Responsa

NARR 60-63

CCAR RESPONSA

New American Reform Responsa

39. The Governance of a Congregation

QUESTION: My congregation is in the process of revising its constitution. I have been asked what the tradition says about the officers of a congregation or the documents which describe their duties (Karl Harris, Dallas TX).ANSWER: We should begin by remembering that most Jewish communities in the past were small and so the life of the congregation and the community was one. The head of the community was also responsible for the synagogue. As we look through the long history of Jewish communal life, we see many forms of governance. In the period of the gaonim rabbinic leaders were frequently sent from the great academies to distant places in an effort to provide leadership and to retain control of the community. It seems that the Karaite movement was in part a rebellion against this centralization. The Genizah material of the tenth to the twelfth century in Fostat revealed a communal structure with an oligarchy; the communal leaders were expected to deal with both the intellectual and economic responsibilities (S. D. Gottein A Mediterranean Society Vol 2). In Western Europe at the same time, i. e. the period of the Crusades, leadership was in the hands of the rabbinate along with a communal council (M. Gudemann Geschichte der Erziehungswesen; O. Stobbe Die Juden in Deutschland wahrend des Mittelalters; I. Abrahams Jewish Life in the Middle Ages pp 49 ff; M. Bloch Das Mosaisch-Talmudische Polizeirecht; S. AsafBatei Hadinim). A little later, however, it was frequently the Court Jew who was the communal leader. He possessed the connections with the rulers necessary to protect the community. In Eastern Europe of the thirteenth, fourteenth and fifteenth century a semi-democratic series of regional bodies arose (Louis Finkelstein Jewish Self-Government in the Middle Ages). We possess a number of documents which dealt with communal governance, but mainly with the relationship to the secular government, charity within the community, sumptuary problems and synagogue ritual regulations. They were not akin to our constitutions and by-laws (Jacob R. Marcus The Jew in the Medieval World – A Source Book pp 185 ff, pp 20 ff). Constitutions of congregations rarely antedate the early nineteenth century. These modern European documents represented an effort by the secular government to control the inner life of the Jewish community, to change the relationship with the Christian community, and to secularize the community. Such documents were viewed with justified suspicion. In some European lands a chief rabbinate was instituted. However, those chief rabbis exercised their authority alongside communal leaders selected by various means. In other lands the powers of the rabbi and the board were defined by the government, often in the framework of parallel legislature affecting Catholic and Protestant bodies. This led to lengthy debates and considerable lobbying, as for example in the Rhineland in 1910 (B. Jacob Die Stellung des Rabbiners). I have said nothing about the democratic system of congregational life which has evolved in the United States and in many Western European lands recently. This reflects the organizational pattern of the surrounding society. The constitutions have become increasingly democratic in an effort to provide an opportunity for leadership to a greater number of individuals. This is especially important in the larger congregations. The ramification of each section of the constitution as well as the by-laws should be fully understood by the congregation as well as its professional leadership. Such matters as division of responsibilities, lines of authority, definition of membership are of utmost importance. The model constitutions provided by the Union of American Hebrew Congregations or other bodies may not solve local problems and will often be inappropriate. Relatively little guidance can be given from the past for our congregational governance. Our democratic system represents a specifically American Jewish contribution to Jewish life.April 1989

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 200-202

CCAR RESPONSA

Contemporary American Reform Responsa

137. The Right to Create a New

Congregation*

QUESTION: A young rabbi, who has settled in the

community, wishes to create a new congregation. Some individuals in the existing congregations

have questioned the need for another congregation and want to know whether his efforts should

be permitted and supported. What rights do existing congregations possess in this matter? (M. S.

D., Pittsburgh, PA)ANSWER: It is clear from some of the earlier sources that

multiple synagogues existed in many cities. We, of course, do not know whether the numbers

provided are accurate, but Jerusalem was supposed to have had 394 synagogues, while some

sources give the number as 466 or more at the time of the destruction of the Temple in 70 C.E.

(Ket. 105a; J. Meg. 73d; J. Ket. 35c). Tiberias, in the year 300, had thirteen

synagogues (Ber. 8a), while eleven are known to us in Rome, and a number existed in

Alexandria in the first century (Philo Leg. Ad. Ca. 20). In the Middle Ages Christian, and

at times Moslem, authorities prohibited the repair of synagogues and placed restrictions on the

number of synagogues in a city; usually only one was permitted although there were many

exceptions to this rule (Code of Theodosius, XVI 8.22, [450 C.E.]; Pact of Omar

[655 C.E.]). However, Baghdad in the thirteenth century had twenty-eight synagogues and

