5783.1

Medical Assistance in Dying^[1]

Sh’eilah

May a Jew opt for physician-assisted death in jurisdictions where civil law allows it? May a Jewish medical practitioner assist a patient in dying? (Rabbi Lawrence A. Englander, Mississauga, Ontario)

T’shuvah

This question comes to us as physician-assisted death has been legalized in a number of US states and in Canada.^[2] We are aware that some people will see our very willingness to consider it as an unacceptable first step on a slippery slope. ^[3] We will argue, however, that we are in accord with the life-affirming and realistic perspective of our tradition in responding to that small number of patients for whom physician-assisted dying is the only treatment available for what clinicians refer to as “total pain.” (See below for a discussion of this concept.) We undertake to answer this question in light of this reality, and in light of these words of R. Joseph Dov Soloveitchik: “Law that lacks tzedakah, that does not draw from the wellsprings of feelings and tenderness, of heartfelt ways of pleasantness and inner kindliness, that is confined by its boundaries and does not break through its borders to go beyond what the law requires—such law is absolute wickedness.”^[4]

I. Reading our sources

We begin with the recognition that all halachic precedents prior to the modern era have rejected providing a person with medical assistance in dying.^[5] This Committee reaffirmed that stance in its own 1994 responsum on withholding medical intervention for those whose imminent death may not be anticipated, but whose “quality of life” is seriously and permanently impaired. ^[6]  In that responsum the Committee focused on “the tradition’s affirmation of the sanctity, the inviolability of human life. This affirmation, in turn, assumes the doctrine that life belongs to God, who has the final say in its disposal. This implies that the individual has no right of “ownership” over his/her life, no authority to bring that life to an illegitimately premature end.”^[7] Thus, states the responsum, the traditional halachic sources forbid suicide^[8] as well as euthanasia, “inasmuch as human life remains sacred and inviolable until the final moment of its existence.”^[9]

The responsum notes that the tradition does carve out one exception to the prohibition of suicide, namely, the case of martyrdom: a Jew is obligated to accept death rather than to transgress the Toraitic commandments against murder, idolatry, and sexual immorality. Indeed, the tradition goes to great lengths to view such acts as something other than suicide—as “not the ‘rational, premeditated act of self-killing’ forbidden by halachah.”^[10] The same responsum further acknowledges that proponents of active euthanasia cite tales of death, not only the biblical account of King Saul’s death, but also “the talmudic narratives surrounding the deaths of R. Chanina ben Teradyon and R. Yehudah HaNasi,”^[11] as proof that our tradition does, in fact, permit suicide and active euthanasia. However, the responsum argues that the tradition from which these stories of mercy spring “declares consistently and unequivocally against euthanasia,” that our own Reform responsa tradition has consistently rejected euthanasia as a “morally acceptable response to terminal illness,”^[12] and that, while as Reform Jews we may indeed reinterpret our texts and tradition, “in this case, though, we fail to see why we should do so.”

Given this clear statement of prohibitions, why are we revisiting this issue?

A. New knowledge

While all recognize that medical knowledge and practice have progressed dramatically since the talmudic period and since the 16^th century, when the Shulchan Aruch was written, significant strides and changes have reshaped the medical landscape and experience of those seeking medical care even since our 1994 responsum was written. We regularly adjust our perspective, and consequently change our practices, in light of new information and novel medical technologies. For example, Rabbi Esriel Hildesheimer ruled that deaf persons, categorized halachically in the Mishnah (second century C.E.) with children and mentally incompetent persons as exempt from the mitzvot due to lack of understanding,^[13] could take their place as full members of the community. In Hildesheimer’s day experts had long since demonstrated conclusively that with the use of sign language deaf persons were capable of functioning as full, competent human beings.^[14]  He wrote:

“…[I]t is close to certain that in the time of the Gemara, and even in the days of the Rambam, there was no knowledge of the possibility of teaching someone how to speak if they were born deaf… The sages of the Talmud addressed the reality of their day, and they spoke only of their present….Such [i.e., that the deaf were uneducable idiots] was the world’s attitude in those days [i.e., the early nineteenth century]…and thus it was explained in the medical texts of that era; only after that did [doctors’] thinking change, until they reached the conclusion that deaf people do possess the power of reason….”^[15]

This same principle, that new evidence is grounds for a change in the law, also applies to the concept of “total pain,” a condition identified in 1967 by Dame Cicely Saunders, the founder of the modern hospice movement.^[16] Saunders “coined the term ‘total pain’ to characterize the multidimensional nature of the palliative patient’s pain experience to include the physical, psychological, social, and spiritual domains [emphasis added]….[O]ptimal pain relief is not possible if all dimensions of ‘total pain’ are not addressed. Dame Saunders also pointed out that, as total pain increases, the patient experiences a severe loss of control over their life; this in turn, leads to further pain and despair.”^[17]

A corollary of the concept of total pain is the recognition that there is a difference between biological existence and living. The modern hospice movement seeks to mitigate total pain by addressing all these dimensions—physical, psychological, social, and spiritual—in ways that, to the greatest possible extent, enable the patient to preserve their sense that they are living rather than merely existing. We are convinced that the idea of “total pain,” including both the role it plays in palliative care and the ways in which it has revolutionized how the medical profession regards debilitating and terminal illnesses, is an example of the medical and scientific advances to which our tradition has always been open.

B. Context

Medical knowledge and scientific knowledge are not the only types of knowledge that change, leading to changes in how we discern the correct course of action. The study of history reminds us that what we might call “social knowledge” also changes. By “social knowledge” we mean the tacit assumptions that underlie social and legal norms and behavioral expectations. For example, consider how attitudes toward women and their role in public life have altered since the Mishnah was written. We have rejected the limitations placed on women’s roles in our religious community because we have rejected the assumptions on which those limitations rested.

There are also aspects of human life that constitute realities so fundamental that they rarely even rise to the level of consciousness until some problem forces us to take notice of them. Life expectancy and its relationship to health, disease, and medicine is one such reality. Demographers and medical geographers now commonly refer to an “epidemiological transition” to account for the ballooning of the planet’s human population in the last century. One of the foundational articles in this field explains: “During the [epidemiological] transition, a long-term shift occurs in mortality and disease patterns whereby pandemics of infection are gradually displaced by degenerative and man-made diseases as the chief form of morbidity and primary cause of death.” The author identifies a three-stage process: 1) the stage of “pestilence and famine” when average life expectancy at birth is only 20–40 years; 2) the stage of “receding pandemics” when average life expectancy increases to 30–50 years and populations begin to grow; and 3) the stage of “degenerative and [lifestyle-related] diseases,” when mortality rates decline sharply and average life expectancy reaches beyond 50 years.^[18]

We cannot read our foundational halachic texts without being aware that they were written by men who lived in the first of these three stages. Their views of health and disease, life and death, were shaped by their reality. Most people died of wars, famines, plagues, infectious diseases (e.g., pneumonia, tuberculosis, flu, cholera, diphtheria, typhoid), food poisoning, infected wounds, or some internal problem undiagnosable and untreatable by the physicians of the day, such as a ruptured appendix or an ectopic pregnancy. Childbearing frequently led to death for many women. People died in childhood far more often than today. Death generally followed closely upon falling ill. Very few people lived long enough to die of the various diseases that accompany aging in a prosperous society (heart disease, stroke, cancer, Type 2 Diabetes, Parkinson’s Disease), and when they did, they died without the benefit of modern medical treatments that prolong life and enable one to live with those conditions for additional months or even years. In the context of that reality, pronouncements about the preciousness of even a few moments of life read quite differently than they do in our time.

Consider, in this regard, the very fact that the Shulchan Aruch (following the Tur, which in turn followed the Torat HaAdam of Nachmanides [Ramban, R. Moses b. Nachman, 1190–1273]) combines visiting the sick, the practice of medicine, and dying into a single section.^[19] This editorial decision reflects the reality that prior to the modern era, physicians knew very little about diagnosing or treating most serious illnesses, and had very few means of treating life-threatening illnesses. Our ancestors did not presume that a medical practitioner would be able to accurately diagnose or effectively treat illness. Illness was not something they expected to manage successfully. A physician might or might not actually be effective; God might or might not show mercy and intervene. The reality was that people who became seriously ill usually died, and death usually occurred within a short span of time.

The Ramban, himself a physician, included these Talmudic passages in Torat HaAdam:

Our Sages taught in Moeid Katan: One who dies immediately—this is being stolen [from life]. One who fell ill for a day and died—this is a rushed death….Two days and then they died—this is a hasty death. Three days and they died—this is a death of [divine] rebuke. Four days and they died—this is a death of [divine] anger. Five days and they died—this is the ordinary death of most people. Another version in Evel Rabati says this: [Death after] four or five days is a rushed death; after six days is as decreed in the Torah; after seven days is a loving death; more than that is [a death of] suffering….R. Judah says:  The saintly ones of old used to suffer before their deaths with internal illnesses for ten or even twenty days, in order to scour themselves out thoroughly, so that they could enter the world-to-come fully purified, as it is written: [The angel of the covenant] shall act like a smelter and purger of silver; and shall purify the descendants of Levi and refine them like gold and silver, so that they shall present offerings in righteousness (Malachi 3:3).^[20]

In other words, the time between being afflicted with a mortal illness and dying could be too short, too long, or just right, but rarely extended beyond three weeks. The optimal interval between terminal diagnosis and death was approximately one week—presumably because it allows time to come to terms with reality, make one’s final arrangements, and gather the family. Less time, affording insufficient time to prepare for death, indicated divine displeasure with the individual. But what is especially noteworthy here is the view that a dying process of more than a week is deemed “suffering” and that a dying process of ten or twenty days of internal illness was something so extreme and rare that our predecessors saw it as an example of yisurin shel ahavah (“chastisements of love”), i.e., suffering ordained by God as a “gift” so that upon death, the one who experienced the yisurin shel ahavah would be entitled to a greater reward in the world-to-come. In our age, however, people more and more frequently continue in this state of degeneration and dying for many months or even years. And we know that this is happening because of the help of modern medicine, not as a divine gift.

C. A holistic tradition

The popular understanding of responsa literature is that in determining halachah it relies on halachic precedents, supplemented by informed knowledge of whatever matter is at hand, and that it generally does not rely on aggadah (non-halachic discussions or stories) and does not view them as precedents for legal rulings. It is worth noting that recent scholarship analyzes the interplay of halachic and aggadic material in the Talmud and considers the ways in which aggadic material might influence our reading of halachic material.^[21] In this instance, we believe it is essential to recognize that our Sages chose to preserve and transmit various narratives in classical Jewish texts that discuss suicide or interventions intended to end an ill person’s suffering by bringing about their death, because they have profound relevance, as other authorities have noted.^[22]

Torat HaAdam is a particularly apt touchpoint for us, precisely because it is a halachic guide to illness and death that includes a great deal of aggadah. We are firmly persuaded that a holistic reading of our tradition entails seeing halachah and aggadah as integrated elements of a single world view, and that this approach is essential if our tradition is to remain relevant and viable for us and for future generations. As Rabbi Gordon Tucker wrote in his dissent from the CJLS responsum on homosexuality:

…[T]he Torah (and a fortiori subsequent expressions of religious law) is not a record of commanding utterances from God, but rather a record of the religious quests of a people, and of their understanding of how God’s will commands them. The long-standing —and understandable—tendency to divide up religious literature into halachah (law) and aggadah (narrative) has thus always been a mistake. The law is given cogency and support by the ongoing story of the  community that seeks to live by the law….The ongoing, developing religious life of a community includes not only the work of its legalists, but also its experiences, its intuitions, and the ways in which its stories move it. This ongoing religious life must therefore have a role in the development of its norms, else the legal obligations of the community will become dangerously detached from its theological commitments….So we would do well to speak of Halachah, written with a capital “H”, when we wish to denote not only collections of rules and precedents, but rather a more expansive repertoire of  legally relevant materials, which include the accretions over time of theological and moral underpinnings of the community of faith. And a vision of a Halachic methodology would then be one that would include the more conventional halachic methods, but would also appeal to aggadic (narrative) texts that have withstood the tests of time to become normative Jewish theology and ethics.^[23]

Another voice emphasizes that davka in matters of life and death, purely halachic guidance is inadequate. In arguing for consideration of aggadic material, Rabbi Leonard A. Sharzer, MD, points out that relying on halachic material alone has led modern-day halachists to reach

diametrically opposing attitudes toward the diagnoses of brain death, or removal of ventilatory support in dependent patients, or the withholding or withdrawing of artificial hydration and nutrition, to cite but a few examples. In the end it may be the very ambiguity of the story that is its most valuable characteristic, that and the fact that stories by their very nature are, like the problems we face in the bioethical realm, context-sensitive [emphasis added].^[24]

The medical advances of the last century have revolutionized the age-old relationship between sickness and health, life and death. We have the ability to extend the lives, and thereby draw out the deaths, of many people with terminal diseases. We also have among us, thanks to advances in medical technology, some number of people who are not terminally ill, but who live under permanent conditions in limited health or well-being, including individuals with ALS; people living with quadriplegia and Locked-in Syndrome; and those whose pain is not medically manageable. Medical intervention enables many such individuals to live for many years, but offers no possibility of improvement and may not alleviate the pain the individual experiences. A small number of these individuals assert that living under such circumstances is not acceptable, and that they have reached the point of wishing to end their lives through a medical procedure. Other individuals who face a long-term degenerative condition anticipate that they may reach the point at which death is preferable to living. We believe that the halachic prohibitions against hastening or causing death live side by side with extensive recognition of the just cause of the person who loves life, but finds that life is no longer a blessing given the conditions in which they must live it. Our predecessors did, in fact, acknowledge this dilemma and indirectly admitted its justification. The same tradition that opposes murder and suicide also recognizes that life is sometimes more burdensome and less desirable than death, and preserves multiple stories that affirm both ending one’s own life and assistance in dying. We turn, therefore, to those narratives.

1. 1. 1. Intervening to bring about a death

Our tradition assumes that prayer is efficacious, and therefore regards it as an essential complement to the physician’s skill in bringing healing. It follows that when the medical tool kit is empty, prayer is the only remaining option. When our classical sources use the phrase “visit the sick,” they presume that the visitor will contribute to the sick person’s cure by praying for their welfare during the visit. This is made clear in the Talmud, which brings a statement by R. Akiva that “[e]veryone who does not visit a sick person is like one who sheds their blood.” Rav Dimi understands this to mean that “[e]veryone who visits a sick person causes him to live, and everyone who does not visit a sick person causes him to die,” which the Gemara then explains: “[It means that] everyone who does not visit the sick neither prays for them to live nor prays for them to die.”^[25]

Commenting on this passage, the Spanish halachist R. Nissim Gerondi (1310?–1375) acknowledged the reality that there are times when the better course of action is to help bring about a person’s death.

Neither prays for them to live nor prays for them to die–It seems to me that this passage means that there are times when one should pray for the sick person to die, such as when they are suffering severely from their illness and there is no possibility that they will live…But even in a case where death would be a benefit, the prayer [of one who does not visit] will not help, even a bit, to bring that benefit.^[26]

Two widely cited Talmudic stories clearly demonstrate not only that the rabbis believed prayer could keep a person alive or could cause their death, but also that there are times when it is appropriate to stop praying for someone to live, and even to pray for someone’s death. The first of these is about the death of R. Judah the Patriarch, known simply as “Rabbi.” He fell gravely ill with what is generally understood to be a painful intestinal condition.

On the day that Rabbi died, the Sages decreed a public fast and prayed for divine mercy [to let him live]. They said: Anyone who says that Rabbi has died will be run through with a sword. Rabbi’s maidservant ascended to the roof and said, “The upper realms [i.e., the angels] want Rabbi and the lower realms [i.e., humans] want him. May it be Your will that the lower ones will defeat the upper ones.” But when she saw how many times he had to go out to the privy, removing his t’fillin and putting them back on [each time], and how this caused him to suffer, she said, “May it be Your will that the upper realms defeat the lower ones.” But the rabbis would not stop praying for mercy for him [i.e., keeping him alive], so she took a pitcher and threw it from the roof to the ground. They fell silent and interrupted their prayer, and Rabbi died.^[27]

In other words, the rabbis’ efficacious prayer keeps R. Judah alive, thereby prolonging his suffering. His maid, recognizing the extent of his suffering, momentarily disrupts their prayer in an attempt to reduce its efficacy. Furthermore, the context for this story makes clear that R. Judah himself is ready to die. He has spoken with his sons, appointed Shimon to serve as Chacham in the academy and Gamliel to succeed him as Nasi, given instructions concerning Yosef Cheifani and Shimon Efrati who serve him, spoken with the Sages concerning how they are to mourn him after his death, and appointed Chanina bar Chama to head the academy after his death. Under these circumstances—that Rabbi has concluded his final arrangements and his remaining time alive consists of intolerable suffering—the maidservant acts out of love and respect and is honored for her act.

The second story is about the deep friendship between R. Yochanan and Reish Lakish, and the grief of the former after the latter died.

Reish Lakish died, and R. Yochanan mourned deeply for him. The rabbis said: Who shall go to restore his equilibrium? Let R. Eleazar ben Pedat go, for he is a sharp student. [R. Eleazar ben Pedat] went and sat before R. Yochanan. Every time Rabbi Yochanan recited a teaching, Eleazar cited a textual support. R. Yochanan cried out: “Are you like the son of Lakish? When I said something, he would ask twenty-four questions. I would provide twenty-four answers, and in that way, Torah would increase. But you simply offer support!  Do you think I don’t know that my teachings are good?”

R. Yochanan tore his clothes and wept, saying, “Where are you, son of Lakish?” He grieved so much that he lost his mind. The rabbis prayed on his behalf, and he died.^[28]

Observing that R. Yochanan’s life was one of unremitting emotional suffering, his colleagues intervened to bring about his death through prayer. Their prayer that he might die is considered prayer “on his behalf.” Ultimately, the sages of the Talmud would hold, God determines whether R. Yochanan lives or dies, but human effort on the side of compassion is deemed moral.

1. 1. 2. Deciding to take one’s own life

The Tanach narrates how King Saul took his own life after the Israelites’ disastrous defeat at the hands of the Philistines.

The Philistines attacked Israel, and the men of Israel fled before the Philistines and [many] fell on Mount Gilboa. The Philistines pursued Saul and his sons, and the Philistines struck down Jonathan, Abinadab, and Malchi-Shua, sons of Saul. The battle raged around Saul, and some of the archers hit him, and he was severely wounded by the archers. Saul said to his arms-bearer, “Draw your sword and run me through, so that the uncircumcised may not run me through and make sport of me.” But his arms-bearer, in his great awe, refused; whereupon Saul grasped the sword, and fell upon it. When his arms-bearer saw that Saul was dead, he too fell on his sword and died with him.^[29]

Later commentators justified Saul’s decision by ascribing it to his desire not to be tortured, shamed, or humiliated by the Philistines, a desire they regarded as logical and well-founded. R. Isaac Abravanel, for example, wrote:

After his three sons died, and Saul was left alive alone, the battle raged around Saul, and some of the archers hit him, meaning that the archers found his location and began pursuing him, and then Saul became afraid of the archers. And it is appropriate to note that Saul was not afraid that they might kill him…; rather, he was afraid that they would wound him in such a way that he would not die immediately, but would not be able to resist, and they would take him alive and abuse him, by putting his eyes out or cutting him up limb by limb; for the Philistines hated him for what he had done to them. So he chose to die at the hands of those who loved him, rather than at the hands of those who hated him.^[30]

In other words, Saul’s suicide was justified by his fear of what might happen to him if he remained alive.

The Talmud recounts that R. Chanina ben Teradyon was martyred by the Romans during the Hadrianic persecutions following the Bar Kochba revolt. According to the story in the Talmud, he was caught teaching Torah in public and sentenced to be burned with the Torah scroll wrapped around his body.

