In July 1950, the Knesset unanimously approved the Law of Return, which established the right of every diaspora Jew to immigrate to Eretz Yisrael and the State of Israel. The Law also detailed restrictions, including the denial of the right of return to those whose actions are directed against the Jewish people or the State of Israel, as well as those who might pose a threat to public health. Subsequently, under public pressure, the Knesset adopted several additional amendments. Controversies surrounding the Law of Return persist to this day.

Relationships between Israel and the diaspora develop along very different vectors. One of them is a fundamental issue for the pillars of the Jewish world: Israel, the Diaspora, and the aliyah that unites them to Eretz Yisrael and Israel—the Law of Return (LoR), the 70th anniversary of the adoption of which is celebrated on July 5th of this year. It is no coincidence that the history of its discussion and the changes and amendments made to it[1] is an intriguing example of mutual influence and regulation of the three branches of government within the framework of striving to shape the Jewish character of the State of Israel in accordance with its modern understanding. It also reflects the intense debate on the crucial question of "who is a Jew?" (in Hebrew – מיהו יהודי‎) or, in other words, what is the essence of Jewish identity in Israel and the diaspora.

Historical Background of the Changes to the LoR

On July 5, 1950, the Israeli Parliament (Knesset) unanimously passed the Law of Return (LoR), which declared that "every Jew has the right to immigrate to Israel." According to the Hebrew calendar, this was the Memorial Day (the day of death) of the founder of political Zionism, T. Herzl, which lent symbolic significance to the adopted law. The legislature's intent clearly reflects the desire to imbue the law with symbolic meaning and historical perspective. Even before the passage of the LoR, anyone could enter Israel, as the restrictions introduced in the pre-state period by the British mandatory authorities had been abolished. A Jew interested in moving to Israel could do so without providing any proof of Jewish descent; a simple declaration of belonging to the Jewish people was sufficient.

In March 1958, Minister of Internal Affairs Israel Bar-Yehuda (Achdut HaAvoda party) and Attorney General Haim Cohn issued instructions for registration registry officials, specifying that the registration of Jewish status was to be based on personal self-declaration. This provision provoked a protest from the religious Mafdal Party, and in July 1958, by government decree, the aforementioned instructions were amended to include the criterion "does not belong to another faith." Following the Knesset elections, the return of the Mafdal party to the government coalition, and the appointment of its representative, Rabbi Moshe Haim Shapira, as Minister of Internal Affairs, new "Instructions on the Registration of Jews" were issued on January 1, 1960: "when recording religion and nationality in the population register, a person may be registered as a Jew if they are born to a Jewish mother and do not belong to another faith; or if they have converted to Judaism according to Halakha."

The dubious formal status of the mentioned instruction, the public debate surrounding the registration of the religious-national status of citizens, and the political system's inability to resolve the issue on its own practically forced the judiciary to intervene. A landmark development was the so-called "Brother Daniel Case."

Oswald Rufeisen, better known as Brother Daniel, born to a Jewish family and later converted to Christianity, applied for Israeli citizenship under the Law of Return but was officially rejected based on the Instructions of January 1, 1960, and appealed to the Supreme Court[2]. In his appeal, Brother Daniel argued that he was a member of the Jewish people, practiced Christianity, and noted that according to Halakha, he was still recognized as a Jew. The appeal requested that the Ministry of Internal Affairs' instructions be declared inconsistent with the Law of Return and therefore unlawful. The Supreme Court's ruling emphasized that Halakha considers those who converted from Judaism to Christianity to be Jews, but recognized Minister Shapira's instructions as inconsistent with Israeli legislation. Thus, the Supreme Court made the historical conclusion that Israeli law did not define the concept of a "Jew."

However, the Court ruled that in the absence of a legislative framework, the subjective opinion of the majority of the nation should be adopted, "as the word is understood in our day by the people" (as phrased by Justice Berinson), and "the way we, as Jews, understand it" (as phrased by Justice Silberg, p. 22 in court records); that is, a Jew is someone whom other Jews consider to be a Jew. Following this logic, since contemporary Jews did not recognize a Christian priest as "one of their own," Brother Daniel's petition was rejected. Justice Haim Cohn dissented from the majority opinion, finding it impossible to prioritize the criterion of the "opinion of the majority of the nation" over the "declaration of the petitioner's desire." Ultimately, the Supreme Court's decision became final.