Shushan had fourteen according to Benjamin of Tudela (Alder, ed., pp. 51 ff). Benjamin reported

multiple synagogues in various other communities, as do various medieval Jewish

travelers. We know from Jewish life in Eastern Europe that many communities

possessed a number of synagogues, both for the convenience of the worshippers so that the

place of worship was close to their residences, and in order to bring together people of similar

professions or crafts (Harold Hammer-Schenk, Synagogen in Deutschland; Rachel

Wischnitzer, The Architecture of the European Synagogue; Imre Heller & Zsigmond

Vajda, The Synagogues of Hungary). For that matter, seating in the ancient great

synagogue of Alexandria was by profession (Suk. 51b). Most European cities had a number of

larger synagogues alongside smaller rooms for neighborhood worship (shtibeleh). Many

of these synagogues were small, met in humble quarters which were owned or rented, and

supplemented the large central communal synagogue. In the lands of Western Europe

in which congregations and their officials were supported by taxes, permission to establish a new

congregation had to be obtained from the government. If no tax support was desired, they could

be, and were, established without approval, as in most instances. There were, however, few

specifically Jewish restrictions on establishing new congregations. The traditional sources made

a distinction between those individuals who were unaffiliated and banded together to form a new

congregation and those who left an existing congregation. The unaffiliated should be encouraged

even if a synagogue already existed in the community, and no one should interfere with their

desire to perform this mitzvah (J. M. K. 3.1; Isaac Bar Sheshet #253; Shulhan

Arukh Hoshen Mispat 162.7) However, if the new members are going to separate

themselves from an existing congregation, they should not be allowed to form a new

congregation (Pit-hei Teshuvah to Shulhan Arukh Hoshen Mishpat 162.6;

Magen Avraham to Shulhan Arukh Orah Hayim 154.23). That was modified by

later authorities and permission was granted when the congregants were prone to quarrel if they

remained in the same congregation. This allowed multiple congregations with their specific

minhagim to flourish. The numerous editions of the Rödelheim prayerbooks, among

others, attest to such diversity. Interestingly enough, the traditional literature was

much more extensive when it discussed the abandonment or closing of synagogues. From these

discussions, it is clear that as long as one synagogue remains in a community which still has a

minyan, it is possible under various conditions to dispose of the others. This is true in

both small towns and in larger communities, although some additional restrictions are applied to

the larger communities (Meg. 26a; J. Meg. 3.1; Moses Trani, Responsa, Vol. 3, #143;

Meyer of Lubin, Responsa #59; Shulhan Arukh Orah Hayim 153.7, etc.). These

discussions also indicate that there have always been quite a number of communities with

multiple synagogues. There is virtually no discussion about their establishment in contrast to

their dissolution. This also shows us that concern about support for the major synagogue of the

city does not exclude the establishment of minor places of worship. Of course, one should not

lightly separate oneself from an existing congregation in accordance with the warning by Hillel,

“Do not separate yourself from the congregation” (M. Pirqei Avot 2:5). In a

large community such as Pittsburgh, nothing should stand in the way of attempting to establish a

new congregation, if that seems desirable to some members of the Jewish community. Tradition

favors the establishment of synagogues which will satisfy the needs of the

worshippers. In the establishment of a new congregation, the rules and procedures of

the Union of American Hebrew Congregations and the Codes of Ethics of the Central

Conference of American Rabbis should be followed; they provide guidance and will minimize

friction with existing congregations.November 1983

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 68-69

CCAR RESPONSA

New American Reform Responsa

42. Advertising and Congregational Fund Raising

QUESTION: A catering business has suggested that a portion of its profits would go to the congregation whenever congregants use its services. The caterer would like to mention this in his advertisement. Would this be appropriate? May the congregational bulletins advertise special discounts to members of the congregation? (Rabbi Jonathan S. Woll, Hagerstown MD)ANSWER: Many methods of fund raising for congregational and charitable purposes have been used through our long history. It is, of course, most desirable to support a congregation through direct donations and charitable giving has been emphasized by Judaism through the ages (W. Jacob Contemporary American Reform Responsa #139, 151). However, simple generosity has often not met our needs and therefore other methods have been used. Gambling in various guises has been suggested, but we have opposed it (W. Jacob (ed) American Reform Responsa #167). We have also frowned the sale of tickets for the High Holidays (W. Jacob Contemporary American Reform Responsa #150) and reject raising funds through the sale of synagogue honors (Ibid). Advertisements in fund raising programs or in synagogue bulletins are a matter of taste rather than halakhah, as nothing wrong or immoral is implied. As the bulletin or program is available to competitors, no endorsement or restriction of trade is involved. In other words, a service is purchased by the advertiser and the synagogue benefits. As the advertiser cannot afford to make an outright donation or does not wish to do so, this provides revenue for the congregation. An advertisement which is in good taste and is acceptable. As everything connected with the synagogue contains an element of the sacred, we should be careful. Now let us turn to the question of gifts to the congregation from a caterer used by members of the congregation. This presents a combination of advertisement and a gift. It is not appropriate as it may lead into the gray area of unfair competition and the offer of “kickbacks.” When we compare advertisements with some other widely used methods of fund-raising they are, if controlled and kept in good taste, acceptable. It is, of course, preferable to obtain funds through charitable contributions and anonymous gifts.July 1988

