The source of the accommodations between religion and state in Israel lie in the famous letter that David Ben-Gurion sent to the leaders of Agudat Yisrael while still in the Yishuv period. This letter set forth the general stipulations on religion-and-state issues,¹ stipulations that are based on the notion of the “status quo.” The assumption is that it is worth maintaining the existing situation – not so much because of the nature of the existing situation but because of the dangers posed by possible changes.

The basic accommodations on religion-and-state issues already took root in the Mandate period. Aviad Hacohen notes that when it comes to delineating the public space in Israel, qualitatively speaking “there have been no substantial changes in this regard compared to the situation that prevailed before the establishment of the state.” That is, most of the accommodations were already established in the Mandate period, though the following changes occurred:

1. In the “state” domain, the accommodations received the imprimatur of the state of Israel.
2. Activities connected to the religious accommodations began to be financed from the state coffers.
3. The accommodations began to be enforced legally and not simply carried out voluntarily.²

The status quo on religion-and-state issues covers four areas: Shabbat, kashrut, education, and personal-status laws. It was generally accepted by most of the ideological camps in the country, both religious and secular, particularly during the first generation of statehood. The prevailing outlook in the religious camp, which was also supported during that first generation by the central stream of the Labor movement, was that the status quo existing since the country’s earliest days should be left in place and there was no warrant for a separation of religion and state in Israel. As Don-Yehiyah and Liebman observed, this lack of separation of religion and state “does not indicate much about the role that religion actually plays in the life of the country,” and stems only from the centrality of the Jewish nation in the state of Israel. Hence they concluded that “it is difficult to point to a real alternative to this overall situation.”³

This article explores how Zevulun Hammer, a National Religious Party (Mafdal) figure, viewed the status-quo issue regarding the question of “Who is a Jew?,” which concerns laws of personal status. Hammer, one of the leaders of Mafdal, served as member of Knesset, welfare minister, religious affairs minister, education minister, and deputy prime minister up to his death in 1998. An activist in Mafdal’s young guard in the early 1960s, Hammer reached a leadership position at a relatively young age.⁴As we will see, Zevulun Hammer’s political career manifested his basic view that the status quo on religion-and-state issues, while imperfect, was an important political tool and formed the basis for the mutual accommodation between Israel’s religious and secular populations. This view of his was consistently evident when it came to the “Who is a Jew?” question.

Between Pragmatism and Values: The Law of Return and the Attempts to Change It

During its “historic alliance” with the Labor movement, the “Who is a Jew?” issue was one that occupied Mafdal considerably.⁵This issue is umbilically linked to the Law of Return, which is seen as one of the laws that manifest Israel’s essence as the nation-state of the Jewish people. The law stipulates that “every Jew has the right to come to this country as an oleh” (immigrant). Aliyah (immigration) on the basis of an oleh visa enables any Jew to return to the historic Jewish homeland and receive Israeli citizenship automatically upon his aliyah, and sometimes even before that. The law did not explicitly define who is considered a Jew who is entitled to immigrate to Israel on the basis of return. For one thing, the “politics” of the status quo aimed at avoiding a decision that could cause a rift; for another, Israel was viewed as the state of all the Jewish people.⁶The result was the lack of a consistent and binding policy, fostering a situation in which questions that arose were decided by clerks and interior ministers.

In 1958 Interior Minister Israel Bar-Yehuda put forth new regulations entailing that the “Who is a Jew?” question would be settled on the basis of the citizen’s declaration and not according to objective criteria. Mafdal, headed by Minister Moshe Shapira, reacted by resigning from the government, and returned only after it was agreed that Shapira himself would serve as interior minister and formulate new regulations.⁷Soon afterward the Brother Daniel affair again put this volatile issue to the test: a Jew who had converted to Christianity asked to be registered as a Jew in his nationality and a Christian in his religion. Interior Minister Shapira refused, and the Supreme Court backed his position.⁸

Hammer first confronted the “Who is a Jew?” issue in 1970, when he was already a member of Knesset and a new problem known as the Shalit affair emerged. Benjamin Shalit, an IDF officer, asked to register his children as Jews even though their mother was not Jewish. The Supreme Court ruled by majority opinion that religion and state had to be kept separate and, therefore, the state had to register them as Jews. The ruling required the Knesset to determine “Who is a Jew?” by legislation and not simply rely on the interior minister’s edicts in this regard.⁹

