Is Israel ready to accept free-for-all conversions?

The headlines were somewhat bombastic – as they often are. They claimed that the court – that is, Israel’s High Court – dismantled the authority of Israel’s official conversion body. Last week, the court decided that a conversion by a private Orthodox rabbinical court should be counted as sufficient when it comes to eligibility for Israeli citizenship according to the Law of Return (the decision in Hebrew can be found here).

Complicated?

It is somewhat complicated. The Law of Return ensures the right of every Jew to come to Israel and is complemented by legislation that gives every such newcomer the right to instantly become a citizen. What is a “Jew?” According to the law, it is a person born to a Jewish mother, or one who converted to Judaism. The law also gives citizenship rights to immediate family members of the Jew and to any person with a Jewish father or grandparent.

Israel recognizes all conversions by “recognized communities” in the Diaspora. That is to say: If a person is converted by a Reform rabbi in Los Angeles, he or she can immigrate to Israel based on the Law of Return and will become a citizen. The rabbinate – an Orthodox body – would not accept his/her Jewishness. But the state would.

The cases before the court this time were of people who came to Israel as non-Jews and converted during their stay. The conversion was not by Israel’s official body of conversion but rather by a Haredi rabbinical court that is private. The state argued in court that while accepting Diaspora conversions that have no connection to the State of Israel or any other state is a norm, conversions within Israel should only be accepted if done by the state body. In other words: the state asked the court to give the state a monopoly over conversions in Israel.

This is not as preposterous as some people might think. In fact, the state has a strong argument. Since conversion is not just a religious matter but also a way to get citizenship, the state has a stake in maintaining certain criteria as to make sure that not every Tom, Dick, and Harry will be able to hand anyone the key to citizenship.

The court listened and then rejected that claim. Since diaspora conversions are not handled by the state, it already has no control, and the criteria is already murky. Moreover, it is clear that the Haredi courts at the heart of the appeal are not under any suspicion of having more relaxed criteria than the state conversion body. Their criteria is probably more rigid. But the most compelling claim of the court in rejecting the state’s position was in fact quite simple, if a little boring: there is no law dictating criteria for conversion, and hence the state has no legal claim on having a monopoly on this process. If the state wants a monopoly, if it wants criteria, it should pass legislation detailing such criteria.

Proponents of free-for-all (to be more accurate: free-for-all-recognized-Jewish-streams) Jewish conversions in Israel were quick to glee over the new ruling. They have good reason. Not all of the justices seem ready to accept private Reform and Conservative conversions the way they now accepted Haredi Orthodox conversions (High Court Justice Neal Hendel joined the ruling but made it clear that the Orthodoxy of the private conversion is a meaningful factor for him). But some justices do seem ready to do just that. In fact, when one reads their ruling one would be hard pressed to find a rationale that would justify the exclusion of Conservative and Reform conversions following this last ruling.

This might be trickier than you think. This might be a trigger for yet another unavoidable round of “who is a Jew” battle. The court seems intellectually ready to make a ruling on this subject that would change the status quo regarding conversion. It does not seem culturally eager to do so. In fact, the ruling from last week is nothing short of a warning sign – telling the government and the legislature that their time for action is up. Either they change the rules, or they should be ready to accept a new reality concerning conversions. Justice Eliyakim Rubinstein even asked his colleagues to hand the state an eighteen-month suspension of the ruling, to give it a last chance to make new rules.

His colleagues refused, and for good reason: the state had dragged its feet long enough on the issue of conversion, and delays are no longer justifiable. But note that this ruling was a relatively easy one to swallow: it took power away from the state – but it has not yet changed the essential status quo that an Israeli conversion equals an Orthodox conversion.

What happens next? There are four options.

Option one: the state takes a hint and runs with it. That is, the state decides that following the ruling there is no alternative to changing the law and putting a more precise definition of the nature of the conversion that is needed to be counted under the Law of Return. That is a tough task, both intellectually and politically. It is tough, among other things, because such a definition would have to address not just the question of who is a Jew in Israel, but also the one of who is a Jew in the diaspora – and to address it in a way that could withstand legal scrutiny by the High Court. If the state takes the hint and runs with it, a fight is almost inevitable – but an ultimate compromise that could benefit Israel and the Jewish people is not necessarily impossible (the Neeman Committee was close to establishing such a compromise. Maybe the threat of a dramatic court decision was the missing stick).

Option two: the court looks at the cases of Reform and Conservative conversion that are already before it and struggles to make a different ruling. It could delay the ruling by arguing that a change in the status quo of such magnitude justifies more time. It could side with Hendel’s reasoning – which emphasized the Orthodox nature of the private conversion as a reason to accept it. But it cannot be entirely convincing in making these arguments. Last week’s ruling makes these arguments seem insufficient.

Option three: the court looks at the cases of Reform and Conservative conversion already before it and makes the same ruling. Reading last week’s court decision, that is the only intellectually honest ruling the court would be able to make. And the justices, by reminding the state that these appeals are still on the table and that the time for deciding them is fast approaching, are hinting that this might be the case.

Option four is really option three – plus public outcry. This is the option you should bet on: The state will do nothing. The court will make a decision that recognizes Conservative and Reform conversions in Israel. The politicians – those who chose to do nothing even though the court practically begged them to take action – will then complain that the court is “making law” and is taking positions incompatible with the view of Israel’s ruling majority.