The Jewish Status of Those Whose Lineage is Indeterminate

By Rabbi Wayne Allen for the Panel of Halakhic Inquiry

Response: You are to be commended for your compassion and your caution. Because you care deeply about this couple you wish to ensure that they will be fully accepted within the ranks of the Jewish people and that proceeding independently may not be to their best advantage. Would that the entire Jewish world be blessed with rabbis of your character.

In 2019 it was widely reported that the Chief Ashkenazic Rabbi of Israel, Rabbi David Lau, admitted using DNA testing in certain circumstances to help determine if a person is Jewish. Through advances in genetic technology, it is now possible to test mitochondrial (mt) DNA for a maternal connection to one of four Jewish women. However, in an interview, genetics expert and medical researcher, Dr. David Goldstein, author of the important 2008 book, Jacob’s Legacy, explained: “When we say that there is a signal of Jewish ancestry, it is a highly specific statistical analysis done over a population. To think you can use these types of analyses to make any substantive claims about politics or religion or questions of identity (emphasis mine), I think that it’s frankly ridiculous” (Oscar Schwartz, “What Does It Mean to Be Genetically Jewish,” The Guardian, June 13, 2019).

In fact, there are three reasons why simple genetic testing would not be suitable to settle the matter. First, as Dr. Goldstein points out, a statistical analysis across a population is not the same as an individual result. The testing outcome will only reveal that an individual carries a certain percentage of “Jewish” genetic material; not that the individual is halakhically Jewish. Second, as Dr. Goldstein and other geneticists note, mtDNA testing is efficacious for only 40% of the Ashkenazic population. Aside from the limited applicability to Ashkenazi Jews, the couple in question come from Sephardic background so DNA testing would be fruitless.  And third, as Rabbi Seth Farber remarks in the same article, “Our tradition has always been that if someone lives among us and partakes in communal and religious life, then you are one of us.” The sources seem to agree.

The Mishnah (Kiddushin 4:4 and 5) describes the extent to which a man must go investigating the fitness of a woman he wishes to marry. The anonymous text asserts that the husband-to-be must check back four maternal generations on both the mother’s and father’s side. However, אֵין בּוֹדְקִין לֹא מִן הַמִּזְבֵּחַ וּלְמַעְלָה, וְלֹא מִן הַדּוּכָן וּלְמַעְלָה, וְלֹא מִן סַנְהֶדְרִין וּלְמָעְלָה. If, in the course of the investigation, the facts reveal that in the woman’s ancestry was a kohen who served in the Temple, or a Levi who sang in the choir, or a man who served on the Supreme Court, no further investigation is necessary. In other words, evidence of prior familial inclusion in the main institutions of Jewish life is so compelling that it leaves no question about a person’s identity, the presumption being that anyone who officiated in Temple rituals or served on the Sanhedrin must surely have been indubitably worthy (Kiddushin 76b). In the course of its analysis, the Gemara concludes that the Mishnah reflects the view of Rabbi Meir. However, the Sages hold a different view: כׇּל מִשְׁפָּחוֹת בְּחֶזְקַת כְּשֵׁרוֹת הֵן עוֹמְדוֹת, all families maintain a presumptive status of fitness. Investigations are warranted only if there is some rumor of unfitness. Barring any such objection, no investigation is necessary. This becomes the standard in Jewish law.

Maimonides, in his Commentary on the Mishnah (Kiddushin 4:4), writes: “In the case of a family against which there is no suspicion, no investigation at all is necessary because the essential principle with us if that all families are under the presumption of fitness.” And again, in his Mishneh Torah (Laws of Forbidden Sexual Relations 19:17): “All families are of acceptable lineage and we are permitted to marry from among them ab initio.” The principle that all Jewish families are presumed to be fit is confirmed by Rabbi Shabbetai HaKohen (Siftei Kohen on Shulhan Arukh, Even HaEzer 2:2) and Rabbi Ovadiah MiBartinoro (Commentary on the Mishnah, Kiddushin 4:4).

Likewise, thirteenth century Rabbi Moses of Coucy writes: “It is common practice that when visitors come to our communities, we do not investigate their origins. [Rather,] we drink wine with them and eat the meat that they have slaughtered” (Sefer Mitzvot Gadol, Negative Commandments, No. 116). Noteworthy here is that the author shifts the discussion from marriage to the dietary laws. Those who come from outside the local community wishing to integrate into the Jewish community are not only accepted, but trusted in their observance of Jewish law. That same trust was expressed by the fact that no investigation was made of those who ate from the Paschal lamb in the Temple (Babylonian Talmud, Pesahim 3a), even though it was a grievous sin to allow foreigners to eat of it (Exodus 12:43). Accordingly, Rabbi Vidal of Tolosa (or Toulouse) states unequivocally: כל אדם שאומר ישראל אני אין בודקין אחריו, “We do not check the identity of anyone who says he is a Jew” (Mishneh Torah, Laws of Forbidden Intercourse 13:10, s.v. aval).

