Analysis of the Israeli High Court: Jewish Apostates and the Law of Return
BY: Dani Lent
In light of the proposal of the since-rejected Rotem bill, known otherwise as the “conversion bill,” much attention has been given lately to the halakhot and court decisions surrounding the status of converts to Judaism in Israeli society. The media, so focused on this topic, have thus given little coverage to a fascinating decision handed down recently by the Israeli High Court about the status of an apostate and his or her ability to gain citizenship under the Law of Return. The Jerusalem Post reported recently that Henya Zebedovsky, a woman born to Jewish parents in Israel, married a Christian man in 1975 in a Catholic church after declaring that she had been baptized.[i] She and her husband moved to Germany and in 1985 she requested that her Israeli citizenship be revoked for tax reasons, noting “I am living as a Christian now anyway.” After her marriage dissolved, she appealed to the Interior Ministry to reinstate her Israeli citizenship under the Law of Return. This request was denied despite approval from two rabbinical courts. The woman appealed her case to the High Court, which was left with the difficult decision of determining yet again “who is a Jew?” – only this time with the additional complication of ascertaining the status of a lapsed Jew who wishes to repent.[ii]
This legal case requires the evaluation of a variety of religious, cultural and national considerations. Should one who left the fold of Judaism be welcomed back with open arms the minute he or she reconsiders? Are there irrevocable consequences for one’s prior decisions to leave the faith? How does the Jewish ideal of teshuvah come into effect? On a related note, how much weight should the secular Israeli court have in halakhic determinations of who is Jewish enough to qualify for automatic Israeli citizenship?
The term “apostasy,” derived from the Greek word meaning “to revolt,” is used to refer to the rejection of one religious faith and the defection to another.[iii] The Talmudic rabbis also used one of a variety of words and phrases to describe one who abandons Judaism in this manner. These terms include mumar, “one who is changed,”[iv] poshea Yisrael, “a transgressor of Israel,”[v] and meshummad, “one who was destroyed,”[vi] among others. The first reference to a heretic in Judaic texts is in the context of mesit, the agitator, who proclaims, “Let us go and worship the gods of others.”[vii] The biblical punishment for the abdication of Judaism in favor of other worship is the death penalty.[viii]
With the emergence of Christianity and Islam, many responsa were written trying to determine how to relate to a Jew who converts to one of these religions.[ix] Rambam holds one of the strictest opinions in regard to an apostate. He believes that apostates who converted willingly “are not considered as members of the Jewish People.”[x] He relies on the verse “None that go to her repent, nor will they regain the paths of life”[xi] to bar them from being accepted back into Judaism as changed and repentant people.[xii] The majority of decisors rely, however, on the overriding principle “A Jew, even if he sinned, is a Jew”[xiii] to open up the doors to those who have converted, whether by coercion or willingly. Rema, for example, holds that a Jewish apostate seeking to return to Judaism is welcomed after he or she repents in front of a beit din. The requirement to immerse in a mikveh is only due to a rabbinic stringency.[xiv]
Various commentators debated the status of former apostates who returned to Judaism and how their subsequent lives as Jews should be affected by their prior conversion. Sefer Hasidim established that in regard to “a person who became an apostate and returned to being a Jew and obligated himself to repent as the sages shall instruct him, it is permitted to drink wine with him and pray with him from the moment he accepted [the obligation].”[xv] On the other hand, Rabbi Elazar of Worms, author of Sefer ha-Rokeah, advocated self-mortification for the returnee. He writes that an apostate must mourn and fast daily for a number of years, repent three times daily and endure great suffering to atone for his transgressions.[xvi] R. Elazar is quoted, however, in a responsum of Rashba as having not been strict with a former apostate because “since he has returned he is healed, and he who comes to be purified should be helped.”[xvii] This contradiction perhaps indicates a discrepancy between R. Elazar’s preferred course of action for the penitent person and what was carried out in practice so as not to repel any would-be repentance with harsh measures.
