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Rufeisen v. Minister of the Interior – “Brother Daniel”

Joshua Pex
Joshua Pex

Gáspár Erőss

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As a part of our office’s summaries of Israeli law and High Court of Justice decisions, we review the case of “Brother Daniel”, concerning the right of Jews who converted to another religion to immigrate to Israel under the Law of Return.

The Facts

Oswald Rufeisen, aka “Brother Daniel” was born in Poland in 1922. His mother was Jewish. Rufeisen was an active member of the Zionist movement. During the early stages of the war, he saved numerous Jews from the Nazis during their occupation of Poland. On one such occasion, while pretending to be a non-Jew, Rufeisen was offered a job as a translator for a police officer. The police officer invited Rufeisen to Mir in Belarus, where Rufeisen saved about three hundred Jews who were imprisoned in a ghetto there. Rufeisen was eventually found out and fled, finding shelter in a convent. There, he read the New Testament and was baptized. Rufeisen viewed baptism as a fulfillment of his desire for a stronger connection to the New Testament, which he read as a Jewish document. In particular, the account of the death and resurrection of Jesus helped him to cope with the horrors of the Holocaust. Eventually, Rufeisen became a Catholic priest and changed his name to “Brother Daniel”.

Brother Daniel

In 1959, Rufeisen sought to be admitted to Israel under the Law of Return, which permits any Jew in the world to immigrate to Israel as a matter of right.

At that time, the immigration authorities defined a Jew as any person who professes to be one and [who] has not embraced any other religion. That interpretation would have classified as a Jew Oswald Rufeisen, the Jew by birth, but it excluded Brother Daniel, the Carmelite Friar. When the authorities would not admit Brother Daniel as a Jew under the Law of Return, he sought review before the Supreme Court of Israel.

At the time of the founding of the State of Israel, it was decided that every Jew in the world would have a right to immigrate to Israel. For example, Jews would be given the right to asylum in the event of political persecution or a refusal by the country of their origin to allow them to conserve their own culture. Proposals concerning the proper approach ranged from an unlimited right, including the granting of citizenship to stateless Jews wherever they were and whenever they became Jews, to the granting of the right to only those who indicated their readiness to immigrate immediately. The results of these propositions were the 1950 Law of Return, which granted an automatic right of immigration to all Jews, and the 1952 Nationality Law, which, in addition to granting naturalization rights to all persons settling in Israel, gave automatic citizenship to Jews declaring their intention to become Israeli citizens by virtue of the Law of Return.

Rufeisen was denied citizenship under the Law of Return but became a citizen of Israel through naturalization shortly after the end of his trial, as a Righteous Among Nations (before the RAN visa was re-defined as a work and residence visa only). In his will, Rufeisen stated, “I don’t know if I am to be doomed or spared, but from all the things you may know about me, I would like you to remember that I was born a Jew, and died a Jew”.

 Issue One

Whether the term ‘Jew’ in the Law of Return carries a religious-halakhic meaning or a secular meaning?

Answer to Issue One

The term ‘Jew’ in the Law of Return carries a secular meaning.

Discussion

The court held that the Law of Return is secular and must be interpreted according to secular principles. Because the law contains no definition of the term ‘Jew,’ ordinary usage, the language of men, would determine its meaning.

The justices of the court split, however, on how to determine the secular meaning of the term ‘Jew.’ The majority favored a combination of common understandings used in everyday language coupled with some notion of traditional bounds of collective identity. Applying this test, the court concluded that the secular view treated conversion as decisive and excluded the convert from the Jewish community.

One of the judges, Justice Berenson, noted that, had Rufeisen been captured by the Nazis after his conversion, the conversion would have made no difference and he would have fallen victim to them as a Jew.

Berinson also suggests that if Rufeisen would have declared that he believed in Buddhism, and lived as a Buddhist monk, he would apparently have been recognized as a Jew. Thus, according to Berinson, Rufeisen could be a Jewish, Buddhist monk, but not a Jewish, Christian monk. However, this statement is not necessarily accurate. Prior to the 1970 amendment to the Law of Return, it may have been more likely that one could immigrate to Israel as a Buddhist monk. However, after the 1970 amendment, which granted immigration rights to family members and spouses of Jews, but stated that those rights did not apply to Jews who (1) were members of another religion; or (2) voluntarily converted from Judaism to another religion, there have been instances of individuals of the Muslim faith who have also been denied Aliyah.

Berinson also maintains that Ahad Haam, one of the central literary figures of Zionism,  would not have viewed a Jew who converted to another religion, but who in all other respects was deeply Zionist, as outside the bounds of the Jewish people. But despite this, Berinson concluded that the people themselves had decided that a Jew who has embraced another religion has withdrawn himself from the Jewish faith, nation and community. The court stated that the common understanding of the Jewish people is that a Jew and a Christian cannot reside in one person because there is a mutual denial of community that occurs when a Jew converts to another religion. Justice Berinson noted that even as early as 1947, the position of the Jewish Agency was that formal conversion to another religion would exclude one from the Jewish people for political purposes.