It is twentieth century Rabbi Ovadiah Yosef who takes the ultimate step of applying the principle of accepting all Jews as fit for marriage to accepting all Jews as fit Jews. He concludes: “It is a daily occurrence for us to permit a man to marry a woman even though we do not know him [personally] by presuming him to be a fit Jew” (my emphasis).  Indeed, he has mighty authorities on whom to rely. Rabbi Solomon ibn Adret (Responsa RaShBA, Part II, No. 15) tells of an actual case of newcomers who arrived from a distant land about whom he ruled that since they held themselves to be Jews, no investigation is necessary and they are accounted as Jews of good lineage with no need to demand that they bring any proof (cf. Otzar haPoskim, Even Haezer, 2:2, subpara. 3). Likewise, in his novellae on the Talmud (Yevamot 46b, sub. 5), RaShBA writes that all authorities agree that someone about whom we know nothing comes forward and says “I was an idolater but I converted” is believed on account of the fact that he could have made a stronger argument (migo) and simply said “I am a Jew.” Each of these cases shows that those who profess to be Jews are accepted as Jews. What people tell us about their Jewish identity is accepted without hesitation or equivocation. Applied to the case before us, the couple did not need to share any information about their hesitations. They could have simply stated they were Jews. Consequently, their hesitations, while honest, are immaterial.

Accepting Jews whose family history is cloudy is, according to Rabbi Yom Tov ibn Ashbili, “something we do all the time” (RITVA, Yevamot 47a, sub. 1). He shares this observation after examining Rabbenu Tam’s analysis of the Talmudic passage which states that: “The sages ruled that someone who claims to be a convert whether in the land of Israel or outside the land of Israel needs to bring proof.” Rabbenu Tam questioned this ruling on the basis of the migo above. He did not need to say he was a convert. He could just have easily said he is a Jew. To resolve the seeming inconsistency, Rabbenu Tam distinguishes between the two cases. Here, the sages ruled that proof was necessary because there is presumptive evidence that the gentile was not a legitimate convert. Absent such evidence, we believe the claim “I am a convert” to be true. Moreover, we rely on his affirmation in all matters because his truthfulness will be revealed in due course. That is to say, by observing his subsequent conduct we will certainly see if he is a true Jew. Again, applied to our case, if there is no evidence that they were actually gentiles, they are accepted as Jews and their conduct as builders of a faithful house in Israel will confirm their identity.

Indeed, this is the position of the Tosafists. The Talmud (Pesahim 3b) tells of a certain gentile who would annually go to Jerusalem and, contrary to the Torah (Exodus 12:43), eat of the paschal lamb, boasting about how he had fooled the rabbis before he was discovered and executed. The Tosafists (s.v. v’ana akhilna) maintain that there is no proof from this incident that we accept as a Jew anyone who claims so. That would be too broad a conclusion. The gentile in this incident gained access to the Temple on the basis of the principle that we follow the majority. Those going to the Temple to eat of the paschal lamb would surely have been Jews and the gentile in question was accepted among them without investigation. The general rule is that we accept as Jews only those about whom there is no contrary evidence. That is to say, we accept anyone who claims to be Jewish unless the facts prove otherwise. In the case before us, there is no contrary evidence that the couple is not Jewish.

Likewise, Rabbi Menahem Meiri (Kiddushin 71a) explains the view of Rabbi Isaac that “God performed an act of righteousness with the Jewish people by establishing that a family of flawed lineage that has become insinuated within a family of unflawed lineage is not removed” to mean that unless there is “clear evidence” of some disqualifying defect, the passage of time alters the facts from certainty to doubt. The consequence is that the family whose origins were suspect, is now considered entirely legitimate. And, adds RaShI, they are fit to be treated as Jews for any future matters. Without any clear evidence that the couple before us is anything other than Jewish, they are accepted as such.

The parallel in the Jerusalem Talmud (Kiddushin 4:1) is also in line with this approach. “Rabbi Yohanan said: one does not investigate a family in which a family disqualification disappeared.” Rabbi David Frankel (Korban Ha-Edah, s.v. “she-nishtaka bo pasul”) explains that this means that any disqualification not known to the public is not investigated in order to expose it.” Applied to our case, it suggests that no further investigation is necessary.

Lastly, Rabbi David ibn Zimra (Responsa RaDBaZ, Part 7, No. 5, end) writes that while the marriages and the divorces Ethiopian Jews are suspect since they were historically separated from rabbinic Judaism, they are unquestionably Jews, descendants of the tribe of Dan. (This responsum served as the basis for the successful efforts made by the State of Israel to rescue Ethiopian Jewry.) Importantly, RaDBaZ requires no evidence or documentation to prove their Jewish status.

In the case before us, each party has strong Jewish family traditions and each proudly affirms their Jewish identity. Both have been leading active and engaged Jewish lives. This alone is sufficient to accept them as Jews without any further concern. The fact that some of the bride-to-be’s family members are buried in a Jewish cemetery only enhances her status. The groom-to-be also cites some supportive evidence to prove his Jewish roots. There is nothing to suggest that either of the two are suspected of any disqualifying conduct. Hence, the rabbi should have no qualms about officiating at the wedding ceremony without any further action.

We may also take advice from the words of Rabbi Ben-Zion Meir Hai Uziel, former Chief Sephardic Rabbi of Israel, who wrote (Mishpetei Uziel, 5698, No. 26) in a different context: “I admit without embarrassment that my heart is filled with trembling for every Jewish soul that is assimilated among the non-Jews. I feel in myself a duty and mitzvah to open a door to repentance and to save [Jews] from assimilation…” We should rejoice that a couple, like the subjects of this response, is eager to fully embrace Judaism and not put roadblocks in their path.