They brought him and wrapped him in the Torah scroll and surrounded him with bunches of branches and set them on fire. Then they brought tufts of wool soaked in water and placed them over his heart so that he would not die quickly….His students said to him, “Rabbi,…open your mouth and let the flames enter through it [so that you die more quickly].” He said, “It is better that the One who gave me my life should take it, than that I should harm myself.” The executioner said to him, “Rabbi, if I increase the flame and remove the wool tufts from over your heart, [so that you suffer less and die more quickly], will you bring me into the world-to-come?” He said, “Yes,” and [the executioner] said, “Swear to me,” and he swore. Immediately [the executioner] built up the flames and removed the tufts of wool from over his heart, and his life quickly left him. And [the executioner] then jumped into the pyre. A divine voice then proclaimed, “R. Chanina ben Teradyon and the executioner are summoned to the life of the world-to-come!” Rabbi [Judah the Patriarch] wept [over this] and said, “There are those who attain eternal life in a moment, and those who attain it only after years [of striving].”^[31]

Initially R. Chanina rejects his students’ suggestion that he hasten his death, asserting that God should determine the precise moment of his (impending) death. However, when he reaches a point where he can no longer endure the suffering, he accepts the executioner’s offer to hasten his death. Furthermore, the executioner also then kills himself, either to take advantage of R. Chanina’s promise to bring him to the next life or, perhaps, out of fear of retribution for his dereliction of duty. There is not a hint in this story that either man has done wrong.

Finally, midrash tells a startling story of a woman who was tired of living.

It happened that an extremely elderly woman came before R. Yose ben Chalafta, and said to him, “Rabbi, I am too old, and my life is distasteful to me. I can taste neither food nor drink, and I would like to depart from this world.” He said to her, “What accounts for your long life?” She said, “I am accustomed, even if there is something very dear to me, to set it aside and go early to the synagogue each day.” He said, “Refrain from going to the synagogue for three consecutive days.” She did so, and on the third day she fell ill and died.^[32]

R. Yose apparently finds nothing strange about this woman’s attitude; accordingly, he makes absolutely no effort to dissuade her. He acknowledges and validates her sense that because she is incapable of doing the things that make life an act of living, she is merely existing, and he actively tells her how to bring an end to her existence.

These stories depict individuals in very different circumstances. King Saul is physically well, but terrified because he is trapped in a situation where all he can expect is pain, suffering, and humiliation. R. Chanina has apparently reached the limit of how much suffering he can endure. The old woman will not die imminently, but finds no satisfaction in life. R. Yochanan’s emotional suffering had erased the quality of his life. Nevertheless, what these stories have in common is that they depict individuals who have reached a turning point: life is no longer a divine gift; it has become, or will imminently become, a form of torture. In other words, they depict individuals who are experiencing “total pain.” For each, the decision to die enables them to regain control over an uncontrollable situation.

II. Toward a halachic view of physician-assisted death

Adopting Rabbi Tucker’s framework, we may say that our halachah values life, and values the practice of medicine to preserve life, but many traditional halachot are rooted in the pre-modern reality when life spans were far shorter, medical knowledge and treatments were extremely limited, and the dying processes was usually of limited duration. Our obligation to our people is to provide guidance that values life and values the practice of medicine to preserve life in a way that fully acknowledges the circumstances of our own times. When we acknowledge the current reality, far different from that of the ancient or medieval world, and engage with it appropriately, we continue the tradition of those who came before, and who also couched their understanding of halachah in terms of their contemporary reality, including the science and technologies of their day in balance with the lived experience of people. If we do not acknowledge the new reality and discern a way to ethically and compassionately engage with it appropriately, we will simply become irrelevant. We also risk causing severe pain and harm in the world by holding to outdated modes of thought and behavior.

The narratives we have seen are interwoven with the halachot on the very same Talmudic pages. We see that loving life, valuing individual lives, and valuing the ability of the physician to preserve life were not our Rabbis’ only considerations. They recognized that life is more than existence. The narratives we have cited demonstrate that our Sages knew that a person in extremis may rationally and justifiably choose death over life; that a reasonable person may reach the point where they see that their life, as opposed to their existence, has ended; and that sometimes the greatest compassion one can receive is to be assisted in dying in order to end intolerable suffering.

A. May a Jew choose a physician-assisted death? 

1. 1. 1. Choosing a physician-assisted death can be a justifiable decision, one in made accordance with our tradition, for someone with a terminal diagnosis, but for whom death is not imminent.

The general halachic view of suicide now is that the person who kills themself must have been incapable of making a rational decision in that moment. This originates in the locus classicus for discussions of suicide, the minor Talmudic tractate S’machot.^[33] There it states that the rituals of mourning are truncated for one who intentionally does away with themselves (m’abed et atzmo b’daat). “The general principle is that we do everything that is for the honor of the living, but we do not do what is not for the honor of the living.” The text goes on to define one who “intentionally does away with themselves;” for example, one who declares to onlookers their intent to throw themselves off the roof and then does so in sight of the onlookers. However, it continues, one who is found hanged or impaled on a sword is presumed to have killed themselves unintentionally, and no mourning rituals are withheld. It then goes on to relate two anecdotes of children who were so afraid of parental punishment for some infraction that they killed themselves; the Sages conclude that in such cases no mourning rituals are to be withheld (and that parents should never be such severe disciplinarians that they cause such fear). In five brief paragraphs, S’machot establishes the parameters for all subsequent halachah regarding taking one’s own life. All authorities weigh the prohibition against intentionally doing away with oneself against the mitigating factor of emotional distress. Maimonides takes the most stringent stance against taking one’s own life, defining it as an act of bloodshed just like taking the life of another.^[34] By contrast, the Shulchan Aruch takes a generous stance toward individuals’ emotional distress: “A minor who intentionally does away with themself is considered to have done it unintentionally, and likewise an adult who intentionally does away with themself while they are under compulsion, like King Saul. We do not withhold any [mourning rituals] from them.”^[35]

As the Aruch HaShulchan sums it up:

The general principle with regard to one who intentionally does away with themself is that we attribute it to whatever possible cause we can—for example, out of fear, or out of pain, or that they lost their reason, or that they thought that this was a mitzvah in order not to stumble by committing other transgressions, or for other similar reasons. For the truth is that it really is far-fetched that a person would commit a desecration like this with an absolutely clear mind.^[36]

And yet halachah recognizes that refusing medical treatment can be a rational decision under certain circumstances. Many authorities, including this Committee, recognize that a person who is suffering need not subject themself to every possible treatment to extend life. Rabbi Mark Washofsky wrote for this Committee that a patient with terminal cancer need not subject herself to a painful treatment: “One is obligated to accept treatment that offers a reasonable prospect of therapeutic effectiveness, the attainment of an accepted medical purpose. The purchase of an additional three months of life in a pain-filled and dying condition does not, in our judgment, meet that standard. If such was the best that this patient could reasonably have hoped for, [the patient] was not morally obligated to accept the treatment.”^[37]

Nor is recognition of a patient’s right to refuse life-extending treatment limited to such extreme situations. Rabbi Moshe Feinstein ruled that if a person does not trust their doctor, every effort must be made to persuade them to accept treatment, but if they ultimately choose to reject the treatment, they cannot be coerced. He also acknowledged that a person suffering with a grave illness might choose to reject life-prolonging treatment.^[38] Thus we see that while preserving life is a mitzvah, and that the physician’s obligation to heal is also a mitzvah, these mitzvot do not necessarily lead us to ignore the wishes of a person suffering from a grave illness with respect to their own care.

Contemporary Orthodox authorities are drawing the conclusion from Rabbi Feinstein’s and Rabbi Shlomo Zalman Auerbach’s responsa that “quality of life” considerations are not irrelevant, and that a patient may make their treatment decisions by weighing treatment outcomes against suffering. “[W]hat risks critically ill patients are willing to assume may depend not only on the pure odds of survival, but also on what kind of survival.” Furthermore, there is no halachic definition of “unbearable suffering.” Rabbi Auerbach regards even “severe emotional distress (seivel nefesh)” as a factor in refusing treatment.^[39] Rabbi Judah Goldberg, MD, concludes:

One can perhaps adduce further support for this approach from the Talmudic narrative that lies at the heart of R. Feinstein’s rulings [i.e., the story of R. Judah’s maid enabling him to die]…In other words, the best arbiters of suffering and its consequences may be patients, along with their caretakers, who can interpret ever-changing medical assessments in light of their deep, nuanced understanding of the overall situation and consider their options accordingly….

To be sure, this does not mean that, halachically speaking, patients can choose any course of action they wish….

However, if after thoughtful reflection, a patient wishes to decline critical care interventions because the risk of suffering seems to outweigh the possible benefits of treatment, I believe that halachah grants him or her the right to do so. Moreover, a patient who is frail and/or chronically ill, though not technically terminal, and for whom critical care interventions are likely to be more burdensome than helpful may decide before critical illness develops to decline such treatments.^[40]

As Rabbi Washofsky pointed out, modern medicine’s capacity to offer seriously ill people more and more treatments with fewer and fewer benefits has led us to reconceptualize the very nature of “medical treatment.” He wrote:

We begin with the definition of the mitzvah of r’fuah, the duty to heal (i.e., to practice medicine) as understood by Jewish tradition. That duty holds only when it is possible to accomplish it, that is, when the measures to be applied to the patient serve some accepted therapeutic purpose. It follows that if the drugs, surgeries, and other procedures do not serve such a purpose—if they lack…“therapeutic effectiveness”—they are not (or are no longer) regarded as “medicine,” as measures defined as obligatory under our duty to heal. Those procedures, to be sure, are not forbidden; the patient and the patient’s family may wish to accept them on the slim chance that they will do some good. But they are not obligatory because they are not “medicine.” The patient is entitled to refuse them or to discontinue them once they are deemed to have lost their therapeutic effectiveness.

…[T]he standard of “therapeutic effectiveness” is by no means simple to apply to specific cases, since “(t)erms such as “therapeutic” and “successful treatment” are inherently vague and impossible to define with precision. In many situations it will be problematic if not impossible to determine when or even if the prescribed regime [sic] of therapy has lost its medical value.” Some decisions concerning the non-application or discontinuation of treatment will indeed be difficult to make. On the other hand, “(t)he standard of therapeutic effectiveness, as a tool by which to make judgments concerning medical treatment, allows us to draw some conclusions with moral confidence.”^[41] [Emphasis added]

It was recognition of this reality that led to the emergence of palliative care as a medical specialty. However, we are now facing the reality that palliative care does not address every individual sufferer’s experience of total pain. If we accept that we are obligated to heed the patient when their experience of their own illness leads them to reject treatment, we believe that we are also obligated to heed them when their experience of their own illness is that their pain is so complete—such an overwhelming and intolerable combination of physical, psychological, social, and spiritual pain—that even palliative care no longer provides adequate therapeutic effectiveness, and they can no longer bear to live in such pain.

We recognize and respect the rationality of an individual with a terminal diagnosis who chooses to try every possible medical treatment. Similarly, we recognize and respect the rationality of an individual with the same diagnosis who, upon consideration, chooses to forgo all medical treatment other than palliative care. Surely then, we can and must also recognize the rationality of an individual who moves incrementally on a continuum, from whatever treatment they begin with, to the point where no treatment addresses their total pain, and they want only, as did the elderly woman whom R. Yose helped to die, the opportunity to end having to exist in that state.

1. 1. 2. Choosing a physician-assisted death can be a justifiable decision, one in accordance with our tradition, for someone with a chronic but not inherently fatal condition.

Our responsum 5768.1 addresses the case of an elderly woman in a wheelchair whose condition is stable, but who doesn’t want to live any longer, and has decided to stop eating and starve to death. Writing for this Committee, Rabbi Washofsky said: “The fact that a person does not wish to live with a certain permanent disability does not render that disability a ‘terminal illness,’ and it most certainly does not justify the self-destructive measures that this person contemplates.” He recommended counseling, and further advised that “as a last resort,” force-feeding might be necessary, although he noted that the very nature of that sort of procedure could well rob it of its therapeutic value.

This case closely parallels the Talmudic story of the old woman who no longer wants to live, but reaches the opposite conclusion. We now revisit that conclusion. We are compelled to ask: how much physical and mental suffering would force-feeding have to cause this woman before one could say that it was of no therapeutic value, and she could choose to discontinue it? The answer, of course, is that we cannot say in advance, but we hope that we would recognize it if we saw it.

We agree that a person with a non-terminal, but debilitating condition must be carefully screened for depression. The health care system should also ascertain that this individual has all the support necessary to enable them to lead the fullest possible life. That said, depression may not be the reason for the person’s unhappiness, and even the most comprehensive support may not suffice. The reality of modern medicine is that some individuals are afflicted with severe physical illnesses or injuries that leave them alive and conscious, but in such limited circumstances that life is more of a curse than a blessing to them. For us to tell such an individual that their only option is to change their mental attitude so that they can experience joy in life and gratitude to God for keeping them alive, seems a cruelty beyond measure.  Therefore, while we hope that a person even in a seriously compromised condition would find a way to value living, we conclude with sadness that this is not always possible, and that, for some few individuals, the model of the anonymous old woman and of R. Chanina must remain an option.

B. May a Jewish physician provide an assisted death?

A Jewish physician’s decision to provide an assisted death can be a justifiable decision, one in accordance with our tradition, either for someone with a terminal diagnosis, but for whom death is not imminent, or for someone with a chronic but not inherently fatal condition. 

A physician, by all understanding, uses their skill to heal. Can intentionally administering a lethal dose of drugs be construed as an act of healing?

Our Sages regarded the practice of medicine as an endeavor authorized by the Torah: When men quarrel and one strikes the other with stone or fist, and he does not die but has to take to his bed – if he then gets up and walks outdoors upon his staff, the assailant shall go unpunished, except that he must pay for his idleness and cause him to be healed (ורפא ירפא v’rapo y’rapei).^[42] The Sages read this as both permission and obligation to use medical expertise.^[43] In their context, however, as we have seen, curing disease was difficult, as physicians had very few tools at their disposal. Even if a physician were unable to effect a complete cure, however, they could still apply their skills to restoring, to the greatest extent possible, the patient’s health and well-being, and also, crucially, to relieving the patient’s pain. Thus, we allow a physician to administer painkillers as needed even if doing so will shorten the patient’s life. The result is death, but the intention was to alleviate pain. This is allowed even if the dosage is so high that the physician knows that they are causing this person’s death.^[44]

When R. Chanina could no longer bear his pain, he asked the executioner to help him die. According to this reasoning, just as a Jew might feel that they can no longer abide their suffering and ask for death, a Jewish physician might be so moved by the extreme suffering of an individual patient that they might feel compelled to help them end their life. In this instance the physician is acting like R. Yose with the old woman, or like the Sages with R. Yochanan: they actively evaluate the patient’s condition and either furnish them with the means to end their life, or end it for them.

III. Concerns: circumstances under which we regard physician-assisted dying as an inappropriate choice

As human beings we all live within an invisible web of relationships that binds us to our families, our friends, and our communities. Death removes us from that web. The ideal death human beings have always envisioned is when those cords gently loosen and allow us to slip out of the web. We have argued here that no one should be knotted into that web when it is clear that the cords are frayed beyond repair. We also wish to state categorically, however, that we are not advocating that people simply sever those cords whenever they choose. All of these additional factors must be carefully examined and dealt with.

Access to adequate care or concern for financial resources

The prospect of being compelled to linger in a condition of “total pain” is a frightening one. We are equally frightened, however, by the prospect of individuals being encouraged or coerced into opting for assisted dying under circumstances that should have no bearing on such a decision. Pragmatic considerations have no role here; no price can be put on a human life. It is for that reason that a murderer cannot escape punishment for their crime by paying a penalty.

There is no acceptable financial or social cost-benefit analysis to whether a person should live or die. No one should ever choose assisted dying for lack of access to health care, or to the support systems that enable people with disabilities to live a dignified life.^[45]  No one should ever choose assisted dying because they feel guilt over spending their family’s funds on their own health care, or because family members are pressuring them not to incur the expense. Or worse yet because health professionals are prioritizing savings over patients’ well-being. Sadly, we do not control the health care system. But we insist that any request for medically-assisted dying should come from the patient, and the patient alone, and that no one else, including family members, care staff, medical practitioners of any kind, may suggest or recommend it.

Valid decision making

Although we agree that choosing to die with assistance can be a rational choice, we are concerned lest people who are depressed over their illness will opt for suicide rather than address their depression and, hopefully, find a way to continue living. The phenomenon of “suicide tourism” is a real one.^[46] Every effort must be made to ensure that an individual does not make a decision out of depression or fear or panic. Having an advance directive would be one way to avoid this difficulty.

Any jurisdiction in which physician-assisted dying is legal must have a rigorous screening process. Terminal illness or chronic severe disability may certainly lead to depression severe enough that a person wants to die; but the depression must be addressed before any request for assisted dying is approved. We cannot under any circumstances find justification for allowing assisted dying for a patient suffering solely from mental illness, since it is impossible to know if they are capable of making a rational decision.

Learning to face one’s mortality before it becomes an acute issue

Many people today are not psychologically or spiritually prepared to face their own mortality. Anecdotal evidence from Canada indicates that at least some individuals opt for assisted dying well before they experience anything like “total pain” because they are afraid of reaching that point. We are concerned lest someone facing their mortality make the decision to end their life due to their fear, without being fully informed of alternatives and options available to them.

We wish to emphasize that all the rabbinic stories we cited here portray people in extremis: a prolonged and painful dying by some sort of internal illness; unbearable torment by torture, or the guarantee that such torment is imminent; life that has gone on for so long in such a diminished form that it has lost all meaning for the individual living it. With the exception of King Saul, whose circumstances required him to reach an immediate decision, none of these decisions—whether made by the individuals in question or by those who cared about them—were made hastily or without struggling to remain among the living for as long as possible. Someone who has just received a dreaded diagnosis enters a period of psychological turmoil as they struggle to make sense of something that has upended their life; it is possible that they may want to make decisions too quickly, abandoning life at a point when they are not capable of making a rational decision. Family dynamics may also be a complicating factor. For these reasons, there must be rigorous screening by trained professionals.

Additionally, we hope our colleagues in congregations will find ways to initiate discussions with our own people that help them think through all these matters.

Qualified medical and other professionals

Medicine develops new areas of specialization as it evolves. We hope that specialization in treating those who may opt for assisted dying will come in the near future. We would hope that any jurisdiction that allows assisted dying will have a dedicated certification and training process. Physicians, nurses, other medical professionals, social workers, psychologists, and anyone else involved in the care of patients who are potential applicants for assisted dying need to be able to offer holistic, patient-focused care.

IV. Summary: conclusions

We agree in principle that in an era in which medical technology can prolong life to the point that a person’s existence becomes torture to them, when r’fuat haguf is no longer possible, we can, at least, support the choices of those individuals for whom death is r’fuat hanefesh. We are not convinced that in practice any jurisdiction currently meets these conditions, but we set them forth nonetheless.

1. 1. 1. A Jew suffering from a terminal illness whose death is not imminent may, where it is legal, avail themselves of physician-assisted dying under the following circumstances:

1. 1. 1. 1. The patient has full and unlimited access to all effective medical care necessary for enabling them to live a meaningful life so far as they are able.
         2. The patient and their legal heirs have made formal attestation that financial considerations have played no role in this decision.
         3. The patient has undergone careful screening by a trained committee of professionals to ensure that the motivation is not untreated depression.

1. 1. 2. A Jew suffering from a debilitating chronic illness that is not inherently fatal may choose to avail themselves of physician-assisted dying as a last resort, if living with the degree of suffering they must endure is intolerable, subject to the criteria stipulated above.

1. 1. 3. A Jew suffering from mental illness (but not a terminal illness or chronic and debilitating illness other than mental illness) may not avail themself of physician-assisted dying, since we cannot properly evaluate their state of mind.

1. 1. 4. A Jewish physician who recognizes that a suffering individual has a terminal or incurable condition that has placed them in a state of what palliative medicine refers to as “total pain” may respond to the sufferer’s desire to end their suffering by administering or making available drugs that will terminate the individual’s life, subject to the stipulations above.

 

The CCAR Responsa Committee

Rabbi Joan S. Friedman, Chair
Rabbi Carey Brown
Rabbi Lawrence Englander
Rabbi Audrey R. Korotkin
Rabbi Amy Scheinerman
Rabbi Brian Stoller
Rabbi Micah Streiffer
Rabbi David Z. Vaisberg
Rabbi Dvora E. Weisberg
Rabbi Jeremy Weisblatt

 

[1] Particular thanks for work on this responsum are due to Rabbi Lawrence Englander, Rabbi Audrey Korotkin, and Rabbi Dvora Weisberg.

^[2] https://compassionandchoices.org/resource/states-or-territories-where-medical-aid-in-dying-is-authorized/. Accessed November 9, 2021.

^[3] Some people will immediately hear the phrase “life unworthy of living.” This ominous phrase has its origin in the title of a 1920 pamphlet on euthanasia published in Germany, Die Freigabe der Vernichtung lebensunwerten Lebens (Karl Binding and Alfred Hoche, 1920; http://www.gutenberg.org/ebooks/44565.

