
THE LAW FIRM OF COHEN, DECKER, PEX, BROSH – IMMIGRATION AND ALIYAH TO ISRAEL, INCLUDING ALIYAH AFTER CONVERSION TO CHRISTIANITY
If you have a question about Aliyah to Israel after conversion from Judaism, or immigration to Israel, our attorneys will be happy to arrange a meeting, in order to study the legal situation and give an opinion as to whether it is possible to provide assistance with the Ministry of the Interior or the relevant court.
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