The Supreme Court justices really did not want to intervene. The original petitions to the High Court by Reform and Conservative converts who had carried out their conversions in Israel and were asking to be recognized as Jews, and Israeli citizens, under the Law of Return had been filed 16 years ago. But the court wanted a key decision on the interpretation of Israel’s most fundamental legislation, one that relates to the very identity of the Jewish state, to be made by the elected Knesset. Not them.
But governments came and went, including the last 12 years of Netanyahu governments, three committees formed and their recommendations ignored and the issue remained unresolved. The exasperation at the lack of any progress by the politicians runs through the ruling. “It’s impossible to wait without end and without an outcome and avoid resolution, just because of the vague possibility that some kind of legislation will take force – a possibility which is in great doubt and its timing unknown,” wrote Supreme Court President Esther Hayut. They had given continuation after continuation. Most of the nine justices who delivered the ruling hadn’t even been on the court when the petitions were first filed.
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The judicial exasperation notwithstanding, there’s a reason the politicians have done nothing about this. It’s the same reason previous rulings on conversion and the definition of Jewish identity were made by the High Court and not the Knesset. For the ultra-Orthodox parties, there is no more important symbol. The very idea that the streams they regard as “fake Judaism” be given equal rights on deciding who is a Jew is complete anathema. For them it’s an issue on which to bring down the government. Any government. But for successive prime ministers, this isn’t another issue they can concede to their coalition partners.
The Reform and Conservative movements, while small in Israel, are the largest organized streams of Judaism in the United States. For an Israeli prime minister to say their conversions don’t count would be tantamount to a divorce from the largest Jewish community outside Israel. Which is why every prime minister since David Ben-Gurion in the 1950s, even Benjamin Netanyahu, the closest ally of the Haredi establishment ever, has tried to avoid the “Who is a Jew?” question like fire.
In recent years, Netanyahu has usually been eager to pick a fight with the legal establishment to rally his base and claim that the investigations and indictments against him are all the result of a “witch-hunt” by the legal deep state. But this time, he has remained silent after the High Court ruling. It’s a lose-lose situation as far as he’s concerned. In fact, the justices are doing him a favor by making the only possible decision for him. But the Haredim won’t let this stand.
The ultra-Orthodox parties United Torah Judaism and Shas have already publicly notified their ally Benjamin Netanyahu that in light of the High Court’s ruling they will only join a government led by him after the election if the new coalition supports the passing of a law that will recognize only Orthodox conversion and add to it an “overriding clause” blocking High Court intervention.
This is a double headache for Netanyahu. It puts him, yet again on a potential collision course with the Jewish Diaspora establishment, his worst yet. Talk of an “overriding clause” also reminds voters that in the next Knesset Netanyahu’s supporters are hoping to pass a law granting him immunity from prosecution with an overriding clause of its own.
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But the ruling is unlikely to change voters’ minds. The battle lines between Netanyahu’s Likud and its ultra-Orthodox allies who are determined to minimize the power of the High Court and the parties that continue to support the court, are already deeply drawn. No one is going to change sides because of Monday’s ruling. It’s conceivable that the ruling, which the ultra-Orthodox parties are presenting as existential for the future of the Jewish people, will help them to appeal to wavering Haredi voters who were gravitating towards the neo-Kahanist, Haredi-nationalist Religious Zionism party, whose leaders Bezalel Smotrich and Itamar Ben-Gvir have worked hard to woo the ultra-Orthodox. Religious Zionism is relying on an influx of Haredi voters to help it cross the electoral threshold, and if they go back to their traditional parties, it could keep the supremacists out of the next Knesset. Another blow to Netanyahu who is relying on them for his elusive majority.
The election is the first priority and even though Netanyahu prefers to remain silent, his media outriders will attack the court and claim that its infernal liberal judicial activism is opening the way for thousands of “illegal infiltrators” from Africa to convert to Judaism and gain Israeli citizenship. The racist incitement may even garner him some extra votes. But the time bomb will continue ticking after the election, for him or for whoever forms the new government – even if the Haredi parties are not part of the next coalition.
New petitions will be filed against the stranglehold of the Haredi rabbinical establishment on matters of “personal status.” And once the conversion issue has been settled, then there will be demands for equal standing of Reform and Conservative rabbis to perform marriages and divorces, or to extend civil jurisdiction. And the politicians will procrastinate and the justices will be forced to rule. And the right wing and rabbis will fulminate over their “activism.”