Accessed November 9, 2021). The Nazis appropriated the phrase and used it to justify the “T-4 Program,” the mass murder of physically and mentally handicapped individuals. The original pamphlet, however, offered a far more nuanced discussion of medical assistance in dying than what the genocidal regime took from it. See Howard Brody and M. Wayne Cooper, “Binding and Hoche’s “Life Unworthy of Life”: A Historical and Ethical Analysis,” Perspectives in Biology and Medicine 57, no. 4 (2014): 500-511. doi:10.1353/pbm.2014.0042.  Accessed November 9, 2021.  See also Thomas F. Tierney, “Euthanasia, Biopolitics, and Care of the Self,” in Sue Westwood, ed., Regulating the End of Life: Death Rights (London and New York: Routledge, 2022), 164.

^[4] Joseph Dov Soloveitchik, Halakhic Morality: Essays on Ethics and Masorah, ed. Joel B. Wolowelsky and Reuven Ziegler (New Milford, CT: Maggid Books, 2017), 135.

[5] The Conservative Committee on Jewish Law and Standards does allow a patient to request, and a physician to provide, drugs to end the patient’s life under certain limited circumstances. See Rabbi Elliot N. Dorff,   “Assisted Suicide/Aid in Dying Reconsidered: ‘God’s Compassion Embraces All God’s Creations’ (Psalms 145:9),” YD 345.1997c. https://www.rabbinicalassembly.org/jewish-law/committee-jewish-law-and-standards/ywrh-dh-yoreh-deah#visiting%20the%20sick. Accessed November 9, 2021.

[6] 5754.14: “On the Treatment of the Terminally Ill,” https://www.ccarnet.org/ccar-responsa/tfn-no-5754-14-337-364/.

[7] Yad, H. Rotzeach 1:4. Here, in the laws of the murderer and preservation of life, Rambam discusses the requirement that a murder be executed even if the blood redeemer forgives or restitution is offered: “The rationale is that the soul of the victim is not the property of the blood redeemer, but rather the property of the Holy Blessed One.”

[8] Yad, H. Rotzeach 2:2, 3. In 2:2, the Rambam rules that “A person who hires a murderer to kill a colleague, one who sends his servants and they kill him, one who binds a colleague and leaves him before a lion or the like and the beast kills him, and a person who murders himself (וכן ההורג את עצמו) are all considered to be shedders of blood; the sin of bloodshed is upon their hands, and they are liable for death at the hands of God.” In 2:3, Rambam provides textual support with a commentary on Genesis 9:5–6 that originates in the Gemara (BT Bava Kama 91b). As the Rambam comments: “‘When a person sheds the blood of another human, by a human shall his blood be shed.’ This refers to a person who kills a colleague by himself, without employing an agent. ‘Of the blood of your own lives I will demand an account.’ This refers to a person who dies by suicide.”

[9] BT S’machot 1:1: “A dying person (הגוסס) is regarded as a living entity in respect of all matters in the world.” Note that this language presumes a situation of near death.

[10] ShA YD 345:3: “Who is considered a willful suicide (מאבד עצמו לדעת)?  For example, one who stated that they are going up to the roof-top, and they saw this person go up at once in anger; or this person was in distress, and then fell and died—such a person is presumed to have died by suicide willfully. But if they discovered this person strangled and hung upon a tree, or killed and thrown upon their own sword, the person is presumed to be like all dead and they attend to them and withhold nothing [of burial rituals] from them.” Note here the apparent reference to the example of King Saul (I Samuel 31:4), which also is referenced in body of this responsum.

[11] BT Avodah Zarah 17b and BT K’tubot 104a.

[12] Reform precedents include: R. Israel Bettan, “Euthanasia” (1950), American Reform Responsa #78  (http://ccarnet.org/responsa/arr-261-271 ); R. Solomon B. Freehof, “Dying Patient Kept Alive” (1960), Reform Responsa # 27 (https://www.ccarnet.org/ccar-responsa/rr-117-122/); Freehof, “Allowing a Terminal Patient to Die” (1969), ARR #77 (http://ccarnet.org/responsa/arr-257-260 ); R. Walter Jacob, “Euthanasia” (1980), ARR # 79 (http://ccarnet.org/responsa/arr-271-274;  Jacob, “Quality of Life and Euthanasia” (1985), Contemporary American Reform Responsa #83 (http://ccarnet.org/responsa/carr-135-136); Jacob, “An Elderly Patient Who Refuses Dialysis” (1986), New American Reform Responsa #157 (http://ccarnet.org/responsa/narr-259-262); R. Moshe Zemer, “Asur Le-Harḥik Mitato,” Halakhah Sh’fuyah (Tel Aviv: Dvir, 1993), 295–298.

^[13] The locus classicus for this law is Midrash Rosh HaShanah 3:8:  “A deaf [man], a mentally challenged [man], or a minor may not fulfill the obligation on behalf of the community.  This is the general principle: whoever is not obligated [to perform a certain mitzvah] cannot fulfill the obligation [of that mitzvah] on behalf of the community.”

^[14] Although individual examples of teaching deaf persons to communicate were documented earlier, the modern development of standard sign language and the methods to teach it originated with the educational institution established by Charles Michel de L’Epee in Paris in 1755 and his invention of French sign language.  Educators in other countries soon followed his example, and by 1830 there were schools for the deaf in a number of European countries and several US states, all teaching a variation of sign language. “Charles Michel de l’Epee.” In Encyclopedia of World Biography, 2nd ed., 120-122. Vol. 21. Detroit, MI: Gale, 2004. Gale eBooks (accessed February 13, 2022). https://link.gale.com/apps/doc/CX3404707780/GVRL?u=ohlnk162&sid=bookmark-GVRL&xid=9fe58ad3.

^[15] R. Esriel Hildesheimer, ShU”T Rabbi Azriel, EH #58.

^[16] Cicely Saunders, The Management of Terminal Illness (London: Hospital Medicine Publications, 1967).

^[17] Anita Mehta, RN, MSc(A) and Lisa S. Chan, RN, MSc(A), “Understanding of the Concept of ‘Total Pain’: A Prerequisite for Pain Control, Journal of Hospice and Palliative Nursing vol. 10, no. 1 (January/February 2008), 26.

^[18] Abdel R. Omran, “The Epidemiologic Transition: A Theory of the Epidemiology of Population Change.” The Milbank Memorial Fund Quarterly 49, no. 4 (1971), 516–517 (emphasis in original).  https://doi.org/10.2307/3349375.

^[19] ShA YD “Laws of Visiting the Sick, Medicine, Dying, and Imminently Dying.”  This is further subdivided into sections 335, “When the Visit the Sick, and for Which Illnesses, and How to Pray for Them;” 336, “Laws Concerning the Physician;” 337, “An Ill Person Who Has a Close Relative Die;” 338, “The Ill Person’s Confession and How to Broach It;” and 339, “Laws of the Imminently Dying (and Reciting the ‘Acceptance of Divine Judgment’) and What Are the Criteria [for Imminently Dying].”

^[20] Torat HaAdam, Section “The Gate of the End,” Subsection “The Matter of Departure,” quoting BT Moeid Katan 28a and Tractate S’machot (also known as Evel Rabati) 3:9–11.  It is also worth noting that S’machot 3:8 states: “One who dies before the age of fifty has died by karet. One who dies at age fifty-two dies the death of Samuel of Ramah.  One who dies at sixty dies the death of which the Torah speaks [i.e., ordinary death].  One who dies at seventy dies a death of [divine] love. One who dies at eighty dies a death of special strength, as it is written, The span of our life is seventy years, / or, given the strength, eighty years (Psalms 90:10)….More than this is a life of pain [tzaar].”

^[21] Barry Wimpfheimer, Narrating the Law (Philadelphia: University of Pennsylvania Press, 2011). We acknowledge that Wimpfheimer focuses on literary analysis and does not argue for applying this type of reading to halachic decision-making.

^[22] For a striking example of applying the very aggadot we are considering here to questions of quality of life and end-of-life decisions, see Moshe D. Tendler and Fred Rosner, “Quality and Sanctity of Life in the Talmud and the Midrash,” Tradition: A Journal of Orthodox Jewish Thought, vol. 28, no. 1 (Fall 1993), 18–27.  https://www.jstor.org/stable/23260951.

^[23] Gordon Tucker, “דרוש וקבל שכר: Halakhic and Metahalakhic Arguments Concerning Judaism and Homosexuality,” 19–20. https://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/20052010/tucker_homosexuality.pdf.  Accessed 14 July 2021.

[24] Leonard A. Sharzer, “Aggadah and Midrash: A New Direction for Bioethics?” in Midrash and Medicine: Healing Body and Soul in the Jewish Interpretive Tradition, ed. William Cutter (Jewish Lights Publishing, 2011), 245–262.

^[25] BT N’darim 40a.  In context, R. Akiva appears to refer to physically taking care of the sick. The tradition, however, accepts the anonymous Gemara’s interpretation of his words as a reference to praying on behalf of the sick.

^[26] R. Nis’im ad loc.

^[27] BT K’tubot 104a.

^[28] BT Bava M’tzia 84a.

^[29] I Samuel 31:1–5.

^[30] Abravanel, Commentary on I Samuel, section 15, ad loc. In a discussion of pain medication, the Tzitz Eliezer (Part XIII, #87) goes out of his way to mention a reference in the Bet Yosef (Tur YD 157 ad loc.) to the example of Saul, as a model for dying by suicide in a time of persecution out of fear that one will not be able to withstand torture.

^[31] BT Avodah Zarah 18a.

^[32] Yalkut Shimoni II, §943.

^[33] S’machot 2:1–5.

^[34] Yad H. Rotzeach 2:1–3.

^[35] ShA YD 345:3.

^[36] Aruch HaShulchan YD 345:5.

^[37] 5768.1: “Two Questions Concerning Medical Treatment for End-of-Life Patients.”  https://www.ccarnet.org/ccar-responsa/nyp-no-5768-1/.

^[38] Igrot Moshe ḤM Part II, #73 and #74. In a case where a diabetic, already an amputee, had either to accept a second leg amputation, or refuse and face almost certain death, R. Shlomo Zalman Auerbach ruled that the patient should not be forced to undergo the procedure against their will, nor should we attempt to persuade them to change their mind. Cited in A.S. Avraham, Sefer Nishmat Avraham: Hilkhot Holim, Rof’im, U-Refuah, (Jerusalem: 1984?), 2:47–48.  In ShU”T Minḥat Shlomo I:91:24 R. Auerbach also ruled that a person need not choose to undergo a life-saving operation that would leave them permanently paralyzed.

^[39] Judah Goldberg, “A Halachic Framework for Decision-Making in Acute Critical Illness,” Tradition vol. 53, no. 1 (Winter 2021), 89–90.

^[40] Ibid., 91.

^[41] 5768.1.

^[42] Exodus 21:18–19.

^[43] BTT Bava Kama 85a; Tur & ShA YD 336.

^[44] ShU”T Tzitz Eliezer XIII #87.

^[45] Numerous reports are emerging, for example, about cases in Canada where this is, indeed, happening.  For an overview see Alexander Raikin, “No Other Options,” The New Atlantis, Winter 2023 (https://www.thenewatlantis.com/publications/no-other-options) and the links there to reliable news stories.

^[46] “Suicide tourism” refers to the growing global phenomenon of individuals from jurisdictions where physician-assisted death is not available who choose to travel to a jurisdiction where it is available, in order to end their lives legally. Some jurisdictions, notably Switzerland, have very few restrictions on the procedure, meaning that there is no way to screen out and address the needs of individuals whose desire to end their lives may be a function of some combination of depression, financial concerns, family pressure, or other non-medical reasons. See Daniel Sperling, Suicide Tourism: Understanding the Legal, Philosophical, and Socio-Political Dimensions (Oxford: Oxford University Press, 2019; Oxford Scholarship Online, 2019). doi: 10.1093/oso/9780198825456.001.0001.

5782.2

The Synagogue and Undocumented Immigrants

Sh’elah

What Jewish sources can be brought to address the issue of a synagogue providing “sanctuary” to undocumented immigrants? What do our sources and sages have to say about a synagogue possibly breaking state/federal laws to protect undocumented immigrants? What are a congregation’s religious obligations in this situation? (Rabbi Carla Freedman, Sun City, Florida)

T’shuvah

I. Speaking as Jews and as U.S. citizens

Like many sh’elot we receive, this question involves a seeming conflict in two Jewish values: the powerful prescription to care for the stranger among us against the agreement we have made to abide by the laws of the nation in which we live. This conflict is at the heart of this t’shuvah and its recommendations.[1] U.S. law generally forbids sanctuary assistance to immigrants who are in this country illegally and are not in the process of having the government assess their asylum claims. The courts have generally upheld the government’s overriding and compelling interest in upholding its laws in sanctuary-related lawsuits.[2] Nevertheless, some churches continue to proclaim their determination to provide sanctuary to immigrants regardless of their status and in the face of possible legal consequences, regarding it as a matter of religious principle. For example, the Presbyterian Church USA pledges itself to four principles of the Sanctuary Movement, one of which is: “Pledge our highest allegiance to the mandates of our faith and not to the laws of the land.”[3] Many Jews also share that perspective, and want to know, therefore, to what extent the idea of the synagogue as “sanctuary” has roots in our tradition.

The Jewish concern for the stranger living among us goes back to the Torah. In both narrative and law, the Torah concerns itself with the formation, structure, needs, and ethical foundations of the Israelite nation, which necessarily include instructions for how Israelites/Jews interact with others around them and in their midst. The earliest generations of the Israelites are depicted as a wandering people whose own experiences as a “stranger” among others were often fraught with danger; therefore, the Torah stresses, Jews are under moral obligation to ensure that non-Jews among them do not suffer the same fate.^[4]

In numerous places, the Torah depicts God as commanding the Israelites to have one set of laws that apply to citizen and stranger alike. This directive applies to a variety of offenses including blasphemy (Lev. 24:14–22); sexual crimes (Lev. 18:26); unintentional killings (Num. 35:15); unintentional sin in general (Num. 15:28–29); and perversion of justice (Deut. 24:17–18, Deut. 27:19, Deut. 1:16–18).^[5] The ethical-legal foundation on which Judaism is based, therefore, includes concern for the particular vulnerability of non-Jews who sojourn and dwell among Jews and requires Jews to provide for their safety and legal protection.

All American Jews are immigrants, or descendants of immigrants, who came to the United States fleeing persecution, seeking economic opportunity, and desiring to raise their children with the promise of freedom. When we look at migrants from around the world who seek safety and security in the U.S. for many of the same reasons, we cannot but see ourselves in them.^[6] For this reason, assistance to newcomers, both Jewish and non-Jewish—helping them adjust to life and language, job searches, and education—has been a significant element of the work of Jewish communal agencies since the days of the settlement houses of the nineteenth century. Today that work is carried out on a national level by the Hebrew Immigrant Aid Society and, on a local level, by Jewish federations and individual congregations that help settle refugees who enter the U.S. legally.

This outreach, however, which seems so natural and morally compelling to many congregations and communities, becomes politically and legally complicated when the immigrants are “undocumented,” because undocumented status is a violation of U.S. law. The Pew Research Center reliably estimates that in 2017, some 10.5 million people, 23 percent of all immigrants in the U.S. at the time, were undocumented.^[7] In the last decade immigration has become an increasingly polarizing political issue in the U.S.; political paralysis on immigration reform has contributed, in turn, to a chaotic situation on the country’s southern border that has generated an ongoing humanitarian crisis.

We received this sh’elah against the backdrop of a surge of migrants, mostly from the “northern triangle” of Guatemala, Honduras, and El Salvador, that led the Trump Administration (2017–2021) to declare a crisis at the southern border with Mexico in an effort to stem and discourage migration.^[8] The scenes that subsequently unfolded on television news programs of immigrant children living in awful conditions in federally funded private detention facilities, as well as the forced separation of parents from children, horrified many Americans and led to massive protests nationwide. Many other Americans, however, cheered what they saw as a proper and timely crackdown on illegal immigration— though even before the COVID-19 lockdowns that began in 2020, the southern border also had been all but closed to asylum-seekers attempting to enter the U.S. legally.^[9]

Although the Administration has changed, a 2021 surge of migrants,^[10] questions regarding ICE treatment of migrants, and the still-uncertain legal status of DACA recipients^[11] have rekindled the relevance of questions regarding congregational sanctuary for those who are in this country without legal right. And although Europe has, as of this writing, borne the brunt of the enormous wave of millions of Ukrainians fleeing their country, the U.S. may well accept large numbers of Ukrainians on an emergency basis, without the extended investigative mechanism that would normally be required for admittance.

What guidance, therefore, can we offer synagogues whose members may be moved by the plight of individual refugees to attempt to shelter them from deportation, regardless of U.S. law?

A. The Concept of “Sanctuary”

Organized religion (usually churches, given the reality of U.S. society) as a voice of conscience calling out —or actively resisting—an unjust government is a common phenomenon in U.S. history. Sometimes this resistance meant that the church structure itself was a “sanctuary,” i.e., a place where the moral objector could find safe refuge from an unjust government. For example, in the years before the Civil War, some churches became way stations on the Underground Railroad in explicit defiance of the Fugitive Slave Law of 1850.^[12] In the 1960s, “sanctuary” was invoked by civil rights workers in the South who defied Jim Crow laws and by Vietnam War draft resisters.  It is easy to see, therefore, that in a U.S. culture still permeated with Christianity, people might think that using a synagogue to provide “sanctuary” would be for Jews a religiously permitted, or even a mandated, action.

Contrary to widely held popular notions, the idea of a house of worship as a legal place of “sanctuary” has very limited roots in Judaism. While the Torah mandates the establishment in the Land of Israel of “cities of refuge” (arei miklat), these were not broadly defined “safe spaces.” They were holy districts overseen by Levites, specifically designated only as places where a person who killed without premeditation could find protection from blood avengers.[13]

Two biblical narratives do show that an individual could claim limited safety by entering the sacred precincts of a shrine and grasping the horns of the altar. In I Kings 1:51–53, David’s rebellious son Adonijah, who had attempted to seize his elderly father’s throne, fled into the Tent of Meeting and grasped the horns of the altar to claim protection from his rival Solomon, whom David had already anointed as his successor. Solomon had him removed from the altar and offered him safety in return for loyalty, at which point Adonijah acknowledged Solomon’s kingship by bowing before him. In I Kings 2:28, however, David’s former military commander Joab, also fleeing Solomon’s wrath, raced to the Tabernacle and grasped the horns of the altar to claim sanctuary. But since he had intentionally committed murder, Solomon had him removed and executed. Significantly, the biblical narrative includes no condemnation of this limitation of the right of sanctuary. Furthermore, both of those stories date from before the Jerusalem Temple was constructed. We have no evidence that this practice of sanctuary was continued in either the First or Second Temples. And there is no precedent for a synagogue claiming status as a “sanctuary” for fugitives of any kind.

