Conversion challenge must be solved by Knesset - opinion

Half a century of legal precedents left the HCJ with virtually no room for discretion.

THE KNESSET building in Jerusalem holds one of the world’s smallest legislatures. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
THE KNESSET building in Jerusalem holds one of the world’s smallest legislatures.
 Israel’s High Court of Justice has recognized the validity of Reform and Conservative conversions conducted in Israel for the purpose of granting citizenship under the Law of Return. The ruling has caused a political uproar. Those who might have been expected to condemn the development in the harshest possible terms have done so without delay. But make no mistake: Half a century of legal precedents left the HCJ with virtually no room for discretion. The outcome was almost mathematically determined.
First, Israel, as a democracy, cannot subject the religious courts of different religious streams to unequal treatment. Having recognized the validity of private Orthodox (haredi and National-Religious) conversions five years ago, the HCJ must now, in the same way, affirm the validity of private conversions conducted in the frameworks of other major and recognized religious streams.
That is the reason why three religious justices, two of them among the most conservative on the bench, supported Chief Justice Hayut’s main ruling. They openly express their ideological reservations regarding the outcome – they would prefer that conversion recognition be entrusted to Israel’s Chief Rabbinate – but as professional judges they are obliged to reach the correct result in keeping with past precedents, even if it contradicts their own worldview. This is an honorable decision. It is also a crushing retort to those who habitually accuse HCJ justices of ideological bias rooted in personal preference.
Second, Israel, as the state of the Jewish people, has to recognize the validity of different interpretations of the Jewish religion, not just the Orthodox approach. Israel is not a country of one specific religious community, but rather of all Jews. How can the state boast of its Basic Law: Israel – the Nation State of the Jewish People, and purport to be a national home for all members of that people, if it continues to discriminate between different parts of the people and does not apply the Law of Return to those recognized as Jews by major religious communities living outside of Israel?
It is important to clarify that contrary to the claims of some haredi politicians, the judicial decision does not deal with the religious question of what constitutes a valid conversion, but rather with the civil-secular issue of which conversions will be recognized for purposes of conferring citizenship. The HCJ ruling does not, therefore, infringe upon Orthodox Judaism, nor is there any basis for allegations of court intrusion into the sphere of Halacha, Jewish law.
ALTHOUGH, AS NOTED, the legal decision was not complex, it took a full 16 years for the HCJ to reach this point. The justices dragged their feet because they understood, and rightly so, that the issue did not merit a judicial decision. In the words of Justice Sohlberg: “Conversion should not be a matter of patchwork judicial legislation, but rather of clear and orderly primary legislation by the Knesset.” 
Chief Justice Hayut clarifies that the matter at hand is one of the relations between the people of Israel and the Diaspora, and between religion and state – issues on which the Knesset should decide (within the limitations of the Basic Law). Only once it became clear that the Knesset was evading its duty due to political constraints was the court forced to rule in its stead. Thus, the angry outbursts by Knesset members and the government against the HCJ ruling are ridiculous.
However, even those who support the ruling cannot be satisfied; the ongoing controversy over conversion, like acid, corrodes Jewish cohesion inside and outside Israel. Conversion in Israel must be defined as a national issue and regulated, officially and consensually, within the framework of primary legislation.
Israel is home to nearly half a million citizens who immigrated under the Law of Return but who are not recognized as Jews according to Halacha and Israeli law. Their conversion is necessary both at the personal level, so as to ensure that they can exercise their human rights (e.g., to marry), and at the national level – to prevent the creation of pedigree rosters that distinguish between two peoples: halachic Jews, and other Jews. 
A state Conversion Law can only be a solution if it allows multiple halachic voices within the state framework, so that conversion along the lines of Beit Hillel, which opens its arms to those seeking to convert, would be recognized by the state as valid for all intents and purposes. In an atmosphere of greater tolerance, it would be possible to establish a tribunal composed of judges from all three streams of Judaism who would implement an agreed-upon halachic policy consistent with the more lenient rulings accepted by Orthodox Judaism. This would entail flexibility on all sides, but its benefit to Jewish unity would resound for generations to come.
The writer is president of the Jewish People Policy Institute and a professor of law at Bar-Ilan University.