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Jewish tradition supports the new conversion courts

The Rabbinate may say Russian immigrants with non-Jewish mothers can't convert, but Jewish law says they can

The announcement last week of the establishment of new conversion courts outside the parameters of the Chief Rabbinate has generated a storm of controversy. The loud and sometimes mean-spirited criticism that the news has sparked ignores the most important factor: clear sources in classic religious texts that support the goals of these courts.

The religiously conservative are quick to repeat the mantra of “we cannot go against the Chief Rabbinate,” “the rabbis establishing these courts are too liberal,” or “we have never done conversions like these rabbis want to do.” However, they fail to confront the reality that sources of Jewish law in our tradition actually form the basis and framework for these new conversion courts.

The new conversion courts seek to solve the problem of Russian immigrants who have come to Israel under the Law of Return. This law welcomes those who have a Jewish father or grandfather as Israeli citizens, even though their mothers are not Jewish. According to “Halacha” (Jewish law), they are not Jewish because halachic Judaism follows matrilineal descent. But they are Israelis. They speak Hebrew, they serve (and die!) as self-identifying Jews in the Israel Defense Forces, they study in Israeli universities, and they meet and mingle with the children of other Israelis. In fact, the second generation already lives sociologically, culturally, nationally, and oftentimes religiously as Jews.

Despite all this, they are not Jewish according to Halacha, and when they or their children fall in love and seek to marry, we are confronted with intermarriage. The population figures in this category are quite staggering: around 400,000 immigrants, with approximately 80,000 under the age of 18. If nothing is done about this issue, Israel will find itself facing a catastrophic problem of intermarriage.

The primary (though not exclusive) action that these new courts are pursuing is to reach out and convert tens of thousands of children in families of Russian immigrants below the age of Bar and Bat Mitzvah.

Opponents of the new courts believe that these conversions are not valid because these children do not observe the commandments, do not accept upon themselves to keep these commandments, and will continue to live in homes that do not observe the commandments. Since “acceptance of the commandments” is a key component of conversion to Judaism, they argue that these conversions may not be upheld. This claim then fuels their fiery rhetoric that the purpose of these newly established courts is to go against the Torah, and to permit people to believe they are Jewish when, in fact, they remain non-Jews.

There is one small problem with this argument: Jewish tradition disagrees.

The Talmud teaches in Tractate Ketuvot (11a): “Rav Huna said: ‘A convert below the age of Bar Mitzvah is immersed (in a mikva) by the knowledge of a Jewish court.’”

The Talmud explains that this is allowed because being Jewish is a privilege and a merit for this child and we are therefore permitted to take this action on the child’s behalf, even though he is not intellectually mature enough to make his own decision.

It is critical to note that the Talmud clarifies that Rav Huna is talking about a case where the parents of this child are NOT converting along with him.

Rashi (Rabbi Shlomo Yitzchaki, 1040–1105, France), the great medieval commentator, teaches that the case deals with a non-Jewish mother who brings her child to the Jewish court to have him converted. Clearly, this child will not grow up in a religiously observant Jewish home, and yet the conversion is not only valid, but the Talmud seems to be instructing the rabbinic court to carry out the immersion and the conversion.

This rule — that we convert a child without the child’s consent or understanding and without any plans for the child to be religiously observant — is codified in the Shulchan Aruch (the code of Jewish Law authored by Rabbi Joseph Caro,1488 –1575, Spain, Ottoman Empire, and Safed) as THE accepted opinion (Yoreh Deiah 268:7):

“A gentile child — if he has a father, he (the father) may convert him; and if he does not have a father and seeks to be converted or his mother brings him to be converted, the Jewish court converts him for it is a merit for him.”

The commentators question how such a conversion can be valid if the child has not accepted the obligation to fulfill the commandments. The Ritva (Yom Tov son of Avraham Asevilli, 1250–1330, Spain), answers that “acceptance of commandments” in a conversion is only a “mitzvah,” but not an absolute requirement. Therefore, in this case where we are dealing with a child, we can perform the conversion without this nice, but unnecessary, component. [It should be noted that both the Rambam (Maimonides — Moshe son of Maimon, 1135–1204, Spain and Egypt) in his Mishna Torah (Laws of Forbidden Relationships 13:17) and the Shulchan Aruch (Yoreh Deiah 268:12) rule that if a conversion was accidentally performed with no “acceptance of commandments,” the conversion is valid.]

Shitah Mekubetzet (a collection of medieval Talmudic commentaries by Rabbi Betzalel son of Abraham Ashkenazi c.1520 – c.1592, Ottoman Palestine) quotes the “Shita Yeshana,” who explains that while the acceptance of commandments is generally necessary for conversion, this requirement only applies when it is possible for there to be such an acceptance. In such a situation where the convert has the ability to be aware of the commandments and accept them, a lack of doing so invalidates the conversion. However, since a child is incapable of that comprehension, the concept of “accepting the commandments” is not applied to these specific conversions.

Opponents of the new conversion courts could point to the continuation of the talmudic discussion in Ketuvot as a basis for rejecting the conversion of a child who does not accept the obligation to perform the commandments. The Talmud states: “Rav Yosef adds that ‘When they become of age they may protest.’” Critics might suggest that this statement of Rav Yosef indicates that if when these converts grow older they do not want to be Jewish and observe the commandments, then their Jewish status is invalidated. These critics may argue that since these secular Russian immigrants will grow older and most likely not want to observe the commandments, the conversions which these courts seek to perform will be rendered meaningless.