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 55-58

CCAR RESPONSA

American Reform Responsa

16. The Expulsion of a Member from the Congregation

(Vol. LXXIV, 1964, pp. 104-106)QUESTION: Is it in accordance with the spirit of Jewish tradition for a congregation to provide in its bylaws for the expulsion of a member? The proposed bylaw is as follows:Suspension and ExpulsionI. For Financial Cause.II. For Other Causes. The Board shall have the authority to remove, expel, or suspend any member in the interest of the general welfare of the congregation. Such action on the part of the Board shall be preceded by notification by certified mail to the party concerned at least two (2) weeks prior to a meeting of the Board, and the party involved may request a hearing before the Board.ANSWER: The question which is asked is of great delicacy because of the long and complex history of the legal instruments for exclusion of a Jew from the Jewish community. The various instruments of exclusion, the ban, the excommunication–well known as instruments of discipline in the Catholic Church–were from early days instruments of discipline in Judaism (Nidui and Cherem), and even have a Biblical root. When Ezra wished to summon the entire community to a special assembly, the proclamation was accompanied with this threat of penalty (Ezra 10:8): “Whosoever came not within three days, according to the counsel of the princes and the elders, all his substance should be forfeited and himself separated from the congregation of the captivity.” In other words, merely for absenting himself from this assembly, the man was “separated from the congregation.” The Talmud, in Berachot l9a, mentions twenty-four causes for which a person may be excommunicated. These are not enumerated in the Talmud, but all the twenty-four are given in Maimonides’ Yad (Hilchot Talmud Torah, VI.14) and also in the Shulchan Aruch, Yoreh De-a, 334.43. Among these causes for excommunication would be some of the motivations akin to the suggestions for expulsion in your proposed bylaws: For example, he who despises the head of the congregation, or insults his neighbor, or refuses to accept the decisions of the congregation, or who uses the name of God in vain–in other words, a troublemaker. In the Middle Ages, the ban was used to enforce the various decisions of the community. Many of them were financial decisions. It is doubtful whether the isolated, struggling Jewish communities could have maintained themselves without this instrument of exclusion to help enforce their regulations. However, this instrument, so indispensable for communal continuity, was used in the last centuries as an instrument against all liberalism and modernization of Judaism, and so was particularly disliked by liberals. For the use of the ban by rabbinical authorities against liberal tendencies, see particularly the end of Wiesner’s Der Bann. We may say, in general, that the use of the traditional (and once indispensable) instrument of exclusion should be distasteful to any modern Reform congregation and should be sparingly used, if at all. The instrument of expulsion–if the congregation feels it is necessary for self-protection–should be hedged in with many safeguards. Let us, therefore, go a little more deeply into the traditional provisions with regard to the exclusion of people from the community, and see which might possibly be applicable or acceptable today. There are obvious differences between what your congregation desires to do and what was done in the past in the matter of exclusion. In one way, what you intend to do by excusing a man from membership is equivalent to what was done in some of the provisions of the traditional ban. The man could not be counted in the Minyan for the service and could not even participate in the joint grace after meals, etc. (Yoreh De-a 334.13). However, there were certain important differences. First of all: what you are doing is, from one point of view, much more serious. The old excommunication presumably lasted only thirty days (Yoreh De-a 334.13), and you mean to exclude the person permanently from participating in congregational affairs. On the other hand, what you are doing is much less serious than what was done in the past. In the Middle Ages, when these laws were most frequently applied, the community was identical with the congregation. When a man was excluded, he was excluded from the entire community. Here you are excluding him only from one separate organization, and he can still join other congregations. Furthermore, the old excommunication forbade anybody, except his immediate family, from doing business with him or even from conversing with him. You are merely removing him from membership and not isolating him personally. However, there is one element about the old laws of exclusion which is important to notice. Every ban was presumed to last for thirty days only, unless there was ground for its renewal. Furthermore, there was a method immediately provided for the lifting of the ban at any time (see Yoreh De-a 334.13). Therefore, if there would be any objection to your proposed bylaw, it would be as follows: 1. The old laws contained an earlier stage, Nezifa, which means “rebuke.” Sometimes a man was put under “rebuke” and needed no further discipline. Your bylaws do have the statement that a man should receive two weeks’ prior notification by mail, but that is hardly enough. There should be a preliminary punishment, such as suspension, which might be as effective as the old “rebuke,” and may make the final expulsion unnecessary. 2. Since the Jewish law puts a time limit on the exclusion and makes provisions for reinstatement, your bylaws should do likewise and make provision for a man applying for readmittance. In general, we would conclude as follows: Since the exclusion is only from one congregation and not from the community, you have the right to determine who shall cease to be a member. Your Membership Committee, which has the unquestioned right to determine who shall become a member in the first place, should also have the right to determine who shall cease to be a member (especially since the expulsion is only from one congregation and not from the entire community). However, since Jewish law has certain safeguards, you should surround the bylaw with the two traditional safeguards mentioned: first, a preliminary suspension, and second, if the punishment of expulsion is carried out, there must be an opportunity for reinstatement.Solomon B. Freehof