Since the enactment of the Law of Return that followed the establishment of the State of Israel, the question of “who is considered a Jew” has been hotly debated. The original formulation of the law was that “every Jew has the right to come to this country [Israel] as an oleh.”[xviii] This wording left the definition of “Jew” open to interpretation, as no specifications were delineated. In 1962, however, Father Oswald Daniel Rufeisen (“Brother Daniel”), a Jew who converted to Catholicism, applied for citizenship under the Law of Return. The Israeli Supreme Court denied his request on the basis that, while Brother Daniel would still be considered a Jew under the majority of halakhic opinions (based on the opinion cited above that a Jew always remains a Jew), the Law of Return is not based solely on Halakhah. As a secular law, it is necessary for the term “Jew” to be interpreted according to the popular definition, that is, someone who identifies as a Jew and is not living according to a different religion.[xix] The Law of Return was therefore amended to read as follows: “For the purposes of this Law, ‘Jew’ means a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion.”[xx] The amendment aligned the law with what Judge Neal Hendel labeled a “secular perspective of the Jewish world,” based on Jewish history and current Israeli society, rather than a halakhic perspective based on rabbinic sources.[xxi]
Rabbi Aharon Lichtenstein, in a written response to the Brother Daniel case, elucidates the difference between a Jew and “Jewishness.” One who converts to another religion “remains a Jew without Jewishness […] however, of the sacredness of the Jewish personality, that which essentially constitutes being a Jew – he is bereft.”[xxii] Kedushat Yisrael, the metaphysical state of being a Jew as a member of the spiritual community of Judaism, terminates when a person completely alienates himself from the Jewish People to the point that he no longer identifies therewith whatsoever. R. Lichtenstein contends that the convert to Christianity possibly alienates himself even more than the converts to idolatry of Talmudic times because Christians “constituted a distinct social group in a sense in which other religious societies did not.”[xxiii]
Ms. Zebedovsky, the petitioner, became a meshummad le-kol ha-Torah kullah, an “apostate with regard to the whole Torah,”[xxiv] when she abandoned Judaism in favor of Christianity. This most severe form of apostasy, not undertaken under duress but rather as a personal decision, completely severed her ties with her Jewishness, albeit not her halakhic status as a Jew in regard to marriage, divorce and other social parameters. Her previous declaration while living in Germany that her Israeli citizenship is irrelevant as “she is living as a Christian now anyway” seems to confirm this. Once she desires to identify once again with the Jewish People, though, regardless of to what extent and for what motivation, this would seem to reinstate her “Jewish character.” By the mere declaration of her desire to return to live as a Jew under the Law of Return, she is no longer a Jew without Jewishness, one who has completely alienated herself from every semblance of Jewish character. It is perhaps for this reason that there is no Torah requirement for her to immerse herself in a mikveh.xiv She never was a Gentile in the literal sense, and any children she had, even while she was living as a Christian, would be considered halakhically Jewish. Rather, the rabbis required the returning apostate to immerse in a mikveh as a way of demonstrating a newfound identity with the Jewish People.
