Opinion | Is 'Jewish' a Nationality or Religion? Inside Israel's Fierce, Bitter Debate About Identity

A young Israeli wears a national flag as fellow Israelis protest against a recent cease fire with the Hamas movement, in the coastal city of Tel Aviv on November 15, 2018.Credit: AFP

Israel’s Sephardic Chief Rabbi, Yitzhak Yosef, stirred controversy in the first week of 2020 by asserting that there are "many, many goyim" in Israel, many of whom, he stated, were religion-hating "communists," and also who, he implied, were deliberately brought there to act as secular ballast against the electoral strength of religious and ultra-Orthodox Israelis. 

 
Yosef was referring to the hundreds of thousands of people who have migrated to Israel since the collapse of communism in Eastern Europe that the state rabbinate he co-heads does not consider Jewish (he was probably also referring to the many more Jewish immigrants from the former Soviet Union who are recognized as Jewish, but are defiantly secular). 

 
These and other immigrants gained automatic citizenship under the 1970 amendment to Israel’s Law of Return. The law offers citizenship to anyone with one Jewish grandparent, a right extended to their spouses and immediate family irrespective of their religion or heritage. 

 
Rabbi Yosef is not alone in ascribing a close-to-conspiratorial view of that 1970 amendment which greatly opened up, and formalized legally, the potential immigration pool.

 
But the Law of Return was not changed to bring secular and non-Jewish voters to the Jewish state for the purpose of diluting the political power of the Orthodox, or for any other nefarious reason. After all, few if any of the drafters of that amendment in 1970 could have predicted the dramatic collapse of Soviet power and the lifting of Iron Curtain emigration controls.

Rather than the result of a cunning, comprehensive plan, this key "one Jewish grandparent clause," more derisively known as the "Nuremberg clause," was the unintended legislative by-product of one man’s quest half a century ago to define his own family’s identity. That individual wanted greater freedom of conscience for all Israelis, but had no idea his advocacy would lead to Israel’s current Law of Return, and its legal definition of "Who is a Jew." 

 
Benyamin Shalit, an Israeli navy psychologist, married Anne Geddes, a non-Jewish Scottish woman in Edinburgh in December 1958, and they moved to Haifa in 1960 to raise their new family. When the Shalits’ son Oren (which he now spells as Orren) was born in 1964, the couple were required to register their new child. In the registration’s "religion" category, the new parents made no entry; they indicated "Jew" in the space for "nationality." 

Reviewing the registration, an Interior Ministry official changed baby Oren’s nationality to "not registered," and in the space for religion wrote "Father Jewish – Mother alien." The couple decided not to respond.

 
Oren Shalit's birth certificate. The author has access to Benyamin Shalit’s personal archive, before it's deposited in Tel Aviv University's Israeli Legal History Archive. Permission of Anne ShalitCredit: Permission of Anne Shalit

But when their daughter Galia was born in 1967, they were prepared to fight: they wanted the right to define the identity of their child, and stated in a letter to the Ministry of Interior that any other registration than that of "No religion” and "Jewish” or "Hebrew" nationality would be "contrary to our wishes and constitutes an infringement on our freedom of conscience." 

The Ministry of Interior once again ignored their wishes, but this time the authorities categorized Galia’s religion as "not registered" and wrote in the space for nationality: "Father: Jewish, Mother: Alien." In other words, Galia was registered with the opposite categorization as her brother. 

Galia Shalit's birth certificate. The author has access to Benyamin Shalit’s personal archive, before it's deposited in Tel Aviv University's Israeli Legal History Archive. Permission of Anne ShalitCredit: Permission of Anne Shalit

Apparently the meaning of each category – religion and nationality –  was ambiguous enough that even government officials were unsure of how to employ them. 

 
The Shalits made a decision when Galia was born to do whatever would be necessary to register her as they pleased. Benyamin took their petition all the way to Israel’s High Court of Justice, where the Supreme Court President, Shimon Agranat, appointed all nine justices – a hitherto unprecedented occurrence – to hear what became known as “the Shalit case.” 

