Don’t mess with the Law of Return

Guaranteeing the right of ‘every Jew’ to immigrate to Israel and become a citizen, the law is a core obligation, and privilege, of the world’s only Jewish state

David Horovitz

David Horovitz is the founding editor of The Times of Israel. He is the author of "Still Life with Bombers" (2004) and "A Little Too Close to God" (2000), and co-author of "Shalom Friend: The Life and Legacy of Yitzhak Rabin" (1996). He previously edited The Jerusalem Post (2004-2011) and The Jerusalem Report (1998-2004).

Ukrainian immigrants arrive at Ben Gurion International Airport on February 20, 2022. (Courtesy)
Ukrainian immigrants arrive at Ben Gurion International Airport on February 20, 2022. (Courtesy)

This Editor’s Note was sent out Wednesday in ToI’s weekly update email to members of the Times of Israel Community. To receive these Editor’s Notes as they’re released, join the ToI Community here.

When immensely troubling political processes are unfolding before your eyes, it becomes necessary to start worrying about the unthinkable becoming reality. A case in point: The unimaginable notion, which is nonetheless widely supported among members of Benjamin Netanyahu’s incoming coalition, of amending the Law of Return, which governs the right of “every Jew” to immigrate to Israel.

The Knesset is currently holding marathon committee and plenum sessions to push through legislation, including changes to Israel’s quasi-constitutional Basic Laws, that will enable the Netanyahu-led bloc of right-wing, far-right and ultra-Orthodox parties to take office in the next two weeks or so. Meddling with the Law of Return is not on that immediate agenda.

One of the urgent pieces of legislation being worked on now will clear the path for Shas party leader Aryeh Deri to return to ministerial office despite a conviction earlier this year for tax offenses; the court had accepted a plea bargain and imposed a suspended, rather than a custodial, term, on the assurance that Deri would have no further dealings with matters of “public economic interest since he will be distanced from the public sphere.”

Another legislative change will enable Itamar Ben Gvir, a Meir Kahane-inspired, abidingly dangerous provocateur, to be handed unprecedented powers as our new minister of police.

And a third will provide for incoming finance minister Bezalel Smotrich — an anti-Arab ideologue who seeks the restoration of full Jewish sovereignty over a biblical Land of Israel run according to the Torah and Jewish law — to also serve as a minister in the Defense Ministry, with unprecedented authority over Jews and Palestinians in the West Bank.

Without these laws on the books, enabling ministerial appointments and powers central to the functioning of his intended government, Netanyahu simply cannot swear in his coalition.

But even as that legislative process gathers pace, the prime minister-designate has yet to finalize any of his full coalition deals with his Likud party’s allies — Deri’s Shas and the second ultra-Orthodox party United Torah Judaism, Ben Gvir’s Otzma Yehudit, Smotrich’s Religious Zionism, and Avi Maoz’s one-MK Noam.

Netanyahu only has until December 21 to inform President Isaac Herzog that he is ready and able to swear in his coalition, and another week after that to actually get the job done. Likud’s political partners, though they share a great deal in terms of ideology, are holding out for demands closest to their hearts, and can be relied upon to ratchet up the pressure as the deadline nears — especially as Netanyahu has proved himself incomprehensibly accommodating in the more than six weeks of coalition negotiations since his bloc won 64 of the 120 Knesset seats in the November 1 elections.

There are plenty of ostensible reasons but no fully satisfactory explanation for why the uniquely astute and experienced Netanyahu negotiated as though he was the supplicant, rather than the head of the Knesset’s largest party. But having unconscionably handed astonishing powers to Ben Gvir and Smotrich, and even granted the utterly marginal and deeply intolerant Maoz considerable authority over part of the nation’s educational curriculum, there is simply no telling at this point what else he might cede.

It ‘needs to be fixed’?

Which brings us to the Law of Return.

At time of writing, none of Netanyahu’s coalition partners has definitively conditioned signing their final coalition deals on the “reform” of this foundational law, but Smotrich and his Religious Zionism party are insisting on it, and numerous other members of the incoming government are backing the demand. Religious Zionism’s expected incoming immigrant and absorption minister has said the law “needs to be fixed.”

In Netanyahu’s own Likud party only Yuli Edelstein has warned against the contemplated change — “the only pious man in Sodom,” as the outgoing coalition’s minister Ze’ev Elkin termed him during an “emergency conference” on the issue held in a Knesset meeting room on Tuesday night.

