The State of Israel as a Jewish State
מתוך אתר 'חוקה בהסכמה רחבה' של וועדת חוקה חוק ומשפט, כנסת ישראל.
“Jewish and Democratic” is the Israeli ethos. First employed in the State Education Law of 1953, the phrase captures both the Israeli aspiration to reconcile Jewish and democratic values, and the conceptual and ideological tensions that this attempt raises – both challenges stand at the core of Israeli existence. It is the phrase most frequently used in current political debates, and it has immense legal, cultural, and educational significance. The proposed constitution will explicitly acknowledge and declare this dual nature of Israel, and this section provides a preliminary exploration of the challenges this issue raises.
The tensions inherent to “Jewish and Democratic” are both theoretical and practical. At the theoretical level, the challenge is to reconcile two very different traditions. The one is rooted in religion faith, the other is secular in nature; one is a nationalistic tradition, focused on the preservation of a particular people, the other focuses on the equal worth of all human beings; one is exclusive and communal, the other inclusive and universal. The practical challenges stem from two main sources. First, non-Jewish ethnic groups, most notably Israeli Arabs, make up one fifth of Israel’s population. Second, even among Jews, the meaning of Judaism, Jewish heritage, and Jewish values is highly controversial. The question then arises: Can a state that explicitly defines itself as a Jewish state also respect the fundamental democratic value of equal citizenship to all? How does the Jewish national identity and collective ethos of the state affect the individual identities of citizens who cannot or do not share in this identity? Who will define what Judaism is and means in modern-day Israel?
Jewish and Democratic in Israel's Basic Documents
Israel's Jewish and democratic values are both grounded in its existing constitutional documents. In the Declaration of Independence, Israel's founders proclaimed both the Jewish and democratic nature of Israel. The opening paragraphs of the Declaration assert the natural right of the Jewish people to self-determination in its sovereign state, connect the historic Children of Israel to the modern ones, and emphasize the historic, political, cultural, and religious ties of the Jewish people to the Land of Israel. The first half of the Declaration concludes:
"Accordingly we, members of the People's Council, representatives of the Jewish Community of Eretz-Israel and of the Zionist Movement, are here assembled on the day of the termination of the British Mandate over Eretz-Israel and, by virtue of our natural and historic right and on the strength of the resolution of the United Nations General Assembly, hereby declare the establishment of a Jewish state in Eretz-Israel, to be known as the State of Israel."
The Jewish nature of the state is also evident in the section of the Declaration establishing Israel to be a state of Jewish immigration – aliya – and of “The ingathering of the exiles.” This principle was set forth in legal and practical terms in the Law of Return, passed two years later (1950).
The Declaration of Independence proceeds to include explicit commitments to democratic values, declaring Israel to be a state based on the principles of freedom, justice, and peace; a state in which all the inhabitants shall enjoy equal social and political rights, as well as freedom of religion, conscience, language, education and culture:
"The State of Israel … will foster the development of the country for the benefit of all its inhabitants; it will be based on freedom, justice and peace as envisaged by the prophets of Israel; it will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture."
The Declaration derives the principles of equality and freedom from those “envisaged by the prophets of Israel”, underscoring the nature of Israel as a Jewish state and suggesting that there is no necessary tension between Jewish and universal values. Furthermore, the Declaration assures not only the rights and equality of the individual citizen, but also the collective, political, cultural, and religious rights of minority groups. However, the attempt to reconcile the Jewish nature of the state with the political rights of the Arab minority faces serious challenges.
Other important constitutional documents also establish the nature of the state as Jewish and democratic. Most important among them are the Basic Laws that were enacted in 1992 and that signified the “Constitutional revolution.” The Basic Law: Human Dignity and Liberty states in Article I that its purpose is “To protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.” Basic Law: Freedom of Occupation specifically refers to the Declaration of Independence and states: The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.
See also The Foundations of Law Statute (1980):
"Where a court, faced with a legal question requiring decision, finds no answer to it in statute law or case law or by analogy, it shall decide it in light of the principles of freedom, justice, equity and peace of Israel's heritage."
Symbols of the State, its Holidays, and Official Languages
Symbols of the State of Israel: Description of the Present-Day Situation
Israel's symbols are its flag, the seal or emblem of the state,and the national anthem, Hatikva. The flag consists in two horizontal stripes and the Star of David between them, all in light-blue on a white background. The two stripes are intended to recall the Talit, or prayer shawl; the Star of David, or David's Shield, has served as a Jewish symbol since as early as the seventh century BCE (Kashani 1998). The emblem is also blue and white, and depicts the menorah (candelabrum) from the ancient temple in Jerusalem surrounded by an olive branch on either side; all this above the word "Israel" in Hebrew. The national anthem describes the millenia-old Jewish hope of freedom and return to the homeland.
