Jews: Faith or Nationality?

What is a Jew? A member of a religion, a culture, a nation — or all three?

That was the old and perhaps unanswerable question faced last week by the Israeli Supreme Court. Understandably, the court preferred to sidestep the issue rather than try to give a firm answer, but the case that raised the problem did so in a particularly interesting way.

The petitioner before the judges was Benjamin Shalit, 33, a psychologist and a lieutenant commander in Israel’s navy; the respondent was the Minister of the Interior. Israeli law requires all parents to register their newborn children by religion and nationality. Though a sabra (native-born Israeli), Shalit is a professed atheist, and after the birth of his children—Oren, now four, and Galia, 20 months —he tried to register them as Jews by nationality but nonbelievers by religion.

Each time the Interior Ministry refused to permit distinction between Jewish faith and Jewish nationality.

The Ministry’s reasoning was based on Halakha (religious law), which says that to be considered a Jew, a person must be born of a Jewish mother or be a convert to the faith. Shalit’s wife Anne is a Scottish gentile who immigrated to Israel in 1960. Like her husband, she is an atheist, and she was never converted to Judaism.

Cultural Factors. Shalit argues that the Interior Ministry had no right to use religious standards in judging the secular issue of nationality. He also maintains that as a nonbeliever he cannot be forced to adhere to a decision grounded on religious law. “It is not faith that unites us as a nation,” he insists. “Too many people do not practice religion for that. The cultural and sociological factors are the ones that determine who is a Jew, not the memory of a primitive religion. My children were born in Israel, speak Hebrew, live in a Hebrew culture, will go to Hebrew schools. They know nothing else. How can the Interior Minister say they are not Jews?”

One precedent for his case, says Shalit, was the court’s decision regarding Father Daniel (TIME, Dec. 14, 1962), a Carmelite friar who sought admission to Israel under the Law of Return, which grants automatic citizenship to any Jew who wants to live in the country. A convert to Roman Catholicism, Father Daniel was born of a Jewish mother. In his case, the court ruled that Halakha did not apply and that on the basis of secular law and the common-sense opinions of men he would no longer be regarded as a Jew.

If the court agreed with Shalit, it would in fact rule that culture rather than religion is at the core of Israel’s Jewishness. While many Israelis accept Shalit’s arguments, a formal cleavage between religion and state would doubtless destroy the coalition of secular and Orthodox Jews that has governed Israel since 1948. When the Cabinet of former Premier David Ben-Gurion attempted to accept Jews simply by their own affirmation in 1958, the resulting controversy nearly destroyed his government. Already one of the leaders of Israel’s National Religious Party has warned that any decision in the case that violates Halakha will bring about the party’s resignation from the Cabinet. “Shalit’s theory would create an iron gate between Jews inside Israel and those outside,” argues Israel Ben-Meir, the Deputy Interior Minister. “It is based on the geographic factor—that being in Israel would determine who is a Jew.”

His Own Advocate. Because of its political and religious implications, the Shalit case was heard by nine of the ten justices of the Israeli Supreme Court —the most ever to join in on one decision. Israel’s Attorney General argued for the Interior Minister, Shalit served as his own advocate. “Here I am, a little fellow, fighting against the heaviest odds,” said Shalit before the case. “But if I win, a Jew will be a Jew by virtue of his own identification with the Jewish people, and not by virtue of Halakha alone.”

But after hearing the opposing arguments, the court proposed a compromise that would leave no one a winner. The judges suggested that the Attorney General simply ask the government to abolish nationality as a category of birth registration. Although this would appear to be a simple and logical solution, few Israeli political observers expect that the Knesset will agree to drop the disputed requirement. If it does not, the riddle will once again return to the Supreme Court for a final decision on who is a Jew.