(2013/5773)

Kol Torah is proud to present a special three part series on a compelling Halachic topic – the status of a Jew who has converted to another religion. We thank attorney Shmuel Kadosh, an outstanding Talmid Chacham and scholar, for contributing these fascinating articles.

I. Introduction

A. Brother Daniel

Oswald Rufeisen was born to Jewish parents in Poland in 1922. As a child, he participated in Zionist youth groups and spent two years in a preparatory community in anticipation of Aliyah. When the Germans invaded Poland in 1939, Oswald obtained false documents identifying himself as a Polish Christian, and got a job as a translator for the German occupation forces in the Polish town of Mir. In that position, he was able to warn the Jewish community when the Germans planned to liquidate the ghetto, and as a result, many Jewish lives were saved. Oswald’s Jewish identity was eventually discovered by the Germans, but he escaped and found refuge in a monastery in Russia. While at the monastery, Oswald converted to Christianity. After leaving the monastery, Oswald joined the Russian partisans, where he distinguished himself in battle. When the war concluded in 1945, Oswald returned to the monastery, and began studying to become a monk. He specifically joined the Carmelite order with the intent of moving to Israel, and joining the Carmelite monastery in Haifa. In 1959, Brother Daniel, as he was then known, arrived in Israel, and sought citizenship as an Oleh under the Law of Return, which provided that “every Jew has the right to come to this country as an Oleh.” The Interior Minister denied his request, claiming that he forfeited his rights under the Law of Return when he converted to Christianity. Brother Daniel appealed to the Supreme Court, which heard his case in 1962.[1]

Brother Daniel advanced two arguments as to why he should be admitted under the Law of Return. First, Brother Daniel claimed that he was a Jew by nationality and a Christian by religion. This distinction between nationality and religion was advanced by many Zionist thinkers, who advocated that Judaism was a nationality entirely independent of religious commitment.[2] Second, Brother Daniel argued that Halachically it was impossible to convert out of the faith. A sinful Jew is still a Jew, and therefore he – a friar in a cassock and cross - was a full Jew in the eyes of Halachah. Whether one accepted the Zionist definition or the Halachic one, Brother Daniel was Jewish. For the first time in the Supreme Court’s history, a panel of five justices sat to decide the case.

The question confronting the Israeli Supreme Court, that is, the Jewish status of one who converts to another religion, is an ancient question that has been debated by Posekim and theologians for at least the past thousand years. In this article, I hope to survey the Halakhic debate about those who convert to another faith. In doing so, I hope to shed light on the basic question of what it means to be a Jew.

B. What is a Jew?

Determining whether or not a person is Jewish is a fairly straightforward task: They were either born to a Jewish mother (Kidushin 63b), or converted to Judaism. In contrast, how does one determine when a person is no longer Jewish? There is no Bat Kol, or heavenly voice, that announces a Jew’s departure. What marks the point when an individual is no longer considered Jewish?

In order to understand how one forfeits their Jewishness, it is instructive to consider what exactly it means to be a Jew. On one level, Jewishness is a social and cultural identity. Jews eat certain foods (Matzah ball soup), watch certain movies (Woody Allen, Barbara Streisand), and share certain idioms. Yet no one would claim that the presence of these cultural markers alone makes one a Jew, nor does the absence of these markers render one a gentile.

On another level, Judaism is a club or society whose members are responsible for one another. Jews are expected to visit other Jews when they are sick (Mishneh Torah, Hilchot Eivel 14:1), extend them interest-free loans (Devarim 23:20-21), and return their lost objects (Bava Metzia 24a). One could argue that one who is denied these “benefits” is not part of the club, and therefore not a Jew. However, it is possible that the revocation of these benefits may just be a punishment for being a bad Jew, as opposed to being considered a non-Jew. In other words, the fact that we don’t visit an apostate who is sick may be a punishment for apostatizing, and does not indicate that we consider such an individual a gentile.

Ultimately, the core determinant of whether someone is considered Jewish will always be connected with family law. If a man is Jewish, then his marriages are binding, his divorces valid. If he is not Jewish, then his marriages are not recognized by Jewish law and his wife can re-marry without divorcing him. If a woman is Jewish, then her children are Jewish. If not, they are gentiles. At the most basic level, a Jew is someone whose marriage to another Jew is recognized by Jewish law, and who gives birth to Jewish children. As a result, nearly all discussion about the Jewish status of an apostate arises within the context of family law questions.