The secular Israeli court seems to have embraced the definition of Jewish identity as the demarcation for acceptance under the Law of Return, rather than the halakhic status of a Jew. This seems apparent from the inclusion of the spouses and children of Jews under the Law of Return, whether or not they have the status of a Jew. Judge Hendel remarked that “any attempt to define the term ‘religion’ without referring to religion is marked for failure.”[xxv] The court recognizes its precarious position in attempting to decide matters based on Jewish nationhood without becoming a theocracy. While the decision regarding who is considered Jewish must reference rabbinic sources, because it is impossible to address the question otherwise, as a secular state the decision cannot be solely based on them. In regards to this case, the court decided that “the petitioner was considered a different religion when she was baptized […] It is possible for her to prove that she has returned to the Jewish people.”xxv
This approach of the court is problematic for a number of reasons. It is not delineated in the court case how it is possible for one to prove his or her commitment to the Jewish People. Does this require an affirmation of the Thirteen Principles of Faith? Must Ms. Zebedovsky accept all of the 613 commandments? As stated above, according to Halakhah, the mere desire to rejoin the Jewish community is sufficient. By petitioning the court to identify her as a Jew and allow her to return to Israel, regardless of her motivations for doing so, Henya Zebedovsky has made a greater declaration of her identification than most Jews who would easily be admitted into Israel. Her teshuvah process that the court is demanding is one she has already undergone. In the amendment to the Law of Return, Israel denied entrance to those Jews still practicing as members of a different faith. Ms. Zebedovsky no longer falls into that category, so her prior acts should not be held against her. It is not yet known how the court will determine her “commitment,” but it would seem that she should be welcomed with a brand new Israeli identity card.[xxvi]
Dani Lent is
[ii] I would like to acknowledge Rabbi David Golinkin for his article “How Can Apostates Such as the Falash Mura Return to Judaism?” in the January 2007 edition of Responsa in a Moment from The Schechter Institute (available at: http://www.schechter.edu/responsa.aspx?ID=30), as well as Israel in the Middle East, edited by Itamar Rabinovich and Jehuda Reinharz, for the greater understanding they gave me as to the political and halakhic issues involved in this case.
[iii] “Apostasy.” Merriam-Webster Online, available at: http://www.merriam-webster.com/dictionary/apostasy.
[iv] Avodah Zarah 26b.
[v] Seridei Esh 2:60.
[vi] Rambam, Mishneh Torah, Hilkhot Ishut 2:16.
[vii] Deuteronomy 13:7.
[viii] This is in accordance with Rambam’s view in Mishneh Torah, Hilkhot Avodah Zarah 2:5 that a mumar deserves stoning and karet on the basis of the assumption that he or she will be practicing avodah zarah and will transgress sins for which one is deserving the death penalty. This assumes that Christianity, again following the position of Rambam, is considered avodah zarah by Halakhah.
[ix] While these responses differ depending on whether the conversion was undergone to escape persecution or out of the person’s own volition, here I will only consider the latter situation, as that reflects the circumstances of the court case.
[x] Rambam, Mishneh Torah, Hilkhot Mamrim 3:2.
[xi] Proverbs 2:19.
[xii] Rambam, Mishnah Torah, Hilkhot Avodah Zarah 2:5.
[xiii] Sanhedrin 44a.
[xiv] Shulhan Arukh, Yoreh De’ah 268:12.
[xv] R. Yehudah he-Hasid, Sefer Hasidim, ed. by Reuven Margaliot (Jerusalem: Mosad ha-Rav Kook), siman 203, p. 192.
[xvi] R. Elazar of Worms, Sefer ha-Rokeah, Laws of Repentance, siman 24.
[xvii] Responsa of Rashba attributed to Ramban, siman 180.
[xviii] Law of Return, 1950.
[xix] Supreme Court Decision 72/62, Oswald Rufeisen v. Ministry of Interior (1962) 15 P.D. 2428.
[xx] Law of Return, Amendment No. 2, 1970, Section 4B.
[xxi] Supreme Court Decision 265/87, Gary and Shirley Beresford v. Ministry of Interior (1993) 43 P.D. 849.
[xxii] R. Aharon Lichtenstein, “Brother Daniel and Jewish Fraternity.” Leaves of Faith: The World of Jewish Living (Jersey City, NJ: Ktav, 2004), p. 67.
[xxiii] Ibid., p. 68.
[xxiv] Rambam, Mishneh Torah, Hilkhot Teshuvah 3:9.
[xxv] Supreme Court Decision 10226/08, Henya Zebedovsky v. Ministry of Interior (2010).
[xxvi] This conclusion is not taking into account, as the court does not, the issue of her having renounced her Israeli citizenship earlier. If a United States citizen renounces citizenship for tax purposes, he or she is banned from regaining it. The law is unclear on this point in Israel, so both the court and I ignore the issue.