It was precisely as a result of these court hearings and the subsequent decision that political elites and the public recognized the model established in the State of Israel: belonging to the Jewish people based on traditional (halakhic) criteria is not a sufficient condition for granting citizen status. Further consideration of the issue continued within the courts in the "Shalit Case," which created a legal precedent that, in turn, served as the foundation for a new public debate. Benjamin Shalit, a major in the Israeli Navy married to a non-religious Scottish woman, with whom he had two children, applied to the Ministry of Internal Affairs to register his children as Jewish (under "nationality") and atheist (under "religion"). He was rejected based on the "Instructions" of January 1, 1960. Shalit appealed to the Supreme Court[3].

In the legal appeal, Shalit, citing the Brother Daniel case as a precedent, argued that his children did not belong to any religious faith but were "connected to Jewishness and Israel and raised in such an atmosphere," meaning other Jews would clearly recognize them as Jewish. Five of the nine judges ruled in Shalit's favor. Justices Moshe Landau and Shimon Agranat, in their dissenting opinions, stated that there was no consensus among the public on this issue and the court should not formulate its opinion as that of the majority of the nation. In their view, in such a situation, the court should refrain from making a ruling and leave the executive branch (the Ministry of Internal Affairs) to resolve the matter at its discretion, according to the "instructions."

Justices Silberg and Kister ruled in favor of adhering to halakhic norms. Justice Silberg's opinion was emotionally and powerfully formulated:

"Anyone who detaches Jewish national identity from its religious elements deals a fatal blow to our political claims to Eretz Yisrael. Such a separation is akin to an act of betrayal...

The search for a new criterion of national identity is practically equivalent to a complete denial of the continued existence of the Jewish people. The meaning of this search is this: there is no more Zionism, no heritage, no history. There is only a desire to build a new state, devoid of a past and traditions."

As a result, in 1970, the Knesset adopted amendments to the Law of Return (Amendment No. 2) and to the Law on Population Registration. In accordance with a compromise agreement between the Avoda and Mafdal parties, it was defined that a Jew is "someone who was born to a Jewish mother or converted to Judaism and is not a member of another faith," and on this basis has the right to immigrate. (The Agudat Yisrael party demanded that the Law specify the form of conversion as "converted to Judaism according to Halakha." The proposal was rejected by 59 votes against three). The Law of Return was extended to the children and grandchildren of Jews, thereby guaranteeing immigration to Israel for descendants of Jews up to the third generation, as well as their family members.

This debate took an interesting and highly indicative turn when a third child was born into the Shalit family. Under the new wording of the law, the child was refused registration as a Jew. Shalit appealed to the Supreme Court, highlighting the paradoxical nature of the situation where, in the same family and with the same parents who had changed nothing in their religious views and lifestyle, two children were considered Jewish, while the third child was not. Shalit's appeal was rejected by the Court on the grounds that the State had adopted a Law on this matter, which naturally does not operate retroactively, and therefore the first two children remained registered as Jewish.

Another legal precedent served as the basis for a new public discussion about the Law, which subsequently led to the adoption of Additions to the Law.

In the 1970s, the demand to clarify the essence of conversion (giyur) within the LoR was widely debated. The issue arose because, under the LoR, individuals who had undergone conversion in communities (both Orthodox and non-Orthodox) outside of Israel were immigrating to Israel. Orthodox religious political parties in Israel demanded that the Law specify that only "conversion according to Halakha" is acceptable in Israel, opposing the Conservative and Reform versions. In this way, political forces of the Orthodox stream of Judaism sought to recognize only Orthodox conversion as legal in Israel, thereby legally and legislatively securing the primacy of the Orthodox movement in Judaism. At that time, the uncompromising stance of North American Jewry played a crucial role, and the demands were not accepted.

The Contemporary Situation

Jews from the former USSR first became part of this controversy only in the 1990s. The end of the 1980s introduced new motives to the Israeli debate on the LoR, linked to the mass immigration from the USSR, and later, after the collapse of the Soviet Union, from the post-Soviet space. The percentage of non-Jews entering the State of Israel under the LoR grew year after year, although official statistics on this matter have not been published.

Political debates in the Knesset and society regarding demands to narrow the scope of non-Jews eligible for immigration flared up with renewed intensity, and tension surrounding the Law escalated. For instance, Prof. Ruth Gavison, in expressing her view on this matter, found it necessary to clarify that her opinion was not that of a professor of law, but of a public figure, stating that "those who doubt the special Jewish character of the state are interested in repealing the Law. There are those who believe the Law was relevant in the past, during the initial phase of the state's existence, but is inappropriate today. Among those who believe the Law is necessary, there are those who think some of its elements are unjust. For example, it is unclear why the right of return should extend to distant relatives of Jews who have no connection to Judaism... Indeed, anyone who wishes to lead a full Jewish life does not necessarily have to be Jewish according to Halakha. But the right of return under the Law of Return must not be granted to those who have no interest in a Jewish way of life, and are sometimes members of another religious or national community."

