Photo Credit: Miriam Alster/Flash90
(L-R) – MKs Menachem Mozes, Yakov Litzman, Zeev Elkin, Moshe Gafni, Meir Porush, and Uri Maklev sign a coalition agreement between UTJ and Likud, April 1, 2009.

United Torah Judaism Torah Judaism leaders Moshe Gafni, Yaakov Litzman, and Meir Porush, stated on Monday that they would demand the enactment of the overcoming clause as a condition for the formation of the next government, because, in their opinion, yesterday’s High Court decision to recognize Reform and Conservative conversions in Israel for the first time had a disastrous impact on the very meaning of the term Jewish state.

An overriding clause is a section in the Basic Law that allows the Knesset to pass legislation that contradicts the Basic Law. The purpose of the overcoming clause, according to its supporters, is to balance the great power that the Supreme Court has acquired unilaterally in the constitutional revolution of the 1990s and foster a constitutional dialogue between the court and the legislator.


Gafni, Litzman, and Porush issued a statement declaring that “through all the generations, the people of Israel have recognized their religion and faith without forgeries and imitations, and this will continue for the future.” Those forgeries and imitations being the Conservative and Reform take on the Jewish faith.

There’s no doubt that the Haredi parties will not hesitate to fight to the end on this barricade. And, truth be told, many Israelis, probably a majority of the Jews in the Jewish State, support the Haredi line.

First, the facts: the High Court of Justice ruled on Monday that the State of Israel must recognize Reform and Conservative conversions for the purpose of acquiring Israeli citizenship under the Law of Return. The decision was issued 15 years after the filing of the petitions on this matter, and after repeated delays.

The ruling immediately ignited and will continue to ignite public controversy, especially since the Chief Rabbinate of Israel which is directly involved in running all things Jewish in the country, is completely opposed to any recognition of movements other than Orthodox Judaism.

In the years 2005 through 2008, 11 petitions were filed by individuals who immigrated to Israel from various parts of the world, underwent Reform and Conservative conversions in Israel, and demand that the state recognize them as Jews under the Law of Return.

The High Court repeatedly pushed off its decision in order to allow the state to try to formulate an agreed solution, to avoid forcing such a solution through the court. Over the years, several committees and individuals have been appointed to find the solution, including former Justice Ministers Yaakov Neeman and Moshe Nissim. But they all failed in their attempt to come up with something that would be accepted by both the petitioners and by the Chief Rabbinate.

Last December, the justices rejected the state’s latest request for yet another extension and announced that they intended to finally rule on the petitions.

The petitioners argued that the state should be compelled to recognize conversions made by the Reform and Conservative movements—in Israel or abroad—as part of the entitlement of those two movements under the amended Law of Return of 1970.

The Law of Return which was passed in 1950 gives Jews the right to come and live in Israel and to receive Israeli citizenship. Section 1 of the Law of Return declares: “Every Jew has the right to come to this country as an oleh [immigrant].”

The same law was amended in 1970 to extend the right of return to some non-Jews. Amendment number 2, 4a, states: “The rights of a Jew under this Law and the rights of an oleh under the Nationality Law, 5712-1952, as well as the rights of an oleh under any other enactment, are 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/her religion.”

The purpose of the amendment was to help Israel handle the mass immigration of Jews from the Soviet Union, a wave that included numerous relatives of the arriving Jews who were one or two steps removed from Judaism.

Among other groups, however, the 1970 amended version of the law also applies to converts to Judaism: Orthodox, Reform, or Conservative denominations—but not secular—except that though Reform and Conservative conversions must take place outside the state, similar to civil marriages.

The petitioners argued before the High Court that since in its past rulings it accepted Orthodox conversions that had been done in “recognized Jewish communities” abroad, and since under the Law of Return any Jew regardless of affiliation may migrate to Israel and claim citizenship – then the lack of recognition of the conversions made by the Reform and Conservative movements in Israel disproportionately violates the converts’ right to freedom of religion and their right to equality, both compared to those who converted in Israel through state or private Orthodox conversion, as well as compared to those who converted abroad.

In its response, the state did not reject the allegations on their merits but argued that the court should wait for a resolution of the matter in legislation. The state did not explain see why in its opinion this miracle of resolving the issue through legislation would occur today, after the failure to create such legislation since 2005.

Supreme Court President Esther Hayut, May 3, 2020. / Oren Ben Hakoon / POOL

Court President Esther Hayut, wrote in her ruling that “the non-Orthodox communities in which the petitioners before us converted are established communities in Israel, and they have a common and well-known Jewish identity and fixed frameworks of community management. The conversion process in them is done by a religious body authorized to do so in the community it serves, according to fixed criteria, and having been preceded by a significant preparation and learning procedure. These communities, as has already been ruled, are ‘part of the main currents of Judaism in the world,’ and the respondent himself (Interior Minister Aryeh Deri of Shas) has long recognized the conversions that these same communities make abroad to qualify under the Law of Return. In our opinion, we have before us a ‘recognized Jewish community,’ and as long as the legislature has not stated otherwise, there is no clear reason not to recognize as Jews under the Law of Return those who converted, like the petitioners, in these non-Orthodox communities in Israel.”

All the judges on the panel agreed with Hayut’s conclusion, including Justices Noam Solberg and David Mintz, who wrote that although they believe that conversion in Israel should be orthodox, the rules of the Supreme Court require Hayut’s conclusion. Justice Solberg suggested not recognizing non-Orthodox converts immediately, but instead suspending the decision for a year from the moment the next government is formed, to give it time to settle the issue.

The Tzohar Rabbinical Organization, which is probably the most moderate large Orthodox group, fiercely attacked the decision of the High Court, saying it would impact the very Jewish future of the state and blaming “power brokers” associated with the Chief Rabbinate for allowing this decision to go ahead.

“Those very power brokers who want to control who comes in and out of Israel’s borders and seek control over Israeli conversions completely based on their limited worldviews without any desire for dialogue, they are the ones completely responsible for this decision,” Tzohar said. “This is a position that now has the potential to impact the very future of the Jewish State—both in the years ahead and for the long term, and we will have no one else to blame but those who were opposed to dialogue for allowing this to occur.”

Tzohar added: “This is a decision which can still be changed if we allow local city rabbis and rabbinical councils to perform conversions as has always been the accepted form. This process must be open to accepting the wider approaches to conversion that are wholly possible within the norms of halacha.”

Prime Minister Benjamin Netanyahu, who has avoided for more than ten years legislation that would tame the harmful consequences of the 1970 Law of Return, condemned the High Court’s ruling, suggesting it “endangers the Law of Return which is a foundation of Israel as a Jewish and democratic state.”

He then added: “Only a vote for Likud would guarantee a stable, right-wing government that will return the sovereignty to the people and the Knesset.” Which is quite a promise from a prime minister who has been running the country over the past two years as if it were a grocery store he inherited from his father.

Indeed, the Supreme Court’s ruling does not endanger the 1970 Law of Return, it merely takes it to its logical conclusion. The 1970 amendment to the law—which was condemned at the time by most Orthodox leaders, including most notably the late Lubavitcher Rebbe, was a bad law that was pushed through by the Labor coalition government. It created more problems than it sought to fix, and what needs to be done at this point is not to repair it in its amended form, but to revert it to its 1950 original version.


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