Proselytism and the Right to Change Religion in Israel
Freedom of religion is a fundamental constitutional right.1 It holds a central place among human rights. Article 18 of the United Nations Declaration of Human Rights provides as follows:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. (emphasis added)
Reading this paragraph, one can ask: What is exactly the ‘religion’ that this clause refers to? Is it related only to the ‘well established religions’, or also to small religious sects? This clause speaks about freedom to ‘change religion’, but does it apply also to the right to move from religion to a status of ‘non-religion’? And what about moving from one ‘religious stream’ to another, for example, the conversion of Tony Blair, the former English Prime Minister, from Protestantism to Catholicism? (Another example in Israel would be the right to move from the Orthodox Jewish ‘religious stream’ to the Reform movement. In Israel, only the former ‘stream’ is recognized by the government).2
And what will be the definition of ‘change of religion’? Will we use the ‘objective’ test, namely, that according to ‘a reasonable person’ this change really took place, or maybe it would be sufficient if a ‘subjective test’ is used, namely: a person can ‘change’ his religion merely by declaring that from now on he believes in another religion. Furthermore: is it necessary for the ‘receiving religion’ to officially accept the ‘newcomer’ to its ranks, or is it enough that he left his ‘old’ religion? Parallel to this, is it necessary for the ‘old’ religion to ‘allow’ him to leave?
The Sources of the Freedom to Change Religion
The United Nations Declaration of Human Rights also recognizes the ability to limit freedom of religion and consequently the right to change one’s religion.3 Article 29(2) of the UN Declaration of Human Rights instructs us as follows:
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (emphasis added)
Examination of this article demonstrates that freedom of religion may be limited, subject to three conditions:
1. The restriction is set forth in legislation. This is not explicitly stated in any law, but in view of the fact that at issue is infringement of a fundamental constitutional right, it is reasonable that this would be a statute enacted by the Knesset and not secondary legislation.
2. The infringing legislation must be enacted for an ‘appropriate objective’: safeguarding the morality, public order and general welfare or in order to secure the fundamental rights and freedoms of others.
3. Although not explicitly stated, it seems to me that it is possible to read into the article a further requirement of ‘proportionality’, which is increasingly gaining a place of honour in the discussion of constitutional rights in Israel and throughout the world.
Does the legal system in Israel indeed comply with these conditions?
We shall seek here to survey the freedom of religious conversion in the State of Israel. We will attempt to see whether indeed this freedom exists, what its normative status is, what is its scope and what limitations are imposed upon it.
The State of Israel did not explicitly protect the freedom of religion in the ‘Basic Law: Human Dignity and Freedom’, which constitutes a kind of substitute for a constitution.4 However, freedom of religion was recognized as a basic constitutional right according to the law of the country from its establishment, and afterwards was also recognized in a long line of legal decisions. On the eve of the establishment of the State, the Mandatory law, which spoke of freedom of conscience, including freedom of religion, applied. Section 83 of the Palestine Order in Council instructs us as follows:
All persons in Palestine shall enjoy full liberty of conscience, and the free exercise of their forms of worship subject only to the maintenance of public order and morals.
The ‘Declaration of the Establishment of the State of Israel’ expresses a similar guarantee of religious freedom. Although it is not an official legal document, the Supreme Court has held that the Declaration of the Establishment of the State of Israel reflects the fundamental credo according to which the legal system of the State must operate and later expression was given to this in the Basic Laws as well.5 As the Declaration of the Establishment of the State of Israel states: ‘The State of Israel … will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture’. On this basis, in the early 1950s, Justice Moshe Landau held that ‘freedom of conscience and religious practice is one of the individual’s freedoms ensured to him in every enlightened democratic regime’.6 In a similar manner, in the 1990s Justice Mishael Cheshin held that:
It is a overriding principle in Israel – in the source of the rule of law (in the substantive sense) and in the cases decided before the court – that both freedom of religion and freedom from religion are ensured to the citizen and the resident … from this overriding principle of freedom of religion and freedom from religion, the law is derived that religious dictates are not forced upon one who does not obey such dictates and on those who do not desire to fulfill religious dictates.7
The practical implication of the recognition of religious freedom as a constitutional right is that it is not to be infringed except through primary legislation, and on the other hand, when this right – which, like the other human rights is not an absolute right – is infringed, such infringement may occur only through legislation, for an appropriate objective and ‘to an extent that does not exceed what is necessary’.8
Hence, what is the constitutional situation regarding religious conversion? A study of the legislation of the State of Israel reveals, perhaps surprisingly, that to the extent that the constitutional and civil fields of law are at issue, the legislature is silent on this subject. With the exception of one provision, which is a relic of the Mandatory period – the Conversion Ordinance – which speaks of the recognition of one who already converted and the registration of his religion in the official registry – there is no piece of legislation that deals with this important subject.
In the past, a section indeed existed that spoke of the registration of the details of one’s ‘religion’ in the identity card – but due to a long-standing controversy, this requirement was deleted from the identity card and today the registration of one’s religion is only in the ‘Population Registry’ in the Ministry of Internal Affairs, which is hidden, as a rule, from the public eye. It bears noting that despite the fact that the above is a statistical and administrative registry, it is likely to have implications for the subject at hand as well: the registration can recognize the religious conversion of a person from the perspective of the religion, and grant him various rights (such as rights pursuant to the Israeli Law of Return9 which permits every ‘Jew’ to immigrate to Israel, including various financial benefits associated with this immigration, but does not grant similar rights to someone who is not Jewish or one whose conversion was not recognized by the State).10
Additional civil implications relate to personal status laws. According to Israeli law, the laws of marriage and divorce in Israel are determined according to the ‘personal’ law of a person and the jurisdiction to deal with them is accorded to the religious tribunal, according to the religion to which the person belongs.11 Therefore, the recognition of the religious conversion of a person is likely to have very serious implications, both with respect to the ‘law that applies to him in matters of marriage and divorce’, as well as with regard to the ‘judge’ – the judicial forum that will decide his matter.