If needed, please consult Abbreviations used in CCAR Responsa.

TFN no.5752.12 3-6

CCAR RESPONSA

Congregation Choosing To Remain Small

5752.12

She’elah

A congregation, located in the suburb of a metropolitan area in the American Midwest, is inquiring whether limiting its membership and choosing to remain small would find support in Jewish tradition.

 

“It is important to know (writes the rabbi) that most of our families are young and do not have enough financial resources to finance the building of a new structure. We could, perhaps, build an addition for religious school classrooms, but that still doesn’t answer our to create a family of friends.”

 

The rabbi adds a document which sets forth how such a close-knit community is envisaged. The congregation is about ten years old and grew from small beginnings into its present size of more than 350 members, with 320 children in the religious school. The present building is not large enough to hold all classes at once, and different sessions have been introduced. There are other Reform congregations in the general metropolitan area, each with more than 1,000 members.

 

The rabbi of the inquiring congregation writes: “While we are not anxious to put a ‘cap’ on our membership, we are concerned that if we do not, we will turn into a congregation too large to continue to promote the ideals and values for which we were founded.” (Rabbi Norman M. Cohen, Hopkins, MN)

 

Historical and Halakhic Precedents.

 

The Responsa Committee of the C.C.A.R. has previously dealt with membership limitation,1 but it addressed only matters of geographical and demographic import. The issue before us is different and, in fact, we have not found any material which speaks directly to it.

 

At best there are general analogies. They show that communities welcomed large numbers of worshippers, a prime example being the synagogue of ancient Alexandria.2 The centrality of the crowded Temple/synagogue remained a major feature of Judaism, and this sentiment raised public worship to a higher level than private prayer.3 The large community was considered the ambiance in which God was best approached. One traditional and this speaks to the question that even if one can pray with a minyan at home it is preferable to go to the synagogue, because “the glory of the King [i.e. God] is found in the multitude of people.”4

 

Another authority concludes that in a choice between a large and a small synagogue one should choose the former, unless its noise and confusion make such a choice undesirable.5

 

Contemporary Perspectives.

 

It may be argued that the traditional preference for worshipping in community, and if possible in a large community, was based on the need for “security in numbers” in an unfriendly non-Jewish environment, a consideration fortunately not applicable to a North American congregation.

 

Nowadays, it may be said, the pressure of society, with its depersonalizing impact, engenders in us a need to be recognized as individuals and to make interpersonal connections, an objective easier to realize in a small group than in a large congregation, which is often considered “cold.” These are worthy objectives, and the Committee is sympathetic to them.

 

Still, there are other and, in our opinion, weightier considerations that we would bring to the attention of the rabbi and his congregation.

 

There is, first of all, the principle of mar’it ayin, the avoidance of giving false impressions. A congregation with a “cap” on its membership, will be considered by others as elitist, for organizations that aver to strive for intimacy all too frequently use this claim as a cover word for exclusivity. The very idea of a numerus clausus6 is odious to Jews, and while our Committee does not in any wise assign unworthy motives to the congregation, we would have its members realize what the public impact of membership limitation might be.

 

A congregation should not be considered like a country club which has considerable social prestige, is admittedly elitist, has a waiting list, and selects its members, while a congregation should be open to all Jews who wish to worship and educate their children there.

 

Also, waiting lists in congregations have in our experience led to notable inequities. Well-to-do applicants waiting in line are likely to be advanced over the others, for they can better help to alleviate a congregation’s financial problems.

 

Further, a family who has moved into the neighborhood would wish to have its children associate in religious school with the same friends they have come to know in public school. Sending such children to another part of the city would make their attendance at religious school a less than pleasant and possibly counter-productive experience.

 

The Committee is not unmindful of the congregation’s financial strictures. There are limits to building new accommodations for sanctuary and school. But every effort should be made to find acceptable alternatives: double worship sessions on holy days; school sessions on Shabbat and Sunday; use of portables and, if needed, external facilities. All these have at one time or another served other congregations to good advantage.