Ethiopian immigrants arrive at Ben Gurion Airport on December 3, 2020. (AP/Sebastian Scheiner)

Specifically, what the burgeoning chorus of reformers want to cancel is the Law of Return’s “grandchild clause” — an amendment, passed in 1970, to the original 1950 law granting automatic eligibility for Jews and their spouses to come to Israel and obtain citizenship. Whereas the 1950 text did not define who the State of Israel considers to be a Jew for these purposes, the 1970 amendment explicitly grants immigration and citizenship rights to anyone with a Jewish grandparent.

Since halacha (Jewish religious law) defines a Jew as the child of a Jewish mother, the state’s definition is manifestly wider. So be it: The former relates to matters of state; the latter to matters of religion.

But we are about to be governed by Israel’s first majority-Orthodox coalition, our deepest enmeshing to date of religion and state, with a larger complement than ever before of MKs for whom Jewish religious interests are of higher priority than secular state interests. Hence the unprecedented political weight and leverage behind the calls to scrap the “grandchild clause” in the Law of Return.

Despite this, the received wisdom until the last few days was that the law would almost certainly not be changed. The argument of “if you were Jewish enough for Hitler to want to murder you, you should be Jewish enough for Israel to give you a home” has always been a powerhouse defense.

But in this era of the inconceivable rapidly transforming to improbable, then possible, then actual, who knows anymore? Netanyahu told NBC 10 days ago that “I doubt we’ll have any changes” to the Law of Return, which hardly constitutes definite reassurance from a soon-to-be prime minister who in 2017 scrapped the “Western Wall compromise,” a painstakingly negotiated Israel-Diaspora agreement governing non-Orthodox prayer rights at the Western Wall, when under merely mild ultra-Orthodox pressure.

A boy reads from the Torah as part of his barmitzvah at the Western Wall’s egalitarian section in Jerusalem on November 17, 2022. (Egalitarian section/Facebook)

Dramatic as that about-face was, and however greatly it alienated swaths of Diaspora Jewry, this is a contemplated shift of still greater destructive Jewish impact.

Refuge from persecution

Israel should and does see itself as a focal point for Jews everywhere and for those who see themselves as part of the Jewish people, regardless of the particular stream of Judaism with which they identify. In the US, the world’s largest Jewish community outside of Israel, the biggest component — some 35% — are affiliated with the Reform movement, which defines Jewishness more broadly than does halacha. Removing the “grandchild” clause from the Law of Return would amount to telling them and others worldwide that their connection to the Jewish people is rejected not only by halachic authorities but by the Jewish nation-state.

Most practically, abolition of the “grandchild clause” would have its heaviest impact among would-be immigrants from Russia, Ukraine and elsewhere in the former Soviet Union — people who are involved with their local Jewish community, who regard themselves as Jewish, and who you might say are regarded by the non-Jews around them as “too Jewish to be Russian.” Israel would be telling them that, no, actually, you’re too Russian to be Jewish.

Israel was revived as the national homeland of the Jewish people tragically too late to serve as a refuge from Nazi genocide for millions of Jews in World War II. But it has been able to perform that critical role throughout its lifespan ever since — notably including for persecuted Jews in the Middle East and North Africa, as well as for Ethiopian Jews fleeing civil war, and including Jews in ostensibly enlightened Western nations who nonetheless feel unable to lead proudly public Jewish lives.

The rising tide of antisemitism worldwide, emphatically including in the United States, should be underlining the sanctity of that purpose. When Kanye West spews hatred against purported Jewish oppressors, Dave Chappelle unrolls his more sophisticated assaults, and Nick Fuentes incites against the “hostile tribal elite” who “run” America, they are not investigating the halachic credentials of any particular Jews they have in their sights.

To stress, the Law of Return’s “grandchild clause” constitutes no opposition or threat as regards halacha. Determining who is Jewish and who is not according to Orthodox law is the province of authorized Orthodox rabbis, and in the case of Israel, the province of the state-funded rabbinate.

Rather, the “clause” reflects the State of Israel’s responsibility to the global Jewish people and to itself, to its very nature. Abandoning this obligation, indeed this privilege, would constitute a betrayal of a foundational purpose of our country. It must remain in the province of the unthinkable.

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