Rabbinical courts have the legal authority to retroactively annul conversions to Judaism years and even decades after they were performed, even if the conversion was performed under the aegis of the Chief Rabbinate, according to a legal opinion by attorney Rabbi Shimon Ya'acobi, the legal adviser to the Rabbinical Court Administration, that was released to the press Wednesday.
Ya'acobi also argues that city rabbis have the right to question the Jewishness of converts to Judaism who come before them to be registered for marriage.
Ya'acobi's legal opinion is nothing short of a bombshell in the ongoing battle over the Jewishness of thousands of converts who converted under the aegis of the state-funded National Conversion Authority and conversion courts in the IDF.
Ya'acobi's opinion was given at the request of Attorney-General Menahem Mazuz within the framework of a petition to the High Court.
In the High Court case, a Danish Protestant woman who immigrated to Israel converted to Judaism in 1991 in a recognized conversion court. One of the three conversion court judges who converted the woman was Rabbi Haim Druckman, the present head of the National Conversion Authority, a statutory body under the aegis of the Chief Rabbinate.
On January 5, 2007, the woman and her husband appeared before a rabbinic court in Ashdod to divorce. During the proceeding the woman told the rabbinic judge, Rabbi Avraham Atia, that she did not observe Shabbat in accordance with halacha and that she had never observed the family purity laws regulating sexual relations with her husband.
Atia ruled that the woman's conversion was not valid, that since she was not considered Jewish, her marriage was void, and therefore she did not need a divorce.
The High Rabbinic Court backed Atia's decision, but added that the woman's Jewishness was in doubt, as was the Jewishness of her three children. This placed all of them in spiritual limbo - now they cannot marry Jews because they might not be Jewish, and cannot marry non-Jews because they might be Jewish.
In addition, the president of the panel of judges, Rabbi Avraham Sherman, issued a scathing indictment of the state's policy, carried out by special conversion courts in the IDF and the National Conversion Authority, of encouraging the mass conversion of some 300,000 immigrants to Israel from the Former Soviet Union who came to Israel under the Law of Return but are not Jewish.
Non-Jewish immigrants from the FSU, who normally lack any other religious affiliation, are encouraged to convert as part of the process of integration into Israeli society. It is also the only way they can marry other Jews here, since all marriages of Jewish Israelis are performed by the Chief Rabbinate.
But Sherman cast doubt on the Jewishness of thousands of individuals who had converted to Judaism in the special conversion courts of the National Conversion Authority.
Ya'acobi's opinion reinforces Sherman's opinion.
The Danish woman petitioned the High Court against the decision along with Dr. Aviad Hakohen, attorney Susan Weiss and attorney Yifat Frankenburg. The petitioners demanded that the High Court obligate all city rabbis and rabbinical courts to recognize conversions performed by the National Conversion Authority and the IDF's Rabbinical Courts.
In the latest development in the ongoing battle, Ya'acobi took the side of the rabbis and the rabbinical courts. In his 118-page document, rife with erudite footnotes spanning both Jewish law and secular Israeli jurisprudence, Ya'acobi makes a passionate argument for the right of rabbis and rabbinic judges to rule in accordance with what their eyes see and what their consciences demand of them.
"For the reasons discussed above," writes Ya'acobi, "concern regarding the validity of a conversion arises when a convert, whose bearing reveals he is not an observant Jew, appears before the rabbi who is authorized to register him for marriage.
"The suspicion is not whether or not the conversion court was meticulous in verifying that the prospective convert was sincere in his expressed desire to lead an observant lifestyle.
"The suspicion does not arise from the conversion certificate's validity, rather from the objective situation that the rabbi confronts when the convert's situation is presented to him."
Ya'acobi, basing himself on a slew of halachic opinions, argues that when a rabbi or a rabbinical judge is confronted with a convert who is obviously not observant, there is reason to believe that the convert was never sincere about adhering to an Orthodox lifestyle.
And since, continues Ya'acobi "the mainstream opinion" among halachic authorities is that acceptance of an Orthodox lifestyle is an integral part of the conversion process, the rabbi or rabbinical judge has the right to question any conversion that lacks that element or is suspected of lacking it.
Ya'acobi criticized attempts to use mass conversion to solve the problem of intermarriage presented by the large number of non-Jews among immigrants from the FSU.
"Conversion in Israel, no matter what type, cannot be used as a means of integrating 320,000 non-Jewish citizens, lacking religious motivation even if they have strong ties to the Jewish ethos. This is because the Jewish people's identity is made up of both a nationalist and a religious dimension, and the religious dimension is defined in Orthodox terms."
To prove the futility of attempts to use conversion to solve the problem of intermarriage and unity, Ya'acobi pointed to the small numbers of non-Jewish immigrants who have chosen to convert.
He also marshaled divorce data collected by the Rabbinical Court Administration. According to the data, the vast majority of converts to Judaism who divorced in a rabbinical court between 1999 and 2008 were not religious.
As part of the divorce process, both the husband and the wife must tell the rabbinical court the names of their fathers. In the case of a convert the name of the father is replaced with the name "Abraham the Patriarch" if the convert testifies that he or she is religious.
But if the convert admits to leading a secular lifestyle, "the convert" is written in the records instead.
As a result, the rabbinical courts, which were computerized in 1999, have data on the number of converts who divorced, including figures on how many are religious. Of a total of 118,521 couples who divorced, there were 1,313 converts (328 men and 985 women). Only 2.8 percent of the converts said they were religious.
"Mass conversion without a sincere commitment to religious observance is liable to bring about a reality that is even worse than the one we are familiar with presently," writes Ya'acobi.
"It is liable to create a new group of citizens - quasi-converts - who are forbidden to marry not only Jews, but also non-Jews."
Ya'acobi was referring to a situation in which doubt is shed on a convert's Jewishness due to his secular behavior after the conversion, as in the case of the Danish woman.