Israeli Supreme Court rules that a widow of a child of a Jew can make Aliyah

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Israeli Supreme Court in Jerusalem (Photo: israeltourism/Wikimedia Commons)

Not every day does one discover a new holiday in the calendar, but last week I did. In Hebrew it’s called Yom Ha-Aliyah (The day of Aliyah to Israel). An official National holiday only since 2016, after Knesset recognition, this is the youngest holiday in Israel. Anyway, in celebration of this feast, let us review a recent Supreme Court judgment which brings a new interpretation to the Law of Return.

The High Court of Justice (Supreme Court) of Israel issued a landmark ruling in August 2021 that expands the state’s current position of the Law of Return as it applies to non-Jewish family members of Jews. This is an extraordinary legal decision, which did not gain much media coverage, perhaps because of the extremely specific nature of the case, or other more pressing current issues. However, this ruling, together with others, may signify a more general trend to expand judicial interpretation of this fundamental law.

In short, this court judgment establishes the legal precedent that a non-Jewish widow or widower, whose deceased partner was a child or grandchild of a Jew, is included within the auspices of the Law of Return. Therefore has the right to be recognized as an Oleh and Israeli citizen with all the benefits and privileges that entails.

Can a widow of a child of a Jew make Aliyah according to the Law?

Up until recently, Israel had no consistent policy regarding non-Jewish widows and widowers who desired to come to Israel as Olim after their spouse with Jewish ancestry had passed away. The Ministry of Interior would usually decline such requests, even though in some cases the widow already had children who had immigrated to Israel and even served in the IDF.

The ruling on this appeal was made by a bench of three Supreme Justices in a split decision. Two justices ruled in favor of several widows who were seeking Israeli citizenship. One justice upheld the position of the Ministry of Interior that declined their request.

This newly expanded interpretation of such a fundamental law comes as a relief to the widows and widowers seeking to immigrate to Israel, but obviously such a situation is not common.

So, will this judgment have implications also for Messianic Jewish households abroad who are seeking Aliyah to Israel?

Law of Return – History of Court Rulings

Legislated by the Knesset in 1950 and is often regarded as the legislative foundation of Israel, as a Jewish and democratic state. In fact, David Ben-Gurion, the first Prime Minister, once said that the Law of Return “contains within it a central purpose of our state – the purpose of ingathering the exiles,” and added: “It is not the State which grants the exiled Jew the right of return; this right precedes the State of Israel and is the very thing which established the State” (The Protocols of the Knesset, 1950).

Problematically, the original phrasing of the law was mute on the age-old question: “Who is a Jew?” When the law is silent regarding a definition and any changes in the law very difficult to achieve, due to political differences, the Courts will usually step in and de-facto create the law by precedent setting judgments.

One early controversial case involved a Polish Jew known as Brother Daniel who had converted to Catholicism and became a Carmelite friar and priest. Brother Daniel, who actively helped save his Jewish brethren during the holocaust, continued to view himself as part of the Jewish nation regardless of his Christian creed, and desired to immigrate to Israel as an Oleh. After all, he argued that according to Halacha, a Jew forever remains a Jew regardless of their religious practice. In 1962, the Israeli Supreme Court denied Brother Daniel’s request. On one hand, this established the precedent that the definition of a Jew for the purpose of the Law of Return is not exclusive to the Orthodox halachic definition. On the other hand, this opened the door to deny the rights of any Jewish believer in the Messiah from immigrating to Israel. Indeed, many Messianic Jews are denied citizenship in Israel precisely because of this precedent.

In 1970, an amendment was added to the Law of Return as a remedy to the confusion. The amendment defines a Jew as “a person who was born of a Jewish mother or has been converted to Judaism and who is not a member of another religion.” Moreover, article 4A of the amendment establishes that the rights of a Jewish Oleh “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.” Note that, due to this amendment, a Messianic believer of mixed heritage whose mother is not Jewish may, ironically, find it easier to immigrate to Israel as an Oleh than a Messianic Jew who has a Jewish mother. They are not by any account “a person who was born of a Jewish mother,” and therefore, arguably, do not need to prove that they are not a member of a different religion.

Marriages between Jewish believers in the Messiah and gentile believers are very common in the Messianic Jewish community, both in Israel and abroad. Nonetheless, the gentile spouse will often see themselves as binding their fate with the Jewish people, just as Ruth the Moabite did, and will fully participate in Jewish traditions and holidays in the household and congregation. This connection to the Jewish people does not necessarily unravel even if their spouse with Jewish ancestry passes away.

New interpretation of the Law of Return is possible

This sentiment is echoed by Justice Itzhak Amit, one of the judges who ruled in favour of the widows: “As a rule, partners who maintain a spousal relationship bind their fates with one another, and we should not presume that one of the partners passing from this world necessarily causes that bond to be severed. Likewise, we should not presume that the passing of one of the partners necessarily severs the bond of fate that they made with the Jewish people.”

Justice Anat Baron added to the ruling a moving quote from scripture: “You shall not afflict any widow or fatherless child. If you afflict them in any way, and they cry at all to Me, I will surely hear their cry.”

More than 30 years ago, ironically on the day of Christmas (December 25, 1989), the Supreme Court ruled clearly on the Beresford case against Aliyah for Messianic believers. The unanimous verdict was that a Messianic Jewish person is not considered a Jew in regards to the Law of Return, even if born Jewish and considered a Jew according to Halacha, therefore cannot make Aliyah to Israel. This has been the legal position of the State ever since. Misrad Hapnim who is in charge of immigration to Israel implements this stance and rejects many Aliyah applications on this basis each year. However, Justice Aaron Barack, the president of the Supreme Court at the time, stated in his judgment that as society changes over time, so should the law, and the definition of a Jew may be open to different interpretation in the future.

Hopefully this recent expansive development in the interpretation of the Law of Return marks a trend towards greater acceptance of immigrants who have deep ties to the Jewish people despite not being of Jewish ancestry themselves. This includes non-Jewish spouses and widows of Messianic Jews.

Will we see anytime soon a wider interpretation of the definition of a Jew by the Israeli Supreme Court? In reality this still seems far away, but in the words of Chief Justice Barak depends on a more mainstream acceptance in the general public.

We can expect many more fiery debates in the courts of law and the courts of public opinion regarding who is and who is not a member of the Jewish people. Let us all hope along with Justice Baron that in doing so, the State of Israel never forgets the cry of the widow, the fatherless, and the stranger.