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Israel Just Made It Harder for Some People to Become Jewish

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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In a rebuff to Israel’s high court, the Knesset has passed a law blocking a judgment ensuring that Conservative and Reform converts to Judaism can use ritual baths controlled by Israel’s official rabbinate. The law is a win for the rabbinate’s brand of Orthodox Judaism in its cultural struggle against Jewish pluralism in Israel and worldwide. But it’s a defeat for the principle of democratic equality -- and an illustration of how difficult it is to be a democracy with an official, established religion.

The background lies in the contentious and perennial question of who is a Jew. Through most of Jewish history, there was no central authority to decide the question. Individual rabbinic courts drew on Jewish legal sources and applied their interpretations to particular cases. And those individual rabbinic courts had the authority to admit non-Jews to Judaism.

Two features of the contemporary world have complicated this decentralized historical practice. The first is the rise of Reform and Conservative Judaism and the Orthodox reaction to both. For (essentially) the first time, some rabbis reject the claims of other rabbis to have the authority to accept converts. Almost all Orthodox rabbis today reject the legitimacy of Reform conversion. And many also reject Conservative converts, even though the Conservative conversion process hews closely to classical Jewish legal tradition.

The second contemporary challenge is the nation of Israel, particularly its state-recognized chief rabbinate. The official rabbinate has legal authority over all Jewish marriage and divorce in Israel. That gives it de facto power to define who is a Jew in many cases. Building on this legal authority, the rabbinate has in recent decades tried to expand its authority and control over Orthodox Jewish conversion throughout the world. Recently, the rabbinate made headlines when its highest religious court rejected a conversion performed by a respected Orthodox rabbi in New York.

Even within the haredi or ultra-Orthodox world, the rabbinate’s claim to monopoly authority is contested. But in practice, the rabbinate’s close connection to the Israeli legal system makes it difficult to ignore.

A case in point is the rabbinate’s control over the great majority of mikvahs, or ritual baths, in Israel. Immersion in the bath is a key element of the conversion ritual.

By restricting Conservative and Reform converts’ access to the state’s ritual baths, the rabbinate was declaring that it didn't consider their conversions to be valid.

In February 2016, Israel’s high court ruled that it was illegal and discriminatory for the rabbinate to deny access to the ritual baths to these converts.

In response, a Knesset member from the haredi United Torah Judaism party introduced legislation essentially pre-empting the decision. As written, the law gives local branches of the national rabbinate the authority to decide who may use their baths.

The law is already coming under criticism -- but mostly from outside Israel. Conservative and Reform Judaism remain much weaker forces within Israeli life than in the U.S.

As a result, when the rabbinate acts to delegitimize Conservative and Reform Judaism, the loudest complaints tend to come from the Jewish Diaspora community.

In the hopes of blunting the criticism, Israeli Prime Minister Benjamin Netanyahu’s government has proposed separate legislation that would pay for building new public baths for the exclusive use of non-Orthodox strands of Judaism. That proposal has already itself been criticized for the probable source of funding the baths, which would likely be the Jewish Agency, an entity backed mostly by donations from Diaspora Jews.

Within Israel’s culture wars, the Knesset bill will be widely understood as a victory for Orthodox Judaism. By applying ordinary antidiscrimination law to the ritual bath question, the high court was reaching a secularist outcome. Negating that decision by democratic means is a way for the Orthodox parties to assert their political agenda.

But beyond the cultural interpretation of the law, there’s another, bigger issue at stake -- namely Israel’s status as a Jewish and democratic state. The court was refusing to treat religious authority as an exception to general democratic principles of equality before the law. The Knesset bill asserts, to the contrary, that when it comes to religion, equality and antidiscrimination don’t count.

It’s one thing for a state without an official religion to grant religious entities exemptions from generally applicable laws, in the way that the Religious Freedom Restoration Act does in the U.S. The point of such exemptions is, or should be, to protect vulnerable minorities.

It’s quite another thing when the official state religion is given a free pass from norms of democratic equality. That makes it much harder for the state itself to be fully democratic.

Israel’s founding documents say that it’s both Jewish and democratic. The tension between the two principles isn’t easily resolved -- at least when one form of Judaism has a monopoly on the state’s definition of Judaism.

  1. The rabbi, Haskel Lookstein, also certified the conversion to Judaism of Ivanka Trump.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
James Greiff at jgreiff@bloomberg.net