The national days of rest in Israel correspond to the major Jewish holidays: Rosh Hashana, Yom Kippur, the first and last days of Sukkot (Tabernacles) and Passover, and Shavuot (Pentecost). Saturday, the Jewish Sabbath, is the national day of rest. Non-Jews have the right to observe their own holidays according to their customs.
Israel's two official languages are Hebrew and Arabic, and all ordinances, official government forms and documents must be presented in both languages. The state broadcasts radio and television news in both languages, and a Member of Knesset may address the plenum in either language. The educational system is divided as well, with some schools taught in Arabic, and other schools taught in Hebrew.
The flag of Israel was originally the banner of the World Zionist Organization, and was first adopted as the flag of the Zionist Congress in 1897. It soon came to be recognized as the Zionist flag for Jewish communities throughout the world, and was hung behind David Ben-Gurion at the ceremony of the Declaration of the Establishment of the State of Israel.
The emblem of Israel was designed in Israel and was adopted nine months after the establishment of the state. It appears on official documents, the presidential standard, and public buildings in Israel and abroad. The seven-branched candelabrum of the ancient Jewish temple -- the menorah -- occupies the center of the emblem. The menorah is the oldest known symbol associated with the Jewish people, and appears on ancient coins, mosaic floors, and decorative glass. The menorah depicted is based on that seen on the Arch of Titus in Rome. The menorah is surrounded by two olive branches, expressions of the Jewish people's love for peace. On the bottom is the word "Israel," both the name of the state and a reference to a longer phrase, "Shalom al Israel" (Peace over Israel) which appears below the menorah in the sixth-century mosaic floor of the synagogue in Jericho.
Israel's national anthem, Hatikvah ("The Hope"), was written by Naftali Herz Imber and was set to music in Palestine in the early 1880s. It is about the hope of the Jews to return to Israel through 2,000 years of exile.
Israel currently has two official languages: Hebrew and Arabic. This legal status derives historically from Britain’s Palestine Mandate of 1922, which stated in Article 22, "English, Arabic, and Hebrew shall be the official languages of Palestine. Any statement or inscription in Arabic on stamps or money in Palestine shall be repeated in Hebrew, and any statement or inscription in Hebrew shall be repeated in Arabic." Section 82 of the Palestine Order-in-Council (1922) further requires that "All ordinances, official notices, and official forms of the Government... shall be published in English, Arabic, and Hebrew..." In 1948, Israel enacted the Law and Administration Ordinance, which adopted laws prevailing in the country at 1948 (including British Mandatory law) as Israeli law, with several amendments and exceptions. Section 15(b) specified that, "Any instruction in the law requiring the use of English is hereby annulled." This left Israel with two official languages to this day.
Current Issues and Controversy
Symbols, anthem, and holidays.
The symbols, holidays, and anthem of the State of Israel represent Jewish history, culture, and Zionist ideology; the debate over these symbolic elements stands in for the larger debate over the definition of Israel as a Jewish and democratic state. The symbols are exclusive, representing the majority and not the minority. The questions are clear: may Israel's symbols remain exclusively Jewish and Zionist, or might they be changed to represent the Arab minority? Does the minority have a right to demand a crescent be placed beside the Star of David, a stanza about the Naqba ("catastrophe," the term by which Arabs generally refer to the founding of Israel and the displacement of Arabs) added to the anthem, or a national day of rest on the 'Eid Al-Fitr? Or, alternatively, does the Jewish majority have the right to define its symbols at will? If Israel's demographic balance shifts, will this affect its symbols, or will they be safeguarded by the constitution?
Some, including several MKs, believe the symbols should be ensconced in the constitution, unchangeable. MK Gideon Sa'ar (Likud) serves as chairman of a subcommittee for Jewish symbols in the constitution, and has told the committee he believes Israel must safeguard its Jewish character lest the two-state Israeli-Palestinian solution become a "state-and-a-half solution" wherein one state would be Palestinian and the other half Palestinian and half Jewish (click here to read the minutes from committee debates on minority rights). This school of thought interprets Israel's democracy to include a full protection of the minority groups' freedoms to practice their religion and culture but does not compel the state to recognize their collective symbols in its own -- the symbols constitute neither interference with nor discrimination against non-Jewish groups. Its adherents generally consider Israel’s Jewish character inalienable.
