Judaism and Religious Freedom in the Modern Period (1782 - 2012)

Throughout the medieval period, the majority of Jews in Islamic and Christian countries lived under the kehillah system (i.e. the self-governing Jewish communal structures), where local Jewish communities exercised semi-autonomous legal powers, especially in religious, civil and personal status matters. That is to say, Jews lived under Jewish law. There was no secular public space where primary religious identities could be shelved. If any members of the Jewish community no longer wished to live under halakha, rabbinic law, their only other choice was to join another religious community. But with the enormous structural (political and economic) and cultural changes that occurred in the eighteenth and early nineteenth centuries—especially a centralizing state that would not abide a competing legal power like a kehillah—as well as a growing secularism (especially amongst the cultural elite), Jewish life began to take on the forms familiar to us today.

If Maimonides casts a long shadow over medieval Jewish thought, Moses Mendelssohn does the same for modern Judaism. His writings, especially Jerusalem, are the central philosophical texts for Jewish responses to religious liberty. Mendelssohn, a religious traditionalist in habit and practice, designed the great liberal Jewish bargain: Jews would trade their corporate status, judicial autonomy, and cultural separatism for citizenship and equality before the law, eliminating in the process both barriers to entry for professions as well as religious disabilities and tests. He also insisted, as part of this grand bargain, that the Jewish community refuse to employ herem, the ban of excommunication. Mendelssohn viewed herem as coercion, and he argued that religious coercion, whether by the state or another body, had no place in a liberal polity. In the documents below, however, we see that Mendelssohn’s dream was not always reality: in the late eighteenth century, the Vilna Gaon, perhaps the most important early modern rabbinic figure, approved the excommunication of members of the hasidic movement in Lithuania, and in the early nineteenth century Hungarian traditionalists put the nascent Reform under the herem.

In the long excerpt from the French Jewish authorities’ reply to Napoleon, we see that West European Jews were willing to sacrifice the autonomy of the kehillah—and its right to social coercion—for citizenship. Religious choice was now to be, in legal terms at least, fully voluntary, and the religious community would be pluralistic. Emancipation meant the end to (a gossamer-thin) Jewish unity, and it certainly increased dramatically the religious liberty of individual Jews. If religious belief and practice were now private, then Jews could arrange themselves into communal groupings that would be more congenial to individual taste and choice.

Three events in modernity stand out in shaping contemporary Judaism and Jewish life. European emancipation—from which Jews received in theory, if not always in practice, equal civil, social, political and religious rights—and the Holocaust proved immeasurably important. Yet it is the third event, the establishment of the State of Israel, that is the most germane to this document’s purposes. For the first time in almost two thousand years Jews had full political autonomy over themselves and other ethnic and religious minorities. This radically altered the state of affairs for Jews worldwide, yet it brought with it profound challenges.

In the early days of the State, Ben-Gurion made the fateful decision that what mattered most was national unity. Thus, in order to get the religious parties to go along with his policies, he traded authority in matters of personal status—for example, marriage, divorce, and conversion—to religious groups (all recognized religions in Israel have these rights) in return for their political quiescence. Israel’s official rabbinate is dominated by the Orthodox, who have actively hindered any official recognition of conversions and marriages performed by Conservative and Reform rabbis. (The conversion committee has, at times, not even recognized Orthodox conversions performed abroad). Such issues, then, persist in Israel’s political and cultural negotiations with religious liberty, negotiations that are novel in the Jewish experience because of the lack of experience as a sovereign nation.

Israel’s Supreme Court has also issued decisions on matters of religious liberty. In the famous Brother Daniel case, a Pole of Jewish descent and a survivor of the Holocaust had converted to Roman Catholicism and become a priest. However, he still identified ethnically with the Jewish people. Israel’s Law of Return (1950) permitted any Jew to immigrate to Israel. Brother Daniel (born Oswald Rufeisen) wished to take advantage of the law, but his request to settle in Israel was denied first by the Israeli government and then by the Supreme Court (though the Court was divided in its decision). This case touches on some of the broader themes of religious liberty: who determines the boundaries of religious choice, communal and individual religious liberty, and the politics of identity.
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