The Law of Return at 60: Revisiting (and Revising) a Zionist Pillar
by Yair Sheleg
It is appropriate that Israel’s Law of Return was adopted on the 20th of Tammuz, the yahrzeit of Theodor Herzl, founder of the modern Zionist movement. After all, it is the most fundamental law defining Israel as the state of the Jewish people. It gives any Jew – and only Jews – the automatic right to enter and live in Israel.
For Israel’s first prime minister, David Ben-Gurion, the Law of Return simply codified the impulse behind Israel’s founding. “It is not the state that gives the right to return to Diaspora Jews,” Ben-Gurion explained during the Knesset debate over the proposed law. “This right preceded the State of Israel, and built the country.”
The Law of Return was adopted by a unanimous vote of the Knesset 60 years ago, on July 5, 1950. Since then, well over 2 million immigrants have come to Israel under its provisions, fulfilling, in no small measure, the ancient dream of the “ingathering of the exiles.”
Yet even as it has served as a cornerstone of the State of Israel, the Law of Return has also been at the epicenter of fierce battles over the identity of the Jewish state – from criticisms by Israeli Arabs who see it as yet another discriminatory law, to battles among secular, Orthodox and religiously liberal Jews over who should be eligible to immigrate to Israel. Indeed, the seeds of strife were present from the very beginning.
Given its importance and high profile, one might be surprised by two things that the Law of Return, as originally adopted, did not do: First, contrary to popular perception, it actually did not give automatic citizenship to Jewish immigrants, a practice that was only put into law with the enactment of the 1952 Nationality Law, which granted Israeli nationality to any immigrant who arrived under the Law of Return. Second, and more significantly, the original law did not include a definition of the basic concept of “Jew.”
In sidestepping the always contentious “who is a Jew” question, the law’s drafters effectively left the issue of who is actually entitled to enjoy its benefits in the hands of, first, the immigration minister and, later, the interior minister. As a result, immigration eligibility policies seesawed back and forth depending upon whether the relevant government minister was religious or secular. Unsurprisingly, this arrangement proved to be a recipe for political turmoil and legal wrangling.
Absent a legislative definition of Jewishness, Israel’s Supreme Court ended up having to fill in the blanks. In 1962, the court rejected the appeal of a Jewish-born Catholic monk, Daniel Rufeisen, whose request to be recognized as a Jew under the Law of Return had been denied by the interior ministry. The court rejected his appeal, boldly ruling that a Jew who had embraced another religion should not be considered Jewish under Israeli law.
But it was a far more modest ruling that spurred far-reaching changes to the Law of Return. In 1969, the Supreme Court ruled in the case of a naval officer, Benjamin Shalit, who had married a non-Jewish woman and whose request that their children be registered as Jews by nationality in Israel’s population registry had been rejected by the interior ministry. The court sided with Shalit, though its ruling was narrow, questioning the interior ministry’s actions on technical grounds.
While the court’s ruling was limited, the outrage of Israel’s Orthodox parties was anything but restrained. The ruling prompted a coalition crisis, and the Knesset responded by enacting sweeping changes to the Law of Return.
In 1970, the Law of Return was amended to define a Jew as “a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion.” The adoption of a largely halachic definition was a significant victory for the religious parties. (Nevertheless, the Orthodox parties continued to press for the addition of a stipulation that any conversions must be conducted according to Halacha – a push that has been blocked by strong resistance from American Jews.)
Yet in order to prevent this definition of Jewishness from splitting families or shutting the doors on refugees fleeing anti-Semitism, the amendment also granted the right to immigrate – and thus claim citizenship – to a wide group of family members and descendants of Jews. The amendment stated that all the rights granted to Jewish immigrants under the law were also “vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion.”
At the time, this amendment may have seemed like a reasonable compromise between conflicting interests and imperatives. However, it also opened up the potential for a major rift in Israeli Jewish society. This became clear with the collapse of the Soviet empire and the arrival in Israel of more than a million Soviet immigrants.
This wave included more than 300,000 people who were not considered Jews under Jewish law, many with only a tenuous connection to the Jewish people. They were welcomed to Israel as full citizens, but not as Jews. Israel is still grappling to this day with the question of how to absorb them into Jewish society.
In 1950 and even in 1970, Israel was still a poor and fledgling state surrounded by enemies. Anyone who wanted to immigrate was, almost by definition, someone who desired to cast his or her lot with the Jewish people.
Today’s Israel, by contrast, is economically prosperous and, hence, a potential magnet for immigrants. At the same time, it is a society suffering from deep social cleavages. The Law of Return and the corresponding citizenship law need to be reformed to meet Israel’s current needs.
First, the right of non-Jewish relatives to immigrate should be limited so that they can only move to Israel if they are accompanied by their Jewish family member. This would prevent the law from being abused by anyone (and his or her family) who happens to have had a Jewish grandfather, but may have no current connections to the Jewish people.
Second, there should be a distinction made between the right to immigrate and the right to become a citizen. Citizenship should be conditioned on learning the Hebrew language and a formal commitment to the state and its laws, as is common practice in most Western countries. This would give Israeli citizenship a deeper meaning and prevent it from being taken for granted.
Finally, Israel needs to develop a more secular definition of Jewish identity. Any person who is acknowledged as a Jew by a recognized Jewish community – whether it is Orthodox, Conservative, Reform or secular – should be eligible to immigrate under the Law of Return. This would shift the definition of Jewishness away from religion and toward a more national identity.
True, each of these reforms, especially the final one, would be controversial. But together, they could play a key role in forging a more unified Jewish nation in our historic homeland. And that, after all, is the core purpose of the Law of Return and, indeed, of the Zionist revolution.
Yair Sheleg is a senior researcher at the Israel Democracy Institute.
This article originally appeared in The Jewish Daily Forward; reprinted with permission.