The popular American understanding of sanctuary is actually rooted in Christian tradition, which in turn adopted pre-Christian concepts and practices common among the existing cultures of the Mediterranean. It was commonly understood in the Hellenistic world that altars consecrated to the gods afforded legal valid haven for individuals accused of unpremeditated crimes.[14] Roman law resembled the Hellenistic model, with some modifications to limit its use.^[15] Even after the Roman Emperor Constantine (r. 306–337) recognized Christianity as the empire’s religion, the old legal right of sanctuary did not automatically extend to Christian churches until Emperor Theodosius I (r. 379–395) explicitly wrote it into imperial law. Subsequent emperors expanded the physical boundaries of sanctuary to include church precincts. This right of sanctuary was reaffirmed for all of Christendom by Pope Boniface V around the year 620. The practice persisted through the late Middle Ages, but thereafter, all but disappeared as the evolution of the modern state put an end to the special legal privileges of the Church. Even for Christian churches, therefore, for the last several centuries “sanctuary” has been a moral claim, not a legal right. Indeed, as one legal scholar has observed, one could say that the concept of sanctuary essentially became civil disobedience on the part of a religious institution: “Any early legal connection to the original nature of the medieval sanctuary privilege seemed to be lost. In fact, when the concept of sanctuary subsequently reemerged in the 1980s, it was as an explicitly political act.”^[16]

B. The U.S. Sanctuary Movement and Reform Judaism

The modern Sanctuary Movement[17] grew out of what was originally a successful drive to protect and welcome at-risk asylum seekers. The U.S. Refugee Act of 1980, incorporating language used by the UNHCR (United Nations Human Rights Council), granted asylum to those who could demonstrate “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”^[18]  Originally designed to accommodate tens of thousands of Vietnamese fleeing their homeland following the Vietnam War, the law significantly raised the annual ceiling of refugee admissions to the U.S., and also formalized and streamlined U.S. refugee policy and procedures.^[19]

However, within a few years questions and objections were raised about the statute’s application to refugees fleeing persecution in Central America, including the “Northern Triangle” of El Salvador, Guatemala, and Honduras (the same areas in turmoil today). Immigration advocates contended that the Reagan Administration was violating the rights of many asylum seekers by applying different standards depending on whether the country from which they fled was then a friend or foe in the Cold War political arena. A refugee fleeing a U.S. ally such as El Salvador or Guatemala, they contended, would be more likely to be denied asylum than a refugee from an ally of the Soviet Union or China.^[20] In 1989, for example, the NGO Helsinki Watch declared that “U.S. asylum and refugee practices and policies have continued to be politicized and ideologically motivated.”^[21]

It was this perceived unfairness (and thus alleged illegality) in the application of U.S. asylum law that drew the attention of religious groups, including Jewish organizations. In 1985, the Union of American Hebrew Congregations (now the Union for Reform Judaism) took up the cause with its “Refugees and Sanctuary” resolution, a nearly identical version of which was passed the same year by the Central Conference of American Rabbis. Citing the biblical command, the stranger who sojourns with you shall be to you as the native among you, and you shall love them as yourself (Lev. 19:33), and emphasizing the Jewish moral imperative to use our collective history in slavery as the inspiration to provide “havens for the persecuted,” the resolutions called on the U.S. government to uphold the law and fairly apply the Refugee Act of 1980, “without regard to the political relationship between the country fled and the United States.” They also called for legislation that would “temporarily suspend deportations of those fleeing El Salvador, Guatemala, and oppressive regimes until such a time as refugees can safely return to their countries of origin.”[22]

Significantly, the resolutions also declared that a moral response was required on the part of the Reform Movement and therefore urged “our congregations and their members to provide sanctuary in one or more of its forms to Central Americans and other refugees who request safe haven out of fear of persecution upon return to their homelands.” As we will discuss below in more detail, both the UAHC and the CCAR acknowledged in these resolutions the serious legal implications of harboring and supporting refugees facing deportation.

In 2017, with yet another immigration crisis looming at the southern border with Mexico, and with then-President Donald Trump using his power under the 1980 law to limit annual immigration to 18,000,^[23] the URJ and CCAR each passed a revised version of this resolution.[24] The resolutions did not focus on the refugees seeking to enter the United States, but rather on the estimated 11 million immigrants already living in the U.S. and facing deportation because they either entered illegally or remained past the end of their legal stay. Both resolutions demanded that the U.S. government pass comprehensive immigration reform, including resolving the status of DACA recipients. Further, both resolutions also focused on a call-to-action to congregations and rabbis to provide sanctuary, legal assistance, and financial assistance to these immigrants, commending congregations that already had done so. Again, as in 1985, both resolutions urged congregations to work with legal counsel.^[25]

II. Halachah and synagogues as “sanctuaries:” Does the Torah obligate us to violate U.S. law?

A. Dina d‘malchuta dina (“The law of the land is the law”)

As we noted above, the Bible bears witness to the practice of fugitives seeking safety at the altar. However, whether or not this was later practiced in the Jerusalem Temple, the inherent sanctity of the Temple did not transfer to the synagogue. We therefore do not have a halachic precedent for declaring the synagogue an actual or symbolic legal refuge. Nor do we have a political theory in which the halachah exists as an equally powerful, complementary authority to that of the state; the synagogue is not an analogy of a church, and our tradition does not conceptualize our relationship to the state in the same way. In the Diaspora, the presumption is that we are a minority group living under the laws of a non-Jewish government authority and, at the same time, we live under the laws of Torah.  Our guiding principle is dina d’malchuta dina, the halachic acknowledgement that “the law of the land is the law.” This was made clear already in the UAHC’s 1987 booklet on sanctuary, where HUC-JIR Professor Michael Chernick summarized the generally accepted parameters of this halachic principle. The law of the state is binding on Jews if the law:

• is non-discriminatory and applies equally to all inhabitants of the land;
• is equivalent to Jewish law conceptually;
• has full government backing;
• does not tax the citizenry endlessly;
• and does not impinge negatively on Jewish communal activity.

Rabbi Chernick’s conclusion was that “for the most part, the civil law in this case does not conflict with these halakhic parameters,” and that therefore Jewish law does not justify harboring undocumented immigrants in contravention of American law. As an exception to this rule, he offered the hypothetical case of a high-profile Jew fleeing physical danger in his home country, when turning him over to the civil government would be forbidden.[26]

Rabbi David Saperstein, then director of the Reform Movement’s Religious Action Center, took exception to Rabbi Chernick’s conclusion. He pointed to the allegation among Jewish and other “sanctuary”-minded groups (as noted above) that the 1980 law was being politicized and therefore was not being applied equally to all inhabitants of the country. “Thus, if in fact it is true that INS asylum procedures discriminate against Salvadorans and Guatemalans in comparison to Poles, Afghans, Iranians, and Nicaraguans, Jews would not be required to observe the law of the land and would be justified in violating the law, at least insofar as the discriminatory law was concerned, in pursuit of the other goals of Jewish law discussed in both Rabbi Chernick’s responsum and this comment.”[27]

Since, in the current situation, there has not been such an accusation of inequality in the application of U.S. immigration law, Rabbi Chernick’s conclusion would seem to be the relevant one. However, in a recent article on halachah and immigration, Rabbi Mark Washofsky, Solomon B. Freehof Professor Emeritus of Jewish Law and Practice at HUC-JIR, emphasized that for Jews, the limits of dina d’malchuta dina do generally revolve around equal justice and the application of equal standards:

Obviously, in real political life governments do not uniformly observe the demand that every law should apply in equal fashion and measure to every individual . . . this does not contradict the demand for equality and equal treatment that we find among the poskim; it means, rather, that any statute or other government act that treats individuals or groups differently must be justified by appeal to some higher purpose or some compelling social need.^[28]

Should there be concern about the fair and consistent application of U.S. law for those who have entered the U.S. illegally—taking into account the fact that the poskim, as Rabbi Washofsky noted, “recognize that the state may legitimately impose rules on particular communities and commercial groups within their borders,”^[29]—it would be incumbent upon Jews to consider this issue.

Yet dina d’malchuta dina is not the only halachic concept that applies to our sh’elah. There are additional considerations that could lead us to construe an obligation to aid undocumented immigrants.

B. Factors that affect our obligations under dina d’malchuta dina

In weighing whether dina d‘malchuta dina applies in any given situation, to determine whether it is Jewishly permissible, or required, to act in opposition to U.S. law, there are several other factors to consider.

1. Mesirah: The halachah states categorically that mesirah, betraying or handing over a fellow Jew to state authorities, is forbidden. “One is forbidden to hand a Jew to a non-Jew, be it his person or his money, even if the Jew is evil—a transgressor—and even if the Jew is harassing him.”[30] Indeed, Maimonides considered the transgression of delivering a fellow Jew to the state authorities so vile, and so dangerous to Jewish communities, that he declared it a religious obligation for Jews to kill the moser (informant) themselves, even before he has had a chance to inform.[31] Does this mean that we are forbidden to hand over a Jewish undocumented immigrant? Perhaps. On the other hand, Jewish law recognizes a Jew’s obligation to testify before a non-Jewish court if they have knowledge of a crime.[32]

Furthermore, the modern reader should bear in mind that until the eighteenth century, no state had an idea of equality under the law for all citizens. In all Christian and Muslim states, “Jew” was itself a legal category subject to particular disabilities, and the reality was that Jews could not expect equal justice from non-Jewish rulers and courts. That is currently not the case in the U.S.[33] The applicability of mesirah in our case is unclear. Would it mean today that we are only forbidden to hand over to the government Jews whom we are certain will not receive fair treatment by the justice system? What about non-Jews? A few halachic authorities suggest that at least some non-Jews would deserve the same protection from the Jewish community.[34]

2. Mipnei darchei shalom: This phrase refers to actions and behaviors whose goal is to promote harmony in the community. In the Talmud, the sages list examples of such enactments. They begin with rules within the Jewish community, such as consistency of Torah honors in the synagogue and in placement of the eruv around the neighborhood, but continue on to the mitzvot of leaving gleanings for the poor, which are meant for impoverished Jews but might be taken by others: “We do not protest if poor gentiles come to take gleanings, forgotten sheaves and the produce in the corner of the field, which is [meant to be given to the Jewish] poor, so as to foster harmony.”[35] Maimonides emphasizes the benefits of further extending certain obligations of Jewish law to non-Jews living among us:

And our Sages have commanded us to visit their sick and bury their dead along with Jewish dead, and sustain their poor along with the poor of Israel, for the sake of peace (mipnei darchei shalom), since Scripture teaches: God is good to all, and God’s mercies extend upon all his works (Psalms 145:9). And Scripture further teaches: her ways are ways of pleasantness, and all her paths are peace (Proverbs 3:17).[36]

If we treat non-Jews as we do Jews in this way, it could be argued that legal protections accorded to Jews under mesirah also would apply to them. On the other hand, given that we are ourselves a minority, it could also be argued that a synagogue that shelters undocumented immigrants in the face of strong public opposition to such protection is undermining the security and well-being of the Jewish community.

Midat chasidut: This is voluntary and praiseworthy behavior performed by an individual as an act of supererogation that goes beyond even lif’nim mishurat hadin, acting beyond what the letter of the law requires.  Midat chasidut is saintly behavior that stems from thoroughly altruistic motives and that one believes is rooted in a religious (moral and/or halakhic) requirement. In our case, it might mean some kind of civil disobedience based on sincerely held religious beliefs, by providing sanctuary for an undocumented immigrant. If this immigrant is being sought by federal authorities and is in danger of deportation, the individual providing assistance would be choosing to go beyond what has previously been described as legally permitted support and would comprehend the possible consequences.

Lo taamod: We are admonished in the Torah: “Do not stand idly by the blood of your neighbor.”[37] And we have its halachic corollary, pikuach nefesh, the requirement to save human life in situations of acute threat, which outweighs almost all other mitzvot.^[38] An authoritative survey of the halachah of the bystander offers this conclusion: “An innocent bystander is required to go to great personal effort, even to suffer hardships and incur serious financial loss, in order to save the life of his fellow. On the other hand, he is not duty-bound to give his own life or limb to save his fellow.”^[39] This would appear to confirm that we have an obligation to do our utmost, short of our own life and bodily well-being, to assist someone who can prove that they are likely to be killed should they be returned to their home country.

Thus we see that, while dina d’malchuta dina generally applies to the conduct of Jews in the

U.S., its authority may be overridden when other factors enter the equation: the improper and unfair application of a given law; the intent of some poskim to extend the protections provided to Jews to non-Jews as well in certain circumstances; and the overriding command of pikuach nefesh and its applicability in a case in which death is certain for a migrant returned to their home country.

III. Halachic considerations of the civil consequences of assisting individuals in the U.S. illegally

Under the Immigration Reform and Control Act of 1986, some types of assistance do not violate U.S. law. Congregations may provide direct legal assistance to refugee families; raise funds to pay legal costs for asylum applications; and help an undocumented refugee who qualified for temporary resident status complete the paperwork for an asylum application.^[40] However, an individual or organization is violating U.S. law when they provide assistance to undocumented individuals, i.e., those who have not applied for asylum and/or do not have permission to stay in the United States. The 1986 Immigration Act makes it a crime to “willfully conceal, harbor, or shield from detection any undocumented refugee in the United States” or shelter them if aware of their illegal status; and to hire an undocumented individual.[41] Referring to the 1986 law, the UAHC’s 1987 booklet noted that it is illegal to “smuggle undocumented refugees into the United States” or to directly or indirectly encourage them to do so; to “transport undocumented refugees within the U.S.” under most circumstances; to “willfully conceal, harbor, or shield from detection any undocumented refugee in the United States” or shelter them if aware of their illegal status; and to hire an undocumented refugee. It further noted: “Other assistance to illegal persons which may be prosecuted as ‘harboring’ includes help in finding jobs, filling out applications, transportation to work, and apartment rental.”[42]

“Harboring” undocumented immigrants in contravention of the law could lead to the revocation of a congregation’s tax-exempt 501(C)(3) status, since IRS Revenue Ruling 75–384 states that no organization with that status may have an illegal purpose.^[43] While the IRS has generally not targeted houses of worship for non-violent or non-pervasive violations of the rules of tax-exempt status, the risk is always present.

For congregations contemplating participation in the sanctuary movement, the body of case law is instructive and important, particularly in those cases in which sanctuary workers have claimed protections under the Free Exercise Clause of the First Amendment—essentially contending that their actions were constitutionally protected because they were rooted in sincerely held religious beliefs. A 1983 legal opinion by Theodore B. Olson, then Assistant Attorney General for the United States, rejected this contention, concluding:

Courts are unlikely to recognize church sanctuary as legally justified under the Free Exercise Clause of the First Amendment, because disagreement with the government’s treatment of aliens is not a religious belief that is burdened by enforcement of the immigration laws, and the government has a compelling countervailing interest in uniform law enforcement.^[44]

This has, in fact, been the case. “In the sanctuary trials [in American courts], offering sanctuary as religious free expression protected by the First Amendment also has failed to persuade courts which have preferred to uphold an overriding state right to determine and enforce immigration and refugee policies.”^[45] Thus it is clear that a synagogue that chooses to offer sanctuary to undocumented immigrants is violating U.S. law and thereby potentially jeopardizing its institutional financial well-being.

It is possible, of course, that all the members of a congregation could decide unanimously that they are willing to take that risk; but in congregations, where the majority vote governs conduct but unanimity is rare, the determination of the majority to engage in conduct they know to be illegal and potentially devastating financially would impact every member, including those who dissent. The halachah categorically forbids causing another financial harm, and requires the one who caused harm to compensate the loss completely.[46]

Rabbi Chernick concluded his essay “Sanctuary and Halachah” by emphasizing the pre-eminence of dina d’malchuta dina and the conclusion that, while midat chasidut might compel an individual to act for another beyond the strictures of Jewish law, “no one could make this a general rule of Jewish behavior for the entire Jewish community.”[47]

This halachic standard leads us to conclude that, while situations may arise that compel us morally and permit us halachically to act on behalf of a migrants and undocumented immigrants—such as when an immigrant or asylum seeker’s life is at risk, or when federal law is clearly being applied unfairly— most cases will not. Therefore, we generally concur with Rabbi Chernick’s conclusion.

Throughout Jewish history, the mitzvot of protection and care of non-Jews residing among us have inspired and required us to treat the needs and vulnerabilities of others as we would treat fellow Jews. For many American Jews today, this includes finding ways to protect immigrants who are among the most exposed and fearful people in our country, whether they are in this country legally or not. And yet we must not forget that our tradition also compels us to honor and obey the laws of the lands in which we live, for as Rabbi Washofsky noted, we citizens all have agreed (hiskimu, in the language he cites of the Rambam) that we will do so.^[48] And this includes obeying civil laws involving immigration and refugees.

Conclusions

1. Jewish tradition does not in any way apply to the synagogue the notion of “sanctuary” at the Temple altar. Regardless of how courts read the First Amendment, therefore, we have no basis for arguing that using the synagogue to offer sanctuary is a Jewish religious practice.

2. We are bound by the principle of dina d’malchuta dina to obey a law that is applied fairly among all inhabitants of the country, whether we agree with it or not, while recognizing that individuals may well want to act out of midat chasidut to do what they deem ethically right, regardless of what the law says.

3. Individual Jews may not act in a manner that places the entire community at risk, unless every individual potentially affected agrees to the act. A congregation could, therefore, choose to violate the law of the land to shelter or otherwise assist undocumented persons, if it could be shown that every member of the community consented to the risk of potential consequences.

 

CCAR Responsa Committee
Joan S. Friedman, Chair
Audrey Korotkin, primary author

[1] In the 1980s both the Union of American Hebrew Congregations (now the Union for Reform Judaism) and the Central Conference of American Rabbis adopted resolutions articulating support for migrants, particularly those from Central America seeking asylum.  (See https://www.ccarnet.org/ccar-resolutions/central-america-see-also-sanctuary-1985/ and https://urj.org/what-we-believe/resolutions/refugees-and-sanctuary.)  The UAHC (now the URJ) Commission on Social Action also published a guide for congregations wanting to provide “sanctuary” (Commission on Social Action of Reform Judaism, Providing Sanctuary: The Jewish Role. A Practical Guide for Congregations and Individuals [NY: Union of American Hebrew Congregations, 1987]), including policy and program outlines, Jewish perspectives, and legal recommendations.  This guide was not based on halachic concepts and principles and included only limited references to Jewish law.

[2] Theodore B. Olson, “Church Sanctuary for Illegal Aliens,” Memorandum Opinion for the Deputy Attorney General 1983 OLC LEXIS 96; 7 Op. O.L.C. 168 (October 31, 1983), https://www.justice.gov/file/23546/download, accessed July 19, 2022; M.H. Ogilvie, “Sanctuary, Common Law and Common Sense,” Canadian Bar Review, Vol. 83, no. 1, (2004): 242.   The URJ Religious Action Center website notes this concern. (https://www.rac.org/

sites/default/files/Center%20for%20Human%20Rights%20and%20Constitututional%20Law%20Sanctuary%20Toolkit.pdf).

 

[3] Sanctuary: A Discernment Guide for Congregations (Office of Public Witness, Presbyterian Church [USA], 2017), 4. https://www.pcusa.org/site_media/media/uploads/oga/pdf/pc(usa)_opw_sanctuary_

final_6.21_edit.pdf. Accessed March 28, 2022.

[4] For example: You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt (Ex. 22:20); You shall not oppress a stranger, for you know the feelings of a stranger, having yourselves been strangers in the land of Egypt (Ex. 23:9); When a stranger sojourns with you in your land, you shall do him no wrong.  The stranger who sojourns with you shall be to you as the native among you, and you shall love him as yourself, for you were strangers in the land of Egypt (Lev. 19:33).

[5] Rabbi Saul J. Berman, “Immigration: A Perspective from Biblical Narrative and Law,” Gleanings: Reflections on Ruth, ed. Stuart Halpern (Yeshiva University Press, 2019), pp. 176–178.

[6] According to a 2020 Pew Foundation study, in 2015, 45 percent of immigrants in this country were naturalized U.S. citizens. The same study reported that “Mexico is the top origin country of the U.S. immigrant population. In 2018, roughly 11.2 million immigrants living in the U.S. were from there, accounting for 25% of all U.S. immigrants. The next largest origin groups were those from China (6%), India (6%), the Philippines (4%) and El Salvador (3%).”   See https://www.pewresearch.org/fact-tank/2020/08/20/key-findings-about-u-s-immigrants/, accessed July 28, 2021.

[7] Ibid.

[8] We recognize that many immigrant advocates trace today’s challenges back several decades through administrations of both political parties, including those promulgated under President Bill Clinton in the 1990s, President George Bush after the 9/11 attacks, and President Barack Obama, who was derided as the “deporter in chief.” Subsequent administration may make more or less use of policies promulgated by previous administrations. We also recognize that the specific circumstances in which these policies are advanced change rapidly. We deal here most specifically with the circumstances in which the questioner addressed the committee.

[9] “Asylum seekers, a legal term meaning people whose request to find sanctuary in another place has not been processed, come to the United States, often passing through other countries on the way. In September 2019, the Supreme Court upheld a government decision that any asylum seeker who entered the United States after July 16, 2019, would automatically be denied asylum if they had not tried to seek refuge in a country they had traveled through on their way to the border. Although most migrants are from Central America, this rule also impacted Cubans, Indians, Africans, and Venezuelans who may travel through several countries before reaching the U.S.-Mexico border.” https://disasterphilanthropy.org/disaster/southern-border-humanitarian-crisis/, accessed July 28, 2021.

[10]    “Border Patrol agents have made more than 381,000 arrests along the border during the fiscal year that began in October, about 82% of which were single adults. That is more than double the 161,000 arrests during the year-earlier period, roughly 68% of which were adults.

“The number of families and unaccompanied children crossing the border—most surrender to the first border agent they can find—also has soared in the last couple of months. The number of families arrested has more than quadrupled since December, while the figure for unaccompanied children has risen by more than 90%. Border agents have been apprehending at least 500 children a day in March, and border officials expect to have taken at least 16,000 children into custody by the end of the month.” Wall Street Journal, May 12, 2021, https://www.wsj.com/articles/surge-of-migrants-at-u-s-southern-border-bidens-plan-and-what-you-need-to-know-11616788003, accessed July 28, 2021.