A second school of thought is described by Professor Ruth Gavison in her article, "The Jews’ Right to Statehood: A Defense " (2003; see sources, below). This approach, shared by several MKs and many Jewish and Arab Israelis, states that the majority in a democracy retains the right to define the symbolic elements that characterize its community, even when such symbols are exclusionary (which they usually are) -- so long as this does not infringe on the basic rights of any citizen. This approach differs from the first in that it posits the right to Jewish symbols in Israel as conditional upon the maintenance of a Jewish majority. If, at any point in the future, the majority were to cease to be Jewish, Jews would lose their right to define the state's symbols.
The third school of thought, supported by many Arab citizens and MKs as well as some Israelis, believes Israel's current symbols unjustly ignore its non-Jewish minorities. They say that every citizen population has a communal right to be represented and to be proud of the symbols of their state, regardless of whether they are in the majority or in the minority. The constitution, some Arab scholars have argued, can be an instrument of inclusion, granting a sense of belonging to the Arabs, and it should. The alternative is a harsh and complex frustration of a large, indigenous minority <link to Adel Mana'a remarks at minority rights opening session>. One Arab expert invited to brief the Constitutional Committee on minority rights (Dr. Michael Karayanni of the Hebrew University) proposed a single national holiday with no political weight that all could share. This holiday, like the constitution itself, might constitute the beginnings of a shared sphere of citizenship. Professor Yehezkel Dror of the Jewish People Policy Planning Institute suggested in a subcommittee meeting that Arab communities be encouraged to add a symbol of their own to the upper-left-hand corner of the Israeli flag in order to make it their own.
The subcommittee for Jewish symbols in the constitution has met several times (click here to read minutes of their discussions), and while it has not yet produced its reports, broad consensus has emerged within the subcommittee for a section entrenching the current flag, emblem, and anthem in the constitution. Several members of the subcommittee as well as invited experts have proposed texts for this chapter, and the subcommittee has filed several recommendations delivered to the subcommittee but not presented at its meetings.
The subcommittee’s debates give expression to the fears of those segments of Israeli society who feel the threat of marginalization. The Arab sector, long fearful of a constitution which would offer Arab acceptance of a Zionist worldview which leaves them behind, are not represented on the subcommittee, and several recommendations the subcommittee has considered would remove Arabic from the list of official state languages (leaving it with “special status”). The ultra-orthodox are similarly afraid that the final text will secularize the Jewish character of the state, substituting a legal, social, and cultural Judaism for the Halakhic orthodox one, particularly in the public sphere.
Language: signage, education
Language has become a particular poignant playing field for the cultural competition between Jews and Arabs in Israel. While those in the Knesset who advocate repealing the official status of Arabic are still a minority, there is considerable debate among MKs, citizens, and courts debate how the state should express the fact of two official languages. Two cases that have been at the center of public debate in recent years are education and signage. While some democracies, most notably France, impose the national language on its citizens, requiring that the language on instruction in all French classrooms be French and even, until several years ago, requiring that all newborns be given proper French names from a predetermined list (Avineri 1998), Israel has allowed the Arab community cultural and linguistic autonomy in these matters since its inception. Arabs may educate their children in Arabic at all levels. The committee has entertained no recommendations to change this status quo.
In 1999, the Supreme Court heard a case brought against Tel Aviv-Jaffa and other Israeli cities of mixed Arab/Jewish populations, requesting that the municipality post all road signs in both Hebrew and Arabic on every street sign in every neighborhood throughout the city. The Court eventually found in favor of this suit, declaring that while Hebrew is Israel's first and most important language, Arabic's importance is far greater than that of any other language spoken by a major minority group.
The Supreme Court declared that Arabic’s importance is derived from both formal and intrinsic characteristics. Arabic’s formal legal status as the only official language besires Hebrew grants it special consideration in the law. Beyond this, however, Chief Justice Aharon Barak added that Arabic has been spoken in Israel’s territories for ages by its largest minority group. He also expressed an intrinsic respect for the culture of the descendents of Abraham, and based his ruling in favor of Arabic signage in mixed-population cities on both clusters of claims.
Avineri, Shlomo. Ethnic Minorities in Democratic Nation-States. In: The Arabs in Israeli Politics: Dilemmas of National Identity (Eli Rekhes, ed.), Tel Aviv University / Dayan Center Press. 1998. (Hebrew)
European Charter on Regional and Minority Languages (1992). Available at http://www.scania.org/ssf/human/lang/charter.htm
Gavison, Ruth. The Jews’ Right to Statehood: A Defense. Azure 15, 2003.
