There is a lot of buzz today over the decision by an Israeli court declaring that Judaism, rather than being born in Israel, is the appropriate determinant of citizenship for a petitioner who wanted his citizenship to be based on something other than his religion. Uzzi Ornan had asked the court to recognize his citizenship based on the fact that he was born in Palestine during the British Mandate and not on the fact that he was born Jewish since he says that he has no religion and thus does want to be classified as religiously Jewish. The court ruled that Ornan is Jewish according to the 1970 amendment to the Law of Return, which grants every Jew the right to move to Israel and automatically gain citizenship, and thus his self-definition is irrelevant.

This is not the first time that a similar case has come up. Ornan has tried this gambit before, and the court then noted that the determinant of citizenship is not a proper question for the courts to decide but is one that must be left to society. This idea is one that should be intimately familiar to Americans, as there is a long established tradition in U.S. legal history that courts may not rule on political questions that are best left to the executive and legislative branches. The issue of how to determine what makes someone a citizen of Israel certainly appears to fall into this category, and I think that the Haifa district court in this case did a good job of simply following the law it is written. It doesn’t mean that the law should necessarily remain this way, but rather that it is not the job of the courts to take up an issue that is clearly best left to the purview of the Knesset.

There are four ways in which to acquire Israeli citizenship: being born to an Israeli parent or being born on Israeli soil (although this second one is not automatic), immigrating to Israel and being subject to the Law of Return, being a former citizen of British Mandatory Palestine who remained following the establishment of Israel, and naturalization after residing in Israel for a set amount of time. Critics of Israel focus on this second path since it is open only to Jews, but as can be seen, citizenship generally is not restricted to only Jews (although it is easier for Jews to become citizens by virtue of the Law of Return). The problem that the court decision raises is that one’s Jewishness is determined based on a religious definition, which ipso facto makes Jewishness exclusively a religious category rather than an ethnic category. This is problematic both as a matter of history and policy.

The word Jew is derived from the Latin Iudaeus Greek Ioudaios, both of which were terms that originally denoted ethnicity and geography rather than religion by referring to residents of Judaea or the nation (but not religion) of Judaeans. In time, the term Judaean evolved into the term Jew, which had a religious dimension, but it was not always this way. Being a Jew has always meant a mix of things: ethnicity, religion, culture, and (in Antiquity) geography. While in some ways the Law of Return embraces ethnicity – a Jew is someone whose mother was Jewish – it is misleading since that is ultimately the religious definition; someone whose mother was not Jewish but whose father was is not considered to be Jewish according to halakha, and is thus not Jewish for the purposes of the Law of Return without undergoing a conversion. Thus, the ethnic aspect of being a Jew is discarded, which may comport with recent centuries of Jewish history but certainly does not comport with what it meant to be a Jew the last time Jews had sovereignty over the territory that now constitutes Israel.

More relevant to today is the fact that making Jewishness an exclusively religious category inserts the state into making some weighty personal decisions that it should not be making. Ornan says that he is not a Jew and that he has no religion, but the state of Israel disagrees and is telling the world that Ornan is an Israeli citizen specifically because he is Jewish and not because he was born on Israeli territory. Doesn’t it strike you as odd that the state is putting itself in the business of arbitrating someone’s personal convictions on religion? Israel officially labels Ornan a Jew when he himself say that he is not, which might be the province of rabbinical authorities to do but shouldn’t be something in which the state should be engaging. It is one thing to create guidelines to determine whether someone who declares themselves Jewish is indeed Jewish, but it is altogether another thing to foist Jewishness upon someone who renounces it. Like I said, I’m not sure that the court had a choice in this matter based on the way the law is written, but it is something that the Knesset should certainly debate and clarify.

One final aspect to consider here is why the question of citizenship is so important. As Marc Howard has pointed out, in liberal democracies political rights are no longer a prerequisite to social and civil rights; one need not be a citizen but rather only must be a resident to enjoy the benefits of the state, and thus some argue that political rights (and hence citizenship) are not as important as they once were as they are not required as a gateway to gaining social rights. Marc’s book presents an elegant and persuasive argument that this argument is wrong and that even in the EU citizenship still matters greatly, but in Israel this is even more acute given Israel’s nature as a Jewish state. The preference that Israel gives to Jewish immigration and the easier pathway to citizenship for Jews is precisely because of Israel’s Jewish identity, and thus what should be a somewhat abstract legal question over the proper basis for Uzzi Ornan’s citizenship becomes something much larger. Here’s hoping that Israeli society takes up this question and reopens the debate, because as anyone who has observed the wide variation in religious observance and identification in Israel itself knows, Judaism in the 21st century is much more complex than a simple halakhic formula suggests. I believe that Israel is correct to zealously guard its Jewish identity and I defend its right to do so without qualification, but Jewish identity is something that should be borne by choice rather than by the state’s fiat.