[11] “A federal judge in Texas on Friday ruled that Deferred Action for Childhood Arrivals, the Obama-era program shielding certain undocumented immigrants from deportation, is illegal and blocked new applicants. The ruling from Judge Andrew Hanen would bar future applications. It does not immediately cancel current permits for hundreds of thousands of people—though it once again leaves them in devastating legal limbo and is a reminder of the uncertainty they face.”  CNN, July 17, 2021, https://www.cnn.com/2021/07/16/politics/daca-ruling-hanen/index.html, accessed July 28, 2021.

Following the judge’s order, Democrats on Capitol Hill attempted to insert provisions in a sprawling $3.5 trillion budget bill, which they hoped would put DACA recipients on the road to U.S. citizenship; however, the Senate parliamentarian ruled against inclusion. Following this ruling, the Biden Administration proposed federal rules that, according to the New York Times, “would protect some 700,000 undocumented people brought to the United States as children from being deported or losing their work permits, even if Congress does not pass comprehensive immigration reform.” https://www.nytimes.com/2021/09/27/us/politics/daca-biden.html, accessed November 3, 2021.

[12] https://www.history.com/topics/black-history/fugitive-slave-acts#section_4, accessed November 3, 2021.

[13] The concept of “cities of refuge” is introduced in Exodus 21:12-13 and the cities themselves are named in Numbers 35:6–15.

[14] Pamela Begaj, “An Analysis of Historical and Legal Sanctuary and a Cohesive Approach to the Current Movement,” The John Marshall Law Review, Vol. 42, no. 1 (2008): 142, n. 38.  The Greek historian Herodotus (5^th c. BCE) described one such sanctified sanctuary space in Egypt: “Now there was (and still is) on the coast a temple of Heracles; if a servant of any man takes refuge there and is branded with certain sacred marks, delivering himself to the god, he may not be touched. This law continues today the same as it has always been from the first.” Herodotus, Histories, trans. A. D. Godley (Cambridge, MA: Harvard University Press, 1920), 2.113.

[15] Roman law changed accepted practice, “restricting the privilege to only a temporary immunity from prosecution and requiring the sanctuary seeker to present his legal defense before being admitted to the sanctuary.” Steven Pope, “Sanctuary: The Legal Institution in England,” Seattle University Law Review, (Vol. 10, 1987): 680, n. 11. Pope also notes here that the concept of sanctuary was introduced into English civil law by King Ine, ruler of the West Saxons. It was subsequently codified by a number of kings in England through the Anglo-Saxon period (410–1066) and was in use throughout Christendom through the late Middle Ages. In England, the practice finally was reined in by Henry VIII, who as the self-proclaimed head of the Church of England sought to limit the ability of Catholics to seek refuge “from the mandatory Anglicization of their churches” and was abolished altogether by James I. See also M.H. Ogilvie, “Sanctuary, Common Law and Common Sense,” Canadian Bar Review, Vol. 83, no. 1, (2004): 230-244, and “Sanctuary.” In Late Antiquity: A Guide to the Postclassical World, ed. G. W. Bowersock, Peter Robert Lamont Brown, and Oleg Grabar (Cambridge, MA: Harvard University Press, 1999).

[16]Ogilvie, “Sanctuary:” 242.  Ogilvie further notes on page 240 that even the Reverend William Sloane Coffin, Jr., a leader of the draft resister movement of the 1960s, acknowledged in a sermon that there was no legal basis for asserting the status of a church as a sanctuary.

[17] For a quick but generally reliable overview of the origins of the Sanctuary Movement, see the Wikipedia article “Sanctuary Movement” (https://en.wikipedia.org/wiki/Sanctuary_movement), which offers extensive documentation.

[18] https://ballotpedia.org/Refugee Act_of_1980, accessed November 3, 2021.

[19] According to the website of the Hebrew Immigrant Aid Society: “Both Democratic and Republican presidents utilized the Act’s powers to deal with international refugee crises…. [I]n 1981, under President Reagan, the United States admitted 159,252 refugees, and in 1992, President George H. W. Bush’s administration admitted 131,000 refugees.”  https://www.hias.org/blog/40th-anniversary-refugee-act-1980, accessed November 3, 2021.

[20] Begaj, “Analysis:” 142–143, nn.38 and 45.

[21] Karin König, Detained, Denied, Deported: Asylum Seekers in the United States (Helsinki Watch, 1989), 4, https://www.google.com/books/edition/Detained_Denied_Deported/7KUOLGJkQ2wC?hl=en&gbpv=1&dq=detained+denied+deported&printsec=frontcover, accessed November 3, 2021.

[22]  “Refugees and Sanctuary,” UAHC Resolution, 1985, https://urj.org/what-we-believe/resolutions/refugees-and-sanctuary; “Sanctuary,” CCAR Resolution, 1985, https://www.ccarnet.org/ccar-resolutions/sanctuary-1985/, accessed March 30, 2022.

[23] Hebrew Immigrant Aid Society, “On the 40^th Anniversary of the Refugee Act of 1980,” blog post on https://www.hias.org/ by Naomi Steinberg, Vice President for Policy and Advocacy, published March 16, 2020.

[24] “Protecting Individuals at Risk of Deportation from the United States,” CCAR Resolution, 2017, https://www.ccarnet.org/ccar-resolutions/ccar-resolution-protecting-individuals-risk-deport/, accessed March 30, 2022.

[25] As noted previously, the perceived anti-immigration nature of the Trump Administration (2017–2021), including a ban all immigration from Muslim-minority countries; efforts to stem or stop refugees from crossing the southern border with a large-scale wall; ending the so-called “catch and release” policies that allowed migrants to stay in the U.S. while their status was being adjudicated; and significantly limiting access to asylum provide the backdrop to this responsum.

[26] The reference here is to ShA ḤM 388:2, 9–10, which concern highway robbery. The presumption is that the government is targeting this Jew unjustly because he is known to have wealth.

[27] RAC, “Providing Sanctuary,” 38.

[28] Mark Washofsky, “Thinking Halakhically about Immigration and Refugees,” The Stranger: Immigrant, Migrant, Refugee and Jewish Law, ed. Walter Jacob (Pittsburgh: Rodef Shalom Press and Solomon B. Freehof Institute of Progressive Halakhah, 2019), 57.

[29] Ibid., 57.

[30] ShA ḤM 388:9.

[31] MT H. Ḥovel u-Mezik 8:9–10.

[32] See CARR #6, “Informing on Others in Criminal Activities,” https://www.ccarnet.org/ccar-responsa/carr-8-9/, accessed May 5, 2022.

[33] The overturning of Roe v. Wade may lead us to reconsider this statement.  States are enacting laws rooted in Christian religious beliefs that ban or severely restrict abortions, it is quite possible that Jewish women’s lives will be endangered because of state enforcement of Christian beliefs.

[34] In comments to Tur HM 249:2, the Bet Yosef holds that this guarantee does not extend to Christians and Muslims, while the Bayit Hadash holds that it does. Me’irat Einayim to ShA HM 249:2 holds that any gentile who is an observer of the seven Noahide commandments is a ger toshav “entitled to sustenance and life-saving protection as outlined in Maimonides’ additions to Sefer Hamizvot, positive commandment #16.  Most of the Rishonim and Aharonim… however, do not accept that contemporary gerei toshav have a claim to being sustained by the Jewish community.”  Michael Chernick, in Providing Sanctuary: The Jewish Role, 37, n. 8.

[35] B. Gittin 59a.

[36] MT H. Melakhim U-milḥamot 10:12.

[37] Lev. 19:16.

[38] Leviticus 18:5: You shall keep My laws and My rules, by the pursuit of which human beings shall live: I am Adonai. Ezekiel 20:11: I gave them My laws and taught them My rules, by the pursuit of which a person shall live. In the Talmud (BT 85b), Shmuel interprets “live by them” to mean “and not die by them” and his interpretation is accepted as the basis for Jewish law.

[39] Aaron Kirschenbaum, “The Bystander’s Duty to Rescue in Jewish Law,” The Journal of Religious Ethics, Vol. 8, no. 2 (Fall 1980): 204–226.

[40] The Immigration Reform and Control Act (IRCA) of 1986 “introduced civil and criminal penalties to employers who knowingly hired undocumented immigrants or individuals unauthorized to work in the U.S. However, the act also offered legalization, which led to lawful permanent residence (LPR) and prospective naturalization to undocumented migrants, who entered the country prior to 1982.” Library of Congress, https://guides.loc.gov/latinx-civil-rights/irca, accessed November 4, 2021.

[41] Providing Sanctuary, 1987, 82.  See https.rac.org for more information, including links to other immigration-related websites.

[42] Ibid., 82.

[43] Ellen P. Aprill, “Religious Organizations, Refuge for Undocumented Immigrants, and Tax Exemption” (August 29, 2017). Loyola Law School, Los Angeles Legal Studies Research Paper No. 2017-28, available at SSRN: https://ssrn.com/abstract=3028869 or http://dx.doi.org/10.2139/ssrn.3028869.

[44] Olson, “Church Sanctuary for Illegal Aliens.”

[45] Ogilvie, “Sanctuary:” 242.

[46] ShA HM 377:1.

[47] Providing Sanctuary, 36.

[48] Washofsky, “Immigration and Refugees,” 61.

5781.2

Representing Judaism at a Unitarian-Universalist Service

Sh’elah

I have been invited to represent Judaism at a regular Sunday morning service at a Unitarian-Universalist church. They have invited me to do whatever I want, which could be participating  in the service as a co-leader, including Jewish prayers and Hebrew songs, and/or giving some sort of presentation on Judaism. What would be appropriate for me, as a Jew, to do in the context of this Unitarian-Universalist service? (C.C.)

T’shuvah

The questioner inquires about two possible roles for a Jewish visitor to a Unitarian-Universalist church: as a Jewish participant in the regular worship service, or as a teacher of Judaism. Let us consider each of these.

I. Participation in a Unitarian-Universalist service

As Reform Jews, committed to an open-minded and pluralistic approach to other religions, it can sometimes be a challenge to balance our commitment to a distinctive and exclusive covenantal path with cooperative interfaith activity.[1] We must avoid any inauthentic practices, as R. Solomon Freehof explained with reference to interfaith services:

Whatever parts of the respective rituals cannot be in conscience participated in or recited by one of the participants, should not be assigned to him, or else the participant becomes merely an actor reciting words for the sake of a dramatic performance. The joint service, in order to achieve its worthy purpose, must be completely sincere. As rabbis cannot participate in Communion, priests and ministers cannot recite such blessings as speak of Israel’s unique gift of the Torah; and so with other and similar elements of Jewish and Christian services. Only that which can be spoken with clear conscience and full sincerity can serve to make of these occasional joint services a true declaration of spiritual brotherhood.[2]

Paradoxically, however, the openness of Unitarian-Universalism complicates this question. We accord every religious tradition its own integrity, parallel to the integrity of our own, and we do not mix them. But the essence of Unitarian-Universalism is to reject that notion of integrity in favor of a broad acceptance of anything one finds meaningful, regardless of its source. This means that a Jewish visitor who participates in a UU service will be regarded by the congregation as a full participant, i.e., implicitly affirming for themselves the spiritual validity of that service. This is something we cannot do, as this committee has explained:

The Torah says: I am the ETERNAL your God who brought you out of the land of Egypt, the house of bondage; you shall have no other gods besides Me (Ex. 20:2–3). But a Unitarian Universalist is free to choose to worship multiple deities or powers, including the earth, Jesus, Hindu deities, and more; or no deities….[A]ccording to the UU website, UU worship is characterized by the inclusion of spiritual practices (prayers, holidays, and rituals) from all traditions. For a Jew to engage in the worship of any power in addition to God is to engage in shituf, adding other powers alongside the One God, and we are forbidden to do so.[3]

In addition to shituf, we are concerned about the possibility of mar’it ayin, i.e., doing something permitted in a context where it would lead someone to conclude, incorrectly, that something forbidden is actually permitted. There may well be Jews present who are members of the UU church; a visitor representing Judaism should not do anything that would inadvertently lead  them to conclude that their commitment to Unitarian-Universalism is Jewishly acceptable.

For all these reasons, any act that affirms, or appears to affirm, that the Jewish visitor believes and shares in the religious significance of the service is unacceptable.

II. Teaching Judaism to non-Jews

It may strike the modern reader as surprising that the Talmud forbids Jews to teach Torah to non-Jews, and also prohibits non-Jews from studying Torah, with the exception of the seven Noahide laws which apply to them.^[4]

Subsequent authorities disagreed over how to interpret these prohibitions.^[5] Did they apply to the Oral Torah (i.e., the rabbinic tradition) or also to the Written Torah? Or did they mean that a non-Jew is welcome to study the texts, but not to learn the interpretative hermeneutics by which the rabbis analyze Scripture and precedent to develop new law? However widely or narrowly the prohibitions were construed, it is evident that later authorities regarded them as necessary defensive measures. For centuries, rabbinic authorities feared—with good cause—that gentiles who studied Torah were motivated by a desire to do harm to Jews and to Judaism. R. Menahem Ha-Meiri of Provence (1249–1315), for example, explained that the prohibition reflected concern that “a non-Jew who becomes proficient in Torah scholarship may be accepted as a Jew and thus be in a position to subvert the religious practices of Jews.”^[6] The rabbis’ fear that Torah scholarship could be misused emerges clearly in Maimonides’ codification of the prohibitions:

An idolator who studies Torah is guilty of a capital crime. He may only engage in the study of their seven Noahide laws. The same applies to an idolator who observed Shabbat, even on a weekday. If he designated it for himself as a sort of Shabbat, he is guilty of a capital crime. And there is no need to mention that the same is true if he observed a [Torah] festival for himself. The general principle is that we do not allow them to invent a religion (le-chadesh dat) and make up mitzvot for themselves. Either he should become a righteous proselyte and observe all the mitzvot, or he should continue to adhere to his Torah [i.e., the seven Noahide laws], and he should neither add nor detract.

[However,] a Noahide who wants to observe any of the rest of the mitzvot of the Torah in order to receive a reward—we do not prevent them from observing it properly.^[7]

Indeed, our history is all too full of examples of pseudo-scholarly or completely baseless misrepresentations of our tradition.^[8] The modern era, too, is rife with antisemitic attacks on Judaism and Jewish texts. We also face the challenge of groups like the “Messianics,” who assert that their conservative Christian theology is the “true” Judaism that has been suppressed by the rabbis,^[9] and the “Hebrew Israelites,” a Black American group who believe themselves, rather than the “white Jews,” to be the authentic descendants of biblical Israel.^[10]

There is a vast amount of confusion and misinformation out there about us. The best way to combat misinformation is to share accurate information. For that reason, medieval Jews defended themselves in disputations when necessary, and composed their own refutations of anti-Jewish polemics, doing their best to take control of their own narrative and define themselves. And in our own day, unfettered by fear of retaliation for a too-successful defense, surely we have no reason not to do our very best to explain ourselves to our neighbors. Many non-Jews are genuinely interested in learning about Judaism, and teaching them is both to our benefit and to theirs. This is the conclusion of R. Jehiel Jacob Weinberg (1885–1966), who adds, “It is possible that [teaching non-Jews about Torah] has an element of Kiddush Ha-Shem about it, for they will thereby learn to respect and value the laws of our holy Torah.”^[11] We certainly share that sentiment.

We are not concerned that a presentation about Judaism in place of the regular sermon could be construed as participation in the service. Having guest speakers in place of sermons is a widespread practice, and there is no assumption on the part of a congregation of any sort that a guest speaker shares their religious views.

Educating non-Jews about Judaism need not be limited to a lecture. What about sharing words or melodies from our liturgy? Bringing or using ritual objects? We see nothing objectionable in anything that is obviously pedagogical and not incorporated into the church service.

Conclusion

In short, teaching non-Jews about Judaism is a positive, and we encourage it. The fact that the teaching is taking place within a church service is not an issue, as long as it is clear that you are present as a guest speaker (and singer) and not as a co-leader of their worship. We therefore offer these conclusions:

Inappropriate actions:

1. Leading the congregation in a Jewish prayer, i.e., anything from our regular liturgy.
2. Leading the congregation in performing a Jewish ritual.
3. Co-leading the church service, e.g., reading one of their prayers OR reading a Jewish prayer, or a Jewish liturgical song, as an insertion into their regular service. (See one exception to this below, #4.)

Appropriate actions:

1. A lecture or educational presentation of any kind in the regular sermon slot.
2. Bringing a ritual object and describing its use.
3. Saying the b’rachah and performing a ritual if it could appropriately be done at that time, e.g., demonstrating putting on one’s tallit (and t’fillin on a weekday morning).
4. Singing some song from our tradition with suitably universal sentiments as the conclusion of their service. Like guest speakers in sermon slots, concluding songs and benedictions are often used as ways to go outside of one’s own tradition, and would not signal acceptability of participation in UU worship.
5. Preparing in advance, for them to use in their service, adaptations of passages from our liturgy that express suitably universal sentiments (e.g., maariv aravim).

Neither of these lists is necessarily exhaustive; other possibilities could arise. But the preceding discussion should provide sufficient guidance in those cases.

CCAR Responsa Committee:

Rabbi Joan S. Friedman, PhD, Chair

Rabbi Howard L. Apothaker, PhD

Rabbi Carey Brown

Rabbi Lawrence A. Englander, DHL

Rabbi Audrey R. Korotkin, PhD

Rabbi Sari Laufer

Rabbi Amy Scheinerman

Rabbi Brian Stoller

Rabbi Micah Streiffer

Rabbi David Z. Vaisberg

Rabbi Dvora E. Weisberg, PhD

Rabbi Jeremy Weisblatt

Rabbi Gersh Zylberman, MD

[1] On Reform attitudes toward participation in interfaith activities in general, see Mark Washofsky, Jewish Living: A Guide to Contemporary Reform Practice (NY: UAHC, 2000), 274ff.

[2] Modern Reform Responsa #11:“Interfaith Services” (https://www.ccarnet.org/ccar-responsa/mrr-69–78/).

[3] 5780.4: “Conversion of a Committed Unitarian-Universalist,” https://www.ccarnet.org/ccar-responsa/5780-4-conversion-of-a-committed-unitarian-universalist/.

[4]  B. Chagigah 13a; B. Sanhedrin 59a.

[5]  See the thorough survey by J. David Bleich, “Survey of Recent Halakhic Periodical Literature: Teaching Torah to non-Jews,” Tradition: A Journal of Orthodox Jewish Thought, Vol. 18, no. 2 (Summer 1980): 192–211. https://www.jstor.org/stable/23258634. Accessed 5 July 2021.

[6]  Cited in Bleich, 193–194.

[7]  Yad H. Melakhim 10:9–10.

[8]  See, e.g., Bernhard Blumenkranz, “Dominicans,” in Encyclopaedia Judaica, 2nd ed., edited by Michael Berenbaum and Fred Skolnik (Detroit, MI: Macmillan Reference USA, 2007), Vol. 5, col. 745–746, Gale eBooks, accessed 13 July 2021; David Berger, Persecution, Polemic, and Dialogue: Essays in Jewish-Christian Relations (Boston, MA: Academic Studies Press, 2010), accessed 13 July 2021, ProQuest Ebook Central; Elisheva Carlebach and Jacob J. Schacter, eds., New Perspectives on Jewish-Christian Relations (Leiden: Brill, 2011), accessed 13 July 2021, ProQuest Ebook Central.

[9]  See Barry Rubin, You Bring the Bagels, I’ll Bring the Gospel: How to Witness to Your Jewish Neighbor (Messianic Jewish Publishers, 1997). On our attitude toward “Messianics” see Reform Responsa for the 21st Century, Vol. II: 5761.2, “Donations to Synagogue By Messianic Jews” (https://www.ccarnet.org/ccar-responsa /nyp-no-5761-2/).

[10] “Canton Family’s Faith at the Center of McKinley High Football Coach Abuse Allegations,”

https://www.cantonrep.com/story/news/2021/06/06/who-hebrew-israelites-what-tie-canton-mckinley- football/7522773002/. (N.B. I had a Black student tell me on the first day of class this past semester that he was a Hebrew Israelite, and therefore a real Jew, and that I, as a “White Jew,” was not a real Jew. – Rabbi Joan S. Friedman)

[11]  Responsa Seridei Eish II, no. 56.