High Court of Justice decision 4112/99, Adallah et al. V. The City of Tel Aviv-Jaffa
Kashani, Reuven. The National Flag. The Israel Review of Arts and Letters, 1998, pp. 107-108 (Available in English at http://www.mfa.gov.il/MFA/MFAArchive/1990_1999/1999/1/Reuven 20Kashani%20-%20The%20National%20Flag, courtesy of the Israel Ministry of Foreign Affairs).
Palestine Mandate, at: The Avalon Project at Yale Law School: Documents in Law, History, and Diplomacy, http://www.yale.edu/lawweb/avalon/avalon.htm. 1922.
Israel Lands: Privatization or National Ownership?
Israel is the only democratic, advanced-economy country where state or quasi-state agencies own the vast majority of the land area. An estimated 93 percent of the country’s total land area (excluding the occupied areas of the West Bank and Gaza) is owned by the state or by quasi-state agencies. Furthermore, Article 1 of Basic Law: Israel Lands stipulates that:
A combination of factors – Israel’s small geographic size; its growing population and commitment to absorption of immigration; its official “nation-building” Zionist ideology; and its security needs – has encouraged Israeli policymakers to retain the principle of national ownership and to harness land policies in order to achieve national goals. Today, however, these ideological justifications are no longer immune from criticism, as the Committee discussions demonstrated.
“Israel lands,” as defined in Basic Law: Israel Lands (of 1960) consists of lands owned by the following three bodies: the State of Israel, the Jewish National Fund (JNF) and the Development Authority.
The lands owned by the state are the lands that were owned by the British Mandate over Palestine until 1948. These lands constitute about 75 percent of all Israel lands.
The JNF is a nonprofit worldwide organization established at the end of the nineteenth century as part of the Zionist movement. Its major goal was to purchase land from local landowners for the settlement of Jews. Until the early 1960’s the JNF managed its own land holdings. In 1960 it signed a treaty with the State of Israel whereby it agreed to place its land holdings, without transferring title, under the administration of the Israel Lands Administration and its governing body – the Israel Lands Council. The JNF appoints half (less one) of the members of the Council, while the government appoints the other half (plus one). JNF lands constitute about 13 percent of the total of Israel lands.
Viewing itself as a custodian of land for the Jewish people, the JNF incorporated into the treaty with the State of Israel a further and highly controversial condition: the Israel Lands Administration would be allowed to lease JNF land to Jewish people only, whether to those living in Israel or residing abroad. The prohibition on Arab Israelies to buy or lease land in certain areas that were designated for Jews only was challanged at the Supreme Court that decided in the year 2000, in the landmark case of Kaadan, was discriminatory and impermissible. Allocation of State Lands to the Jewish Agency for the Settlement of Jews only, the Court decided, was Illegal, due to the discrimination of citizens on the Basis of religion and nationality. The values of Israel as a Jewish and democratic state, the Court declared, prohibit discrimination in the allocation of lands between Jews and non-Jews. Read More.
The third source of national land pertains to the remaining 12 percent, the most politically sensitive type of national land. A statutory body established in 1950, the Development Authority, received its holdings from the Custodian of Absentee Property, a governmental body that took charge of land owned mostly by Arab residents who left or were expelled from their place of residence during the 1948-9 war. Most of these lands have been leased or sold.
The Rationales for National Ownership of Land
During Israel’s incipient years, and still to some extent today, public land ownership was seen as a key instrument for achieving the country’s territorial and demographic stabilization. In the years following the 1948 War of Independence Israel sought to establish its legitimate standing within its international borders, some of which were (and still are) officially only armistice lines. This agenda yielded a strong focus on population distribution as widely as possible to the Galilee in the north and the Negev desert in the south. The goal was to create a Jewish presence in most areas of the country. State control of land ownership was one of the major tools that enabled the achievement of population distribution and Jewish presence goals.
Today, the ideological basis for national ownership of the land is receding, and the near-monopoly of the Israel Lands Administration no longer is immune from challenge. Several legal experts that testified before the Committee cast doubt on the desirability of national ownership.
Experts mentioned three main considerations against the principle of national ownership of land. First, even though the Basic Law prohibits transfer of ownership, the situation de-facto is that the rights granted to leaseholders under the current Israeli leasehold system closely resemble full property rights. Israeli citizens and the Israeli market treat leased lands as owned by the leaseholders. Thus, the control of the state in leased lands is severely limited, pragmatically and legally.