In 1970 the Law of Return was deliberated in the Knesset, and the section that addresses the “Who is a Jew?” question was on the political agenda. The compromise that was proposed envisaged a clause stipulating that a Jew is someone who was born to a Jewish mother or has converted to Judaism and is not a member of another religion, without stating what sort of conversion was involved.¹⁰On the one hand, the compromise tilted in the Orthodox religious direction and was clearly the best one achievable. On the other, the notion that the religious camp would support a law opening a door to non-halakhic conversion was extremely problematic.¹¹On this matter Hammer met with the Lubavitcher Rebbe, who told him in no uncertain terms that it was impossible to support a law that did not define conversion as halakhic one and that he must resign from the government if it was passed.¹²After vacillations, however, Hammer decided to vote in favor of the law and thereby make common cause with the leaders of the party. In the future, he believed, the law could be improved and adapted to the halakhic requirements.¹³

In June 1972 Member of Knesset Shlomo Lorincz of Agudat Yisrael and Member of Knesset Rabbi Kalman Kahane of Poalei Agudat Yisrael submitted a private members’ bill that sought to add to the Israeli identity document the words by halakhah beside the word conversion. Prime Minister Golda Meir opposed this proposal and said it contravened the coalition agreement.¹⁴Even though it was clear that this amendment to the existing law had no chance of passing, Meir saw it as a violation of coalition discipline and even threatened to resign. At an early stage, when the amendment was proposed, Hammer came out in favor of it while his fellow party members opposed it. He cited a study by Prof. Yochanan Peres showing that the public was in favor of such a change: “A majority of the public is behind us…. Therefore, we do not have to be afraid to act, there is no choice but to act, because it is essential to us.”¹⁵It was claimed in Mafdal that the Lorincz proposal was a tactic intended to embarrass the party, since it now faced a dilemma: if it favored the amendment it might win the support of the religious sector but would find itself in trouble with the coalition, which opposed the amendment, and hence might have to resign from the government; while if Mafdal opposed the amendment, it could indeed remain in the government but would find itself counteracting an Orthodox camp that stood united against the law’s existing formulation.

Hammer, however, chose to defend Lorincz: “It is not fair to say that this is a tactic. It is their right to submit a bill that he wants,” he told his comrades in the party.¹⁶ Hammer suggested asking Agudat Yisrael to defer the proposal, but that did not succeed. At that point Hammer understood that as a member of the coalition he could not support the proposal, but he also did not want to oppose it; hence he opted to abstain. “It is indeed an uncongenial solution to abstain,” he said. “On the other hand, to appear to the public as attempting to torpedo the Lorincz bill – will not be good for us.”¹⁷ Yehuda Ben Meir described his and Hammer’s vacillations: “Zevulun and I were at the beginning of our parliamentary path, and voting in favor of the law was certainly a temptation that promised us credit points among the religious public. At the same time, we understood that there was no reasonable chance to topple the government, and we abstained.”¹⁸Deputy Education Minister Avner Shaki of Mafdal voted in favor – and was forced to resign for that reason. Hammer, who was not a member of the government, was exempt from the collective responsibility, and his decision to abstain resolved for him – at that stage – the dilemma between ideological interest on the one hand and political and party interest on the other.

As a new government was being formed in 1974, again the opportunity arose to demand a change in the Law of Return and to stipulate in legislation that conversions could be performed only according to the halakhah. Disagreements on this point, however, emerged between veterans and young members of the party. Young Mafdal members claimed that the Chief Rabbinate’s stance on this matter should be complied with.¹⁹This meant that religion should be implemented in the public space, very much in line with the positions taken by Rabbi Abraham Isaac Hacohen Kook and his son Rabbi Zvi Yehuda Kook. The guiding idea was to achieve the original religious-Zionist vision of religion taking the reins in all the domains of life.²⁰

The veterans, for their part, argued that the rabbinate as a state body could not interfere in the internal decisions of a political party, and doing so meant “exceeding the powers it was granted.”²¹While the party veterans thought there was indeed cause to amend the law, they agreed to accept a compromise that stated:

Because there is a behest to amend the Law of Return with regard to conversion, and because “conversion” is a halakhic concept, a committee of ministers will be established that will explore the issue of conversions performed abroad with regard to the Law of Return and the Population Registry Law, seeking to reach an agreed legal arrangement on this issue within a year. The interior minister has announced that to the best of his knowledge, in the situation that has existed since the amendment to the Law of Return was passed four years ago, no non-Jew has been registered as a Jew – and that will be the practice in the future as well.²²

The then religious affairs minister, Yitzhak Rafael, attested that despite the fact that the amendment had not actually been passed, the party leadership saw it as “progress” and as “a reasonable basis on which to continue the fight to alter the definition.” The question concerned foreign conversions because the conversions in Israel were in any case performed by the Chief Rabbinate. The ministerial committee that was appointed to deal with this issue was acceptable to the leaders of Mafdal.