5781.1

Guidelines for Reopening After the Pandemic

Sh’elah

What guidelines should we follow for returning safely to in-person gatherings in our  congregations? (Lynn Urbach, Congregation Bet Ha’am, Portland, ME)

T’shuvah

We are accustomed to illness, disease, hospitals, and hospices.  We and our loved ones suffer and die from any number of frightening illness. But we have tamed or even eliminated almost all the contagious diseases that were a common feature of human existence until the last two or three generations: smallpox, measles, mumps, polio, diphtheria, cholera, bubonic plague, even flu. The prospect of a new and deadly contagious illness is particularly terrifying to many people—perhaps especially to highly educated, affluent, first world residents who are accustomed to being in control of their lives and of their environments.

Now, however, we must face the reality that COVID-19 is here to stay. It is not going to disappear, any more than the flu or the common cold have disappeared. It is good that we know how to reduce the risk of its transmission—high quality masks, frequent handwashing, and social distancing. It is good that health care workers know much more now than they did a year ago about how to treat COVID-19. And it is amazingly good that vaccines give us the means to reduce, almost to zero, the likelihood of an infected person becoming seriously ill.  In theory, when enough people are vaccinated, we will attain herd immunity, i.e., the virus will find it extremely difficult (though not impossible) to find new hosts and instances of illness will gradually decrease. However, we do not know whether future variants will be more or less deadly, more or less transmissible. The virus has already mutated, producing more contagious variants, and there is no way to be certain that some future, even more deadly variation, even a vaccine-resistant version, will not emerge. So we must accept the reality that we are living in a different world than we were just over a year ago, because this new disease is a reality that will not disappear. We must figure out how to live with it. We must live with it.

Let us recognize what a difficult moment this is. This t’shuvah will necessarily be somewhat provisional, as we acclimate ourselves to the “new normal.” People are emerging from the depths of the pandemic with a wide range of emotional responses to their experiences of the last sixteen months. There are those who simply want to plunge back into life as it was before COVID-19, and those who will never feel safe going back, no matter what.  Scientists and health professionals have learned a tremendous amount about this brand-new disease in an astonishingly short span of time, including how to treat it and how to prevent its spread; yet there is still more to be learned, and there is also the possibility of new variants. The reality is also that some people cannot be safely vaccinated. As of this writing, the COVID-19 vaccines are widely and easily available in the US, but less so in Canada. Federal, state, and local laws regarding masking, social distancing, and vaccine requirements are not uniform. And finally, alas, the politicization of the pandemic has opened the doors to a flood of misinformation and disinformation; congregations trying to establish responsible protocols may have to deal with individual members influenced by this sort of thing.

However, there are some core principles we must articulate, and some guidance that we can offer. In this responsum we address the implications of the new reality of virtual gatherings and the need to balance the public good and the needs and concerns of individuals in reopening. We note that no responsum can possibly speak to the particular dynamics of every individual congregation. All we can do is articulate the guidance our tradition offers, and ask that congregations take it to heart in good faith.

I. Gathering in safety

The vaccine has made it possible for us to move away from the time of acute danger, but we are not yet returning to life as it was before the pandemic. Our tradition offers us some significant guidelines for the “new normal.”

A. Saving life (pikuach nefesh)

While the obligation to save life supersedes all of the mitzvot except the three cardinal transgressions,[1] this should not be understood as some sort of blanket mandate to remain under acute lockdown conditions until absolute safety can be guaranteed for everyone. The Talmud’s classic examples of pikuach nefesh are all acts in response to an acute emergency, such as rescuing a child from drowning, or preparing food on the Sabbath for someone suffering from a potentially fatal illness.[2] Setting ongoing standards for safe public behavior in response to a public health crisis is not, strictly, speaking, pikuach nefesh. For that, we look elsewhere. 

B. The danger to life (sakanat nefashot) and the obligation to preserve one’s well-being (sh’mirat haguf)

The Torah commands that anyone building a house must put a parapet around its roof, lest someone fall and die.[3] From this commandment the halachah derives the principle of acting responsibly—both with respect to one’s own life and to that of others—to avoid sakanat nefashot, danger to life. In the words of Maimonides:

It is a positive commandment to remove any obstacle that could pose a danger to life, and to be very careful regarding these matters, as Scripture states: Take utmost care, and guard your lives carefully (Deut. 4:9). If a person leaves a dangerous obstacle and does not remove it, he negates the observance of a positive commandment, and violates the negative commandment, Do not incur bloodguilt (Deut. 22:8).

Our sages forbade many matters because they involve a threat to life. Whenever a person transgresses these guidelines, saying: “I will risk my life, what does this matter to others?” or “I am not careful about these things,” he should be punished by lashes for rebelliousness.[4]

In other words, we are obligated as Jews to avoid causing danger to others. However, Maimonides also emphasized the individual’s responsibility to make every effort to take care of themselves by following sound medical knowledge.

Since maintaining a healthy and sound body is among the ways of God—for one cannot understand or have any knowledge of the Creator, if he is ill—therefore, he must avoid that which harms the body and accustom himself to that which is healthful and helps the body become stronger….

Whoever conducts himself in the ways which we have drawn up, I will guarantee that he will not become ill throughout his life, until he reaches advanced age and dies. He will not need a physician. His body will remain intact and healthy throughout his life.

One may rely [on this guarantee] unless [his body] was impaired from the birth, he was accustomed to one of the harmful habits from birth, or should there be a plague or a drought in the world.

All of these beneficial habits which we have stated apply only to a healthy man. In contrast, a sick person, or one who has a single organ which is not healthy, or one who has followed a harmful way of life for many years, each of these must choose different patterns of behavior in accordance with his [particular] illness as it is explained in the medical literature.

Any change from the conduct which one normally follows is the beginning of sickness.

Where there is no physician available, neither the healthy nor the sick man should budge from all the directions given in this chapter for each of them ultimately brings to a beneficial result.[5]

A twentieth-century authority sums up the matter as follows:

And similarly one should be careful of all things that could put one in danger…. Therefore it is forbidden to walk in a place of danger, such as underneath a tilting wall, or alone at night in an unsafe place. Similarly they prohibited drinking from rivers at night or putting one’s mouth on a pipe while drinking from it, for all these things are potentially dangerous….They also wrote that one should flee the city during a time of plague, God forbid; and one should leave the city at the start of the plague and not at its end, because by then the plague has already strengthened….All these things are [forbidden] because of danger, and one who guards his life (shomer gufo) will keep far from them. It is forbidden to rely on a miracle or to endanger one’s life this way.[6]

Thus we see that we are obligated to take precautions to avoid obvious dangers to others (sakanat nefashot), but we are simultaneously expected to take responsibility for our own safety, health, and well-being (sh’mirat haguf). These are complementary standards of behavior. The obligation to avoid sakanat nefashot is my obligation to ensure that my behavior does not constitute a danger to others; the obligation of sh’mirat haguf is my obligation to  preserve my own health and well-being. Collectively we are obligated to avoid behaviors that are obvious dangers to ourselves and to others; individually we are responsible for maintaining our health as best we can.

C. The obligation to seek medical assistance and to use proven medicine (r’fuah b’dukah)

Sh’mirat haguf includes the individual’s obligation to seek proven medical care and to follow proven medical advice. The practice of medicine is more than a skill; it is a mitzvah, as the Talmud and codes make clear.

It is a commandment to heal [i.e., a physician is obligated by law to heal the sick]. This is included in the principle of and you shall restore it to him (Deut. 22:2), meaning restoring even his life. If someone sees that someone is perishing, and they are able to save him, then they must do so, whether by physical exertion, by monetary outlay, or by the knowledge that they possess.[7]

The Torah gave permission to the physician to heal. And it is a commandment.[8]

But if the healer is obligated to heal, the individual is also obligated to seek treatment, and to take it. We may even compel someone to accept a treatment, if it is proven to be efficacious.[9]  Indeed, on that basis, this committee decided some years ago that religious schools may require their students to be immunized.[10]

D. Are the COVID-19 vaccines r’fuah b’dukah (proven medicine)?

The vaccines that have been approved for use in the US and Canada are definitely  “proven medicine” from a Jewish perspective. For this answer we rely on the extensive and masterful responsum of the Conservative posek Rabbi David Golinkin, adopted in January 2021 by the Rabbinical Assembly’s Committee on Jewish Law and Standards.[11] Rabbi Golinkin’s comprehensive survey of rabbinic rulings of the last two centuries reveals a clear consensus that the benefit of a vaccine to millions of people mandates its use as a lifesaving medicine, not to be limited or dispensed with because of a tiny number of adverse reactions. With regard to the original smallpox inoculations, for example, Rabbi Golinkin quotes Rabbi Avraham Nanzig, who wrote in 1785 concerning the one-in-one-thousand who died from the smallpox inoculation, “We do not eliminate such a great benefit for the sake of such a tiny minority.”  (Negative reactions to the COVID-19 vaccines are infinitely fewer than one in a thousand.)  Rabbi Golinkin’s comprehensive list includes nearly two dozen rabbinic rulings from the last two centuries about the importance of vaccinations, while noting that the current COVID-19 vaccines are more efficacious and more rigorously tested than virtually all the ones addressed in those rulings.

We note that the fact that the vaccines currently have only emergency authorization is irrelevant from the perspective of Jewish law, which is concerned with the vaccines’ tested efficacy and safety, not with the details of government regulations differing between “emergency” and “regular.” In other words, as Rabbi Golinkin’s responsum makes clear, the vaccines are r’fuah b’dukah, “proven medicine,” as our tradition understands the concept.

E. Special Circumstances

The science of COVID-19 is changing even as we write, making it impossible to address all special circumstances. As we are writing (June 2021), for example, the age limit for vaccine approval is moving downward, but there is no vaccine yet approved for all ages. There are individuals who have been vaccinated, but who have a medical condition or a drug regimen that makes it impossible to know whether their vaccine is effective. There are immunocompromised people who cannot be vaccinated. Congregations and Jewish communal institutions will need to take multiple and conflicting priorities into account.

As vaccination rates increase and case rates decrease nationally and regionally, the relative risk of contracting COVID-19 goes down for everyone, including the unvaccinated and immunocompromised. However, circulating viruses of all kinds, including COVID-19, are realities of life. Humans have never lived in a society in which we could guarantee everyone 100% protection from infectious diseases. The obligation to avoid sakanat nefashot means that a Jewish community must avoid reasonable, foreseeable danger. That is what public health guidelines do, and therefore every community must adhere to public health guidelines as a baseline. Individuals with heightened risk of acquiring and/or having significant morbidity from circulating pathogens should adhere to the obligation of sh’mirat haguf—that is, they should seek and follow appropriate medical advice to safeguard their own health given their individual circumstances. We recognize that congregations and other Jewish institutions do not all have the same resources available to invest in technology; nevertheless, congregations should strive to make reasonable accommodations for at-risk individuals on a case-by-case basis, including providing online options wherever possible. We do not want to turn any Jew away from a synagogue; generosity, consideration, and flexibility will be necessary as congregational leadership thinks these questions through beforehand.

II. The meaning and value of kahal

What is a Jewish community?

Prior to the development of the internet, such a question would have made absolutely no sense. Our sense, as Jews, of being part of a single entity—k’lal Yisrael, “the totality of Israel,” was reflected in the aphorism Kol Yisrael areivim zeh bazeh, “All Israel are responsible for one another.”[12] But as beings grounded in physical reality, those responsibilities always depended primarily on geographical proximity. A Jewish community was all the Jews who lived in some physical proximity to one another. All halachah that governs how a Jewish community should live rests on the presumption that it constitutes the Jews of a particular location, whose proximity makes it possible, pragmatic, and advantageous for them to order their lives as a collective. That communal status entailed certain halachic obligations (e.g., to provide a school) and also facilitated the growth of a huge body of customary law by which Diaspora Jewish communities exercised self-government, to the extent that the ruling authorities allowed them.  When Emancipation stripped the k’hilah of its legal status and authority, the Jewish “community” became a  voluntary association. More precisely, reflecting the fragmentation of Jewish identity in the modern world, the Jewish “community” became a network of overlapping voluntary associations, with social services tending to be organized along geographical lines (local federations) and religious activity organized according to denominational lines (synagogues). The automobile and the consequent decentralization of modern life also spread people out physically. The reality for many of our congregants is that the people they gather with in synagogue are not the people they live and interact with on a daily basis. Thus the sense of a single Jewish “community,” as automatic as one’s town or city is a “community,” is more fluid and more tenuous than it was even a generation or two ago. (Programs such as Synagogue 2000[13] were attempts to address the negative consequences of these developments, i.e., the trend among many Jews to see the synagogue as a consumer capitalist provider of services, rather than as a genuine community, i.e., a group of Jews bound to each other as k’lal Yisrael.)

Of course, technologies always existed to link widely dispersed Jewish communities, and people have generally celebrated as travel and communication technologies improved, making it easier to be in touch with those beyond one’s physical reach. But the internet of the last thirty years—an eyeblink in historical time—is a quantum leap beyond anything we have experienced before, enabling real time communication with others literally anywhere in the world. One result has been the emergence of “virtual communities,” i.e., affinity groups where an individual’s need for emotional connection with others—for validation, or for pursuing shared thoughts, ideas, and feelings—are satisfied through online meetings with people in no physical proximity to one another. Most of us have had our lives profoundly enriched by adding these additional human circles to our lives; the darker side, as we know, is that for some people the internet has become a destructive way to disconnect from the people among whom they live.

As we stand at this inflection point, therefore, thinking about how to re-emerge from the isolation of the pandemic, our first obligation is to do no harm to our bonds of physical community. We celebrate the ways in which the internet enabled our synagogue communities to grow and even, in some ways, to thrive during this past year; but we want to think intentionally and carefully about how to use this new technology to strengthen, and not to weaken, our physical communities. Our guiding principle should always be maalin b’kodesh v’ein moridin, “In matters of holiness we increase, rather than decrease.”[14]

A. The virtual minyan

Over a year ago, we decided that the pandemic constituted a shaat had’chak, an emergency, and on that basis we decided to recognize ten people electronically linked visually and audibly as a minyan for the duration of the emergency.[15] The “emergency,” let us recall, consisted of a dangerous new disease that was easily transmissible from person to person through the air, and against which the only possible protection was avoidance of other people.  Clearly, we have emerged from the shaat had’chak. What now becomes of our recognition of the virtual minyan?

Interactive video and audio links have enriched our lives in countless ways this past year, as existing platforms like Zoom went mainstream. We were already consumers of streaming media, but now we have learned to be live participants, as we worked from home, kept up with family and friends, taught and attended classes, and found a vast virtual universe of cultural enrichment. It is perfectly natural and normal that our spiritual life should also have extended to virtual space. And without a doubt, the virtual minyan became a vital support, as it was the only way we could gather. Without the internet, our congregations could not have held services this year. Without the internet, many of us would not have been able to enrich and deepen our Jewish lives. Many weekday minyanim grew, for example, because attendees did not have to factor in commuting time. Family and friends who would not have been able to travel to attend in person comforted each other at virtual funerals and shivahs. Attendance grew for shiurim and regular study groups. And now that virtual space has become so normalized, we do not want to retreat from its potential as a vehicle for k’dushah.

Thus we realize that we cannot say—nor do we wish to say—that in the aftermath of the emergency, it is no longer appropriate to hold a virtual minyan. As liberal Jews, we are committed to integrating our Torah with the reality of contemporary life, not bifurcating the two. We recognize the possibility of the “slippery slope;” we do not want to facilitate the fragmentation of local communities, especially small communities, by encouraging individuals to, say, log into a service somewhere in place of supporting their local congregation. Most crucially, we are not ignoring or minimizing the difference between gathering in person and “gathering” in cyberspace. The joy we are all experiencing now as we find ourselves in the physical presence of family, friends, colleagues, and students—as we are able to see each other face to face, and to touch—should be a continual reminder that while virtual connection is a valuable supplement for maintaining community, it can never be the only, or even the primary, vehicle for community.

B. The “hybrid” minyan

What about a so-called “hybrid” gathering, i.e., with some people physically present and others linked via internet? Is this different in any meaningful way from a completely virtual minyan? How should we regard these types of gatherings?

This question may arise now as congregations attempt to meet the needs of individuals who cannot be vaccinated but who wish to participate in the service, perhaps to say Kaddish. Years before the pandemic, when this committee decided not to recognize a virtual minyan, we nevertheless affirmed the ability of virtual attendees to recite Kaddish along with the members of the physically present minyan.[16]  As we wrote last year, “We affirm that one who is viewing a livestream should still respond to all the prayers; this is considered the same as having recited them. The same is true for the livestream viewer who recites the words of the Mourners’ Kaddish along with the service leader.”[17]

Our tradition has long emphasized the significance of public prayer, and the difference between a small group of individuals and a congregation.[18] According to halachah, there are elements of the service (d’varim shebik’dushah, “matters that [involve] the holiness [of the divine]”[19]) that can only take place if there is a minyan present. However, as we noted last year:

The CCAR plenum has never taken a stand on whether a minyan is required for public prayer, but its importance has been a given for most Reform rabbis and their congregations. In a 1936 responsum, Jacob Mann advised that “every attempt should be made to have a full minyan,” but allowed congregations to rely on the Palestinian custom of fixing a minyan at six or seven.[20] Many small congregations rely on this responsum. Some congregations of varying sizes disregard the minyan completely. We are not saying now that every Reform congregation must adhere to the requirement of a minyan of ten, but we encourage it, even in small congregations, as a way of bringing the community together.[21]

The collective aspect of prayer is more important than the physical location.

The most acceptable prayer and the greatest mitzvah is to pray in the synagogue with the community (tzibur) … But if it is impossible for him to go to the synagogue, then if he can easily do so, he should gather a minyan in his home, if this is not overly troublesome for him and for the others. But if it is too troublesome, he should pray by himself at home, while making it special by praying at the same time that the congregation is doing so. As for the people who live in small settlements, who do not have a minyan, it is proper that they should pray at the same time as the community is praying in the city….[22]

Obviously, ten people in a room are an in-person minyan; ten people on Zoom are a virtual minyan. But there is some halachic precedent for “hybridity.” Although the old Palestinian practice of a smaller minyan fell by the wayside, and the minyan of ten became the norm, the halachah preserved some flexibility, as evidenced by the references to the practice of counting either a minor or a Torah scroll as the tenth person in a minyan:

Rav Huna said: Nine [individuals] and an Ark [in which there is a Torah scroll] are joined together [to constitute a minyan].[23]

There are those who permit the [elements of the service that require a minyan to be recited] with nine [adults] and one minor joining them, if he is at least six years old and understands to whom they are praying; but the greatest authorities reject this opinion….

Isserles: Even if [the minor] is holding his chumash in his hand, we do not count him.  Nevertheless, there are those who are lenient in times of emergency.[24]

We may assume that the Rema knew precisely what he was doing when he chose to include mention of this practice, recognizing that sometimes an exception is needed. For us, if a minyan is not physically present, but worshippers are listening on livestream, it should be a simple matter to ask one or perhaps two of them to turn on audio and video, so that they are virtually present, at least for the d’varim shebik’dushah, in accordance with our earlier responsum on virtual minyan. The halachic exception is limited to one, for the simple reason that one is clearly an exception.  Allow more than one, and it is no longer an exceptional situation. (Seven people and three Torah scrolls would be weird; three people and seven Torah scrolls would be an absurd joke.)

Nevertheless, we do not encourage this as a regular practice. The technical definition of a minyan is ten Jews who share the same status, i.e., adults obligated to public prayer. A minyan is a gathering of equals—not only in obligation, but in terms of the interactions among them. As many of us learned over this past year while teaching with some students present and some participating remotely, that sort of “hybridity” was the worst of all possible worlds.  Those who were physically present and those who were virtually present were, most assuredly, not equals. The dynamics of the situation—speaking to people in the room and to those on the screen, hearing them, orienting oneself, asking questions, and so forth—were radically different for those whose presence was real and those whose presence was virtual. All-in-person or all-remote “worked” because the relationships and interactions were the same for everyone.  “Hybrid” was the worst of all possible worlds, because it was so obviously not a single entity.

For this reason, we do not believe that allowing an occasional virtual tenth to form a minyan will undermine the congregation’s regular in-person worship. We do not worry that  individuals will choose to stay home and watch the service rather than show up in person. We believe—based on our own experiences this past year—that when in-person services become the norm again, and the service leaders are directing themselves to the community present in the synagogue, those watching on screens will feel more like observers than participants, more like an audience and less like a congregation, and thus will be motivated to join in person.