 
Why, you may be wondering, have two distinct categories (or any categories at all) in Israel’s population registry, for both religion and nationality? Indeed, before the Supreme Court considered the case, Agranat tried to push the Interior Ministry to simply remove the category of "nationality" from the population registry: he was unsuccessful. 

 
A popular justification at the time for the two categories was that removing the "nationality" category was a form of symbolic violence towards Zionism, based as it was on the establishment of a national home for the Jewish people. That may have been a galvanizing story, but there was a more prosaic underlying reason. 

 
The population registry was used like a census to gather statistics on the demography of the state (which in turn was used by the state for less prosaic surveillance and security purposes). To determine the size and nature of the Arab minority, there was the "nationality" category, but this needed further subdivision by religion to capture data on how many citizens were Muslim or Christian.

 
Back to the Supreme Court. On January 23, 1970, in a narrow 5-4 decision, the court sided with Shalit that the duty of the Ministry of Interior and its registration officers is to register, not to interpret the sincerity of declarations about religion or identity, what the decision called "facts which lie in a man’s heart."

 
The majority justices tried to stick to the question of bureaucratic authority, but in a vitriolic dissent, Justice Moshe Zilberg argued that the decision "surpasses in import and significance anything this court has dealt with since becoming an Israeli court." 

 
The Supreme Court’s decision created a constitutional crisis and a crisis in the government, when Israel’s chief rabbinate (ostensibly the state’s highest rabbinic authority) responded to the High Court decision by issuing an injunction against registering as Jewish someone known to be non-Jewish according to halakha. 

Jerusalem's Chief Rabbinate buildingCredit: Lior MIrachi

The chief rabbinate had no legal authority to direct the Ministry of Interior, except that the ministry happened to be held by a member of Knesset from the National Religious Party, who were members of the Labor-led governing coalition. The stage was set for a clash: It was not clear that the ministry would implement the secular law of the state and courts against an authoritative religious decision. 

 
After intense negotiations, the cabinet agreed to legislate a solution, but the new law would not be implemented retroactively. The compromise reached was that, for the purposes of the population registry, "religion" would be determined according to Jewish religious law, and for Jews, their "nationality" would match their "religion." Going forward, only if you were defined as being Jewish by religion could you be registered as Jewish in the nationality "category." 

 
So Benyamin and Anne’s children Oren and Galia were registered as having no religion, but holding Jewish nationality. Nonetheless, the Shalits’ first two children were bureaucratic unicorns. No one in Israel (including the Shalits’ third child Tomer) would ever be legally registered according to that definition again.

 
Part of the compromise necessary to pass legislation that would resolve the matter once and for all meant clarifying eligibility for immigration according to the Law of Return, which grants Jews who apply for it automatic Israeli citizenship, a bureaucratic version of the question: who is a Jew.

 
The result of the political horsetrading meant that the state now had a new statutory definition of the term "Jew," and it was based on traditional halakha: "A person who was born of a Jewish mother or has been converted to Judaism and who is not a member of another religion." This definition, made as an amendment to the Law of Return and added to the Population Registry Law, would apply equally to the categories of "religion" and "nationality." 

 
Yet the state adopting an Orthodox religious definition of who is a Jew wasn’t the end of the issue. To avoid discriminating against mixed families, and those who as Jews but don’t meet the criteria of halakha, that definition was set aside to determine who could immigrate to Israel under the Law of Return.

 
The right to immigrate and become an Israeli citizen was extended to anyone with one Jewish grandparent and all members of an individual who met that criteria’s family, even if they were not themselves Jewish, with the lone exception of Jews who had voluntarily converted out of Judaism. 

 

Prime Minister Yitzhak Rabin shaking hands with new Russian immigrants on their flight from Russia to IsraelCredit: OHAYON AVI / Government Press Office

That last point was actually more exclusionary than the strictures of halakha. Jewish law doesn’t recognize any "exit" from being Jewish, but the clause in the Law of Return reflected the prevailing Israeli Jewish taboo against out-conversion (an earlier court decision, the Brother Daniel case, denied citizenship by the Law of Return to a Jewish convert to Catholicism). 