II. Talmudic Sources Regarding Apostasy

Unlike conversion into Judaism, which has an abundance of Talmudic source material, there is very little said in the Talmud about those leaving the faith. In fact, we will see the same three sources, two of them arguably Aggadah, crop up in every discussion of the Jewishness of apostates.[3]

A. Yevamot 47b - The Backsliding Convert

Ironically, the only unambiguously Halachic text dealing with apostasy arises in the context of conversion. After describing the conversion process, the Baraita (Yevamot 47b) states that after the convert immerses in the Mikveh he is “Jewish in all regards.” The Talmud asks what is meant by the clause “Jewish in all regards,” and answers that if the convert “reneges and then marries a Jewish woman he is regarded as a sinful Jew and his marriage is valid.” This source seemingly holds that a convert who returns to his gentile ways is still considered Jewish. However, there is some ambiguity about the word “reneges.” Does it imply, as Rashi (ad loc. s.v. DeI Hadar Bei) explains, that a convert who fully reverted to his gentile identity is still considered Jewish? Or does “reneges” mean something less than a complete reversion? Perhaps we consider the backsliding convert Jewish only if the convert resumes some of the gentile behavior while still maintaining his Jewish identity?

B. Sanhedrin 44a – Af Al Pi SheChata Yisrael Hu

In Sefer Yehoshua Perek 7, God tells the Jewish people not to take any spoils when they conquer Yericho. One bad Jew, Achan, does not listen to this injunction and takes some gold and silver. As a result, the Jews start losing battles including one at Ai, where 36 lives are lost. Yehoshua prays to God asking him why the Jews were being punished and God responds that “Chata Yisrael,” “Israel has sinned” (Yehoshua 7:11). The Talmud homiletically explains that even though they sinned, God still called them Yisrael, that is, they are still considered Jews. Despite its clear Aggadic context, later commentators claimed that this text proves that “once a Jew, always a Jew,” and that it is impossible to convert out of the faith.[4] But, even if this text is treated as Halachah and not Aggadah, it still might not prove that apostates are considered Jewish. According to the simple reading of the Navi, Achan’s sin was stealing consecrated property, and not apostasy. Therefore, it is possible that we only apply “even though he sinned he is still considered an Israelite” to (relatively) minor sins, but not for apostasy.

C. Yevamot 16b – The Ten Lost Tribes

Melachim II recounts that the Assyrian king Shalmaneser V exiled the ten tribes of the Northern Kingdom of Israel in 722 B.C.E. (Melachim II 18:9-11). According to rabbinic tradition, the ten tribes were scattered among the nations, but will one day return (Mishnah Sanhedrin 10:3). Rav Asi asks why we are not concerned that every gentile who marries a Jew is a descendant of the ten lost tribes, and therefore, every intermarriage is, in fact, a case of Safeik Kidushin (doubtful Halachic betrothal). Shmuel responds that the Rabbis of that time decreed that the ten tribes had the status of complete gentiles. There are two conflicting implications that arise from this source. The first is that Jewish status endures throughout the generations, even if one is not living as a Jew. Although the ten tribes had been fully assimilated more than a thousand years before the Talmud’s discussion took place, the implicit assumption is that absent the special Rabbinic decree, their Jewish status would endure. The second implication of this source is that Jewish status is revocable – which is how the Rabbis were able to declare them gentiles.[5]

[1] For the full text of the decision, see Rufeisen v. Minister of the Interior, 16 P.D. 2428 (1962).

[2] See e.g., Moses Hess, Rome and Jerusalem (1862) (trans. Meyer Waxman, 1918).

[3] Some argue that the paucity of Talmudic sources regarding apostasy is itself proof that the Halachah does not attach any legal significance to the act of apostasy.

[4] For a discussion on the evolution of this term, see Jacob Katz, "Af Al Pi SheChata, Yisrael Hu" 27 Tarbiz 203 (1957).

[5] Recognizing the implications of this source, Rashba maintains that this decree was a unique case and that it had no precedential value for any other case of apostasy. See Rashba, Yevamot 22a. For a similar strategy used by the U.S. Supreme Court, see Bush v. Gore, 531 U.S. 98 (2000) (limiting the decision to “the present circumstances.”