Fateful Years: 1970 - Welcoming Their Children's Children

Menachem Porush, as a Member of Knesset representing the Agudat Israel Party, spoke very emotionally when, from the Knesset podium, he attacked Reform Judaism, saying it had "distanced itself not only from the Jewish faith but also from Jewish nationhood."

Menachem Porush, as a Member of Knesset representing the Agudat Israel Party, spoke very emotionally when, from the Knesset podium, he attacked Reform Judaism, saying it had "distanced itself not only from the Jewish faith but also from Jewish nationhood." He brought along a Reform prayer book and illustrated how prayers expressing a longing for the Holy Land had been erased: "They ripped out the prayer `And You will return to Your city Jerusalem in an act of great compassion.' They ripped out the prayer `And our eyes will be fixed on You when You return to Zion.' After indicating the prayers that had been deleted from the prayer book, Porush hurled it to the floor.

This was the climax of a series of vociferous debates held in the Israeli parliament in February and March 1970 over a government-sponsored bill to amend the Law of Return. When Porush threw the prayer book to the floor, pandemonium reigned in the plenum. Mordechai Bibi of the Ahdut Ha'avoda Party, who chaired the gathering, said: "The Knesset podium cannot be used for the delivery of diatribes against a movement that is not represented in parliament, especially against a prayer book that, nonetheless, contains principles that all of us believe in." Haolam Hazeh MK Shalom Cohen demanded that Porush be barred from the next five meetings of the Knesset because he had deviated from the ethical norms of the legislature. Then-justice minister Jacob Samson Shapira demanded that an urgent discussion be held in the Knesset House Committee over "the scandalous act of throwing a prayer book on the floor."

At the end of the Knesset gathering, Porush again requested permission to speak. He wanted to make a statement, which was a lukewarm form of apology: "I had not planned in advance to do what I did. My action was an outburst of anger," he said. "When I read out the verses that had been uprooted from the Reform prayer book, I felt as if the holy prayer book compiled by Anshei Knesset Hagedolah [the 120-member Supreme Rabbinical Court led by Ezra, according to Maimonides] had been castrated."

Porush noted that, according to halakha (Jewish religious law), even a genuine Torah scroll can be thrown into the fire - if it has been written by a heretic. He was only willing to admit that "this was not the place where the Reform prayer book should have been thrown to the ground." Even today, 32 years later, he has not changed his position: "I most certainly did not apologize. I only stated, "If I have angered any of you, perhaps this was not the place to carry out such an action."

In early 1970, the government submitted two major amendments to the Knesset for approval. One was Section 4(b) to the Law of Return. For the first time in Israel's history, a definition of "Who is a Jew?" (in other words, who was eligible to immigrate to Israel under the terms of the Law of Return) was entered into the lawbooks: "Persons who were born to a Jewish mother or who have converted to Judaism and who are not members of any other religious faith." The second amendment, defined as Section 4(a), extended the eligibility for immigration to Israel under the law to the members of a Jew's family as well: "The rights of Jews under this law ... are hereby given to their children and their children's spouses and to their children's children and to the spouses of their children's children [that is, to a Jew's grandchildren and their spouses. In the course of the debate on the amendments to the law, the circuitous wording "children's children" was replaced by the explicit term "grandchildren" - Y.S.], except for any of the Jew's children or grandchildren who have converted to Christianity."

Majority evasion

The amendments were submitted to the Knesset in the wake of a public storm of controversy that had erupted a few weeks before. In January 1970, a five to four majority of an extraordinary nine-member bench of Supreme Court justices acceded to the petition that Major Binyamin Shalit had submitted to the High Court of Justice. Shalit had requested that the court allow the word "Jewish" to appear in the "nationality" section in the identity cards of his wife and two children. His Scottish-born wife had not converted to Judaism and thus, according to halakha, her children were also not Jewish.

The majority's verdict, which was written by Supreme Court Justice Haim Cohn, evaded the matter of principle involved in the "Who is a Jew?" question and instead focused on the administrative aspect of the Shalit case. Thus, the High Court ruled that, according to the Law of Return, the interior minister lacked the authority to instruct the registering clerk not to accept the declaration of any person that he or she is Jewish or that his or her children are Jewish.

This decision was all that was needed for the National Religious Party, a loyal partner in the coalition, to threaten to quit the government. The country's political system responded with incredible alacrity. Within a week and a half of the High Court ruling, on February 3, the government submitted to the Knesset its proposed amendment, which was intended to prevent any repetitions of the Shalit case. A week later, on February 9 and 10, the Knesset held a debate preliminary to the first reading of the amendment. On March 10 - only six weeks after the High Court verdict - the Knesset approved the amendment in second and third readings, by a majority of 51 to 14.