 

At the same time, the congregation’s desire for an environment that creates closer interpersonal relationships, can be satisfied by the expansion of havurotin its own midst.

 

If nonetheless circumstances require it, let the congregation help to establish another synagogue in the area, either a satellite or a sister congregation, one that will serve the Reform Jewish community to best advantage Conclusion.

 

The congregation’s identity is well known to some of the Committee members. They are impressed with the religious spirit that prevails in its midst and with the rabbi’s and the members’ earnest desire to advance not only congregational goals but the welfare of the Jewish people.

 

We therefore conclude that our tradition clearly favors the openness of the congregation to all Jews and should be maintained. Neither in personal nor organizational life can we have all our desires fulfilled, and in our view this is one of such conundrums. Let there not be in your community a tension between those who already belong and those who wish to join but cannot and have no good alternative.

 

One member of the Committee, who dissents from the majority and would allow limitation of membership, insists however that indigent applicants or others with special needs must not be refused.

Notes

American Reform Responsa, ed. Walter Jacob (1983), # 9, pp. 44-45. R. Yehudah averred that anyone who had not seen that synagogue had not seen the glory of Israel. It was so large that flags were raised to let the congregation know that they should respond with an Amen. See BT Sukkah 5b; Tosefta Sukkah 4:3. Sh. A.,, O.H. 90:9; see also BT Berkhot 7b-8a. Prov. 14:28. Magen Avraham on Sh. A., O.H. 90, # 15. Mishnah Berurah on Sh.A., loc.cit., 90 # 28. There is a controversy involving the desire of a rich man to retain access to his seat without encumbrance and therefore objects to having the empty spaces surrounding him sold to other people; one side upholding his rights (Resp. Rivash, # 253) and the other, denying them (R. Binyamin Slonik, Resp. Mash at Binyamin, # 4). Literally, “closed number,” the usually unofficial limit of certain ethnic or religious groups by the regnant powers in an institution (often a university). The numerus clausus was frequently used against Jews.

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 245-246

CCAR RESPONSA

Contemporary American Reform Responsa

163. Gentile Chairman of Confirmation

Group

QUESTION: The parents of each year’s Confirmation Class and of

Bar/Bat Mitzvah groups form a club which sponsors special activities for these

young people; it also provides some educational programs for the parents. This year a mother

who is not Jewish has been selected as chairman of the Confirmation Club. This was done

inadvertently as the woman in question has identified herself closely with the Jewish community

and has been very active in communal work and the Jewish Federation. She attends synagogue

services regularly. Although the rabbi knew that she was not Jewish, members of the group were

unaware of that fact. How should we deal with this situation? (D. L., Los Angeles,

CA)ANSWER: This Committee has decided on a number of other occasions that it

is inappropriate for a non-Jew to serve in leadership positions within a congregation (see

“Congregational Membership for A Non-Jewish Partner”). There is, of course, nothing which

would prohibit such individuals from being active in the congregation and the Jewish community.

In fact, we should encourage such activities even if full conversion to Judaism is not possible.

Such efforts will eventually bring these fine individuals closer to Judaism and may lead to

eventual conversion. In the case of this individual, it would be appropriate to suggest

that this might be a good time to accept Judaism formally. Her activities have taken place

entirely within the orbit of Judaism; her youngest child is now to be confirmed. Her own

commitment and her efforts through the years would more than suffice to qualify her for

conversion without any further instruction. It has been my experience that individuals in this

position are very open to such a suggestion and will often formally join the community. That

would, of course, remove the problem.April 1983

If needed, please consult Abbreviations used in CCAR Responsa.

TFN no.5750.3 283-288

CCAR RESPONSA

CONFIDENTIALITY AND THREATENED SUICIDE

5750.3

CCAR RESPONSA
CONFIDENTIALITY AND THREATENED SUICIDE
5750.3
She’elah 

Counselor A. has a client (B.) and has been informed by the latter that she is bringing a malpractice suit against a certain physician. Meanwhile, A. has learned that a psychiatrist has diagnosed B. as a schizophrenic and borderline retarded person. Counselor A. believes that, were B.’s attorney to know of this diagnosis, he would drop the suit, which by its very nature would be damaging to the physician’s reputation. Knowing this, may (or should) the counselor break the rule of confidentiality and tell the attorney of B.’s medical history? The matter is further complicated by B.’s threat that, were she to lose the law suit, she would commit suicide. Counselor A. has now come to me to ask me whether Judaism can give her some guidance in the matter. (Rabbi Elbert L. Sapinsley, Raleigh, NC) 

Teshuvah 

1. Confidentiality. 

While today confidentiality is a hallmark of certain professions, especially clergy, physicians, counselors, and lawyers, the Halakhah does not know of a special category of “professional ethics.” In this regard, professionals are under the same obligations as any lay person. 