Second, legal experts pointed out that there are various ways through which the government can exercise control over the uses of land in the state, most importantly through planning and zoning laws. State ownership is not needed in order to control land development. Even the goal of protecting land from being sold to aliens can be obtained through laws specifically restricting land transactions of private parties, instead of national ownership of all lands.
Third, experts pointed out the inefficiency of the state machinery that manages Israel lands and questioned the necessity of the large and heavy bureaucracy of the Israel Lands Administration.
Three main alternative proposals were made. First, to keep the current arrangement, and solve any immediate problems within the exisitng system; Second, to radically reform the law and abolish the comprehensive national ownership; and third, to keep national ownership but regulate it not in the constituion but in ordinary legislation, which will then allow future parliaments to introduce changes relatively easily.
Rachelle Alterman, “The Land of Leaseholds: Israel’s Extensive Public Land Ownership in a Era of Privatization”, in Leasing Public Land, S. Bourassa and Y. Hong (editors), 2003.
Jerusalem the Capital of Israel
United Jerusalem is the capital of the State of Israel, and the proposed constitution shall reflect and reiterate this principle. But the legal and political status of Jerusalem is a controversial and sensitive issue. The city is holy for adherents of Christianity, Islam and Judaism, namely, it is sacred for many millions of people; it is the subject of conflicting national claims; and its population is very heterogeneous.
In the city one finds holy places of Christianity, since according to Christian tradition Jesus lived and was active in various locations in Jerusalem. Under the Islamic tradition, the al-Aksa Mosque and the Dome of the Rock situated on the Temple Mount are holy places, and for the Jewish people the city is the historic capital of the Kingdom of David, and in it is the last remaining wall of the Jewish Temple.
Jerusalem has a long and turbulent history. Soon after the end of the Middle Ages, in 1517, the city, together with the rest of Palestine, came under Ottoman rule, which lasted four hundred years. Since 1830 the city has had a Jewish majority - at first merely a relative majority but subsequently an absolute one. The holy places in the city have often been a matter for dispute between the various religious groups and the various churches.
Neither the Balfour Declaration of 1917, nor the Terms of the British Mandate for Palestine referred to Jerusalem. However, the Terms of the Mandate did deal with the Holy Places: the Mandatory was requested to preserve existing rights in those places and to ensure free access and worship.
When the United Nations took up the Palestine question in 1947, it recommended that all of Jerusalem be internationalized. The Jewish leadership initially accepted the plan, but the Arab states were as bitterly opposed to the internationalization of Jerusalem as they were to the rest of the partition plan. Prime Minister David Ben-Gurion, subsequently declared that Israel would no longer accept the internationalization of Jerusalem.
In May 1948, Jordan invaded east Jerusalem. The fierce battle for Jerusalem ended with the surrender of the Jewish Quarter to the forces of the Jordanian Arab Legion, which divided the city and drove thousands of Jews into exile. For the next 19 years, the city was split, with Israel establishing its capital in western Jerusalem and Jordan occupying the eastern section, which included the Old City and most of the holy places.
When the Six-Day War broke out in June of 1967, Jordan attacked west Jerusalem. A few days later, Israel Defense Forces recovered the area which had been taken by the Jordanian army in 1948, and took control of east Jerusalem and the West Bank.
Immediately after the fighting ended in Jerusalem in June 1967, Prime Minister Levi Eshkol convened the spiritual leaders of the various communities and reassured them about Israel's intention to protect all the holy places and to permit free worship. The Knesset soon passed the Protection of the Holy Places Law, 1967, which ensures protection of the holy places against desecration as well as freedom of access thereto.
In addition, when the fighting was over various measures were taken in order to include east Jerusalem in Israel's jurisdiction: the Knesset passed the Law and Administration Ordinance (Amendment No. 11) Law, 1967, extending Israeli law and jurisdiction over east Jerusalem. Israel nationality was not imposed on residents of east Jerusalem, but it can be acquired by application on their part. So far, however, only a small number of residents of the eastern sector of the city have applied for Israeli citizenship. Israel has increased the municipal boundaries of Jerusalem, and they were fixed as extending from Atarot in the north to Rachel's Tomb in the south, and from Ein Kerem in the west to the eastern slopes of Mount Scopus.
The above measures were met with fierce criticism from many countries and various U.N. bodies.
In 1980 the Knesset adopted the Basic Law: Jerusalem Capital of Israel. This law states, inter alia, that "Jerusalem, complete and united, is the capital of Israel", and that the holy places shall be protected. The Committee discussed the meaning of the phrase "complete and united", and its constitutional significance.
