The fate of both fathers shared another important common feature – both were forced to resort to the courts to secure their right to raise their daughters as Jewish. One father – Binyamin Shalit – appealed to the High Court of Justice (the Supreme Court of Israel) in 1968. The other father – Maury Klein – filed a petition with the Family Court of the State of North Carolina, USA, in 1996. Both of these proceedings clearly showed how differently the longstanding and still relevant question of “who is a Jew?” is resolved in Israel and in America.
FIRST STORY: ISRAEL
Binyamin Shalit – an officer in the Israeli army, born and raised in Israel. His wife Anna was non-Jewish. They met and married outside Israel. The marriage was, naturally, civil. Anna agreed to live with her husband in his homeland and raise their future children as Jewish. In many respects, Binyamin and Anna Shalit were typical Israelis of the 1960s. They were atheists and believed that religion should not play a significant role in their personal lives. They considered themselves Zionists and believed that in the State of Israel, religion does not define membership in the Jewish people. For the Shalits, being Jewish meant being a citizen and patriot of Israel.
When their daughter Gal was born, Shalit went to the Population Registry to register her as an Israeli citizen. There he learned that to indicate Jewishness in the record, there are two columns: “nationality” and “religion” – in other words, every Israeli citizen is classified twice, once based on religious affiliation and a second time based on nationality. The registry clerk said that since the child was not born to a Jewish mother, Gal was not considered Jewish from a religious perspective. Shalit did not object to leaving the “religion” column blank. But when the clerk determined that because of her non-Jewish religious affiliation the child could not be considered a member of the Jewish people and therefore the “nationality” column should remain empty, Shalit exploded. He insisted that by nationality his daughter should be Jewish. He was willing to compromise and write “Israeli” in the “nationality” column. But leaving the column empty was something the father would not even hear of. Shalit viewed the refusal to recognize his daughter as Jewish as a personal insult, an infringement of his rights as an Israeli citizen and the rights of his daughter. That is why Shalit filed a complaint against the actions of the Registry with the High Court of Justice, and the hearing of his case became a notable episode in the history of Israeli justice.
In substantiating his complaint, Shalit presented three arguments. The first argument was historical and recalled the lessons of the most terrible tragedy in the history of the Jewish people – the tragedy of the Holocaust. Shalit pointed out that in the infamous Nuremberg Laws, enacted after Hitler's rise to power and intended to protect “the purity of Aryan blood,” a person was considered Jewish if at least two of his grandparents were Jews. The Halakhic rule that considers a person Jewish if his mother is Jewish, Shalit emphasized, closely resembles racist Nazi laws, and this is unacceptable in a democratic state. Israel must reject any law that even partially shares the racist opinion that a human personality is predetermined by biological origin.
Shalit’s second argument was rather psychological. Strict adherence to the Halakhic rule, Shalit claimed, violates his human rights as a father and may cause an inferiority complex in the child. After all, Gal will grow up among Jewish children, speak the same language with them, play the same games. But she will feel like an outsider, not a “real Jewess” like the others.
Finally, Shalit’s third argument, like the first, also appealed to history, but this time to brighter pages of twentieth-century Jewish history. It concerned the establishment of the Jewish state. Just as the English have England and the French have France, the Jews too received their own country. And just as English or French atheists still remain English or French, so in the modern Jewish state, Shalit’s daughter should be considered Jewish (in the sense of nationality, not religion), whatever the religious affiliation of her mother. In Shalit’s view, the fact that in Israel the same term is used to define both nationality and religion is nothing more than a historical relic. Under modern conditions, Israel must either choose another term to define nationality, for example, “Israeli,” or learn to live with the old term “Jew,” allowing for various interpretations of it.
The Supreme Court reluctantly agreed to hear a case about "who is a Jew." The President of the Court, Simon Agranat, approached the government and the parliament (Knesset) with a proposal that the Law of Registration be amended to remove the "nationality" column from identity records, leaving only the "religion" column. This change would have satisfied the plaintiff and allowed the Supreme Court to avoid hearing the case altogether. However, Agranat's proposal met with serious objections from the religious parties represented in the Knesset at the time, the National Religious Party and Agudat Israel. For these parties, the use of the term "Jew" in a sense different from the halachic definition was completely unacceptable. Nor did they accept the use of the new term "Israeli" to indicate nationality in a Jewish state. After all, the motto of the religious parties was "Torah and Israel are inseparable!" The religious parties also found support from the conservative party, whose leader Menachem Begin also categorically objected to separating religion and nationality. In 1968, all these parties were part of the government coalition, and adopting Agranat's proposal threatened a serious government crisis. Therefore, the cabinet rejected the proposal and obliged the Supreme Court to hear the Shalit case and render its decision.