Therefore, the laws prohibiting slander and talebearing or gossip (leshon ha-ra and rekhilut) apply to all Jews, professional or otherwise. There are exceptions, however, when information that is vital to a third party may be divulged. Thus, every Jew is commanded to come forward with testimony that benefits another.1 Failure to do so constitutes violation of the mitzvah Lo ta’amod al dam re’ekha, “Do not stand idly by the blood of your neighbbor.”2 

The latter commandment may on occasion come in conflict with the Hippocratic oath a physician has sworn, or with the accepted canon of a counselor’s discipline (which, while not formally an oath, is nonetheless assumed by every client to be the basis of counseling). Does such an oath or canon of confidentiality override the obligation to testify to someone’s benefit? 

In Jewish law, an oath which obligates an individual to violate a mitzvah is generally invalid on its face. Since one is commanded to testify in court, an oath which forbids the swearer from revealing testimony which he/she is otherwise obligated to give would be a false oath, shevu’at shav.3 

Counselor A.’s oath (or equivalent) has, of course, not obligated her specifically to keep confidential information from a court, rather, her discipline requires of her to keep it from anyone. This is analogous to the shevu’at kolel, an inclusive oath which, since it appertains to most persons may also be valid with regard to judges.4 Thus, the counselor, because she is forbidden to reveal her information to the patient’s relatives or friends or to anyone, would by extension also appear to be prohibited from revealing it to the court. 

  1. EliezerWaldenbergtried to find a way out of this dilemma. He argued that a physician, when swearing the Hippocratic oath, never intended thereby to violate another commandment. Hence, says R. Waldenberg, the doctor may testify in court despite his oath, and if he has any lingering doubts about it should apply to a beit din to exempt him in this instance from the generality of the oath.5 

This consideration would certainly apply to a counselor who has assumed certain professional obligations without swearing a formal oath. The counselor, when taking upon herself such discipline, never intended to harm a third party. Any person is obligated to come forward with important information in order to avert the damage which a traumatic and expensive law suit would entail for an innocent party. A counselor is not relieved from this responsibility. 

Counselor A., by asking the rabbi for guidance, reveals her sensitivity to both Jewish law and to the importance of confidentiality. Indeed, many persons would refrain from seeking medical, psychological, legal or religious counseling without the assurance that their conversations will not be revealed. If nonetheless a decision to violate confidentiality is made by a counselor it will have to be based on very sound reasons. Are these present in the case before us, so that we would advise Counselor A. to give preference to the mitzvah of lo ta’amod (and divulge the information she has) over the prohibitions of rekhilut and lashon ha-ra (and say nothing)‘? 

In order to make a judgment, the following considerations would come into play: 

  1. Counselor A. has learned (we do not know how) that B. has been diagnosed by a psychiatrist as aschizophrenic and borderline retarded person, and she asks whether she may reveal this information to A.’s lawyer.Now, schizophrenia remains a somewhat imprecise term for a state of mind that is still not fully understood; and “borderline” retardation could be of various kinds and limit a person in one respect but not in another. Further, the fact that B. has been diagnosed in this fashion does not by and of itself say anything about the justification of her lawsuit. Malpractice may indeed have occurred, and Counselor A. should not place herself in a position where she would weaken her client’s case ab initio. And even if the lawyer, learning of the information, were to abandon the case, B. would doubtlessly find another one. Would A. search out each lawyer and disclose her information? This is an unlikely and disagreeable scenario. 
  2. If a discovery process takes place,6 it will in any case tend to uncover B.’s medicalhistory, since such inquiries are made routinely in medical malpractice cases. Should we advise A. to breach herconfidence in order to reveal something that legal procedure would reveal anyway? 
  3. We do not know what the law of confidentiality is in the state where A. practices. She has to respect theprinciple of dina’ de-malkhuta’ dina, the halakhic requirement to observe civic law.7In addition, she may very well expose herself to a lawsuit for breach of confidentiality and unprofessional conduct. 
  4. The lawsuit against the doctor has already been launched and a certain degree of initial trauma hasundoubtedly been suffered. The trial will bring out the facts, and if B.’s suit is malicious, that will be exposed intime; if it is not, then the Counselor’s interference would be harmful to her client. The court now becomes the judge of the doctor’s competence, and A. is not a in a good position to substitute her own judgment for the court’s. 

In view of these doubts and uncertainties we do not believe that in this case the prohibitions against rekhilut and lashon ha-ra’ should be overridden by the mitzvah of lo’ ta’amod. Counselor A. should not come forward with the information she has. 

