The "First Beresford Case” (HCJ 265/87) - Decker, Pex, Levi, Rosenberg & Co

Our law office summarizes the most pertinent cases which established judicial interpretation of Israeli laws over the past decades. In this article, we review the “First Beresford case”, which established that Messianic Jews do not have the right to immigrate (make Aliyah) to Israel under the Law of Return.

Facts

The petitioners are a married couple, who are both Jewish by birth. They applied for an oleh [immigrant’s] visa according to the Law of Return, which states that every Jew is entitled to make aliyah, or immigrate, to Israel. Their application was denied by the Minister of the Interior. The couple then appealed to the High Court of Justice.

The High Court of Justice ruled that that the petitioners were not entitled to an oleh visa, and therefore to immigrate to Israel, under the Law of Return for two reasons: (1) they had become members of another religion, and (2) they had changed their religion voluntarily, which nulls their right to make Aliyah under Section 4a of the Law of Return. The remaining option for the petitioners was to apply for Israeli citizenship according to the provisions of the Citizenship Law, 1952, “like any person seeking to become an Israeli citizen.

”The petitioners believe that Yeshua (Jesus) is the Messiah; however, they reject the concept of the Holy Trinity, stating that it is a theological idea that would not “have a recognized place in [their] Messianic Jewish faith.”

Issue One

Whether a person who is born Jewish and who also believes in Yeshua as the Messiah and belongs to a group called “Messianic Jews” is a member of another religion under Section 4b of the Law of Return?
Whether that person is entitled to an oleh visa under the Law of Return?

Answers to Issue One

A person who is born Jewish and accepts Yeshua as the Messiah and belongs to the group called “Messianic Jews” is considered to have become a member of another religion under Section 4b of the Law of Return.
A person who is born Jewish, accepts Yeshua as the Messiah, and belongs to a group called “Messianic Jews” is not entitled to an oleh visa under the Law of Return.

Analysis

Under Section 4b of the Law of Return, “a Jew is a person who was born to a Jewish mother or who converted to Judaism, and who is not a member of another religion.” The court uses three criteria to analyze the meaning of the Law of Return’s expression “member of another religion.” A summary of these three criteria is as follows.

The Other Religion Criterion

Under the court’s “other religion” criterion, interpretation of the expression “member of another religion” is determined based on the views of the religion that the petitioner is alleged to be a member of (in this case, Christianity). The court’s deciding factors for membership in the Christian religion are (1) faith in Yeshua as the Messiah and (2) belief that he is part of the Deity. The court states that while the Jewish religion is based on faith in the singularity of God “who has no body and cannot be perceived by percipients of the tangible and has no comparison whatsoever, and (faith) in the future coming of the Messiah,” the Christian religion is based on the beliefs “that the Messiah has already come and been personified in Jesus as a material image of God and as part of a trinitarian deity.”

The court references the case “Dorflinger vs. Interior Minister, Judgments 33(2) 97″, in which the Minister of the Interior rejected a petitioner’s application for Israeli citizenship under the Law of Return because he determined she was a member of the Christian religion. There, the court asked the petitioner if she “view[ed] Jesus as the son of God and part of the concept of divinity,” to which she replied that she had “not defined for herself a clear view on the subject.” The Dorflinger court went on to state that if the petitioner were not a Christian, she should have been able to state with certainty that she did not believe in Yeshua as part of divinity. It also stated that a person who believes in Jesus’ divinity as part of the Trinity is one who Christianity will likely count as a member of the Christian religion.

In the present case of the Beresford’s, the court combines two concepts: (1) belief in Yeshua as the Messiah and (2) belief in Yeshua as part of a divine Trinity. It then goes on to state that the combination of these two beliefs constitute membership in the Christian religion. However, because the court does not consider these two beliefs as separate issues under the “other religion” criterion, it is unclear whether the court would consider a person who believes in Yeshua as the Messiah but who rejects the doctrine of the Trinity a “member of another religion” under this criterion. Nevertheless, under the third, secular criterion, the court states that even though the petitioners reject the Trinity doctrine, they are still members of another religion for purposes of the Law of Return.

