Before the ruling, the Law of Return had not recognized non-Orthodox conversions performed in Israel. Those who converted to Judaism in Israel under non-Orthodox auspices could not be recognized as Jews for purposes such as marriage and divorce.
Since the establishment of the state in 1948, Israel has struggled with the dilemma of who is Jewish and, in fact, who is Israeli. In contrast with many other democratic countries, immigration law in Israel grants citizenship based on religion. Ethno-religious nationalism is embedded in two fundamental laws that were enacted as part of the process of nation-building in the 1950s: the Citizenship Law from 1952, and more crucial and very fundamental, the Law of Return from 1950. The latter is defined in prominent Supreme Court rulings as Israel’s most fundamental piece of legislation.
A Jew can get citizenship upon landing in Israel, in absolute contradistinction from a non-Jew, who is required to go through a highly convoluted process of demonstrating loyalty and even security or military service for the country. As far as immigration to Israel is concerned, Israeli law is clearly demotivating non-Jews from immigrating while stimulating Jews to do so. The main purpose has not been merely religious but national as well; namely, preventing Palestinians from immigrating and changing the demographic balance between Jews and Arabs.
In a country besieged by issues of protracted Israeli-Palestinian conflict and dealing with the trauma of the Holocaust, most of the public has considered the law legitimate and even desirable. Yet, in a gradual process beginning the late 1960s, Israeli society has become more liberal, and the Supreme Court has propelled a flexible legal interpretation, according to which an immigrant to Israel can declare upon arrival that he or she is Jewish, and based on some form of evidence, can be granted instant citizenship.
However, the Law of Return remained relatively intact for 71 years. While in 1989, a liberal Supreme Court ruled that non-Orthodox conversions performed outside of Israel would be recognized for the purposes of the Law of Return, non-Orthodox conversions inside Israel were not recognized under Israeli law until now. Beyond the cover of formalities, the real struggles have not been about who is a Jew but about who will decide who is a Jew. Is it exclusively within the jurisdiction of the Orthodox and the ultra-Orthodox establishments, or can the Conservative and Reform movements also be responsible as processors of conversions?
Amid bitter political rivalry in which Orthodoxy maintained its hegemony, the Israeli government (usually based on coalitions with Orthodox and ultra-Orthodox parties) has not been neutral. It has clearly sided with the religious political parties, without which no government coalition could have been established since the late 1980s. Political dependency of the executive on the religious parties created a deadlock, and prevented any feasible solution to an increasingly severe conflict between the Orthodox and most Israelis, who are either observant or secular.
Already in 2018, expert recommendations were submitted to the government to allow non-Orthodox actors to perform conversions, but the government avoided any reform due to political pressures. It was paradoxical. While some 80% of Israeli Jews are non-Orthodox, the hegemony over religious conversions is totally dominated by an Orthodox minority. Hence, following this month’s court ruling, a coalition crisis is only a matter of time. The ultra-Orthodox political parties have formally announced that reversing the court’s recent ruling through legislation will be a fundamental condition to joining any government coalition. Has a legal revolution erupted? Time will tell.
The writer is a full professor of law and former dean of law at the University of Haifa Law Faculty; an emeritus professor of law, society and international studies at the University of Washington; and an expert on law, governance and society.