2. The issue of threatened suicide.  

Since we would advise A. not to interfere in the matter, might that conclusion possibly be different in view B.’s threat of committing suicide should her lawsuit fail? It is well to take a brief look at the halakhic issues involved.8 

  1. DavidZviHoffmann wrote a responsum concerning a student who was enrolled in business school. The young man’s father ordered him to attend scheduled classes on Shabbat; the young man refused and a family crisis ensued. The student’s mother warned him that, were he not to relent and obey his father, she would commit suicide. 

Hoffmann ruled that our primary duty to save our or someone’s life (piku’ah nefesh) was not at issue, because the mother had no right to request her son to violate the mitzvah of Shabbat observance. If we were to decide otherwise, then anyone wishing to turn Jews away from Torah could threaten suicide if we did not accept his/her heresy.9 

In the conflict between the duties to honor one’s parents and to honor Shabbat, R. Hoffmann gave the latter priority, even though the mother might carry out her threat. He feared that ruling otherwise would set a dangerous precedent. 

We cannot, of course, say whether R. Hoffmann would have ruled similarly in our case. The mitzvah of lo ta’amod is not as clearly circumscribed as that of Shabbat observance. We will therefore not speculate on how he might have decided in this particular conflict of mitzvot. 

However, in another case, also involving threat of suicide, R. Walter Jacob did reach a different conclusion.10 At issue was the potentially fatal illness of a bride whose fiance was unaware of her condition. The bride, confiding the matter to the rabbi, stated that, if her condition were revealed to the groom, she would kill herself. 

  1. Jacob applied the mitzvah of Lota’amod to the safeguarding of the woman’s life. He cited theChafetz Chayyim in a similar case11 and said: 

In this specific instance the rabbi must weigh the danger of the woman committing suicide against the problem of not providing adequate information to the fianci. The quotation “Do not stand idly by the blood of your neighbor” weighs heavily on the side of the woman. If the rabbi is convinced that the threat of suicide is real he may not divulge the information.12 

Thus, R. Jacob left it to the rabbi to decide whether the threat of suicide was sufficiently serious, in which case the information was not to be revealed. Applied to our case, we would draw the following conclusions: 

  1. If Counselor A. believes that B.’s threat of suicide is real, she should not disclose her information andthreaten the success of her client’s law suit. That would confirm the conclusion we reached on the basis of otherconsiderations, enumerated above under (1). 
  2. But what if A. were convinced that B.’s threat of suicide was not serious? Basing ourselves onthe considerations outlined above under (1) we would say No in this instance as well.

Conclusion. 

While the Halakhah would permit or even require disclosure of confidential information under certain circumstances, we do not believe that such circumstances exist in our case. Counselor A. should not break the confidence placed in her by her client. 

We are advised that the lawsuit faces considerable delay. Meanwhile, the counselor might help her client abandon her suicidal threats and explore ways and means to settle her legal claims in a non-adversarial manner. 

Notes 

  1. Lev. 5:1;B.T. Bava Kamma 56a; Sh.A., Choshen Mishpat 28:1. 
  2. Lev. 19:16; also understood as “do not profit from the blood of your neighbor.”See also Sifra, Kedoshim 2:4. 
  3. B.T.Shevuot 29a; Rambam, Yad, Hil. Shevu’ot 5:14-15. 
  4. Netivot ha-Mishpat,Choshen Mishpat 28, n. i. 
  5. Resp.Tzitz Eliezer, v. 13, n.81, part 2; see also R. Jacob Breisch, Chelqat Yaakov 3, n. 136. However, R. Barukh Rakover deems the Hippocratic oath to have priority (No’am, vol 2). 
  6. A legal procedure which takes place before the court hearing. It is designed to acquaint bothparties with the general documentary and other evidence upon which they expect to rely. Discovery thereby saves court time later on. 
  7. This rule obtains in most cases, unless it requires Jews to transgress Jewish principles.
  8. On the laws governing suicide, see Y.M.Tukzinsky, Gesher Ha-Chayyim, 2nd ed. (Jerusalem, l96l), vol. I, pp.169-273. 
  9. Resp. Melammed Le-Ho’il, part 1, n. 61.
  10. Contemporary American Reform Responsa, n. 5.
  11. SeferChafetz Chayyim, Hil. Rekhilut, n. 9. 
  12. Of course, R. Jacob decided a specific case and did not attempt to make a general rule.

 

TFN no.5753.2 309-317

CCAR RESPONSA

Medical Confidentiality, Malpractice, and Moral Responsibility

5753.2

She’elah
Some years ago, twenty-two patients at a hospital, all of them children, accidentally received transfusions with

blood contaminated by the AIDS virus. When the hospital subsequently discovered the error, its administration

withheld this fact from the patients and their families for four years. The hospital justifed this action on the

grounds that to release this information would cause widespread panic and would be “extremely dangerous.” The

patients who subsequently contracted AIDS sued the hospital for damages and for compensation for medical

expenses resulting from their infection. These suits have failed, due primarily to the courts’ finding that the

hospital “met the standards of the time” in its blood-testing procedures and was therefore not guilty of

negligence.

