(Aug. 18, 2010) On August 2, 2010, the Supreme Court of Israel partially rejected a petition filed against the Minister of Interior seeking the issuance of an Oleh visa. The petitioner argued that she was entitled to an Oleh visa in accordance with the Law of Return, 5710-1950, as amended, based on its recognition that every Jew (and certain members of a Jew's family) has the right to come to Israel as an Oleh. (The Law of Return, 5710-1950, as amended, Knesset (Parliament) website, http://www.knesset.gov.il/laws/special/eng/return.htm (last visited Aug. 12, 2010).) In the circumstances of this case, the petitioner, who had acquired Israeli citizenship by birth, returned to Israel and allegedly also to Judaism after having previously renounced her Israeli citizenship. The renunciation took place following her conversion to Christianity and relocation to Germany.
The decision provides a comprehensive historical, cultural, and religious overview of Jewish identity, from the perspectives of both the Jewish religion and the Jewish community. The decision further highlights the significance of the State of Israel as a Jewish national home based on historical and legal foundations, and the significance of the Law of Return in maintaining it.
In evaluating the circumstances of the case, Justices Neal Hendel and Elyakim Rubinstein examined whether the petitioner qualified for Oleh status under the definition of a Jew in the Law of Return. The Law provides that for the purposes of its application, a Jew “…means 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 Law of Return (Amendment No. 2) 5730-1970, Knesset (Parliament) website, http://www.knesset.gov.il/laws/special/eng/return.htm (last visited Aug. 12, 2010)).
The Court recognized that it had reached several decisions in the past on the meaning of the above-cited provision (including the 1962 leading case of Rufeizen v. Minster of Interior, rejecting the grant of Oleh status to a Catholic priest who was born as a Jew and wished to immigrate under the Law of Return). No determination, however, has been reached on whether a religious test or a secular test must be applied in interpreting the requirement of non-membership in another religion. (H.C. 10226/08 Zvidovski v. Minister of Interior, Israel Court Authority website, http://elyon1.court.gov.il/files/08/260/102/z07/08102260.z07.pdf (last visited Aug. 11, 2010).)
According to Justice Hendel, any attempt to define the term “religion” without referring to religion is destined for failure. Jewish law itself, he maintained, does not have an exact religious definition of a Jew “who is not a member of another religion.” Jewish law, he added, has historically recognized conversion of Jews to other religions as a reality and has traditionally examined this issue “in accordance with a comprehensive understanding of the link of a Jew to the Jewish people and its essence,” thereby distinguishing between forced conversions and those made by choice. (Id.) Justice Rubinstein agreed that the definition should not be detached from tests offered by Jewish law sources. Citing the U.S. Supreme Court statement on pornography that “you can recognize it when you see it,” Justice Rubinstein concludes that “a Jew knows to say who is a member of another religion.” Jewish law does, however, permit “Judaism repentance” (returning to Judaism, after converting to another religion).
While all justices agreed that the petitioner in this case had willingly joined another religion, they ordered that the case be returned to the Minister of Interior for determination as to whether the petitioner qualified as an Oleh based on her return to Judaism. Justice Melcer, however, added that to substantiate her new claim for citizenship, the petitioner would not only have to prove her “current Jewishness,” but also answer some questions arising under the Nationality Law 5710-1950 in connection with her previous renunciation of citizenship. Justice Hanan Melcer further held that even if at the end of this process the petitioner would not be granted Israeli citizenship, it would be appropriate for the Minister to grant her a permit for permanent residence, considering her sad personal circumstances, including desertion by her husband after she had been seriously injured in a car accident. (H.C. 10226/08 Zvidovski v. Minister of Interior, Israel Court Authority website, http://elyon1.court.gov.il/files/08/260/102/z07/08102260.z07.pdf (last visited Aug. 11, 2010); The Law of Return, 5710-1950, supra; The Nationality Law, 5712-1952 (as amended), 6 LAWS OF THE STATE OF ISRAEL 50 (5712-1951/52).)