The Shalit High Court petition is only one of the chapters in the long saga of the Law of Return. When the law was first passed in 1950, it was phrased in very broad terms: "Every Jew has the right to immigrate to the Land of Israel." The emotional term "Land of Israel," as opposed to the legal phrase "State of Israel," was meant to emphasize the intentions of those who had written the text of the bill. Then prime minister David Ben-Gurion expressed these intentions with the following statement: "The right of Jews to immigrate to this land is determined not by the State of Israel but rather by their Judaism.... This right preceded the creation of the state, supersedes the state and is rooted in the law of history."

Israel's legislators deliberately avoided defining the basic component in the law, namely, the term "Jew," because every definition tends to limit the scope of a term. Lawyer Shlomo Guberman, who had for many years worked in the field of legislation in the office of the attorney general, says that "this was the fundamental approach of those responsible for the country's legislation. They believed that laws of a constitutional nature should be phrased in the broadest possible way without any attempt being made to define anything in advance, and they also believed that the interpretation of a law should be left to the common sense of the law courts."

The religious resign

Unfortunately, the common sense of civil servants and judges was not always to the liking of the politicians. The Law of Return granted the interior minister the authority "to introduce regulations with regard to the law's implementation." Naturally, these regulations would change in accordance with the minister's political identity. In March 1958, interior minister Israel Bar Yehuda of the Ahdut Ha'avoda Party decided that "any persons who, in good faith, declare that they are Jewish shall be registered as Jews." After this regulation was given the official status of a government decision, the religious cabinet ministers submitted their letters of resignation. Ben-Gurion established a ministerial committee to study the issue and, at the same time, sent letters to dozens of "Jewish scholars" (hakhmei Israel) throughout the world and from all walks of life, asking for their advice. The vast majority of them (37 out of 45) supported the religious position.

In December 1959, a new government was formed, and Moshe Haim Shapira, a Religious Zionist, was appointed minister of the interior. He immediately set about establishing a new set of regulations, according to which "Persons shall be registered as Jews if they were born to a Jewish mother and if they are not members of another religious faith, or if they have converted to Judaism in accordance with halakha." In line with these regulations, Shalit's wife and children could not be registered as Jews. The High Court ruled that the authority that the Law of Return granted to the interior minister to issue regulations was administrative in character and that no interior minister could utilize that authority in order to impose substantive limitations.

For its part, the High Court also tried to avoid making any decisions on this sensitive issue. In an unusual step (and with the unanimous support of all nine members of the bench), Chief Supreme Court Justice Shimon Agranat asked the government to remove the nationality section from the population register and to therefore free the High Court from having to make a decision on this issue.

The proposal generated a no-holds-barred public debate and the government's response was a categorical no. Ben-Gurion, who at the time was an ordinary member of Knesset, wrote in the daily Ma'ariv that the "proposal would perhaps be suitable from the perspective of the `Canaanites' - if there are still any such people with that ideology remaining here - but it is not suitable for the Jewish citizens of the State of Israel. The Jewish people in Israel are a part of the Jewish people, and the removal of the nationality section from the identity card of Jews living in the Land of Israel would be the beginning of the erasure of our being a part of the Jewish people."

Justice minister Jacob Samson Shapira made it clear in the Knesset that "no Israeli government could ever allow itself to suggest that the Knesset undertake such action." In contrast, two prominent jurists among the members of the national legislature, Haim Zadok and Shmuel Tamir, were of the opinion that the government should, in fact, accede to the High Court's request. Tamir even went so far as to passionately issue a protest against the "pretentious notion that the 120 elected representatives of the public in 1970 are authorized to make a decision on a question for which, throughout Jewish history, no precise, comprehensive answer has ever been given."

Pragmatic decision

The amendments that the government submitted in the wake of the High Court verdict not only defined "Who is a Jew," but also extended the eligibility to immigrate to Israel to a larger group of people. (In effect, interior minister Moshe Haim Shapira's formula was accepted, with one significant difference: The condition for eligibility under the Law of Return would be simply "conversion to Judaism" rather than "conversion to Judaism in accordance with halakha," and this decision was the reason for Porush's rage in the face of the legitimization given to the Reform movement.) What was the source of this extension, and was it the result of secular, political counter-pressure?

As can be understood from what justice minister Shapira said when he presented the proposed amendment, it would appear that this was a pragmatic suggestion from Justice Ministry officials and that it was based on the awareness that a Jewish family in which some of its members are not Jewish should not be broken up.

Guberman, who at the time served as a deputy assistant to the attorney general on matters of legislation, remembers that the reason behind the proposal was strictly pragmatic: "We were then in the midst of receiving a wave of immigration from Poland. The immigrants from that country began arriving two years earlier, in 1968. Many of the immigrants were members of mixed [Jewish-Gentile] families. I recall that we had even thought up an imaginary immigrant by the name of Suppositzky and that we said to ourselves that we must see to it that the legislation would enable his wife and children to immigrate to Israel along with him."