Conclusions

On the basis of these considerations, we offer these guidelines for reopening our synagogues and our communities:

1. It is a mitzvah to preserve one’s own health and well-being (sh’mirat haguf). The COVID-19 vaccines approved by the CDC (Pfizer, Moderna, and J&J) qualify as r’fuah b’dukah, proven treatment, and it is therefore a mitzvah to get vaccinated unless one has a medical reason that makes it unsafe.

2. It is a mitzvah to adhere to standards of safety that avert obvious dangers (sakanat nefashot) to others or to oneself. Jewish tradition has long presumed that recognized medical experts are reliable. For this reason, all congregations should adhere to whatever public health standards apply to their area. Since, in the US, the CDC is the recognized standard in this area, their guidance is preferable to local (e.g., county-level) standards. The community is not obligated to go beyond the standards set by the public health authorities, but of course, it may choose to do so, using whatever procedures (e.g., synagogue board decisions) it ordinarily uses to set communal policy.

3. Out of concern for sakanat nefashot, a congregation may choose to require that individuals attending in person show proof of vaccination. If the congregation chooses to do this, they should be as generous as possible in accommodating the needs of those who must remain virtual attendees. The congregation is not required to accommodate the needs of individuals who have chosen not to be vaccinated because of some reason other than medical contraindications.

4. We strongly urge our congregations to resume their regular pre-pandemic schedule of in-person services, and to use all-virtual minyanim in ways that enrich and enhance communal prayer and study, not as replacements for face-to-face gatherings.

Joan S. Friedman, Chair

Howard L. Apothaker

Carey Brown

Lawrence A. Englander

Audrey R. Korotkin

Sari Laufer

Rachel S. Mikva

Amy Scheinerman

Brian Stoller

David Z. Vaisberg

Jeremy Weisblatt

Dvora E. Weisberg

Gersh Zylberman

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[1] ShA YD 157:1.

[2] Yoma 84b.

[3] Deut. 22:8. The Torah assumes structures with flat roofs, of course, which served as upper floors.

[4] MT H. Retzach U-Sh’mirat HaGuf 11:4–5.

[5] MT H. De’ot 4:1, 20–22.

[6] Aruch HaShulchan YD 117:12.

[7] Maimonides, Commentary on M. N’darim 4:4.

[8] ShA YD 336:1.

[9] Magen Avraham to ShA OH 328:10.

[10] 5759.10, “Compulsory Immunization.”  Reform Responsa for the 21^st Century, Vol. 2.

[11] CJLS HM 427:8.2021b, “Does halakhah require vaccination against dangerous diseases such as measles, rubella, polio, and Covid-19?” Golinkin vaccination final.pdf (rabbinicalassembly.org), accessed 25 May 2021.

[12] B. Sh’vuot 39a.

[13] See https://www.synagoguestudies.org/about/.  Accessed 2 June 2021.

[14] B. Shabbat 21b.

[15] 5780.2: Virtual Minyan in Time of COVID-19 Emergency.” https://www.ccarnet.org/ccar-responsa/5780-2/.

[16] 5772.1.  We note also the supporting precedent of the Conservative movement’s Committee on Jewish Law and Standards, OḤ 55:15:2001: Wired to the Kadosh Barukh Hu: Minyan via Internet, https://www.rabbinicalassembly.org/sites/default/files/2020-03/ReisnerInternetMinyan.pdf, accessed 15 March 2020.

[17] 5780.2.

[18] See, for example, Avot 3:6; Berakhot 6a-b, 21b; MT H.T’filot u-Virkat Kohanim 8:1.

[19] B’rachot 21b.

[20] American Reform Responsa #3: Less Than a Minyan of Ten at Services.  There is modern historical precedent for fixing a minyan at six or seven in communities that were unable to muster ten. See the reference to Dubrovnik in Shelach Lecha and Counting Nine for a Minyan (sefaria.org).  Accessed 25 May 2021.

[21] 5780.2.  See also 5772.1: A Minyan Via the Internet, https://www.ccarnet.org/ccar-responsa/minyan-via-internet/.  On the history of the minyan in Reform Judaism and its importance, see “The Minyan” in Mark Washofsky, Jewish Living: A Guide to Contemporary Reform Practice (NY: UAHC Press, 2000), 19–22.

[22] Aruch HaShulchan OḤ 90:13.

[23] B’rachot 47b.  See also P. Talmud B’rachot 53b.

[24] ShA OḤ 55:4.

During the unprecedented need to quarantine during the COVID-19 pandemic, the CCAR Respona Committee has responded to questions about technology and creating virtual minyans during this crisis and created this guidance. Additional Reform responsa can be found here, and the CCAR Statement on the COVID-19 pandemic can be found here. (COVID-19 is the name for the disease caused by the novel coronavirus.)

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5780.2: Virtual Minyan in Time of COVID-19 Emergency

Question:

May we rely on technology to create a virtual minyan in a time of crisis when we cannot gather in our synagogues?  If so, what are the criteria for constituting a valid virtual minyan?  How does one recite Kaddish in a virtual minyan?  At what point do we know it is appropriate to discontinue the virtual minyan and return to a physical minyan?  (submitted by numerous CCAR members)

Answer:

Although we have a recent decision[1] that rejects the virtual minyan, we are now in an emergency situation.  In an emergency situation a bet din is responsible for taking action for the welfare of the community, and may issue a temporary ruling (hora’at sha’ah) to prevent the kahal from going astray.[2]  People will certainly “go astray” by turning to all sorts of sources of comfort if we do not ensure that the kehillah kedosha, the holy community, can continue to function.

The minyan and participation “outside” the minyan:  The essence of the minyan is the reciprocity of the social contract – the shared obligation that binds all ten individuals to one another, transforming them from a number of individuals into a community, a virtual bet Yisrael.  The halakha translated that conceptual essence into a physical one by mapping it onto a space, requiring the members of a minyan to be in one room together.[3]  The majority view in the halakha is that the individuals who constitute the minyan must be in one room, though some authorities hold that it is sufficient for them to be able to see each other, thus including, e.g., the individual who is visible through the window of the synagogue.

Now, however, we are in a situation where people may not gather in one room.  Therefore, for the duration of this emergency, we permit the convening of a minyan by means of interactive technology, i.e., technology that enables all members of the minyan to see and hear each other.  Two widely used examples of this type of technology are Zoom (available as a smartphone app) and Microsoft Teams.  In essence, therefore, we are requiring the use of Zoom or Teams – or any app with the same capabilities that may appear on the market now – to constitute a virtual minyan.  (As always, and especially in this time of economic distress, we presume our congregations and all of our people will adhere to all intellectual property and copyright laws as they obtain software.)

            As long as there are ten people connected in an interactive manner, any number of additional people may also be “present” passively, via live streaming.  In accordance with the precedent of 5772.1,[4] we do not count these individuals in the minyan.  In our current context, the obstacle to counting the livestream viewer in the minyan is that s/he cannot be seen or heard, and therefore cannot be an equal participant in the minyan’s underlying social contract.  Additionally, there is no way for the service leader to know how many people, if any, are watching a live stream, and therefore no way of knowing whether a minyan is “present” in the absence of ten interconnected members.

We affirm that one who is viewing a livestream should still respond to all the prayers; this is considered the same as having recited them.[5]  The same is true for the livestream viewer who recites the words of the Mourners’ Kaddish along with the service leader.[6]

The CCAR plenum has never taken a stand on whether a minyan is required for public prayer, but its importance has been a given for most Reform rabbis and their congregations.  In a 1936 responsum, Jacob Mann advised that “every attempt should be made to have a full minyan,” but allowed congregations to rely on the Palestinian custom of fixing a minyan at six or seven.”[7] Many small congregations rely on this responsum.  Some congregations of varying sizes disregard the minyan completely.  We are not saying now that every Reform congregation must adhere to the requirement of a minyan of ten, but we encourage it, even in small congregations, as a way of bringing the community together.[8]

Torah reading:  All parts of the service can be conducted in a virtual minyan with the obvious exception of actually reading from the Torah scroll.  As a further hora’at sha’ah, it is sufficient to read from a printed text without any aliyot.  However, this is still a fulfillment of the mitzvah of Torah study and requires a b’rakhah(although all authorities agree that if one has earlier said la’asok be-divrei Torah, this requirement is merely for the honor of the community[9]).  Under these present circumstances, we suggest reverting to the practice set forth in the Mishnah:[10] The first reader recites the blessing before the reading, and the last reader recites the blessing after the reading.  An alternative practice, for those who do not want to use the Torah blessings for anything other than reading from the scroll, is to recite la’asok b’divrei Torah before reading from the printed text.  Either way, we also strongly encourage including serious Torah study in addition to the reading.

The duration of these temporary procedures:  Finally, at some point in the future, we know that this health crisis will end.  When the authorities stop restricting attendance at public functions, this hora’at sha’ah should be set aside.  People should return to the synagogue and the practice of interactive virtual minyanim should cease. We realize that some people may be fearful, but we rely on experts in these matters. “As rabbis, we are not competent to render judgments in scientific controversies.  Still, we do not hesitate to adopt ‘the overwhelming view’ as our standard of guidance in this and all other issues where science is the determining factor.”[11]  Nevertheless, individuals in the most vulnerable populations (especially the elderly with pre-existing medical conditions) may benefit from live streaming.  In these circumstances, the precedent of our earlier responsum, 5772.1, offers sufficient guidance.

Joan S. Friedman, CCAR Responsa Chair
Howard L. Apothaker
Daniel Bogard
Carey Brown
Lawrence A. Englander
Lisa Grushcow
Audrey R. Korotkin
Rachel S. Mikva
Amy Scheinerman
Brian Stoller
David Z. Vaisberg
Jeremy Weisblatt
Dvora E. Weisberg

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[1] 5772.1 A Minyan Via the Internet, https://www.ccarnet.org/ccar-responsa/minyan-via-internet, accessed 15 March 2020.
[2] Yad H. Mamrim 2:4.
[3] Pesaḥim. 85b; Yad H. Tefillah 8:7; Shulḥan Arukh OḤ 55:13.
[4] We note also the supporting precedent of the Conservative movement’s Committee on Jewish Law and Standards, OḤ 55:15:2001: Wired to the Kadosh Barukh Hu: Minyan via Internet, https://www.rabbinicalas sembly.org/sites/default/files/2020-03/ReisnerInternetMinyan.pdf, accessed 15 March 2020.
[5] Shulḥan Arukh OḤ 55:20.
[6] CJLS OḤ 55:15:2001.
[7] American Reform Responsa #3: Less Than a Minyan of Ten at Services.
[8] On the history of the minyan in Reform Judaism and its importance, see “The Minyan” in Mark Washofsky, Jewish Living: A Guide to Contemporary Reform Practice (NY: UAHC Press, 2000), 19-22.
[9] Magen Avraham 139:15.
[10] Megillah 4:1.
[11] Reform Responsa for the Twenty-First Century, vol. 2,5759.10: Compulsory Immunization.

5780.1

COLLECTING FOR TZEDAKAH IN THE SYNAGOGUE ON SHABBAT

Question

The question has arisen in our congregation as to whether it is permissible to collect money for tzedakah on Shabbat. I am aware of a few congregations who do announce the tzedakah cause for the week and have ushers accept donations on the way out of services, without pressure of course.  I am well aware of the prohibition of carrying money and engaging in commercial activities on Shabbat in the halacha. But, as Reform Jews, we pay little heed to most of these rules. Also, we have no reservations about other traditional prohibitions, e.g. driving on Shabbat, turning on electric lights, cooking food, etc.  Most Reform Jews carry money in their wallets and purses on Shabbat without the sense that they are violating the Shabbat. No doubt, many also engage in other activities that are not traditionally permissible. These activities, I realize, are considered violations of Shabbat, whether the practices are widespread or not. However, it seems to me that tzedakah may fall into a different category for us. After all, the individual who gives tzedakah is not benefitting in any material way. Given Reform Judaism’s deeply held convictions about the importance of tzedakah, could this mitzvah override the traditional prohibition in the view of our movement?

— Rabbi Michael Sternfield, Bradenton, FL

 

Answer

The sho’el makes two central assertions:

1. That carrying and using money is in the category of traditional Shabbat prohibitions in which Reform Jews find no religious meaning, i.e., it does not feel like a violation of Shabbat; and
2. That tzedakah is such an important mitzvah for Reform Judaism that there is no reason why we should not engage in it on Shabbat, by collecting money for tzedakah at Shabbat services.

Let us first point out that, for reasons that are all too well known to us, many of our Jews don’t “feel” like any elements of Shabbat are relevant to their lives.  As a criterion for deciding how synagogues should set policy, that is probably the least useful one we could possibly use, as our predecessors have pointed out many times, with respect to a wide variety of questions regarding Shabbat.  If we were to determine Shabbat observance based on “what most people do,” we would end up with an extremely truncated Shabbat.  The CCAR has been struggling with this issue, in one way or another, since 1903, when it briefly debated the question of moving the Sabbath to Sunday.  In the late 1960s our conference finally turned seriously to the matter, and the result has been a series of publications that have helped Reform Jews re-engage with Shabbat.  We would like to underscore that every one of those publications emphasizes that Shabbat is not a day for monetary transactions.  In raising this question yet again, the sho’el appears to be questioning what has been the sense of the CCAR for several decades.

Nevertheless, since the question has been raised, we address it once again.  A full survey of the halakhah of Shabbat is not needed; rather, we focus here on aspects of Shabbat observance related to money and its use.

 

1. The classical halakhah

1. Money and Shabbat in the halakhic tradition

For anyone seeking to understand how the rabbis conceptualized Shabbat, the Mishnah is a frustrating document, as this foundational rabbinic text sets forth patterns of behavior but rarely articulates the principles behind them.  Clearly, the Tannaim already assumed a great deal about patterns of Shabbat observance, as R. Isaac Klein explains:

[M]ost of the hedges and protective enactments concerning prohibited Sabbath work were not newly instituted creations in the talmudic period but had been part of the pattern of observance among the people from early times.  Since there was no clear definition of what constituted biblically prohibited work, it was only natural to refrain from all manner of work carried on during the week.  It was only later that the sages of the Halakhah gave a clear definition of work, establishing the framework of thirty-nine categories of biblically prohibited work…. Thus the regulations of shevut [“resting”] were systematic expressions of earlier practices developed by the people as a means of sanctifying the Sabbath.^[1]

While the relationship between early rabbinic practice and popular practice is complex, nevertheless, M. Shabbat shows that the rabbis assumed that Shabbat observance required a separation from virtually all activities associated with weekday “work.”  In addition to the few actions the Torah and prophets explicitly prohibit on Shabbat,^[2] the rabbis held that the Torah prohibited the thirty-nine melakhot, the categories of activity necessary for building the Tabernacle in the desert).^[3]

The rabbis also derived a category of activities called sh’vut (“rest”), from a Torah verse.^[4]  Sh’vut is an act not forbidden in and of itself, but rather because in doing it one might easily be led to do one of the prohibited melakhot.  Because of sh’vut, the Mishnah forbade a number of actions, including convening a bet din or formalizing kiddushin, ḥalitzah, or yibbum, since any of these would entail writing, a melakhah.^[5]  Thus sh’vut limited legal proceedings and sophisticated financial transactions to weekdays, strengthening the identity of Shabbat as a day separate from business affairs.

Several provisions in chapter 23 of M. Shabbat make sense only if one already understands that commerce – any sort of buying and selling – is forbidden on Shabbat.  The Talmud expanded on the implicit premises on which these mishnayotrest, and thereby recast the distinction between Shabbat and weekdays as one defined primarily by the presence or absence of business and commerce.

* 23:1 states that one may ask a neighbor, “May I borrow…?” jars of wine or oil on Shabbat, but one may not phrase it as, “Will you lend me…?”  The Mishnah further stipulates that if the two do not trust one another, the borrower may leave his cloak as a guarantee until they do the necessary calculations after Shabbat.  The Gemara explains that using the term lend makes it sound more businesslike, and could lead the lender to violate Shabbat by writing down a record of the transaction.^[6]

* 23:2 forbids referring to the written notes one made during the week to calculate servings for guests at a Shabbat meal.  The Gemara offers two explanations for this — avoiding the chance that one might erase something (a violation of one of the thirty-nine melakhot), and avoiding becoming accustomed to reading business documents on Shabbat.^[7]

* 23:3, 4, and 5 draw distinctions among the various types of activities for which one may walk out to the Shabbat boundary to await nightfall, i.e., to do everything possible on Shabbat to get a jump on weekday activities.  Matters of religious obligation – preparations for a marriage or a burial – justify using Shabbat time to get a head start on non-Shabbat activities; business matters – e.g., being as close as possible to where the workers live, in order to hire them first – do not.^[8]

In explicating the reasoning behind these laws and amplifying them, B. Shabbat 113a-b is the locus classicus, where the Gemara expands on Isaiah 58:13^[9] to articulate a full and rich concept of Shabbat as a day completely incompatible with commercial activity.

 

The Gemara says about this verse:

And if you honor it and go not your ways – And if you honor it [means] that your dress on Shabbat should not be like your dress on weekdays.  Thus R. Yoḥanan referred to his clothing as “my honor.”  And go not your ways – The way you walk on Shabbat should not be like the way you walk on weekdays.  Nor look to your affairs – Your affairs are forbidden; the affairs of Heaven are permitted.  Nor strike bargains (literally, speak words) – Your speech on Shabbat should not be like your speech on weekdays.  Speech is forbidden[, but] thought is permitted.

Rashi comments here:

The affairs of Heaven are permitted:  such as allocating tzedakah and making matches between young people for betrothal.

Your speech on Shabbat should not be like your speech on weekdays: such as buying and selling and accounts.

Thought is permitted:  to think to oneself, I will need to spend this much for this field.

The major codifiers developed these ideas more systematically.

1. Mishneh Torah Hilkhot Shabbat

24:1:  There are things which are forbidden on Shabbat [because of the verse in Isaiah] even though they do not resemble melakhah and do not lead to melakhah.  Therefore it is forbidden for a person to go about their affairs on Shabbat, or even to speak about them…  Speech is forbidden; thought is permitted.

24:5:  It is permitted to run on Shabbat for the purpose of doing a mitzvah, such as running to the synagogue or to the study hall.  And [it is permitted] to make calculations on Shabbat for a mitzvah, and to take measurements, such as: measuring the mikveh to calculate whether there is sufficient water in it; or measuring a garment to know whether it is liable to ritual impurity; or allocating funds to the poor; or going to the synagogue or the study hall, or even to the theaters and reception halls of gentiles, on Shabbat, to oversee the needs of the public… And all of these, and similar matters, are [permitted because they are] matters of mitzvah, and it is written, pursuing your affairs – Your affairs are forbidden; the affairs of Heaven are permitted.

2. Shulḥan Arukh Oraḥ Ḥayyim

306:1:  From pursuing your affairs – Your affairs are forbidden, even in a matter that does not involve any melakhah….

306:6:  It is permitted to talk about the affairs of Heaven, such as calculations for a mitzvah, allocations of tzedakah, overseeing public matters, matchmaking…

[Isserles:] Some say that in a place where it is the custom to give a mi she-beirakh for the Torah reader and to pledge [money] for tzedakah or for the ḥazzan, it is forbidden to say on Shabbat how much one is pledging.  But the custom is to be lenient, since it is permitted, after all, to allocate tzedakah funds [on Shabbat].

3. Arukh Ha-Shulḥan Oraḥ Ḥayyim

306:1:  It is written, If you refrain from trampling…My holy day, etc.  This means that it is forbidden to do any business or commerce on Shabbat, even if it does not involve any melakhah.  This is what is meant by your affairs, meaning weekday affairs.  And we are warned against both doing them and speaking about them…. Our sages expounded this to mean that speech is prohibited, but thought is permitted, i.e., that one may think to oneself about their business affairs.  Nevertheless, for the sake of Shabbat delight [oneg Shabbat] it is a mitzvah not to think about them at all, and to make it seem as though all their business affairs are concluded.  But our sages allowed thought only when it does not cause anxiety and worry, as when all their business affairs are going well and successfully, without [causing] distraction of spirit.  But if thinking about business affairs causes one anxiety and worry, it is forbidden, for there is no greater negation of Shabbat delight than this….

