Israel's Top Court Rules That State Must Recognize Non-Orthodox Conversions Under Law of Return

Yesterday, Israel's Supreme Court ruled that those who convert to Judaism in Israel under auspices of the Reform or Conservative (Masorti) movements must be granted Israeli citizenship under the Law of Return.  As reported by JTA:

Israel’s Law of Return offers automatic citizenship to anyone with at least one Jewish grandparent. The state also generally recognizes those who converted to Judaism under Orthodox standards.

Past Supreme Court decisions have mandated that the state also recognize Jews who converted outside of Israel under non-Orthodox authority, provided they live in a recognized Jewish community....

Monday’s decision extends the right to citizenship to those who converted to Judaism under non-Orthodox auspices in Israel itself. The petition that spurred the court ruling was filed in 2005 but was postponed for more than a decade because the court wanted to give the government time to resolve the matter through legislation.

According to the New York Times:

The decision was mainly symbolic because typically, only 30 or 40 foreigners convert to Reform or Masorti Judaism in Israel every year.... 

But the ruling chips away some of the monopoly Orthodox rabbis have held over questions of religious identity that are central to frictions within Israeli society. It also inflames a long-running debate about the relationship between Israel’s civil and religious authorities — and particularly the role of the Supreme Court.

Interesting RFRA Case Involving Proof of Infant's Citizenship

Sabra v. Pompeo, (D DC, April 2, 2020), is an unusual RFRA case.  Mohammed Sabra and his wife Ponn Sabra are United States Citizens.  Here are Mrs. Sabra's claims, as recounted by the court:

In September 2018, Mrs. Sabra moved from the United States to Gaza with her three daughters because her two eldest daughters attend college there.... After arriving in Gaza, Mrs. Sabra discovered that she was pregnant with Baby M....  Mrs. Sabra decided to stay in Gaza to be close to Mr. Sabra’s family there....

In 2019, Baby M was born at home in Gaza just after intense bombing was going on in Gaza City.  In June 2019, Mrs Sabra contacted the U.S. embassy in Israel seeking an emergency appointment at the Erez Crossing to obtain a Counselor Report of Birth Abroad and a passport for Baby M.  The parents indicated that they needed to seek medical treatment for Baby M in the United States.  Because Mrs. Sabra was 46 years old, the consulate insisted on additional evidence establishing that she was in fact the baby's mother.  The embassy ultimately insisted on photos of Mrs. Sabra during her pregnancy and DNA testing of Baby M.  However the Sabra's, who are Muslim, objected:

... Mr. Sabra has a “strong religious hesitation” to DNA testing, whereas Mrs. Sabra has an “absolute religious objection” to the DNA testing of Baby M.... With respect to the photographs, Plaintiff’s counsel confirmed that there are two photographs of Mrs. Sabra during the pregnancy, but Mr. and Mrs. Sabra refuse to provide those photographs to the Embassy based on religious objections..... The basis ... is that the photographs are “very personal,” they were “taken in an intimate in-house setting with just the family,” and “for religious views, [they] should [not] be seen by anyone outside of the family ever.”

In an 87-page opinion that deals with a number of other issues as well, the court refused to dismiss plaintiffs' RFRA claims, saying in part:

There is a genuine dispute as to whether the Embassy’s request for the DNA testing and Mrs. Sabra’s pregnancy photographs served a compelling interest by the least restrictive means.

Suit In India Over Discriminatory Citizenship Law

In India, the state of Kerala has filed suit in the Supreme Court challenging as discriminatory the Citizenship Amendment Act, 2019, and various prior rules on citizenship for members of certain religious minorities who entered the country illegally. The complaint (full text) in State of Kerala v. Union of India, (India Sup. Ct., filed 1/14/2020), alleges in part:

The Impugned Amendment Act and Rules and Orders, though cover the persecuted religious minorities of Pakistan, Afghanistan and Bangladesh, overlooks the issues of Rohingyas in Myanmar and Muslims in Sri Lanka, who are also miniscule minorities in the said countries, which are also sharing international borders with India and which are also countries to which and from which there has been trans- border migrations....

The Impugned Amendment Act and Rules and Orders are discriminatory in so far it covers only religious persecution, among persecutions on very many grounds, of an irrationally chosen class of minorities in an unreasonably chosen class of neighbouring countries.... They do not cover the persecutions on the grounds of ethnicity, linguistics etc even in the said class of three countries. They do not cover the ethnic issues of Balochs, Sindhis, Pakthuns and Mohajirs in Pakistan and the Biharis in Bangladesh.

Jurist reports on the lawsuit. (See prior related posting.)

India's Supreme Couirt Will Review Controversial Citizenship Law Amendments

On Dec. 12, India's Citizenship (Amendment) Act, 2019 (full text) that was passed by Parliament received assent of the President.  The controversial new law  allows migrants who came into India from Afghanistan, Bangladesh, or Pakistan on or before December 31, 2014, and who belong to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian religious communities, to become citizens. It does not include Muslims from those nations. (Background),  Muslims fear that the new law is part of Home Minister Amit Shah's plan to create a nationwide citizens' register to weed out illegal immigrants.  Now, according to Bloomberg, India's Supreme Court, in response to more than 50 petitions, will review the constitutionality of the new law. An initial hearing is scheduled for January 22.

Gay Couple Sue Over Citizenship of Child Born Through Surrogacy Abroad

A same-sex married couple has filed suit in a Georgia federal district court challenging the State Department's refusal to recognize their daughter as a U.S. citizen.  The complaint (full text) in Mize v. Pompeo, (MD GA, filed 7/23/2019), alleges that the due process and equal protection rights of James Mize and Jonathan Gregg were violated when the U.S. Embassy in Britain refused to issue a Consular Report of Birth Abroad and passport to their daughter who was born through assisted reproductive technology in Britain. It also contends that the State Department has misinterpreted the Immigration and Nationality Act (INA). The couple used the sperm of Mr. Gregg, an anonymous egg donor, and a surrogate who lives in Britain. Both fathers are U.S. citizens.  Mr. Gregg is a U.S. citizen by reason of birth in Britain to a U.S. citizen. He has lived in the U.S. less than five years. Mize and Gregg are listed as the only parents on the child's birth certificate.

Under Sec. 301 of the INA, a person born outside the United States to two married U.S. citizens is a U.S. citizen if at least one of the parents has resided in the U.S. at any time. However the State Department applies this provision only if the child has a biological relationship with both married parents. Otherwise it applies Sections 309 and 301(g) of the INA that govern when a child born out of wedlock is a citizen. In that case, the father must have lived in the U.S. for 5 years for the child to be a citizen.

The complaint alleges:

On information and belief, State Department officials are highly unlikely to ask different-sex parents who are identified as legal parents (e.g., on a child’s birth certificate) if their child is, in fact, biologically related to both legal parents. In contrast, same-sex parents will always trigger an investigation, and consular officials routinely ask same-sex parents for specific evidence of a biological tie and/or about the use of assisted reproductive technology.

CNN reports on the lawsuit.