Attorney Zvi Terlo, who was then director general of the Justice Ministry, remembers that political considerations were also involved: "The extension of immigrant's rights was intended to `counterbalance' the concession made to the religious Jewish community and to satisfy some of the demands of the secular Jewish community. Thus, the purpose of the extension was to ensure that the law would be passed by the Knesset."

In the public debate of the past few years, it is commonly believed that the extension of immigrant's rights to the grandchildren of Jews was rooted in the desire that the Law of Return would counterbalance Nazi Germany's Nuremberg Laws; in other words, if the Nazis persecuted the grandchildren of Jews, the State of Israel should enable those same grandchildren to immigrate to Israel. The records of the debate in the Knesset plenum on these proposals clearly demonstrate that this last point was a myth. At no point in the debate did anyone make such a comparison. Guberman argues that "this argument has no foundation in reality. In my view, such a claim could even be viewed as grossly infuriating."

Over the years, especially in view of the past decade's wave of immigrants from the former Soviet Union, many of whom are not Jewish, a considerable number of Israelis have expressed surprise over the law's "magnanimity." It would seem that this surprise is what has given rise to the myth of the Nuremberg parallel.

Combined attack

The Knesset debate called attention to the creation of bizarre coalitions: The ultra-Orthodox Jews and the secular left joined forces in a combined attack on the proposal. The ultra-Orthodox objected because the term "conversion" was not defined as "conversion in accordance with halakha" and because immigrant's rights were being extended too liberally. The secular leftists objected because the Jewish identity of applicants for immigrant's rights would be dependent on conversion or on the mother's being Jewish.

The NRP and the Labor Alignment joined forces and enthusiastically endorsed the bill. Zadok, who, as noted above, preferred to have the nationality section in Israeli identity cards omitted altogether, nonetheless asked, "If a definition cannot be avoided, why should we not accept the halakhic definition? Must we deny the validity of the moral principle that children are identified by their mother simply because that principle is based on halakha?"

Nevertheless, many MKs, including those who supported the bill, called on the Chief Rabbinate to make the conversion process more lenient for non-Jewish immigrants. Gahal bloc MK Shneour Zalman Abramov even quoted the interior minister himself, Shapira, who was also head of the NRP. Shapira was quoted by Abramov as having complained that "the Chief Rabbinate does not understand that we are not living in some village in Europe. We have our own country now and we are faced with many problems. The Rabbinate is subject to influences that are tying its hands. For thousands of years, we have known how to make adjustments and how to be lenient. However, here in Israel, those who want to make things tougher just go ahead and do so."

The House Committee, which prepared the final draft of the bill, introduced a number of amendments in the government's original text. For example, the committee decided that immigrant's rights would be extended even in cases where the Jews whose descendants wanted to immigrate to Israel were no longer living or were not interested in immigrating to Israel. The committee's chair, Israel-Shlomo Ben Meir justified the extension with the argument that "this right will be given to people because of their closeness to our nation." It was further decided that the right of a Jew who had converted to immigrate to Israel could be invalidated only if the conversion were "voluntary." Ben Meir presented the reasoning for this position: "Some converts prior to their conversion were not aware that they were Jews. They learned of their Jewish background only after they had already converted. Even today, some Jews are forcibly converted to Christianity."

In the wake of the Knesset's enactment of the amendments, Shalit's third child - who was born a few years after the amendments went into effect - was denied the option of being registered in the population records as Jewish. This time, no petition was submitted to the High Court. In 1975, five years after the High Court's acceptance of his petition changed the face of the Law of Return, Shalit resigned from the Israel Defense Forces and emigrated from Israel to Sweden, where he served as Chief Psychologist of the Swedish Navy. In 1981, he divorced his wife and married a Swedish woman. In 1988, during a visit to London, he suffered a fatal heart attack. He was 53 at the time of his death.

The religious parties in Israel have for years continued their struggle to make the recognition of a person's Jewish identity conditional upon conversion "in accordance with halakha." However, all the battles fought in the course of that struggle and all of the threats made have been in vain, and the text has remained unchanged. Until the past decade's wave of immigration, no battle was waged against the extension of immigrant's rights to the children and grandchildren of Jews. Perhaps the religious parties as well considered the regulation acceptable because it prevented families from being split up, or perhaps they were not afraid that the regulation would, in practical terms, lead to the immigration of many non-Jews to Israel.

Three years ago, figures were published on the dramatically high rate of non-Jews among immigrants to Israel from the former Soviet Union. Prof. Eliezer Don- Yihyeh, who teaches political science at Bar Ilan University, then stated that the stubborn struggle for a definition of conversion as a process complying with halakha was "a tragic error committed by religious politicians, who debated a section relevant only to a few dozen cases annually, but who ignored a section that enables hundreds of non-Jews to immigrate to Israel."