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Israel Expands Law of Return to Include Interfaith Gay Couples

Non-Jews can now make aliyah with their Jewish, same-sex spouses

Tal Kra-Oz
August 13, 2014
Western Wall in Jerusalem. (Shutterstock)
Western Wall in Jerusalem. (Shutterstock)

The intersection of Religion and State in Israel often seems permanently mired in the status quo. However untenable that status quo may seem, it usually will not budge without severe prodding. But sometimes—as in the decades-long effort to have the state recognize civil unions—even such prodding bears little fruit. That’s why a decision announced yesterday by Interior Minister Gideon Sa’ar came as something of a surprise: In a letter to the Population and Immigration Authority, Sa’ar ordered that the granting of citizenship to the non-Jewish spouses of women and men who are themselves eligible for aliyah to Israel would also apply to same-sex couples.

Aliyah—immigration to the Jewish State—is governed by the Law of Return. Enacted in 1950, it is the gateway to Israeli citizenship. Though its original scope was exclusively limited to Jews, since 1970 the law has been expanded to grant aliyah rights to all children and grandchildren of Jews (implicitly eschewing the traditional stance that Judaism is matrilineal—that is, conferred only by Jewish mothers, rather than fathers), and to the spouses (or partners) of Jews.

For more than 40 years, Jewish men and women have been making aliyah with their gentile wives and husbands. Until this week, however, government policy interpreted the law as if it referred only to straight couples. It is worth noting that the drafters of the 1970 version of the law neglected to clarify whether the law was limited to heterosexual couples—most assuredly because in Golda Meir’s Israel, the possibility of gay marriage did not occur to even the most liberal of Knesset members.

Cut to 44 years later. Though it stops short of actually facilitating gay marriage on its own turf, Israel recognizes such unions that were conducted abroad, and offers same-sex couples the vast majority of the benefits it affords any other couple. The body of rights afforded to members of the LGBT community has managed to grow steadily mostly without attracting the ire of the ultra-Orthodox in large part because it is limited to the civil sphere. Marriage is off the table—just as it is not an option for any Jew who wishes to marry a “non-halachic” Jew, though ostensibly all are equal citizens, Jewish enough for the Law of Return but not for the State rabbinate, which holds complete control over marriage and divorce conducted within Israel.

Minister Sa’ar’s decision is somewhat unique, though, in that it goes beyond the strictly civil sphere. The Law of Return is the closest thing to an answer that Israel has to the eternal question of “who is a Jew?” By expanding its definitions—even if only via an interpretation that does not actually veer from the text of the law—Sa’ar might be playing with fire.

The decision is especially remarkable because in recent months it appeared as Sa’ar was re-inventing himself as the defender of the state’s Jewish character. Though an avowed denizen of downtown Tel-Aviv, known to even moonlight on occasion as a DJ, Sa’ar alienated many of that city’s secular residents when he effectively outlawed much of the commerce that takes place in the city over Shabbat. Had Sa’ar suddenly found God? After all, he was rumored to have begun keeping the Sabbath himself.

The more likely explanation was more political than personal: Sa’ar, one of Likud’s top leaders, was trying to gain popularity with the ultra-Orthodox in an attempt to eventually lead the party and the country (Prime Minister Netanyahu’s relations with the Haredi parties are at an all-time low after he left them out of his current coalition). But why, then, this latest expansion of the Law of Return, which might offset any political gains from his Tel Aviv maneuvers? It could, of course, be an attempt to win back his largely secular Tel Aviv base. It might also be a preemptive measure: had the matter reached the Supreme Court, Sa’ar would have had trouble explaining why same-sex couples were heretofore excluded.

Most likely, though, is that Sa’ar is betting that he can enjoy the best of both worlds: his decision is surely beneficial to any supporters of LGBT rights, and since it touches upon one of Israel’s holy of holies—the Law of Return—it appears to be a particularly bold move. But once they make aliyah, the law’s new beneficiaries, like many of its veteran beneficiaries, gay and straight alike, will encounter the same schizophrenic establishment generous with the civil rights it affords them while at the same time fiercely protective of the rights that it does not—chiefly, marriage. So long as he stays away from that hot button issue, Gideon Sa’ar has little to worry about.

Tal Kra-Oz is a writer based in Tel Aviv.

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