The Basic Law was significantly amended in 2000, and now a special majority of 61 MKs is required in order to alter the municipal boarders of Jerusalem. The Law also states that responsibility for municipal functions and services cannot be transferred into foreign hands with less than a 61-MK majority. Many Committee members criticized this amendment, expressing the view that it places strict limitations on possible future arrangements in Jerusalem.
The Law of Return
Zionist ideology was premised upon the reconstitution of the Jews as a free, self-determining nation in their own state. In recognition of this aspiration, Israel’s Declaration of Independence declared that “The State of Israel will be open to the immigration of Jews and for the ingathering of exiles from all countries of their dispersion.” In 1950, this principle was given shape as the Law of Return, enshrining this Zionist principle within Israeli law.
The Law of Return did not stem from ideology alone; it was also a practical measure. In the wake of the Holocaust, the first act of the new Israeli government was to abolish all restrictions on Jewish immigration. Israel, the government declared, would provide Jews the world over with a haven from antisemitism.
The Law of Return has also functioned as a means of maintaining a Jewish majority within the State of Israel by promoting aliyah. During the 1940s and 50s, Israel’s population balance was decisively shifted through the immigration of millions of Jews. Today, even within the pre-1967 borders, more than twenty percent of Israel’s citizens are non-Jewish. As a result of higher birth-rates, the demography of the country continues to shift in their favor.
The Law of Return has not escaped controversy. It has been suggested that an immigration policy which explicitly gives priority to one ethnic or religious group cannot be justified in liberal democratic terms, and is incompatible with Israel’s mandate as a democratic state.
Additionally, the arrival of over a million immigrants from the former Soviet Union since 1989 has demonstrated that unrestricted waves of immigration can place huge economic, social and cultural pressures upon the state (despite the long term benefits of population growth for the Israeli economy).
The immediate and automatic granting of citizenship may also undermine the national identity of the state and its democratic process by enabling new immigrants to influence Israeli politics before demonstrating either their commitment or a basic grasp of the relevant issues.
There is also fierce debate surrounding the question of “Who is a Jew”, and by extension, who is eligible to make aliyah under the Law of Return. At present, the definition is based on Hitler’s Nuremberg Laws: the right of Return is granted to any individual with one Jewish grandparent, or who is married to someone with one Jewish grandparent. As a result, thousands of people with no meaningful connection to the Jewish people theoretically have the right to immigrate.
To make matters more complicated, the Israeli Rabbinate, a purely Orthodox body, is far more stringent about its definition of who is a Jew, leaving thousands of “Jewish” immigrants ineligible for marriage and unrecognized by the state authorities.
Despite its centrality to Israel’s civic ethos, the Law of Return exists as a regular law with no special constitutional status. It is therefore vulnerable to the partisan pressures of Israeli politics, and can be amended or repealed by a simple majority vote in the Knesset.
Proposals from across the political spectrum to amend the Law of Return and resolve these issues have included:
For more then fifty years, the question of Jewish identity has been one of the most complex and volatile issues facing the state, as well as a major source of controversy and division among world Jewry. It is generally understood that the Law of Return was drafted by David Ben-Gurion “in the shadow of the Holocaust” in order that “whomever the Nazis called a Jew and sent the death camps was to be offered refuge in the newly established State of Israel.” However, Ben-Gurion failed to define who, exactly, qualified as a Jew. Well known cases in the Israeli Supreme Court debating the question of “Who is a Jew?” include: Brother Daniel v. the state of Israel, 1962; Funk-Schlesinger v. Ministry of the Interior, 1963; Falasha Wedding Case, 1968; the Shalit Case, 1969 (also known as the “Who Is a Jew?” case); the I. Ben Menashe Case, 1970; the Zigi Staderman Case, 1970; the Langer Case, 1972; and, the Beresford Case, 1989.
These Supreme Court cases represent interesting tensions in the “Who is a Jew” debates. In the Brother Daniel case, a man who converted to Catholicism is considered Jewish halachically (according to traditional Jewish law) because his mother was Jewish, while as a result of his conversion, he is not considered Jewish under Israeli civil law. In the Shalit case, the Shalit children of an Israeli father and non-Jewish mother are considered Jewish according to civil law, but because of their mothers non-Jewish status, they are not considered Jewish according to Halacha. Here the tension in definitions and the contention between religious and secular becomes clear.