The hearing of the case lasted more than a year. After a thorough analysis, the Court ruled in favor of Shalit. The Court noted in its conclusion that the Population Registry, being merely a data collection apparatus for the state, should not interfere in matters of a child's national identification. That is the parents' concern, and the Registration Department should accept the father's declaration that his daughter is Jewish.
However, the decision cannot be called unanimous. The judges' votes were split, and Shalit won by only one vote: out of nine judges, five were "for" and four "against," with each of the nine judges writing a separate opinion. This result clearly reflects the deep division in Israeli society over the question of "who is a Jew."
How did the Supreme Court justices assess Shalit's arguments? The first argument, that the halachic rule resembles the Nuremberg Laws, encountered two objections. President of the Court Agranat agreed that both definitions are based on a biological criterion. Nevertheless, Agranat stated, the fact that we reject the Nazis' laws does not mean we must automatically abandon the halachic definition. The Nuremberg Laws were based on a racist theory dividing races into superior and inferior. Nothing similar exists in Halacha. The halachic rule was historically motivated by the desire to prevent the extinction of the Jewish people. Judge Silberg further strengthened this position. He said: 'There is no place for racism in Halacha. Judaism does not know the concept of racial inferiority and does not demand racial purity. All that Judaism requires from a non-Jew is conversion. A convert becomes a son of the Jewish people, even if he is by origin a black African or an American Indian.'
And yet the tragedy of the Holocaust could not fail to influence the understanding of who is a Jew. This was especially evident in one of the first laws of the State of Israel – the famous Law of Return. This law opens the doors of Israel to all Jews, including those who do not fall under the halachic definition. Thus, the state implicitly recognized that after the Holocaust, one cannot strictly adhere to the traditional rule in all cases.
The second argument of Shalit – the psychological one – was the most difficult to counter. President of the Court Agranat agreed that a child of a Jewish father and a non-Jewish mother may feel a sense of inferiority and discrimination in status compared to his peers born to Jewish mothers. Judge Silberg, however, believed that the best defense is attack. He stated that in such situations, the primary blame lies with the parents themselves, 'who did not prepare an entrance ticket to Jewish society for their children.' Interestingly, former Prime Minister, one of the 'founding fathers' of Israel, David Ben-Gurion agreed with Agranat's opinion and stated that a child of a Jewish father should inherit his Jewishness. At the same time, the then-serving Prime Minister Golda Meir supported Judge Silberg and placed all blame on the child's mother: if she had converted to Judaism, there would have been no problem at all.
There remains the third argument, that there could be two independent systems for defining Jewishness – one 'national,' based on belonging to the State of Israel, and the other 'religious,' faithful to the halachic rule. Opponents of this idea believe that its implementation threatens the unity of the Israeli people. Two camps could form in Israeli society – on one side, those who remain faithful to the tradition of Orthodox Judaism, and on the other, supporters of the idea of modernization. And this threat causes many to reject any attempts to deviate from the Orthodox path. For example, the introduction of civil marriage or divorce procedures still meets with fierce resistance. An equally sharp struggle is waged against supporters of pluralism in Judaism – representatives of the Conservative and Reform movements. For opponents of modernization, a split in society represents a greater danger than a split in the family when a child of a Jewish father does not inherit his nationality.
And yet, as was said, the Supreme Court ruled in favor of Shalit and obliged the Registry to register Galya Shalit as Jewish. Supporters of a non-religious State of Israel warmly supported the decision at the time. It seemed to many that a new era was dawning, and Israel was parting with outdated rules and unmodern laws.
But these sentiments did not last long. Within a few months, the Knesset amended the Registration Law, which now reads: 'A Jew is a person born to a Jewish mother or who has converted to Judaism.' It became clear that in Israel, a Jewish father cannot pass on his nationality to his children if the child's mother is not or does not become Jewish. And this was confirmed in the Shalit family itself. Galya and her brother Oren were registered as Jewish by nationality by a Supreme Court ruling. But for their younger brother Tomer, born after the revision of the Registration Law, the 'nationality' line in his birth certificate remained blank.
