On November 13th, the Israeli Supreme Court published a second ruling to clarify whether widows of Jewish descendants are eligible for Aliyah. In this article, we will explore the prior verdict, given in 2021, and the revisions made by the Supreme Court during the second discussion in 2023. The Supreme Court rarely conducts second discussions. Such proceedings involve an expanded panel of Justices, deviating from the usual three, and are reserved for special instances where the judgment carries important implications for the Israeli populace.
The case centers around sections 4A(a) and 4A(b) of the Law of Return. Section 4A(a) grants Jews and family members of Jews (spouse, child, grandchild, spouse of child, or spouse of grandchild) the Right of Return – in other words, the right to make Aliyah and become a citizen of Israel. Section 4A(b) of the Law states that it is immaterial whether or not the Jew to whom the Aliyah applicant has a family connection is still alive or whether they have made Aliyah to Israel.
This case primarily revolves around the interpretation of these two sections in the Law of Return.
The critical issue pertains to the wording in section 4A(b): Does this section deliberately exclude any reference to descendants of Jews?
The state’s position is that from a linguistic perspective, the law does not include widows of descendants within its scope.
The respondents argue that it is not possible to read in the language of the law an intention to distinguish between the widow of a Jew and the widow of a person entitled to Aliyah through section 4A(a).
2021 Ruling of the Israeli Supreme Court
In the 2021 case of Marincheva v. Minister of the Interior, Judge Amit adopted a historical perspective to interpret the Law of Return – acknowledging that it could be interpreted in both ways. A thorough review of the legislative history behind section 4A(b) indicated that the lawmakers primarily envisioned a scenario where a Jew had passed away, but their descendants of up to two generations were seeking to make Aliyah and live in Israel. The underlying intent of the law was highlighted as providing Jewish family members with a right of return, which is based not on the physical presence of the Jew but rather on their familial connection to the Jewish people.
Judge Amit concluded that Raisa Marincheva’s bond with the Jewish community did not cease with her husband’s death. Therefore, in keeping with the spirit of the Law, which values the closeness to the Jewish people over the physical presence of a Jew, the widow should be eligible for consideration for Aliyah. This ruling underscores the Law’s focus on the familial and cultural ties to the Jewish community, rather than just the direct presence of a Jewish family member.
In the dissenting opinion, Judge Mintz agreed with the state’s linguistic argument. He pointed out that section 4A(a) delineates three distinct types of familial relationships that qualify an individual for eligibility: being a child of a Jew, grandchild of a Jew, or spouse of a Jew or descendent of a Jew. However, 4A(b) omits mentions of these three categories. While this section states that the living status of the Jewish ancestor (whether alive or deceased) is immaterial for eligibility, it conspicuously does not mention the living status of descendants of Jews.
Why Was a Second Discussion Required?
The appeal by the State to the Supreme Court for a second discussion of the Marincheva case emphasizes the complexity and significance of the legal issues involved. Typically, decisions made by the Supreme Court are final; however, in rare instances where the case holds substantial legal importance or where previous rulings by the Supreme Court have varied, a request for a second discussion can be made. This procedural step is not just about revisiting the specific case at hand, but about seeking clarity and consistency in the application of the law for future cases.
The State’s request for a second discussion in the Marincheva case was not primarily driven by an objection to granting her an Israeli citizenship. Instead, their concern was rooted in the need for a clearer understanding and interpretation of the law, which would impact all future widows of descendants wishing to make Aliyah, and also create a broader, more liberal, interpretation of the Law of Return. A second discussion in the Supreme Court, particularly on such a pivotal issue, has the potential to create a binding precedent. This means that the conclusions reached in this re-evaluation would not only resolve the current case but would also guide and constrain future decisions, even those made by the Supreme Court itself.
2023 Supreme Court Ruling and Revisions
In the second discussion, Judge Vogelman, the leading judge, reiterated and reinforced the key principles established in the first discussion. His opinion emphasized a fundamental principle: as a general rule, the right of a widow to make Aliyah persists even after the death of her spouse, because a spouse’s death does not negate their connection. Denial of this right would only be justified when the circumstances of the case convincingly demonstrate the breakdown or disintegration of the family ties. An example cited is the scenario where a widow remarries, signaling a significant shift in familial relationships.
Conclusion and Critique of the Supreme Court Judgment
The outcome of the second discussion has notably broadened the scope of the Law of Return, offering increased opportunities for individuals seeking to make Aliyah. Nicole Maor, the director of the Israeli Reform movement’s legal aid center for immigrants, said “I am pleased that the court reiterated … that the Law of Return is intended for anyone who has tied their fate to the Jewish people.”
However, the Israeli public and officials did not share unanimous approval for the Supreme Court’s ruling. Simcha Rothman, a conservative MK, shared his rebuke on X. Although he disagrees with the court’s decision, his primary focus lies in critiquing the timing, asserting that a period of war is not suitable for making controversial decisions. He says “While the entire nation … [is] going out of [its] way to reduce disputes and avoid dealing with sensitive issues, it was reasonable to expect that the Supreme Court would also contribute its part to the war effort by refraining from decisions that arouse hard feelings among a large and significant public…”
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