Various factors contribute to the complexity of this subject. One aspect of this debate revolves around the fact that Jewish identity can be defined ethnically, religiously, and nationally. Additionally, divisions exist in various Jewish denominations regarding the question of “Who is a Jew.” Orthodox Jews trace the Jewish blood line through the mother (matrilineal descent) while Reform Jews also accept Jewish parentage on the father’s side (patrilineal descent) as valid, so long as the child is “raised Jewish.” Furthermore, there are those that argue for a civil status unrelated to any religious categories.
The “conversion crisis”
These tensions were heightened with what became known as the “conversion crisis" which began in November 1996 when a case was brought to the Supreme Court that considered recognizing non-Orthodox conversions in Israel. The Orthodox community responded by introducing a bill in the Knesset that would legally prevent the recognition of all conversions performed by non-Orthodox rabbis whether performed in Israel or the Diaspora. In fact, Benjamin Netanyahu, the Israeli Prime Minister at the time this bill was introduced, commented, “It is easier to resolve the problem with the Palestinians than to resolve this.”
Shortly after the bill was proposed Netanyahu created the Ne'eman Commission to seek a resolution for disagreements concerning questions of who can serve on religious councils and who can perform marriage ceremonies, conversions, and prayer services at the Western Wall. In February 1998, the Orthodox establishment in Israel rejected outright the proposals that the Ne'eman Commission had developed. The Chief Rabbinate denounced any discussion or cooperation with Reform and Conservative representatives, rendering the Commission's recommendations null and void.
Religious and ultra-Orthodox parties demand that the Law of Return be amended to correspond to the halachic definition of who is a Jew. It may however be argued that if the Law of Return accepts a broader definition than the halacha, it is because Israel also has the vocation of a national home, a refuge for the Jews of the whole world, Jews sometimes subjected to antisemitic persecutions even when they are not recognized as Jews according to Orthodox halacha (as was the case in Nazi Germany).
The secular parties would like to see the creation in Israel of a civil status independent of the religious authorities. In particular, they argue for the institution of civil marriage that would allow the resolution of the problem of mixed marriages. Here it may be objected that such a step would endanger the Jewish character of the State of Israel.
Additionally, some MKs believe that the constitution should not set out to define who is a Jew, but rather who is an Israeli, who has the right to become a citizen. Labor-Meimad MK Rabbi Michael Melchior stated that,
In practice, certain populations are immediately affected by these debates: specifically, immigrants who are recognized as Jewish by the Registry Office and not by the Halacha -
These individuals are eligible for citizenship as Jews under the Law of Return but cannot conduct a legally binding marriage in Israel.
Second Amendment to the Law of Return
While still not answering with precision the question of who is a Jew, an important precedent was established in the Second Amendment to the Law of Return, adopted in 1970. It was stated there that “a person who has been a Jew and has voluntarily changed his religion” forfeits his rights as a Jew is therefore no longer entitled to receive citizenship in Israel as a Jew. Thus, since the Right of Return is granted to all Jews, and since a Jew who “voluntarily changed his religion” is denied that right, that person, de facto, is no longer considered a Jew.
David Clayman, speaking of the landmark court decisions lying behind this amendment, noted correctly that, “By this ruling the law of the land contradicted Jewish law, since according to rabbinic halakhah, a Jew remains a Jew even if he is converted to another faith.” Although the Second Amendment to the Law of Return did not address what exactly was meant by a change of religion, it did represent a significant shift in defining Jewish identity.
The volatility and magnitude of these questions “emerged as the toughest problem Golda Meir faced in trying to form a coalition government in March 1974; and it contributed to the fall of Premier Meir’s Government the following month.” These questions still prove to be some of the most challenging and divisive issues facing the state, which not only have ramifications for Jewish Israelis but deeply affect Diaspora Jewry as well.
 Clayman, “The Law of Return Reconsidered,” Jerusalem Letters of Lasting Interest, No. 318 18 Tammuz 5755/16 July 1995, www.jcpa.org/jl/hit01.htm.
Jewish Law in the Israeli Legal System
A major source of tension between religious and non-religious Jews in Israel stems from the enforcement of religious norms on all Jews, whether or not they are religiously observant. Some examples:
While the introduction of religious norms into state institutions – such as the observance of dietary laws in the army or the observance of Shabbat and Jewish holidays by governmental institutions and authorities – is less controversial, many non-religious Jews object the enforcement of religious law on individuals.