 
The expanded (non-halakhic) qualification for citizenship, made to preserve as broad a pool as possible of potential Jewish migrants and their families, enraged ultra-Orthodox parliamentarians who wanted only Jews they regarded as "authentic" to get automatic citizenship and had long sought (and still seek) to delegitimize other forms of Judaism and Jewish identity.

 
One member of Knesset from the Agudat Yisrael Party, Menachem Porush, stood at the Knesset podium and dramatically hurled a prayer book on to the floor – a Reform prayer book, which to him, like the new law, signified the betrayal of "Torah-true" definitions of Jewish identity and legitimized intermarriage and assimilation.

 
Given the controversy of the Shalits’ battle, it’s easy to forget that the official definitions of Oren and Galia’s religion and nationality were, until the government’s intervention, of no legal consequence. No matter what their registration, they would be Israeli citizens and enjoy all of the benefits of Israeli citizenship. 

 
But, like hundreds of thousands of other Israelis, they would be treated by the rabbinate as non-Jews, and thus be unable to marry within Israel because of the absence of civil marriage and the rabbinate’s exclusive control over Jewish weddings. 

 

Members of the Falashmura community arrive in Israel from Ethiopia, Ben-Gurion International Airport, Tel Aviv, February 4, 2019.Credit: \ Moti Milrod

Other critics of Benyamin Shalit, those who attacked Shalit from a nationalist perspective, claimed that his quest threatened to undermine the very meaning of what it meant to be a Jew – but from the national, not halakhic, point of view – and that his case presented an existential threat to the unity of global Jewry. According to this argument, seeing religion and nationality as something that can be conveniently separated was the domain – and error – of assimilationist Jews, be they in the diaspora or Israel.

 
According to Anne Shalit, Benyamin’s concern was with the principles of freedom of conscience and freedom from religion, and the Shalits’ many supporters considered the case clear validation of their concern with the problematic power wielded by Israel’s Jewish religious establishment over the state and civil society. 

 
In a strange way, because there were no practical legal consequences to the case – it was about a population registry alone – both sides could attribute enormous significance to what the decision meant about the nature of the state. 

 
If the significance of the Shalit case was symbolic more than practical, the same cannot be said for the legislative amendments that followed it.

 
Between 1948 and 1970, Israel had operated with no legal definition of who is a Jew, despite that question’s significance for issues of immigration and citizenship. After 1970, Israel restrictively defined Jews according to religious criteria, while simultaneously and dramatically expanding the potential pool for of immigrants and citizens, changes which ultimately reshaped the state’s demographic composition in unexpected ways. 

 
Today, two out of three of Benyamin and Anne’s children live in Sweden, where they happily define themselves however they want, while Israel’s chief rabbinate has little idea that the "many, many goyim" who have come to Israel since the end of the Soviet Union did so as a result of its own intervention in the law of the state 50 years ago. 

 
In some ways the Shalit case is a perfect demonstration of the law of unintended consequences. Benyamin Shalit wanted freedom of conscience and to disentangle religion from the state; he ended up changing the demographic composition of the state itself. 

 
Similarly, those who now seek to change the Law of Return to make it more restrictive may well create their own unintended reaction: the political impetus to break the rabbinate’s monopoly over Jewish personal status in Israel. 

 
When religious politicians and some right-wing allies push to modify the “one grandparent rule” as qualification for Israeli citizenship, secular politicians from left to right with a more expansionist view of Jewish identity are likely to ask in return for the state’s recognition of non-Orthodox Jewish personal status, conversions, weddings, religious courts, and even burial in state military cemeteries.

 
If pushing to limit the Law of Return to Jews ultimately resulted in a more pluralistic legal definition of who is a Jew, Israelis will, ironically, have the rabbinate – and Benyamin and Anne Shalit – to thank.

 
Simon J. Rabinovitch teaches history at Northeastern University. He is currently completing a book for Yale University Press entitled "Religious Freedom and the Jews: Collective Rights in Modern States." Twitter: @sjrabinov