As stated, the law speaks of the legal implications that are likely to result from the religion of a person, and as a result, from a person’s religious conversion, but refrains from dealing with religious conversion itself:
1. The law does not set forth the process that a person must undergo in order for his religious conversion to be recognized by the State.
2. The law does not specify whether the test for religious conversion is a ‘civil-secular’ test of the State or the test that the religion itself specifies – regardless of whether at issue is the ‘receiving religion’, the religion to which the convert wishes to belong, or the ‘abandoned religion’, the religion from which the convert wishes to disconnect.
3. The law does not set forth criteria that indicate a religious conversion.
Are these objective criteria, such as a deed or act whose imprint is recognized by all, for example circumcision (when speaking of conversion to Judaism), immersion in water (when speaking of conversion to Judaism or Christianity), acceptance of certain religious dictates, customary clothing (such as wearing a skullcap or a cross; head covering for a Muslim woman); or is a subjective criterion sufficient, i.e., a person’s declaration expressing his desire to belong to a certain religion?
The Involvement of the State of Israel in the Conversion Process
This ‘silence’ of the legislator is all the more conspicuous in view of the fact that the State of Israel – as distinguished from most of the countries of the world, certainly the countries of the Western world, in which there is a liberal-democratic regime – invests huge amounts of resources and actively operates to convert many of its citizens to Judaism. This has been obvious especially in the last two decades. Since the 1990s hundreds of thousands immigrants have come to Israel from the former Soviet Union who are not ‘Jews’ according to Jewish law, but who were entitled to immigrate to Israel pursuant to the Law of Return because they were the spouses or descendants (children or grandchildren) of Jews. According to various estimates, the number of non-Jews among these immigrants today is approximately a quarter of a million people, and there are those who estimate the number to be even greater.
In the Prime Minister’s Office (and in the past, in the Ministry for Religious Affairs and in the Rabbinical Courts), a special administrative unit was established that is funded by the State and operates under its auspices, to handle the conversion of these hundreds of thousands of non-Jews, and tries to persuade them to convert. It seems that this phenomenon, in and of itself, is a unique phenomenon in democratic countries in general, and in the history of the Jewish people in particular. In a democratic regime, as distinguished from a theocracy (like those present in a number of Muslim countries), the central government does not view the intervention in the beliefs and opinions of individuals as part of its role.
As long as it does not interfere with the public welfare or order, every person may maintain his faith, and even change it from time to time, including the free movement between religions. Therefore, the existence of an institutionalized system of conversion in the State of Israel raises difficult questions regarding the realization of freedom of religion in the State. The justification that is proffered for this usually relies upon three foundations:
1. The nationalistic rationale. The State of Israel is defined as a nationalistic country: ‘a Jewish and democratic State’. In order to preserve its Jewish character, active demographic intervention on the part of the State is required, which is manifested, inter alia, by mass conversion of non-Jews, which will ensure the preservation of the Jewish majority (in the past attempts in this direction were made by providing incentives to encourage a greater Jewish birth rate).
2. The historic rationale. In the Holocaust that was visited upon the Jewish people in the previous century, six million Jews perished. Some of their descendants, primarily from Eastern Europe, converted – unwillingly, in order to remain alive – and thus there is justification for the return of these ‘straying children’ to the Jewish fold.
3. The social-utilitarian rationale. The existence of members of various religions in a relatively small geographic area creates social tensions and the friction is likely to disturb the public order. In Israel there are strict laws pertaining to marriage and divorce, limiting the right to marry and determining it according to the religion of the person in question. In order to prevent – or at least to mitigate – the social damage created by the existence of members of different religions, who, pursuant to Israeli law, may not marry each other, there is a social interest to ‘unify’ the religion of all of the residents of Israel.
Against these arguments there are, of course, counter-arguments:
1. The nationalistic rationale. The state of Israel is indeed ‘the state of the Jewish people’, but its democratic element takes precedence – and must take precedence – over its Jewish element. And since religious conversion, even with the intervention – not to mention the encouragement – of the State infringes upon freedom of religion, the State must refrain from any intervention in this area.
2. The historical rationale. More than 65 years have passed since the Holocaust. The Jewish people has succeeded in reviving itself, and in any event it is not the State’s business but rather that of each and every individual who must decide, according to his discretion and with full freedom, whether he wishes to belong to the Jewish people or not.
3. The social-utilitarian rationale. The problem of the absence of freedom of marriage in the State of Israel can be solved by alternative means such as recognition of civil marriage and removal of the limitations upon marriage between members of different religions. Freedom of religion should not be infringed under the guise of preservation of social unity, and by affirming that the possibility of religious conversion constitutes a certain and direct infringement upon a person’s liberty and religious freedom. The fear of friction due to the existence of members of different religions and their coming together in the bonds of marriage is not proven at all and constitutes only a far-fetched apprehension.
4. Harm to other fundamental values. The fact that the government of Israel allocates resources – funds and manpower – only to encourage religious conversion to Judaism, and not from Judaism to other religions, infringes upon the principle of equality between the religions. In this clear way, the Jewish religion has been accorded a preferential status that constitutes a direct violation of the principle of equality, along with the infringement of religious freedom and liberty.