The Supreme Court has taken a mostly secular/liberal view regarding the interpretation and implementation of the laws that import Jewish law into the Israeli legal system. For example, the court has recognized marriages of Israeli residents performed abroad as well as private ceremonies of individuals forbidden to marry; the court ruled that issuance of Kashrut certificates by the Chief Rabbinate would be carried out solely in accordance with the "hard core" of the halachic laws; and the court struck down municipal bylaws that forbade the sale of pork. The Supreme Court also recognized the right to alternative burial, years before the Knesset set this right into law. The Supreme Court was also responsible for clarifying that the Chief Rabbinate and its associated bodies, including religious court judges and rabbinical courts, are public bodies that are subject to the rule of law and the judicial review of the High Court of Justice. Finally, the Supreme Court also played a primary role in ensuring that state-mandated religious bodies treat women as equal members.
In spite of the general liberal tendency, there were also cases in which the Supreme Court hesitated to intervene in the implementation of Jewish law by the state. The best known example is the issue of conversion. When the question of recognition of Reform conversion performed in Israel was brought before the High Court of Justice, a majority of the justices preferred to defer the ideological task of determining the sum and substance of conversion in Israel. The Supreme Court also avoided handing down any clear decision on the issue of drafting yeshiva students, when the question again came up before it in 1997.
Given the activity of the Supreme Court on these matters, Ultra-Orthodox parties have dissociated themselves from all Basic Law legislation and from the constitutional process. The main worry that Orthodox and ultra-Orthodox members of the Committee expressed was that a constitution will allow the Supreme Court to further erode and undermine the role of Jewish law in the state.
Religion and State
Israel’s most pressing existential paradox lies in its definition as a “Jewish and Democratic state.” This formula, upheld in the Declaration of Independence and explicitly stated in numerous laws and writings, sounds to American ears like a contradiction in terms. How can a democratic state have a preferred religion? What about the separation of Church and State? While there is no clear answer to this question, there is much to suggest that the two are, at the very least, not entirely incompatible.
In the United States, the First Amendment overwhelms the First Commandment. The state is seen as a voluntary alliance of individuals, coming together to advance their mutual self-interest, free of intervention by a central authority. “Congress shall make no law respecting an establishment of religion,” the Bill of Rights orders. The theocracies of Iran and Saudi Arabia, on the far side of the spectrum, show the dangers that America seeks to avoid, but there is much nuanced space in between these two poles. Great Britain – one of the most democratic and secular societies in the world – still boasts an established church whose leader is also the head of state. Many democratic Catholic countries, such as Italy and Spain, display even greater degrees of connection between Church and State. In this light, “Jewish and Democratic” seems less paradoxical. But where precisely on the Washington-Tehran continuum should Israel sit?
Israel guarantees equality under the law to all its citizens, vouchsafing their rights to vote and be elected. The expression of its Jewishness, however, is difficult to define, and Israelis cannot even agree on whether the country should be defined as the “Jewish State.” Or the “State of the Jewish People.” And is Judaism a religion, or a national culture and ethnicity? Judaism in Israel is reflected in values, politics, and culture as much as it is in religious practice.
The vast majority of Israelis not only approve of their country’s Jewish cultural identity, they reject the American notion that religion and state should be kept entirely separate. Most approve of a Law of Return which gives automatic citizenship exclusively to Jewish immigrants, and most believe the state should fund religious institutions, houses of worship, and cemeteries – on an equal basis. Most Israelis identify with the Jewish symbols of the state, the flag and the anthem, and believe that holidays like Shabbat, Rosh Hashana, and Passover should be celebrated in the public sphere. Judaism is a communal religion, and many of its traditions cannot be practiced in the privacy of one’s home.
Even if religion and state are linked in the Israeli reality – a likely, though by no means foregone, conclusion – Israelis seem unable to agree on the precise role Judaism should play in their society. The controversy centers around two basic questions: what brand of Judaism is to form the basis of our public life? And to what extent should Jewish law impinge on the private lives of Israeli citizens?
Personal status – marriage and divorce – is one issue which brings the debate over religion and state to a head.
In Israeli law, marriages are carried out by the sanctioned authorities of each religious community – Muslims, the various Christian denominations, Druze and so on. For Jews, this currently means that marriage and divorce are handled solely by the Orthodox Rabbinate. There is no way to conduct an interfaith marriage, and many Israelis whose Jewish status is in doubt are unable to marry at all. Opponents of the status quo argue that this situation harms freedom of religion and infringes basic human rights. Yet the recognition of alternative forms of marriage or the introduction of a civil procedure would have far reaching and, some believe, possibly destructive consequences for the Jewish identity of Israel’s citizens and the unity of Israeli society.