Hands off the Law of Return!

21 October, 2007

The Law of Return is the single most important document defining the character of the Jewish State and its relationship with the Jewish People. The move to amend it represents the most serious assault on that relationship since Ben-Gurion proclaimed statehood in 1948.

Menachem Ben-Sasson, chairman of the Knesset Constitution Committee announced that he would hold 12 hours of discussions with the intention of cobbling together a constitution in time for Israel’s 60th Independence Day celebration. Among the controversial issues the committee is to consider is a “compromise” version of the Law of Return. According to Ben-Sasson all sides will be taken into consideration, all sides will be represented in the final document. This is not encouraging since “all sides” to be considered includes the Rabbinate’s push for a Halachic-only definition of Who is a Jew. Such a definition would potentially alienate the majority of Jews living in the Diaspora. The third rail of Israeli-Diaspora relations, Who is a Jew must have no place in redefining the Law or Return.

I

How much influence the Diaspora should have on issues of an existential nature regarding war and peace is, so far as I am concerned, not a question. Israelis benefit or suffer the consequences from such issues and those decisions should be theirs alone to make. But issues existential regarding Israel’s relationship with the Diaspora is an area in which the Diaspora must be included on an equal basis. The Law of Return and the Grandchild Clause fall into this category. In fact the consequences of changing the Law are of such importance to both State and Diaspora that it must remain out of the reach of Israeli politics and politicians, since these represent transient attitudes of an immediate nature, while the Law is 2,000 years of history projected into the future. The Law must be protected from the influence of persons and groups with more immediate and selfish agendas.

The Law of Return is a Basic Law, among the first enacted following proclamation of statehood. It was no coincidence that such a law was in the forefront of thought at the time since statehood followed by a mere three years the liberation of Auschwitz. The need for enacting the Law was obvious at the time, as was the need to include a Grandchild Clause. Since Germany did not follow Halacha in determining who is a Jew, the Law had to conform to the German Holocaust definition.

The Grandchild Clause is also fundamental because it recognizes a basic psychological, sociological and historical fact, something almost culturally deterministic: once a traumatic event occurs the memory does not just fade into history but serves as precedent for future behavior.

But what has this to do with Israeli law, with Israel celebrating 60 years of independence, with Israel finally enacting a constitution? Everything! Because the Law of Return defines Israel’s relationship with the Diaspora, her acceptance of responsibility for the mission which Zionism bequeathed to, and for which the movement created the state. Will Israel evolve into a Jewish state, a country defined only by internal self-interest, its uniqueness that it is the only country with a Jewish majority? Or will Israel continue to identify with its historic responsibility as the state of the Jews, the only country whose purpose, beyond survival itself, is to serve as refuge and protector of Israel dispersed? This is the real issue surrounding the Law of Return: the Zionist heart, the very reason for the creation and existence of the Jewish State.

II

Orthodox Jews had for centuries sought to fulfill their Halachic obligation to live in the land of our forefathers. But it was not until the late 19th Century that some among us took a critical look around and concluded that Jews were not, never would be safe living in Christian society. They saw Palestine ideologically as sanctuary, future homeland and refuge. Later, around the turn of the 20th Century an assimilated Jewish journalist named Theodor Herzl, while covering the Dreyfus Affair in France, came independently to the same conclusion. If France, the country which led the way towards “emancipating” Europe’s Jews after 1800 years of serfdom could so quickly turn virulently antisemitic in response to the fraudulent but assumed treason of Dreyfus, how secure could we be in other, less philosemitic countries of our Diaspora? Herzl concluded that Christianity’s “Jewish Problem” could only be solved by Jews creating and living in our own state. Thus was Zionism born, the movement of Jewish self-emancipation. Forty years before the event Zionism recognized the physical threat that was soon to engulf the Jewish People in Holocaust.

III

While the rebirth of Jewish sovereignty was already in process before the crime, the murder of our six million forced sobriety, sanity and conscience upon the countries of Christendom that had directly committed the murder, or had stood by lending silent support to the slaughter by refusing refuge to its victims.

