Jerusalem, February 20, 2002
The Supreme Court today delivered a judgment regarding the question of whether residents of Israel who have undergone Reform or Conservative conversion should be registered as Jews by the Registrar of the Ministry of the Interior, an official government body operating under the Population Registration Act of 1965. Under the Registration Act, a Jew is defined as "a person born to a Jewish mother or who has converted to Judaism and is not a member of another religion." The identical definition is also used in the Law of Return, an immigration law which entitles all Jews to immigrate to Israel. Today’s judgment applies only to the registration issue, and does not deal with the Law of Return.
The judgment was delivered by a panel of eleven Justices. The majority opinion was written by the Chief Justice of the Court, A. Barak, and was joined by Deputy Chief Justice S. Levin, and Associate Justices T. Or, E. Mazza, M. Cheshin, T. Strasberg-Cohen, D. Dorner, D. Beinisch, and E. Rivlin. Associate Justice J. Turkel filed a concurring opinion, and a dissent was filed by Associate Justice I. Englard.
According to the majority opinion, the outcome of this issue was governed by the Funk-Schlessinger case, decided by the Supreme Court in 1963. According to the Funk-Schlessinger opinion, the Registrar is a collector of statistical data. The data gathered by the Registrar concerning religious and national status carries no evidentiary weight. In carrying out the task of registering the religious or national status of residents of Israel, the Registrar exercises only administrative, and not judicial, discretion. Accordingly, under Funk-Schlessinger, the only circumstance under which the Registrar may refuse to register a resident who claims to be Jewish is when it is clear that the applicant’s claim is false. Where there is doubt regarding the validity of the applicant’s claim, the Registrar must accept the application and register the claimant as a Jew. The Majority in today’s decision held that although, over the past thirty-nine years, there have been changes in the application of the principles enunciated in Funk-Schlessinger, the holding in that case still applies to the current issue.
The Majority held that the term "converted", as it is used in the Registration Act’s definition of a Jew, is ambiguous. There are several possible interpretations of the term; it may refer exclusively to Orthodox conversions, or, alternatively, it may also include Conservative conversions, Reform conversions, or both. The Majority refrained from deciding the exact definition of the term, holding instead that because there is doubt regarding the meaning of the term "converted", the Funk-Schlessinger precedent mandates that the Registrar register the applicants as Jews. It is therefore important to emphasize that the Court did not take any position regarding the validity of Conservative or Reform conversions.
The Majority’s decision was also based on another important precedent, the Shas decision. In Shas, the Court held that the Registrar must register immigrants to Israel as Jews if they were converted in a Jewish community abroad prior to their immigration to Israel, so long as that conversion was recognized as valid in the community in which it was performed.
The Court considered not only the case of first-time registrants, but also instances in which a resident who is registered as a non-Jew wishes to change his or her status, based on a conversion. Under the Registration Act, such an applicant must submit an official document, such as a declarative judgment from a district court, verifying the change in his or her religious status. The Court decided that such a declarative judgment should state that the applicant’s conversion took place in a Jewish community, in Israel or abroad. The Court, however, did not address the question of what constitutes a "Jewish community". The final decision of the Court ordered the Registrar to register the applicants as Jews in the National Registry.
The State argued that the holding of Shas does not apply to conversions within Israel, since, according to the State, there is only one legally recognized Jewish community in Israel. Accordingly, the State argued that the approval of the Chief Rabbinate is required in order for conversions of Israeli citizens to have force. The majority rejected this claim and held that Israel is not the country of the "Jewish community", but rather the country of the Jewish people. Judaism is comprised of many different denominations that are active both in Israel and outside it. A fundamental principle of the constitutional regime in Israel gives each individual freedom of religion, freedom of conscience and freedom of association.
Associate Justice J. Turkel filed a separate opinion, concurring as to the specific result, but not as to the reasoning. Justice Turkel stated that he would have overruled Funk-Schlessinger, because the act of registering the religious status of Israeli residents does not have purely statistical consequences. According to Justice Turkel, because the overruling of Funk-Schlessinger would create a "legislative vacuum", the legislature should provide a new definition for the term "converted". In the absence of such a definition, Justice Turkel would have ordered the Registrar to cease registering as a Jew anyone who has undergone conversion. Nevertheless, because Justice Turkel’s opinion only applies prospectively, he concurred in the Majority’s order to register as Jews the particular applicants in the case at bar.
Justice I. Englard issued a dissenting opinion. According to Justice Englard, because the issues raised in this case are deeply ideological and political in nature, the Court should not involve itself in their resolution. Justice Englard also stated that the term "converted", as it is used in the Registration Act, refers only to an Orthodox conversion.