Israel Supreme Court Expands Interpretation of the Law of Return

Top justices cite the Bible in decision that will make it easier for some people to move to and live in Israel

By Joshua Pex | | Topics: Aliyah, Right of Return
The Right of Return and determining who is a Jew for purpose of eligibility has always been a tricky legal matter.
The Right of Return and determining who is a Jew for purpose of eligibility has always been a tricky legal matter. Photo: Yonatan Sindel/Flash90

We celebrated in Israel last week the Day of Aliyah (Yom Ha-Aliyah) which is, since 2016, a national holiday. Therefore, this is a good opportunity to examine a recent important judgment of the heights court in the land, regarding the right to immigrate to Israel for relatives of Jews, according to the Law of Return.

In a ground-breaking ruling, the Supreme Court of Israel (High Court of Justice) has set an important legal precedent, which expands the current interpretation of the Law of Return for Jews and their kin.

The new ruling from late August 2021 has not received much media attention, but nonetheless marks a rare new interpretation of the Law. This verdict clarifies that a non-Jewish widow or widower whose deceased spouse was a child or grandchild of a Jew has the right to immigrate to Israel and receive all the privileges and benefits of a Jewish new immigrant, an Oleh (literally in Hebrew “an ascendant”) which is to say, a Jew returning to the Land of Israel from exile.

For over 50 years, the law has been clear that the spouse of a Jew, as well as the spouse of a child or grandchild of a Jew, has the right to immigrate to Israel as an Oleh together with their partner. However, there has been no consistent policy regarding non-Jewish widows and widowers who wished to immigrate to Israel after their spouse of Jewish descent has passed away. This new ruling can be seen as an expansion of the scope of the Law of Return, to some people’s chagrin, and to the great relief of others.


The Law of Return – Historically one of the Basic Laws of the State of Israel

The Law of Return was legislated by the Knesset in 1950 and is considered one of the foundational laws of the Jewish state. Supreme Court rulings have substantiated that it is in essence a law with constitutional weight, despite not formally being passed as a “Basic Law” (laws which are considered constitutional documents in Israeli law). In fact, it is recognized as the legislative foundation stone of Israel as a Jewish state.

David Ben-Gurion, the first prime minister of Israel, proclaimed that the Law of Return “contains within it a central purpose of our state, the purpose of ingathering the exiles.” He went on to say that the State of Israel is founded on the principle of total equality between its Jewish and non-Jewish citizens, however, “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).


Supreme Court judges interpret the Law of Return

The Law of Return is such a fundamental part of the identity of the modern State of Israel that it is extremely difficult to change. The fragmented Israeli political system, which is reflected in so many different political parties in the Knesset, makes this sensitive law an issue too controversial to deal with, therefore the courts stepped in, as is often the case in Israel, and Supreme Court rulings have defined the law in many aspects.

The original law did not define who is considered a Jew, and therefore, it was not always clear who has the right to immigrate to Israel as an Oleh. In 1962, the Israeli courts clarified that the definition of a Jew for the purpose of the Law of Return is not identical to the definition of a Jew in Rabbinical Law. Ironically, this precedent was established by denying a Jew who had converted to Christianity and who had become a Catholic friar from immigrating under the auspices of the Law of Return (even though according to halacha, Jewish Rabbinic Law, he was in fact a Jew).

In 1970, an important amendment was added to the Law of Return. This was the last change in this law until today, more than 50 years later. Article 4B of the amendment codifies the above judicial precedent in the language of the law by defining 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.” This is a narrow definition of a “Jew” that adopted the rabbinical definition.

On the other hand, article 4A of the same amendment, expanded on the original Law of Return until the third generation and states 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” regardless of whether the Jewish ancestor is still alive.

It is this aspect of the law that was debated in the recent Supreme Court case; namely, is the widow of a child of a Jew included in the language of this law or not?


Is the widow of a child of a Jew eligible for aliyah?

This case involved three non-Jewish widows whose deceased husbands were the sons of Jewish men and non-Jewish women. One of the widows even has three children who had already immigrated to Israel (as the grandchildren of a Jew) and who had served in the IDF. Despite this, Israel’s Ministry of Interior refused to grant the widows Israeli citizenship under the auspices of the Law of Return.

Note that prior legal precedent had already established that the widow of a Jew has the right to immigrate as an Oleh, since the law clearly states that the right is not contingent on whether the Jew is alive. However, the Ministry of Interior argued that the widow of the child of a Jew is a different category and that she should only be eligible to immigrate as an Oleh if her spouse is alive and immigrating with her.


Supreme Court ruling – split decision

The ruling on this appeal was made by a quorum of three justices, with two justices ruling in favour of the petitioners who were seeking Israeli citizenship, and one justice deciding against (according to the opinion of the Ministry of Interior).

Justice Itzhak Amit, who ruled in favour of the widows, wrote: “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.”

Albeit Justice Amit also stated that this right is contingent upon the precise circumstances of the case because the widow’s connection to the Jewish people is not as strong as that of her deceased spouse.

In contrast, Justice Anat Baron, who also ruled in the widows’ favour, claimed that the text of the law clearly states that “the spouse of the child of a Jew has an independent right of return that is derived from the fact that she herself is a family member of the Jew; and whether the familial relation is by blood or by marriage has no practical implication.” She further added pathos to the ruling by quoting 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” (Exodus 22:22-23).


Changes in the interpretation of the Law reflect changing Israeli society

This ruling must be seen in concert with other recent landmark rulings on the extent of the Law of Return. Particularly noteworthy is the ruling from March 2021 that recognized 12 Jewish converts who had converted to Reform Judaism in Israel as having the legal right to gain citizenship in Israel as Jews. This decision was met with harsh objections from the Orthodox rabbinical establishment.

Seen together, there is a clear judicial trend to view the right of return and the definition of a Jew expansively and without the prejudice of Orthodox Rabbinical Law. For the many people around the world who see themselves as part of the global Jewish community, even though the Orthodox Jewish establishment may deny their Jewishness, these rulings come as a relief and a vindication.

Advocate Joshua Pex is a partner in the law firm of Cohen, Decker, Pex & Brosh and regular contributor to Israel Today

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