Wrong questions in the wrong place

secular government cannot legislate religious questions.

By DAVID MARTIN
July 29, 2010 04:39
Conversion [illustrative]

Conversion 311. (photo credit: Ariel Jerozolimski)

We have now been advised that the conversion crisis will be put off for six months, during which time, presumably, the debate will continue. Publicists will decry the fact that hundreds of thousands of Israeli citizens speak Hebrew, serve in the army, pay taxes, bear the day to day burdens of Israeli life, yet are not and cannot (because of halachic strictures) become “Jewish.”

The American Jewish community will foresee a rift between Israel and the Diaspora. Local prophets of doom warn of an ideological civil war.

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Pundits will propose solutions – relaxation of halachic standards, authorizing local Rabbis (who are presumably more lenient or more subject to political pressures) to carry out conversions, etc.

Floating above all of this activity will be the question of individuals who have been converted abroad under the aegis of the Conservative or Reform movements (and in some cases even by Orthodox rabbis), who view themselves as Jewish and may find that Israel takes a different view.

The Supreme Court will once again be forced to intervene and its legitimacy will be subject to further erosion.

The ground is fertile for futile debate and much political mud-slinging, not necessarily substantive.

IN SIX months we will be back to square one, not because the problem is so complex, but because once again the discussion is irrelevant and off the mark. Regardless of what the legislature decides, most Rabbinic authorities will never accept a conversion that does not involve a bona fide commitment to full halachic life.



Every conversion will be checked and re-checked by the various bet din authorities. Rather than promoting unity, conversion leniencies will perpetuate rifts.

The six-month hiatus will be useful and productive only if the participants in this saga finally realize that the goal should be, not to reform the conversion process, but to get the secular State of Israel out of the business of legislating religious questions, and to provide reasonable, practical, non-stigmatizing solutions for those individuals who are not halachically Jewish, but nonetheless are or should be fullfledged members of Israeli society.

All participants in the debate must come to terms with the idea that a secular government simply cannot legislate religious questions. In order to solve the problem, we must ask the correct question: As the Talmud says: “lemai nafka minah ?” What is the practical difference and the practical solution ? How can an individual who bears all of the responsibilities of Israeli citizenship, even if not halachically Jewish, also benefit from the attendant rights and benefits? How can such an individual achieve the same civic status as a person born of two Jewish parents ? If the question is thus asked correctly, and only in such case, an answer can be found. As I have suggested previously in these pages, the solution must at the least contain two elements: First, “Jewish” should no longer be a nationality option in the Israeli identity card. If an individual was born in Israel or made aliya under the Law of Return, then his secular nationality is “Israeli.”

The identity card should simply state “Israeli” or perhaps one of the following categories: “Israeli by birth” (one who was born in Israel), or “Israeli under the Law of Return.”

The latter appellation would apply to individuals who are entitled to make aliya, and do so, whether born of one or two Jewish parents or grandparents, whether or not halachically Jewish, and would be stigma-free.

SECOND, THE option of civil marriage should be provided for anyone who wants it (whether or not halachically Jewish). If one wants to be married by the Rabbinate, it would be the Rabbinate’s prerogative to examine whether one meets the requirements for halachic marriage. The same would be true of Christian clerics, Muslims and every other religion.

Whether the religious authority accepts the individual to be married is a religious issue, not a legislative one.

There would be no stigma attached to a civil marriage. It is simply a matter of choice and the rules of the club.

Indeed, civil marriage will avoid many mamzerut and aguna (anchored in marriage) problems. A woman married in the civil marriage regime would not be considered married for halachic purposes (particularly if the civil marriage documentation recites that the individual has “opted out” of a religious ceremony). Such an individual would not require a get (divorce) to be remarried, but rather another form of judicial cancellation of the marriage. A child born out of wedlock after such a marriage would not be illegitimate under halacha. The notions of aguna and mamzer would become virtually extinct.

Once these steps are taken, the non-halachic immigrant would be well on his or her way to achieving exactly the same status as every other Jewish Israeli. The identity card would not in any way disclose personal religious background and he or she would be able to marry in Israel without resorting to trips abroad or clandestine activity. On the other hand, the Rabbinate would maintain its integrity.

I am aware that many groups, including particularly the religious parties and establishment, decry any “secularization” of religious status on the grounds that this would divide the country. I suspect that hidden behind these arguments is a desperate attempt to maintain control of the huge marriage and conversion bureaucracy. But even if the position of these opponents is untainted by personal or pecuniary interests, the logic is simply incorrect.

The split in Israeli society already exists. The fact that an individual was converted by the government sanctioned special conversion court has absolutely no weight before the Rabbinic courts or the marriage registrars, which review each situation anew. If conversion standards are made more lenient, then the notation “Jewish” in an identity card will be even more meaningless.

If today there is a presumption that Rabbinate conversion was proper, even that presumption will be eliminated. Not only the haredi community, but also the more “modern” elements in the religious community will give no credence to the acts of the local Rabbinate.

Thus, rather than strengthening the Rabbinate, the relaxation of standards and the proposed legislation will make the Rabbinate into the laughing stock of the religious community.

After the Jewish Enlightenment movement took hold in Europe, many Jewish communities were split into two: the official community which had a Rabbi mitaam – i.e. a Rabbi appointed by the local political authorities – and a separatist “halachic” community. If the conversion plans and legislation go into force, the same situation will befall the State of Israel.

The six-month hiatus brokered by the Prime Minister should be used, not to find compromise solutions, but to ask the right questions, so the correct answers can flow.

The writer, an ordained Orthodox Rabbi, is an international lawyer based in Tel Aviv.


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