SECOND STORY. USA
The case of Mauri Klein is somewhat reminiscent of the Shalit story described above, but in many ways it is the opposite. In the United States of America, the categories of 'citizenship', 'religion' and 'nationality' are understood differently than in Israel. First, faith belongs to a person's private life, so no one is obliged to officially indicate their religious affiliation. Consequently, religion can in no way determine nationality. Second, the concepts of citizenship and nationality are identical – it is believed that all American citizens are American by nationality. In American society, the rights and freedoms of the individual are valued higher than the demands of any collective. And American judges, considering the case of Mauri Klein about the Jewish identification of his daughter, proceeded from completely different criteria than their Israeli colleagues.
The essence of the case was as follows. When an American Jew Klein from North Carolina and his non-Jewish wife had a daughter, the parents decided to raise the child as a Jew. But they understood this completely differently than the Shalits did in a similar case. For Shalit, 'Jew' meant nationality, he did not care about religion. In contrast, for Klein, the question of his daughter's nationality did not arise at all; for him, 'Jewishness' was exclusively a matter of religion, and in the understanding of the liberal Reform movement in Judaism. Klein wanted his daughter to attend Sunday Jewish school, be an active member of the local Jewish community, attend a Reform synagogue, observe Jewish holidays – in short, grow up as an American Jewish girl. That might have happened, but Klein's family broke up, the daughter went to live with her mother, and the mother changed her initial decision to raise the girl in the Jewish faith. A Christian herself, the mother now wanted her daughter to be raised both as a Jew and as a Christian. As a result, the girl, who already had sufficient experience of being introduced to Judaism, found herself on the verge of a nervous breakdown, not knowing how to behave.
Klein decided to go to court and ask for a review of the initial decision on maternal custody. He insisted that the girl should stay with him and be raised within the framework of the Jewish religion, as provided for in the initial agreement between the parents.
The court proceeded from the equality of the father's and mother's rights to pass on their faith to the child, however, guided by the rule 'the interests of the child come first', it granted Klein's claim. The court noted that the girl takes the Jewish religion seriously and consciously, Judaism plays a positive role in her development, and the abandonment of the initial agreement between the parents adversely affects the child's mental health. Therefore, the girl should continue to be raised within the framework of Reform Judaism.
Interestingly, the American court's decision completely lacks references to the halakhic definition of Jewishness. The issue of the child's Jewish identification was decided without any connection to the fact that her mother is a non-Jew. For the court, it was important how the girl feels about herself. If she considers herself a Jew and the Jewish community recognizes her as 'one of them', then she is a Jew.
In this regard, it is appropriate to recall the opinion of Rabbi Adin Steinsaltz that 'from the original Jewish point of view, the Jewish people is not a people in the exact sense of the word, but a family. The words "House of Jacob", "House of Israel" provide an exhaustive designation of the Jewish people and express the essence of the sought-after connection between members of one family.' In the article 'What is a Jew', from which the above words are quoted, Rabbi Steinsaltz admits that 'a meaningful answer to the question of what a modern Jew is, is connected with finding a definition that would meet less strict criteria than the requirements of the Orthodox worldview'.
CONCLUSION
The simplest question of who to consider a Jew is solved by anti-Semites. The universal formula: 'Who is a Jew – I decide!' belongs to the early 20th century Vienna mayor Karl Lueger, who used anti-Semitism to gain popularity among Viennese. This slogan was to the liking of Lueger's ardent supporter Adolf Hitler, who lived in Vienna during his rule (1897-1910). And to this day, anti-Semites of various stripes explicitly or implicitly use Lueger's formula. But in these notes we are talking about something else.
Who to consider a Jew is not only a theoretical question in modern Israel. An Israeli soldier killed by Hezbollah militants, who recently came from Russia, was not allowed to be buried in a Jewish cemetery – his mother was not a 100% Jew. Only the intervention of the prime minister allowed the soldier to be buried in a military cemetery with due honors. Similar stories are not uncommon – Israel has no cemeteries for people without a defined religious affiliation. Jewish cemeteries are under the authority of Orthodox rabbis, and only they decide who can be buried there. This is the price Israeli society pays to prevent the supposedly threatening split if it were to abandon the traditional halakhic definition.
American experience shows that the threat of such a split is greatly exaggerated. The question of who is to be considered a Jew should not be a matter of state legislation, but remains a deeply personal matter. And this approach does not contradict Jewish tradition, within which each person has the right to decide for themselves who they are and what they should be. Elie Wiesel writes in his book 'Wise Men and Dreamers': 'One cannot try to make everyone alike. Each person reflects the image of God, who has no image. Truth is one, but the paths leading to it are many. In the eyes of the Father, all his children are worthy of his love... Only in totalitarian states do all citizens look, speak, and act alike.'
The article is published with the kind permission of the author. Original text – on the site 'Notes on Jewish History' – www.rjews.net/berkovich