However, the young Mafdal members thought otherwise; with full backing from Chief Rabbi Shlomo Goren, they worked to thwart the agreement with the Labor Alignment. Rabbi Goren, who had been elected to his post two years earlier with massive support from the Mafdal leaders, invited them to a meeting and firmly demanded that they not enter the government without a commitment to amend the legislation on the matter. In a wide-ranging interview with the newspaper Hatsofeh, he asserted that “because Mafdal made a commitment to the public, with committee resolutions and in its platform, to ensure that the Law of Return would be amended – if it were not to uphold this at the time of the government’s formation, it would mean it had deceived its voting public.” Rabbi Goren justified the rabbinate’s intervention in this issue by asserting that the Chief Rabbinate did not see the state as a secular framework but as a body implementing the Torah’s vision.²³

Hammer, for his part, complied with Rabbi Goren’s stance and rejected any formulation that contravened the halakhic ruling of the rabbinate. Hammer also rejected the versions of the compromise that Yitzhak Rafael, as noted, proposed, and said it would be possible to agree only to a formulation stating explicitly that the interior minister would not register a Reform convert as a Jew. Therein Hammer positioned himself at the radical Orthodox pole of the “Who is a Jew?” issue. However, the Mafdal leaders, with Yosef Burg at the forefront, were inclined, as noted – despite the demand of the Chief Rabbinate – to accept the compromise proposals and consent to Mafdal joining the coalition.²⁴

When Rabbi Goren saw that Mafdal did not intend to comply with this ruling, its leaders were invited to a special meeting of the Chief Rabbinate Council. During it Rabbi Goren talked by telephone with Rabbi Yosef Dov Soleveitchik of Boston, one of the leaders of Mizrahi, and announced that he too was opposed to Mafdal entering the government.²⁵ Afterward the Rabbinate Council published a dramatic resolution stating that “without an amendment of the law by legislation or any appropriate ordinance stipulating that any conversion that is not according to the halakhah, sanctified from generation to generation, is without validity – the council cannot authorize its petitioners to join the government.”²⁶ Nevertheless, in this round the Mafdal leaders had the upper hand and the party joined the Golda Meir government. This government, however, did not last long, and Yitzhak Rabin was elected the new leader of the Labor Party.

The “Who is a Jew?” affair also beclouded the negotiations with Rabin, and Mafdal now claimed that without a commitment by the Alignment to amend the law, there was no point in joining the government. The party veterans faced a dilemma. They indeed wanted to continue the partnership with the Alignment, but did not want to appear as if being part of the government was their paramount concern. In contrast to the way the previous government had been formed, this time the young people had the advantage; together with the Gush Emunim movement, which had now been established, they pressured the heads of the party not to join the government. Rabbi Zvi Yehudah Hacohen Kook, head of the Mercaz Harav Yeshiva, led a strong line on the issue and was joined by yeshiva members and members of Bnei Akiva. Minister Yitzhak Rafael attested that even threats and curses were employed against the leaders of the party.²⁷

The struggle succeeded, and Mafdal remained outside the government; to ensure the majority coalition, the Ratz Party joined it and Shulamit Aloni, who was identified with an antireligious line, became a minister. As for the government ministries that Mafdal had held so far, they were put in the hands of the Alignment for safekeeping. The basic assumption was that Mafdal would finally accede and join the government.