In the late 1990s, secular and religious circles in the State of Israel expressed concern over the increasing number of new immigrants who had weak ties to any elements of Jewish culture and civilization.

It was in relation to the Law of Return that Russian Jews and Jewish organizations for the first time became involved in discussing Israeli law and exerted a noticeable influence on the process. Conversely, programs initiated by Israeli state and national institutions had an impact on developments within diaspora structures.

To address the issue of Jewish identity and ease political tension, a special public commission led by Professor Yaakov Neeman[4] was established. Created in this very context, the commission formulated solutions[5] on the basis of which the Joint Institute for Jewish Studies was established. Within this Institute, for the first time in the history of the State of Israel, the three streams of Judaism (Orthodox, Conservative, and Reform) united under one roof. Within this educational institution, candidates prepare for conversion, with instructors representing different streams of Judaism. In accordance with the recommendations of the Commission led by Professor Y. Neeman, upon a candidate's completion of the preparation process within the Institute, an exam is taken before an Orthodox rabbinical court, which makes the final decision on the completion of the conversion process (and issues a special certificate). This mechanism was proposed to "manage the problem" in Israel.

For future immigrants, prior to the actual immigration, the Jewish Agency established an educational and information program called "Jewish Identity." Within this program, educational and methodological materials were developed, special training courses were conducted for instructors from various Jewish communities selected by the commission, and dozens of seminars and lectures were held for thousands of participants from most regions of the post-Soviet space and virtually all places where organized Jewish communities operated. Instructor training courses for the "Jewish Identity" program were held in 2000 in Moscow[6] and Kyiv, and the graduates became teachers for students across a wide network of ulpans organized by the Jewish Agency, as well as for participants in special seminars held in various regions.

It was during the active discussions on whether to "change or not change" the LoR, in January 2000, that Natan Sharansky, who served as Minister of Internal Affairs in 1999–2000, visited Moscow. During this visit, from our perspective, a statement was made for the first time regarding the need for a serious and open dialogue between Israeli public and political structures on one side and the Jewish community in the diaspora on the other[7]. During a working meeting between leaders of Russian Jewish organizations and the Israeli Minister of Internal Affairs, a Protocol of Intentions was signed, the core idea of which was a declaration of readiness from both sides to cooperate in resolving the issues surrounding the LoR[8].

The issue of reforming the LoR was not assessed uniformly by the leaders of various Jewish organizations in the post-Soviet space. According to the President of the Vaad, Mikhail Chlenov, the head of a representative Jewish organization established back in the days of the USSR, "the proposal to change the LoR is the first attempt to alter the relationship between Israel and the Russian-speaking diaspora"[9]. Obviously, Prof. Chlenov was referring to the situation in the Russian Jewish community, where among potential immigrants, as well as participants in Jewish public organizations, there are non-Jews (family members of Jews, descendants of Jews), and from his point of view, modifying the LoR signals to the community the application of an exclusively halakhic criterion to determine belonging to the Jewish people. At the same time, representatives of Orthodox Jewish organizations and communities spoke in favor of limiting the rights of non-Jews to immigrate to Israel.

In 2000, issues regarding the reform of the LoR were again actively discussed. These problems were addressed at various levels during visits by Israeli ministers to the post-Soviet states, and a seminar titled "Israel in the Year 2000 – Should the LoR be Changed?"[10] was held in the Knesset. The seminar was organized by the parliamentary Committee on Aliyah and Absorption and attended by representatives of immigrant public organizations, the Jewish Agency, the Joint, the Nativ bureau, human rights organizations, leaders of post-Soviet Jewish communities, rabbis, and Knesset members from various political parties (Yisrael Beiteinu, Yisrael BaAliyah, Shinui, Shas, One Israel, Likud)[11]. The head of the parliamentary Committee on Aliyah and Absorption, Naomi Blumenthal, expressed concern over "mass non-Jewish immigration" and supported the need to reduce the categories of those eligible for immigration under the LoR. In turn, N. Blumenthal's party colleague, Ariel Sharon, spoke sharply against such attempts, demonstrating that there was no consensus on this issue within the Likud party, while Knesset Speaker Avraham Burg, who had served as Chairman of the Jewish Agency prior to his election to the Knesset, declared that adopting such changes would inevitably damage Israel's relations with the Jewish diasporas.