 The court also maintained that Israel is not a theocratic state and that the law determines its citizens’ lives, rather than religion. It stated that the Rufeisen case decision proved this because the court used the secular meaning of the term Jew to determine whether Rufeisen was a Jew (which resulted in a determination that he was not a Jew), instead of the religious definition (which would have resulted in the determination that he was a Jew)/

Justice Cohn dissented, stating that he would permit anyone who declared in good faith that he was a Jew the privileges granted by the Law of Return. Cohn also stated that it was improper to consider Rufeisen’s participation in Catholic ceremonies in determining who is a Jew for purposes of secular legislation.Brother Daniel

Issue Two

Does the ordinary, secular meaning of the term ‘Jew’, for purposes of the Law of Return, include a Jew who has become a Christian?

Answer to Issue Two

The ordinary, secular meaning of the term ‘Jew’, for purposes of the Law of Return, does not include a Jew who has become a Christian.

Discussion

Justice Silberg, writing for the majority, concluded that the common understanding of the term ‘Jew’ does not include a Jew who has become a Christian. He suggested that “Jew” and “Christian” are incompatible statuses. Silberg maintained that it is the Jewish people’s historic culture as Jews which entitles them to the land, and that adoption of Christianity is inconsistent with the maintenance of Jewish cultural ties; therefore, Rufeisen had forfeited his right to return to Israel as a member of the Jewish people.

Issue Three

Whether a person who is born of a Jewish mother, and is therefore Jewish according to rabbinic Judaism is entitled to residency and citizenship under the Law of Return, when that person becomes Catholic?

Answer to Issue Three

A person who is born of a Jewish mother, and is therefore Jewish according to rabbinic Judaism, is not entitled to residency and citizenship under the Law of Return, when that person becomes Catholic.

Discussion

The court recognized that Rufeisen might be considered a Jew under the rabbinical interpretations of the Jewish Halakah (religious book of law). However, the court stated that defining the term ‘Jew’ according to secular principles requires the use of the commonly accepted definition of the term, which is that one who converts to another religion is no longer a Jew. According to the court, a person cannot be both a Roman Catholic and a Jew simultaneously under the Law of Return; therefore, Rufeisen lost his right to obtain automatic citizenship as a Jew by accepting Catholicism.

The court stated that Rufeisen could still obtain citizenship by naturalization under the Nationality Law, in the same way as other non-Jewish immigrants

Issue Four

Whether a person who is born Jewish and later becomes Catholic may be registered in the population register as being of Jewish nationality?

Answer to Issue Four

A person who is born Jewish and later becomes Catholic may not be registered in the population register as being of Jewish nationality.

Discussion

According to Jewish religion, a Jewish person who sins, is in violation of the Ten Commandments, or who breaks the law, is still a Jew. Rufeisen adopted this approach in his argument to the Supreme Court. He admitted that his religion was Catholic, but he insisted that he was still a Jew, stating “my ethnic origin is and always will be Jewish. I have no other nationality. If I am not a Jew, what am I? I did not accept Christianity to leave my people. I added it to my Judaism. I feel as a Jew.” Rufeisen believed his Judaism was the same kind of Judaism that Jesus and his followers believed, which to him was the true, original, God-given Judaism. Rufeisen also asserted that if the State of Israel considered atheists to be Jews, there was no reason why it should not also consider converts to be Jews.

In contrast, the State Attorney maintained that though an Israeli may be a Christian, Muslim, or Atheist, the term ‘Jew’ excluded the possibility of belonging to any other religion. The State Attorney stated that the distinguishing characteristic of a Jew is a common culture, and the Jewish religion, whether observed or not, is the basis of that culture.

In the present case, the court ruled that an individual who was born a Jew but converted to Catholicism and became a monk could not be registered in the population register as being of Jewish nationality. Rufeisen had renounced his Polish citizenship before leaving Poland. Therefore, the court ruled that he was not a member of the Polish nation or of the Jewish nation. The court stated that he was stateless and would be registered as such. On Rufeisen’s identity card, under the heading of “nationality,” it states not “Jewish,” but “Not clear.”

Unanswered Questions Raised by the Rufeisen Decision

The Rufeisen decision was broadly supported in Israel. However, by tying the legal definition of ‘Jew’ to common understanding, some objected that the majority’s definition was vague and impermanent. The majority’s definition also implied that a single common meaning of the term ‘Jew’ exists and could be found. Even assuming such a definition could be discerned, a further question remains with respect to who is permitted to offer an answer in order to determine the common understanding. Should Israelis be permitted to determine the common understanding? If so, should it be only Jewish Israelis, or, since this is a secular law, should it be all Israelis? Should the Diaspora be included? Should contemporary Jews be included, or Jews throughout history?

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