306:13:  It is permitted to speak of the affairs of Heaven, such as calculations related to a mitzvah: for example, a calculation of tzedakah, or a calculation of what is needed for a se’udat mitzvah, and also to allocate tzedakah.  [None of these resemble in any way the practice of estimating or calculating the value of an object that is to be given to the Temple, acts categorized as sh’vut by the Mishnah,] for these are all mere speech, no different than an oath, which is permitted on Shabbat for purposes of a mitzvah.  And it is possible that even if one brings some object to the treasurer in charge of tzedakah on Shabbat [as a donation], this would also be permitted, since the bringer obviously already volunteered it before Shabbat.  Nevertheless, it is preferable that one not bring it to the treasurer on Shabbat.

The distinction between weekdays as the time for business, and Shabbat as the time not for business, was further strengthened as a by-product of the concept of muktzeh (“set aside, excluded”).  Muktzeh in the context of Shabbat refers to the use, or even the handling or moving, of an object on Shabbat that cannot be used – or was not intended for use – during Shabbat.  Some items are deemed muktzeh because, while they themselves don’t transgress Shabbat prohibitions, they might have been inaccessible when Shabbat started, and accessing them would be a Shabbat violation.  An example of this type is  fruit still on the tree, which cannot be picked on Shabbat.^[10]  Other items, however, are muktzeh because they are, in and of themselves, prohibited for us on Shabbat; their use would be a direct transgression of the laws of Shabbat.  This category is called muktzeh meḥamat issur, “excluded by virtue of a prohibition,” and it includes money.  M. Shabbat offers guidance for a variety of situations in which residents of a household might need to move objects that are not supposed to be handled on Shabbat; in two of those instances, the presence of coins is a complicating factor.^[11]  Again, the absence of an explicit statement shows that the Tannaim had no need to explain or defend the categorization of money as muktzeh.

The Talmud and codes address muktzeh in greater detail.  One example will suffice for our purposes.  In the Shulḥan Arukh R. Yosef Karo states, “A bed which has money on it, or even if it does not have now but it had on it at dusk [the time period between sunset and nightfall as Shabbat commences], is forbidden to move because something that was muktzeh during the time right before Shabbat started is muktzeh for the whole of Shabbat.”  R. Moshe Isserles adds that on Shabbat one may not even carry a purse that is usually used for coins, even though there are no coins in it on Shabbat,^[12] though the Arukh Ha-Shulḥan is much more lenient about this:  “…[A] coin purse, if it has no coins in it, and did not have coins in it at dusk, is permitted for carrying [on Shabbat]….And all the more so, the purses that are hung from one’s clothing, if they do not have coins in them and did not at dusk; these are completely permitted.”^[13]  We see that there is such universal agreement that money is, in its very essence, so utterly the opposite of Shabbat that it is questionable whether one may use, on Shabbat, some container that held money during the week.

It is worth noting at this point that the Mishnah was collected and redacted in second-century Galilee, where Jewish society was mostly village-based and agrarian.  Over the centuries, Diaspora Jews became increasingly urbanized and, whether by choice or under compulsion, pursued trades and occupations that were increasingly money-based.  Refraining from the use of money (whether coins or financial instruments), therefore, would have carried increasing symbolic importance in marking the difference between weekdays and Shabbat.

2. Tzedakah as money

To care for the poor, the Torah mandates both an agriculturally-based social safety net (leaving the corners of the field, etc.^[14]) and monetary support^[15].  As with the laws of Shabbat, the postbiblical social safety net grew organically, in response to need, so that the early rabbis never needed to address it systematically, but only to regulate its activities.^[16]  Thus, the Mishnah and Tosefta refer extensively to the gabba’ey tzedakah, the communal officials in charge of funds for the maintenance of the poor, and how they are to conduct their business.^[17]  Two parallel passages in M. Pe’ah illustrate how the rabbis applied both types of tzedakah.  Note that in the first mishnah, the social reality is that even one who is given agricultural produce will not actually consume it, but will sell it to purchase food for consumption.

8:5: They are not allowed to give the poor person who comes to the threshing floor [to receive his ma’aser sheni] less than half a kav of wheat and a kav of barley (R. Meir says: half a kav [of barley]) or one and a half kavs of spelt and a kav of dried figs or a maneh of dried fig cake (R. Akiba says: half a maneh) or a quarter-log of oil (R. Akiba says: an eighth).  Regarding any other type of produce, Abba Saul says: [They must give him enough of it] so that he can sell it and have enough to purchase two meals.

8:7 They are not allowed to give the poor person who wanders from place to place less than one loaf worth a pondion, made from [wheat costing] a sela for four se’ahs.  If he spends the night, they must give him what he needs to support him for the night.  If he stays through a Sabbath – they must provide him food for the three meals.  Anyone who has food enough for two meals may not draw from the public charity kitchen; anyone who has enough food for four meals, may not draw from the poor fund.  And the poor fund is to be collected by two [officials working as a pair, to prevent any fraud] and allocated by three [officials, since this is akin to a court handling lawsuits about money, which must be decided by a court of three].

Let us return now to a line in the Gemara passage we cited above (B. Shabbat 113a-b):  “Nor look to your affairs – Your affairs are forbidden; the affairs of Heaven are permitted.”  What would lead the Gemara, in the absence of a single hint in Isaiah 58:13, to read “your affairs” as “your affairs,” and thereby deduce that discussion of communal affairs is permitted on Shabbat?  It sounds suspiciously like a way to justify an existing social practice rather than to innovate one.^[18]  But this should not be surprising.  Virtually every Jewish community had an organized social welfare system.  Before the modern era, face-to-face meetings were the only possible way for a community to conduct its business.  Since the largest communal gatherings were always on major festivals, it was probably inevitable that communal officials would use those opportunities to discuss community affairs.  Thus we see that just as the Mishnah wrestled with the social reality of money and monetary concerns in individuals’ lives, so now the Gemara did the same for the community’s life.  At both junctures, concessions were made, but the prohibition of actually handling or spending money was retained.

We may summarize the halakhic consensus with the following table:

ON SHABBAT:	THINK ABOUT HOW TO USE MONEY	DISCUSS HOW TO USE MONEY	ACTUALLY USE MONEY
PERSONAL AFFAIRS (BUSINESS)	YES	NO	NO
COMMUNAL AFFAIRS (MITZVAH)	YES	YES	NO

 

We discern here an ongoing principle of maintaining the absolute sanctity of Shabbat as a day removed from commercial activity, i.e., monetary transactions, while recognizing and allowing for the practicalities of individual and communal need.

 

2. Reform Precedents

1. Responsa

1. 1. In the 1950s R. Solomon Freehof was asked whether the synagogue gift shop could do business on Friday night. The questioner asserted that in addition to the convenience of being the time when the most people were in the building, it served a “religious purpose,” since its function was to enable the people to buy ritual objects and other Judaica.Freehof’s negative response relied on two fundamental assertions:
      1. While Reform is not bound by halakhah, and “certain Sabbath prohibitions have simply ceased to be actual among us,” nevertheless we should try to preserve whatever we can “as a natural mood of the people.”^[19]
      2. The synagogue should set a higher standard of observance than its individual members may uphold, because “we want the temple to be an example and an influence in certain special directions.”

He went on to point out that while the halakhah distinguishes between private benefit and public good when it comes to discussions of money on Shabbat, the gift shop, though it serves a public good, is engaged in actual commerce, which is never permitted under any circumstances.  “What, then, is the good of permitting the opening of the Gift Corner if the transactions are violative of the mood of the Sabbath, especially in the synagogue?”

Mindful, however, of the absence (at that time) of any CCAR guidance on Shabbat observance, Freehof noted that the actual decision was a “matter of judgment, depending on the mood of the particular congregations involved.”  His recommendation, however, was to bring the gift shop more or less into line with the halakhic distinction between public and private benefit, by opening it for people to browse, and to arrange, somehow, for the actual financial transaction to take place at a time other than Shabbat.  This, he felt, would resolve the issue and also have the desirable effect of “strengthen[ing] the consciousness of the Sabbath in the lives of our people.”

2. By 1985, when the Responsa Committee was asked about the propriety of a synagogue raising funds for itself and for United Way by participating in a holiday gift wrapping project at a shopping mall on Shabbat, the CCAR had published Gates of Mitzvah. R. Walter Jacob, writing for the committee, cited it in asserting that Reform Judaism has “continually emphasized the general mood of shabbat [as]…a day of rest, worship, study and family activity,” and that “it is the task of the congregation to encourage its members to live in the spirit of shabbat without involvement in any business activity.” The project, located in a shopping mall and involving actual monetary transactions, was essentially a commercial activity in which Jews should not be engaged on Shabbat, regardless of its purpose.^[20]
3. In 1996 the Responsa Committee was asked about presenting a check for tzedakah at a Shabbat service. The congregation had raised funds for an organization and wanted to celebrate the occasion by delivering the actual check to its representative on a Friday night. R. Mark Washofsky traced the halakhah we have reviewed above, and then went on to pose  virtually the same question as our current sho’el poses:  whether this halakhic prohibition of using money on Shabbat must apply in a Reform context, or whether the high emphasis we place on tzedakah and tikkun olam justifies disregarding the halakhic prohibition.^[21]

In deciding that the departure from halakhah was not justified in this case, R. Washofsky articulated the following principle:  “As liberal Jews who seek to affirm our connection to our people in all lands and all ages, we should maintain the traditional practice in the absence of a compelling reason to abandon or alter it.”  Was there a “compelling reason” to give tzedakah in monetary form on Shabbat?  The committee concluded that there was not, for the following reasons:

1. It would compromise the essence of Shabbat, not enhance it.Shabbat has a particular character; it is not “simply a day on which we do good deeds.”
2. It would undermine the great efforts our movement has made in recent decades to rekindle Shabbat awareness and observance among its members.
3. This is a financial transaction even though it is not “commercial” in the conventional sense, and there is no absolute need to conduct this financial transaction on Shabbat.The congregation could still celebrate its achievement by hosting a representative of the organization and announcing the gift.

 

2. Existing CCAR guidance

1. From Gates of Shabbat:

It is customary to make charitable donations just before Shabbat arrives.  This can be done at your table with everyone putting in some change in a suitable collection box (pushke).^[22]

2. From Mishkan Moeid:

The Mitzvah of Tzedakah:  It is always a mitzvah to give tzedakah.  Following the example of Talmudic sages, the tradition has recognized the final moments before Shabbat as one of the regular opportunities to perform the mitzvah.  Placing money in a tzedakah box just prior to lighting the Shabbat candles is an excellent way to observe this mitzvah and to teach it to children.  Tzedakah is often translated as “charity,” but the Jewish concept of tzedakah is much broader.  The word is derived from tzedek – “righteousness” or “justice” – and the implication is that righteousness and justice require the sharing of one’s substance with others because ultimately, “the earth is Adonai’s” (Psalm 24:1), and we are but stewards of whatever we possess.^[23]

 

III. The question before us

As we have seen, not using money – even for the most worthy of purposes – was a distinguishing feature of Shabbat observance, whose symbolic significance only grew over time.  Our evolving Shabbat observance, in a Reform context, has digressed from that consensus by recognizing a limited number of ways in which using money may enhance an individual’s Shabbat, by deepening their experience of it as a day of spiritual renewal, e.g., paying admission to a museum.  But in that case, the use of money is an incidental means to a central purpose of Shabbat.  It is not intended to grant unrestricted approval for spending money on Shabbat.  Indeed, our Reform precedents are unanimous in insisting that giving tzedakah is a financial transaction that should not be done on Shabbat, however praiseworthy it is to link it to Shabbat.  (By way of analogy, we might consider the Conservative movement’s decision to allow driving to synagogue.  That takkanah was made to enable Jews to attend public worship on Shabbat when 1950s suburbanization meant that synagogues were increasingly not within walking distance.  It did not give Conservative Jews blanket permission to grab keys and a full tank of gas to go out and “see the USA in their Chevrolet” on Shabbat.)

It is one thing to allow an individual to make a personal decision to use money as an incidental means to enhance their Shabbat renewal.  It is quite another to declare that the mitzvah of giving tzedakah – a commercial transaction – is so important that we may, or that we should, make it a regular, i.e., essential, part of our Shabbat observance.  We would be making a  fundamental alteration in the character of Shabbat.  If we are to do that, there must be a compelling reason to do so, a matter of overriding necessity.  We do not see any such  compelling reason or overriding necessity in the question before us.

As we have seen, our tradition has long accepted that it is perfectly acceptable to discuss communal affairs, including deciding tzedakah allocations (but not actually disbursing the funds), on Shabbat, and making pledges to give tzedakah.  Nothing is stopping the congregation from including a formal tzedakah appeal in the Shabbat service.  But why is it so crucial for the actual funds to be collected then?  And how are they to be collected?  Are the ushers passing a plate for cash, as in churches?  Handing out pens for people to write checks?  Carrying around credit card readers?  Encouraging congregants to take out their smart phones and make a donation via PayPal?  How can this be done as part of a Friday night (or Saturday morning) synagogue service without fundamentally altering the character of Shabbat in a way that destroys its sanctity?

We especially do not see a compelling reason, given that a congregation can still take advantage of the larger Shabbat attendance – as did our ancestors – without actually collecting money on Shabbat.  We therefore recommend the following solution to the matter.

Our congregations tend to hold services at the same hour on Friday nights throughout the year, regardless of when the sun actually sets.  For many Reform Jews, the start of the service is for all intents and purposes the start of Shabbat, when they feel that the Sabbath has come upon us ritually, emotionally, and intellectually.  Given that established practice, we suggest that you collect tzedakah before candle lighting and the beginning of worship.  In this way, carrying out the mitzvah of giving tzedakah immediately before entering into Shabbat heightens people’s awareness of the transition from ḥol to kodesh, and the difference between the two.  We note the existing custom of putting coins in a pushke (tzedakah box) before lighting the Shabbat candles, which is mentioned in our Reform guides; just as we have brought candle lighting into the synagogue, why not bring the pre-Shabbat tzedakah contribution as well?

(One of our committee members offers an additional pragmatic solution:  Add PayPal and other donation links to the synagogue webpage, and in the weekly Shabbat brochure, remind the kahal to donate to whatever tzedakah you choose for that week’s support.)

We believe very strongly that the synagogue, as the central public institution of Jewish life,  embodies our covenant community, and therefore it must be the exemplar of Jewish life.  The standards we set for it may well differ from what we countenance on an individual level.  This is particularly true in a Reform context  precisely because we allow a great deal of latitude to individuals to determine their own Shabbat observance.  In essence, therefore, it falls upon the synagogue to provide an appropriate model.  As a movement we have made great strides since the 1960s in teaching our people how to observe Shabbat; bringing financial transactions into the synagogue on Shabbat would constitute an enormous step backward.

However, even if you do make a formal tzedakah collection your last weekday act before beginning Shabbat, we have additional reservations if it is done as a public activity.  Collecting money when the congregation is assembled for the service can make people uncomfortable for any one of several reasons: perhaps they did not bring money with them; perhaps they do not use money on Shabbat; or perhaps the appeal is for a cause they prefer not to support.  It can be very uncomfortable to refrain from giving in the presence of others.  It can also be awkward for guests and non-members:  We do not want people to feel that we are soliciting them when they enter the community to explore Judaism, check out our congregation, or attend a friend or family member’s simchah.  We therefore advise you to think carefully about how to do this, so that no one is embarrassed.^[24]

In addition, though we have not based our response on this consideration, we cannot discount the issue of ḥukkot ha-goy (imitating Gentile practices).  In our society, where Christianity is still the dominant religious tradition, collecting tzedakah during the Shabbat service cannot help but resonate with echoes of passing the collection plate in church.  Our concern is not merely the imitative element, but also the implicit lesson.  In calling to mind the dominant cultural paradigm of “charity,” it will teach a very un-Jewish lesson, that tzedakah is charity, i.e., something one does voluntarily, out of the goodness of one’s heart, rather than a mitzvah, a religious obligation, as Mishkan Moeid points out (see above).

 

Summary:

1. The essence of Shabbat, in our tradition, is to be a holy day of rest and spiritual renewal, marked by cessation from labor and weekday occupations. Over centuries of Jewish life, refraining from the use of money – the ultimate transactional substance, and the essence of commercial activity – has been a key signifier of the distinction between kodesh and ḥol. This has been true in the Reform context despite our implicit rejection of rabbinic notions of melakhah, sh’vut, and muktzeh.
2. Giving tzedakah is a financial transaction. Despite its stated importance in Reform Judaism, adding it to the mitzvot that ought to be performed on Shabbat would be a fundamental redefinition of Shabbat, and therefore should not be done unless there is an overriding need and compelling reason to do so.
3. We find no overriding need and compelling reason to approve of giving tzedakah on Shabbat, since the sho’el’s stated purpose can be met in another way, even on erev Shabbat.

 

Joan S. Friedman, chair
Howard L. Apothaker
Daniel Bogard
Carey Brown
Lawrence A. Englander
Lisa Grushcow
Audrey R. Korotkin
Rachel S. Mikva
Amy Scheinerman
Brian Stoller
David Z. Vaisberg]
Jeremy Weisblatt
Dvora E. Weisberg

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[1] Isaac Klein, A Guide to Jewish Religious Practice (New York: The Jewish Theological Seminary of America, 1979), 84-85.  Klein relies here on the earlier work of Ḥanokh Albeck.

[2] Ex. 16:22, baking and cooking; Ex. 34:21, plowing, harvesting, and reaping; Ex. 35:3, kindling a flame; Num. 15:32-35, gathering wood; Jer. 17:21-22 and Neh. 13:19, carrying a burden or carrying something out of a house.

[3] M. Shabbat 7:2.

[4] Ex. 23:12:  Six days you shall do your work, but on the seventh day you shall rest (וביום השביעי תשבות)…

[5] M. Beitzah 5:2.

[6] B. Shabbat 148a.

[7] B. Shabbat 149a.

[8] B. Shabbat 150a and elsewhere.

[9] This verse is part of the haftarah for the morning of Yom Kippur.

[10] Klein, Guide, 83.

[11] M. Shabbat 16:1 permits rescuing a bag containing tefillin from a fire on Shabbat, even if there are coins in it; 21:2 offers guidance on how to pick up a pillow from a bed if there are coins resting on the pillow.

[12] Shulḥan Arukh OḤ 310:7.

[13] Arukh Ha- Shulḥan OḤ 310:10.

[14] Ex. 23:10-11; Lev. 19:9-10; Lev. 23:22; Deut. 24:20-21.

[15] Deut. 15:8-11.  Although in context this is clearly meant as an ethical exhortation, the halakhah reads it as the commandment to provide monetary support to the needy.

[16] As in, for example, M. Pesaḥim 10:1:  On the eve of Pesaḥ, near the time for the afternoon offering, one should not eat until darkness falls.  And even the poor in Israel should not eat without reclining.  Nor should they lack the four cups of wine, even [the poorest of the poor, who are sustained] from the public charity kitchen.

[17] E.g., M. Demai 3:1, M. Kiddushin 4:5.  The activities of the gabba’ey tzedakah are addressed in much greater detail in Tosefta Pe’ah.

[18] Consider that this comment’s structure is exactly parallel to Rashi’s comment in the (in)famous discussion on women and time-bound mitzvot:  “Just as women are exempt from the study of Torah:  as it is written, You shall teach them to your sons (Deut. 6:7) – and not to your daughters.”  Rashi, s.v. mah talmud Torah nashim p’turot, B. Kiddushin 34a.

[19] Reform Responsa #9: Gift Corner Open on the Sabbath.  The following quotations are from the same responsum.

[20] Contemporary American Reform Responsa #177: A Holiday Gift Wrapping Project and Shabbat.  See also Reform Responsa for the 21st Century, Vol. I, 5757.7: Synagogue Operating a Thrift Store on Shabbat.

[21] RR21, Vol. I, 5756.4:   The committee makes virtually the same arguments in 5769.1: Congregational Fund Raising on Shabbat.  See also Mark Washofsky, “M’nuchah and M’lachah: On Observing the Sabbath in Reform Judaism,” in Peter Knobel, ed., Mishkan Moeid: A Guide to the Jewish Seasons (NY: CCAR Press, 2013), 126-129.

[22] Shapiro, Gates of Shabbat, rev. ed., 16.

[23] Knobel, Mishkan Moeid, 18.  Elsewhere in the same volume (163-64), the essay on “Tzedakah” notes that some may regard performing acts of tikkun olam or g’milut chasadim as appropriate Shabbat activities, yet maintains that tzedakah is appropriately given before the day’s observance begins.

[24] B. Berakhot 43b: “Rabbi Yoḥanan said in the name of Rabbi Shimon bar Yoḥai:  It is better that a person should throw themselves into a fiery furnace rather than embarrass another person in public.”