Rabin complained that his dovish image served the younger Mafdal members led by Zevulun Hammer and Yehuda Ben Meir as “ammunition in their struggle against the veteran leadership of the party,”²⁸and said that was why Mafdal had not joined his government. Yitzhak Rafael, who had been appointed religious affairs minister only a few months earlier and now again was outside the ministry, railed against the younger Mafdal members and said that, at this point, the struggle over “Who is a Jew?” was “too late.” In his opinion, there was a majority in Mafdal that favored joining the government but preferred not to create a rift with the party’s minority. “I believe,” said Rafael, “that the ‘Who is a Jew?’ issue can be solved by sitting in the government and the chances of it are greater inside than outside.”²⁹

In the end Mafdal agreed to join the Rabin government even without achieving the amendment of the Law of Return. It took a realistic view of the political situation, and it was on that same basis that Mafdal, together with Agudat Yisrael, joined the governments of Menachem Begin,³⁰ Yitzhak Shamir, and Shimon Peres.

Demurral and Inclusion: Hammer’s Attitude toward the Non-Orthodox Streams

The “Who is a Jew?” issue directly affects the question of the status of the non-Orthodox denominations, and on this issue Hammer, as religious affairs minister from 1986 to 1990, adopted a complex policy.³¹  A critical article in Maariv asserted that in Hammer’s view “Reform Judaism has no right to exist in the Land of Israel. Certainly the non-Orthodox streams of Judaism must not be given equal rights to those that Orthodoxy enjoys.”³² Hammer, however, denied claims that he was boycotting the Reform Jews. When he was accused of failing to participate in a symposium that the Reform movement had organized as part of the inauguration of the new campus of the Hebrew Union College in Jerusalem, Hammer’s assistant said that the invitation to Hammer had been submitted tardily and as a mere formality, without any real intention for Minister Hammer to attend.³³

A similar case occurred regarding the Conservatives. Hammer was invited to a festive reception for the hundredth anniversary of the Jewish Theological Seminary of America, which was held at the Israel Museum in Jerusalem. Instead of coming to the event, Hammer preferred to invite participants to his office. He said this was not out of fear of the reaction of Orthodox rabbis but because of time constraints. An official announcement stated that the Religious Affairs Ministry had “not adopted a policy of boycotting the Conservatives”; but “that does not mean we will act in the same way toward the Reform Jews if they approach us similarly.”³⁴Thus it appears that Hammer took a more reserved attitude toward the Reform Jews while viewing the Conservatives as more legitimate. Toward them, too, he was reserved to a certain degree, particularly given the fact that he was the leader of an explicitly Orthodox party. When Member of Knesset Mordechai Virshubsky of the Ratz Party submitted a bill to equalize the rights of the Jewish denominations, Hammer came out against it. Regarding the domain of marriage and divorce, he said that “one must not divide the people into streams, making a separation that has no basis in any religious ruling and could lead who knows where.” He asserted further that the Chief Rabbinate’s authority had to be preserved: “Even before the establishment of the state, a legal framework was created in the Land of Israel for a single Jewish people. One Jewish religion with one Chief Rabbinate that stands at its helm. This framework was reconfirmed in the Chief Rabbinate Law. To undermine this framework poses great dangers.”³⁵

Hammer took a consistent stance that opposed granting the non-Orthodox streams a status on the “Who is a Jew?” question. His consistent position on the “Who is a Jew?” issue itself reflected his critical attitude toward those streams. In a meeting with kibbutz members at Gilboa while he was religious affairs minister, he said that “the issue of joining the Jewish people is no less important than the issue of joining the kibbutz, and the kibbutz, too, sets conditions and carries out a rigorously selective process for those who want to join its ranks.”³⁶

The “Who is a Jew?” issue refused to drop from the agenda, and since the amendment of the clause in the Law of Return in 1970, the religious parties – Mafdal among them – had tried to bring about an additional amendment and to add the words “according to halakhah,” which would preclude recognition of non-Orthodox converts in Israel. When, at the beginning of the tenure of the Unity Government, it was proposed to remove the nationality item from the identity document so as to avoid a dispute with the Reform and Conservative denominations over the recognition of conversions, Hammer stated unequivocally that “as a national-religious party we cannot agree at all to removing the nationality item from the identity card. This is the Israeli identity and we cannot agree to the conversion of Judaism to Israeliness, to the conversion of our Jewish nationality.” Mafdal, he said, had not intention to interfere in the internal affairs of American Jewry, but when it came to Israel: “There is one law.”³⁷

Halakhah and Policy: Hammer’s Position on the Suzanne Miller Affair

At the beginning of 1987 the Suzanne Miller affair came to the fore, again raising the “Who is a Jew?” issue and the many dilemmas entailed by it. A non-Jewish woman who had converted under Reform auspices in the United States now requested to be registered in her identity document as a Jew. Interior Minister Rabbi Yitzhak Peretz of the Shas Party said he opposed it because from a halakhic standpoint the conversion was invalid. Mafdal under Hammer’s leadership basically agreed with the interior minister, saying Reform conversions could not be recognized in Israel.³⁸