While some medieval commentators do view the child’s not observing the commandments as a rejection of the conversion and, thus, such a child would not continue to be Jewish, the Ritva explains that Rav Yosef refers specifically to a child who renounces his Jewishness as a minor. If the child continues to protest once reaching the age of Bar or Bat Mitzvah, then the child is no longer Jewish. But this has nothing to do with observing or not observing the commandments!

Rashi and the Tosfot Rid (Isaiah di Trani ben Mali c.1180 – c.1250, Italy) teach that the rejection described by Rav Yosef only takes hold if the child specifically says “I do not want to be a Jew,” words that these Russian immigrants and their children would never utter now or in the future, as they become further ingrained in Israeli society.

The Chatam Sofer (Moses Schreiber, 1762–1839, Hungary; Yoreh Deiah 253:3) cites the Behag (Babylonian codifier of halachic decisions, 9th century), saying that when parents bring their child to a Jewish court for conversion, the child may not subsequently renounce the conversion since “we testify” that he wants to convert along with his parents. Clearly, according to these opinions, once there is some kind of consent for the conversion, it remains valid even without an “acceptance of the commandments.”

The Chatam Sofer takes this a step further and says that the child cannot undo the conversion once he is older even if the parents did not convert. The Pitchei Teshuva (Abraham Tzvi Hersh Eisenstat 1813 – 1868, Russia; 268:108) and Tzitz Eliezer (Eliezer Yehuda Waldenberg, 1915–2006, Israel; 16:61) cite the Chatam Sofer as the accepted Jewish law.

Rabbi Chaim Ozer Grodzenski (1863 –1940, Vilna; Responsa Achiezer 3:28) disagrees with the Chatam Sofer, and rules that children who are not religiously observant can renounce their Jewishness via a formal renunciation. He writes that in his opinion, Jewish courts should not involve themselves in this type of case, but then he concludes with these words: “The rabbis should not storm against such conversions and denigrate them…for according to Halacha the conversions are valid.”

Yes, there are opinions that believe that we should not convert children if they will not observe the commandments. But we have demonstrated legitimate and accepted authorities of Jewish law who rule that we can carry out such conversions. And, Rabbi Chaim Ozer clarified that even if he personally is against performing these conversions, the conversions are valid and these children are Jewish.

There are those who will no doubt question how we can turn these young people into Jews, knowing that they will grow up and not perform the commandments and will be held accountable by God for their sins.

Rabbi Moshe Feinstein (1895 –1986, Russia and New York), the greatest and most widely accepted authority of Jewish law in the 20th century, addressed this issue. He was asked about a Jewish day school in which many of the students had gentile mothers who had not been converted properly, and the homes in which these children lived were not religiously observant. Should the schools explore converting the children knowing that they would not be religiously observant?

Rabbi Feinstein ruled (Even HaEzer 4:26:c) that the children should be converted. “They do not need to accept the commandments and can be converted by the knowledge of a Jewish court,” he explained. “It is a merit for them inasmuch as they are studying in a religious school under the tutelage of pious teachers (and) they would probably grow up to observe the Torah; while this is not certain, it is certainly a merit. And even if they do not grow up to observe the Torah, it seems logical that it is still a merit, since even Jewish sinners have the ‘holiness of Israel’ — the commandments they fulfill are commandments and their sins are to them unintentional. Thus, they have a greater merit than being gentiles.

We in the State of Israel confront a challenge that has never been faced by the Jewish people in its history. Hundreds of thousands of young people who originate from the Jewish faith, but are not Jewish according to Halacha live in our country, a Jewish state, as upstanding Israeli citizens. What will happen when their children marry the children of Jewish Israelis?

When I received rabbinic ordination, I understood my job was to find solutions, not create problems. Herein presented is the halachic solution for converting the children of Russian immigrants. This is the solution which the rabbis who have established the new conversion courts are presenting to the people of Israel, to avoid the looming intermarriage crisis in Israel.

Let us argue the case on its merits. Its halachic merits. I challenge any rabbi, MK, or citizen to explain why the sources cited here are not legitimate bases of Halacha.

I call on the Knesset members from the ultra-Orthodox parties (and some in the Jewish Home party), who denounce the new conversion courts in the strongest of terms, to respond to the sources that have been presented.

I ask Religious Services Minister David Azoulay to explain how he can ignore these sources.

And I request a response from the ultra-Orthodox media personalities, who are inciting the ultra-Orthodox street to reject these new conversion courts. How they can ignore the Talmud, the Code of Jewish Law, the Ritva, the Chatam Sofer, Rabbi Chaim Ozer Grodzniski, and Rabbi Moshe Feinstein?

The floor is yours, gentlemen. Israel awaits your answers.

About the Author
Dov Lipman was elected to the 19th Knesset in January 2013. He is the author of seven books about Judaism and Israel, and holds rabbinic ordination from Ner Israel Rabbinical College and a masters in education from Johns Hopkins University. He has been at the forefront of combating religious extremism in Israel and is a leader in efforts to create Jewish unity both in Israel and around the world. Former MK Lipman is invited to speak on behalf of the Jewish state both in Israel and around the world and serves as a political commentator for i24 News and ILTV. He currently serves as Secretary General for the Confederation of United Zionists.