The discussion of the LoR continued at a meeting of the same committee in December 2001, where the then Minister of Internal Affairs and leader of the Shas party, Eli Yishai, raised the issue of limiting the influx of grandchildren of Jews who had lost any real connection to Jewishness. Deputy Knesset Speaker Sofa Landver noted during the debate that the cause of the disagreements surrounding the LoR lay in the understanding of what the Jewish state should be[12].

Conclusions

Thus, in examining the Law of Return and citizenship in the State of Israel, it becomes evident that citizenship does not depend exclusively on belonging to the Jewish people or Judaism as a religion. This Law has not always been viewed by legislative and judicial bodies solely through the prism of Jewish tradition or Jewish law. It must be noted that the LoR touches upon the deepest processes occurring within Israeli society. The history of discussing various aspects of the LoR in legislative and judicial bodies demonstrates varying attitudes in Israeli society toward a whole spectrum of issues—the observance of Jewish traditions from a halakhic standpoint, mixed marriages, and the interaction of various streams within Judaism.

Despite the intense debate surrounding the LoR from the 1970s to the present, no changes have been made to the Law.

However, from our perspective, the debate itself is extremely productive, as it allows different sectors of Israeli society to better understand the aspirations of opponents holding different views on citizens' self-identification and the future of the State of Israel as a Jewish and democratic state.

Russian Jewry and its leaders for the first time took a highly active part in discussing plans to amend the Israeli LoR and exerted a noticeable influence on the course and outcomes of the discussion. Although the LoR at first glance only regulates the right to immigrate and receive citizenship in Israel, the law has a significant impact on shaping practices within the Jewish communities of the diaspora. The most pronounced influence of Israeli practices is observed precisely in the communities of the former USSR, due to a number of subjective reasons.

Programs initiated by Israeli institutions allowed for the training of a group of active educators and the organization of classes for a significant number of Jews and their family members. Those participants of the described programs who remained in the diaspora—namely, families who possess the right to immigrate but decided not to leave—became acquainted with community leaders and the traditions of Judaism, and became involved in the activities of synagogues and various Jewish organizations.

[1] The text of the Law and its amendments are published on the website of the Israeli parliament, the Knesset, see http://www.knesset.gov.il/laws/special/heb/chok_hashvut.htm. Russian translation of the "Law of Return" with commentary by attorney Eduard Felberg see http://www.nurited.info/pages.php?pgid=27 For further details on the national and religious aspects of Jewishness in rulings of the Supreme Court of Israel, see: "A Jew – Who is He? National and Religious Definitions of Jewishness in the Precedents of the Rulings of the Supreme Court of Israel," Jerusalem: Gesharim; Moscow: Bridges of Culture, 2007. On the political controversy and circumstances surrounding the described events, see: Moshe Samit, Who is a Jew (1958 – 1988), Jerusalem, 1988; נעמה כרמי, חוק השבות- זכויות ההגירה וגבולותיהן, הוצ’ אוניברסיטת ת”א, 2003

    Public controversy regarding the Law continues today. See "Vesty", 06.01.2007, Alexander Svishchev

[2] Case 72/62, Oswald Rufeisen v. Minister of Internal Affairs, http://www.nevo.co.il/Psika_word/elyon/E18-62000072A.pdf

[3] Case 58/68, Shalit v. Minister of Internal Affairs. The court ruling was announced on 23.1.70/ http://www.courts.co.il/SR/elyon/KC-6800058.htm

[4] Prof. Y. Neeman served as Minister of Justice and Minister of Finance; head of Israel's largest law firm.

[5] Formulated in the form of administrative instructions in 1999.

[6] Instructor training courses in Moscow were organized at Touro College and the Institute for Training Community Workers. The author of this study personally participated in the creation, management, and teaching of the aforementioned Courses.

[7] Russian Jewry Enters the Dialogue, "Vesty", 27.01.2000

[8] Journalist N. Zubkova of the newspaper "Inostranets" followed the development of the debate most closely and objectively. See "Inostranets", 2.02.2000, p. 26.

[9] "Inostranets", 12.01.2000, p. 25.

[10] For a detailed journalistic report on the seminar, see "Should the LoR be Changed?", S. Ron, "Vesty", 9.03.2000.

[11] The author of this study was a participant in the seminar.

[12] Landver S., The Iron Curtain of Eli Yishai, Vesty, 13.12.2001, p. 9.