The court also briefly considers the concept of baptism under this criterion.

The Jewish World Criterion

Under the court’s Jewish world criterion, interpretation of the expression “member of another religion” is determined based on the views of Judaism and Jewish history. Under this criterion, the court describes how a Jewish person seen as having converted to another religion is cut off from the Jewish community. He is deprived of rights that are “designed to express membership in the Hebrew family, community and nation,” no longer inherits from his father or relatives, and is said to no longer be included in the Prophet Jeremiah’s vision (31:17) which states: “Your children will return to their own land.” The Law of Return grants rights “to persons accounted part of the Jewish society and community, and not to someone who has withdrawn therefrom – which is how the convert is referred to.” The court states that the Law of Return is designed for the Jew “who is a member of the Jewish nation as conceived by Judaism and Jewish history” and “is not applicable to a converted Jew, who has withdrawn from the ways of the Jewish community.” It also goes on to state that a Rabbinic court “would not have applied the rights in the Law of Return to a converted Jew” had they been required to decide on the matter.

The Secular Criterion

Under the court’s secular criterion, interpretation of the expression “member of another religion” is determined based on the rules of the Israeli courts and the Knesset. The court’s reasoning for this interpretation is that the state’s rule of law and the basic rights of citizens are founded on the separation of law and religion. The secular criterion is dynamic and changes with the Jewish people’s passage through its history. It considers national, religious, semantic, historic, and other factors. This criterion is meant to fulfill the purpose of the Law of Return, which is to bring back the exiles.

In discussing this criterion, the court states that even though Yeshua may not have been considered a member of another religion during the time he lived and worked in Israel 2000 years ago, the question to consider today is whether a person whose faith is like that of Yeshua’s 2000 years ago is a member of another religion at the present time. The court concluded that the answer to this question is that today, “anyone believing in Yeshua’s Messiahship…is a person who believes in another religion” under section 4b of the Law of Return. This is the case even when the person is Jewish by birth, and even when the person does not consider themselves a member of any other religion.

Issue Two

Whether a child of a Jew who accepts Yeshua as the Messiah and belongs to a group called “Messianic Jews” is said to have voluntarily changed their religion under Section 4a(a) of the Law of Return?
Whether a child of a Jew is entitled to an oleh visa under the Law of Return when that person accepts Yeshua as the Messiah and belongs to a group called “Messianic Jews?”

Answers to Issue Two

A child of a Jew who accepts Yeshua as the Messiah and belongs to the group called “Messianic Jews” is considered to have changed their religion voluntarily under Section 4a(a) of the Law of Return.
A child of a Jew who accepts Yeshua as the Messiah and belongs to the group called “Messianic Jews” is not entitled to an oleh visa under the Law of Return.

Analysis

Section 4a(a) of the Law of Return states that the rights of a Jew according to the Law of Citizenship and the rights of an oleh according to any other legislation are also given to a child and grandchild of a Jew, to his spouse, and to the spouse of the Jew’s child or grandchild, excluding a person who was a Jew and changed his religion voluntarily.

The court states that the main purpose of Section 4a of the Law of Return is to help mixed-marriage families – Jews and non-Jews – immigrate to Israel as a family unit, in the “hope that all its members [will] affiliate themselves to the Jewish people.” A member of a mixed family who was a Jew according to Law and who voluntarily converts to another religion under Section 4a(a) is not entitled to immigrate under the Law of Return for the same reasons that they are not entitled to immigrate under the Law of Return as someone who is a “member of another religion” under Section 4b.

Holding

The court held that the petitioners had become members of another religion under section 4b of the Law of Return under each of its three criteria. It also held that the petitioners voluntarily changed their religion under Section 4a(a) of the Law of Return.

Judgment

The petition was rejected.