The dispute with Minister Peretz was on the practical level: what could be done in the given situation, and could the damage that had been caused at least be reduced? Mafdal opposed in principle an idea raised by the Shas Party to distinguish between Israeli citizenship and Jewish citizenship and thereby resolve the dilemma from a halakhic standpoint. In a meeting with Prime Minister Shamir, Hammer remarked: “We want this government to exist, but cannot be partners if such a proposal is accepted.” Hammer proposed a far-reaching solution to the problem: to amend the Law of Return in such a way that there would be no loophole on the “Who is a Jew?” issue. Shamir, for his part, suggested that Hammer pressure Shas to change its position on the matter (distinguishing between Jewishness and Israeliness) and also try to persuade the Alignment of his view. Shamir told Hammer that he wanted to reach agreement with American Jewry.³⁹

Hammer continued his efforts to resolve the dispute. When he met, however, with Deputy Prime Minister Shimon Peres in attempt to forge an agreed stance, Peres disappointed him by saying he did not intend to grant his party’s Knesset members a free vote on the “Who is a Jew?” law because, he thought, the law would cause a rift with world Jewry.⁴⁰

Religious Affairs Minister Hammer had some additional proposals on this complex issue. One was to pass a law stipulating that any conversion performed abroad would have to be approved by the Religious Affairs Ministry. This was similar to a proposal by Shas that any conversion done abroad would have to be approved by Israel’s Rabbinical Court. The advantage of Hammer’s idea, however, was that it entailed the approval of a governmental body instead of a rabbinical institution. Hammer’s proposal indeed sought to equate foreign conversions with professional internships that are performed abroad and require a work license in Israel.⁴¹

A second idea also sought to solve the problem from a halakhic standpoint without offending American Jewry, the large majority of which is non-Orthodox. Hammer proposed establishing in the United States a joint court for all the denominations so that the conversion would be authorized in line with Orthodox halakhah.⁴² This proposal was based on a liberal approach propounded by Rabbi Aharon Lichtenstein, head of the Har Etzion Yeshiva. While halakhic standards were paramount when it came to conversion, this solution could be implemented only abroad, in a way that would achieve two goals: upholding the Jewish halakhah regarding conversion while also preserving Diaspora Jewry.⁴³

Both of Hammer’s proposals were rejected by Interior Minister Peretz, who resigned from his post after the Supreme Court ordered the state to register Suzanne Miller as a Jew. Since the time of this episode, the nationality line has been removed from the identity cared so as to avoid the problem of registering non-Jews as Jews; in this way the dispute was resolved temporarily. Members of Mafdal expressed great anger at Peretz, who, they said, had managed the crisis unwisely: “The position of Shas created a strange coalition between Rabbi Schach, Shulamit Aloni, and Prof. [Yeshayahu] Leibovitz on the issue of separation of religion and state,” said religious-kibbutz figure Avraham Stern.⁴⁴Hammer, despite his position on the Suzanne Miller affair, continued to take a basic stance that opposed granting a status to the Reform movement in Israel. In a meeting with Prime Minister Shamir, Hammer said that he appreciated the Likud Party’s support for Mafdal’s struggle against the Reform movement.⁴⁵

Conclusion

This article considered the issue of “Who is a Jew?” from the perspective of the approach taken by Minister Zevulun Hammer. What is significant in his approach is the concern for both the public interest and the halakhic standpoint: on the one hand, complete adherence to the halakhic position, and on the other, a pragmatic understanding of the political reality. This combination has been the hallmark of Mafdal and of religious Zionism, particularly since Israel’s establishment. Hammer saw a change of the status quo as posing a real danger to the delicate fabric of the religious-secular division in Israel; the status quo, in his view, was of major value.

In a historical perspective, it is clear that on the “Who is a Jew?” question the principle of the status quo has been steadily eroding: the Reform and Conservative denominations are gaining legitimacy from the Supreme Court, and the Chief Rabbinate already is no longer the authorized halakhic actor when it comes to personal-status laws. In the current political reality, the status quo, which has played a key role in the history of the state of Israel, is undergoing an erosion that cannot be stopped.⁴⁶

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Notes