The legal precedent and need for the Law of Return was established in pre-Holocaust Germany. According to German race theory Jews were classified as biologically distinct from humanity, separate and sub-human. But since Jews and Aryans both appear human to the eye, Germany’s legal system had to devise a way to define the separation. For purposes of classification it arrived at the definition of “Jew” as an individual with a single Jewish grandparent. No matter that the grandparent was a Christian convert, that the child’s parents were both committed Christians; that the grandchild was third generation and baptized Christian. Once the child’s link to the grandparent was established the child was defined Jewish and condemned by the state for Final Solution. Jew was Jew and, to remove the threat of pollution from the true human family, death the final solution.

IV

The Law and the Clause and, for that matter Zionism and the Jewish State are necessary so long as the threat to our people continues; so long, put another way, as Diaspora exists. Is Christianity an irremediable threat to Jewish existence? This is the question that since the Holocaust has occupied not only Jews, but Christian scholars and the Catholic Church itself.

Twenty years after the ovens cooled the Church did a self-evaluation of its historical and textual role as possible inspiration and collaborator in the murder of our six million. The resulting document, Nostre Aetate, acknowledged that basal Christian texts refer to Jews and Judaism in ways that inspire hatred and incite violence. But the Church also concluded it could not eliminate or change those textual references without, it decided, undermining the very foundation of Christianity. So the Church settled on a middle ground of retaining the texts as holy while encouraging they not be taught or read literally. Clergy and faithful were directed to pass over the excesses of the offending passages. But recent surveys indicate that not only has there been no change in the way those passages are read and understood, but that anti-Semitism is more, not less prevalent today than before Nostre Aetate. This realization has led Church leaders to schedule a second conclave in 2008 tasked to revisit the problem of scripture-inspired anti-Judaism. But Church sources involved in its planning admit that, once again and for the same reasons, the offending passages will not be touched.

So the Law of Return continues necessary to Jewish survival; to serve its essential function in Zionist theory and practice. The Law defines Israel’s Zionist mission, our state as protector and refuge for threatened Diaspora Jewry.

V

Today, with but six decades separating us from that nearly successful effort to rid the world of Jews we, both resident of Israel and Diaspora, continue to deny the relevance of our recent history, choose to see Jewish life in Diaspora as normal, safe and secure. And at present it is relatively so. We convince ourselves that the past is aberration, our country in Diaspora exceptional. But when we lived in Germany before Shoah we felt exactly that same sense of safety and security, considered our fatherland also exceptional. In those days also we identified with and felt accepted by our country and neighbors, Germans first, Jews second. As in the United States today, in pre-Holocaust Germany we were leaders in the arts, academia and politics. Just a few short years before the ovens of Auschwitz we provided as many leaders of party and government in Germany as we do today in the United States.
Which is why the Grandchild Clause is, and will ever remain, such a necessary, no the key element of the Law of Return; and why it must never be tampered with. Because just as the Clause anticipates our future based on history and precedent, so too does the comfort we felt in Germany pre-Holocaust stand as yet another precedent: No country of the Diaspora is truly exceptional regarding antisemitism; no Diaspora “homeland” will for ever be secure for Jews.

VI

It appears that the Ben-Sasson Committee motivation to water-down the Law of Return is fed by two streams, the orthodox-Haredi interest in Who is a Jew; and political reaction to the recent spate of swastika synagogue desecrations by alienated Russian émigré youth. The parents of these self-styled neo-nazis, brought to Israel under the Grandchild Clause, apparently had little previous identification with Judaism as religion, destiny or state prior to leaving Russia. In other words, both parents and children were poor candidates for assimilation. If there is a problem with the Law it is not in the wording but in the way it is administered in times of non-emergency. As to joining the destiny of the Law with that of the Who is a Jew controversy, the two are distinct and must remain separate. Who is a Jew is part of the struggle for Jewish identity between religious orthodoxy and the majority secular citizenry of the state. The Law of Return defines Israel’s Zionist mission, her identity as the State of the Jews, her responsibility as haven for our threatened. Who is a Jew is political, and threatening as the controversy is to Diaspora Jewry, an internal Israeli debate. The Law of Return is national and must be insulated from Israeli politics and politicians.

Menachem Ben-Sasson must be brought to understand the distinction, to guarantee and protect the integrity of the Law of Return as Israel’s Zionist mission.