From the standpoint of Jewish law and tradition, was the hospital justified in withholding from the patients the

information concerning the HIV contamination of the blood supply? And does the hospital have a responsibility to

provide tretament to the children who received the infected blood? (Rabbi E. Robert Kraus, Camarillo, CA)

Teshuvah
We will address these questions from the perspective of the Jewish law of medical malpractice and medical

confidentiality. To what extent are physicians and the medical establishment as a whole liable to compensate

patients injured as a result of their care? Is the physician or hospital required to inform a patient of his or her

condition when in the considered opinion of the doctors such information would likely be harmful to the patient?

We shall also consider these issues in the light of the halakhah‘s higher aspirations. That is to say, should

the technical law (the din) absolve the hospital of responsibility in this matter, is there a basis in the

tradition to hold its administration liable to a more stringent standard of ethical conduct?

1. Medical Malpractice in Jewish Law.

The practice of medicine is considered a mitzvah, a commanded act.1 For this reason, the

physician enjoys a wide immunity from monetary liability for damages caused by errors of professional judgment.

We find this idea in its classic form in the writings of R. Moshe ben Nachman (Ramban, 13th-cent.

Spain),2 who writes that the Talmudic law of the judge (dayan) provides a proper analogy

to that of the physician (rofei). Like the physician, the judge is in the position of handing down

instructions which, if incorrect, can result in depriving a person unfairly of his property or his life. Were he to be

held liable for these damages, the person knowledgeable in the law would likely refuse to serve as a judge.

Therefore, the halakhah protects him from liability, so long as he performs his judicial function in a

conscientious manner.3 The halakhah, argues Ramban, offers similar protection to the

physician, so that he will not refrain from practicing medicine out of fear that he will be held liable for

damages caused to a patient as a result of his treatment. As long as the physician performs the medical function in

a conscientious manner (that is, “provided that he takes all proper precautions and does not harm the patient

through negligence”), he or she cannot be sued in court for damages. While Ramban believes that the physician

does bear a moral obligation to pay compensation for damages,4 even this limited notion of the

physician’s responsibility does not go unchallenged. Some authorities hold that the moral obligation of which the

Ramban speaks applies only to the surgeon who injures the patient with a knife, but not to the physician who

causes damage by means of administering medications.5 Others, meanwhile, exempt the physican

altogether from even a moral obligation to pay damages, precisely on the grounds that medical practice is a

mitzvah and that doctors should not be held liable for an unintentional error resulting from an act that

they are commanded to perform.6

All this suggests that Jewish law takes an openly protective stance towards the physician, shielding him or her

from legal liability and perhaps even from moral liability for medical error that leads to a patient’s injury or death.

This protection, of course, is not absolute. As Ramban emphasizes, physicians who commit out-and-out negligence

(peshi`a), defined as conduct which a reasonable person (in this case, a trained professional) can be

expected to know will lead to damage,7 are indeed required to compensate their victims. In our case,

however, the courts have found that the hospital “met the standards of the time” in its blood-testing procedures and

observed all the safeguards then accepted in the medical community. In other words, no negligence was involved.

We could conclude that despite the tragic consequences of the blood transfusions, the hospital bears no

responsibility, legal or moral, to compensate the children or to provide them treatment should they develop the

AIDS virus.

2. Medical Confidentiality.

Did the hospital act improperly in withholding the information about the contaminated blood from the patients?

Recall that this decision was defended on the grounds that release of the news would induce “panic,” in the patients

themselves and, presumably, in the wider community. To the extent that this fear was a reasonable one, the

hospital can make a persuasive case under Jewish law in favor of its position. The predominant halakhic view is

that a patient in critical condition should not be informed of this fact.8 The notion here is that a

patient’s optimism and hope are vital factors in his recovery and that to deprive the patient of this hope is therefore

likely to hasten his or her death. Nor should the patient’s relatives be informed of his condition if we fear that their

sorrow will lead the patient to despair and to abandon the struggle for life. To the argument that one has “the right

to know” of one’s medical condition, the halakhists who take this view would respond that the preservation of life,

and not some abstract concept of rights and liberty, is the paramount concern of the physician. The medical team is

therefore duty-bound to conceal from the patient any information which, in their professional judgment, would

contribute to a deterioration in his or her condition. In our case, again, the hospital could claim that the “panic”

that would result from revelation of the fact of the tainted blood would be injurious to the patients. Thus, from a

Jewish legal standpoint, the hospital can make a strong case in defense of its actions.

3. The Higher Aspirations of Jewish Law.

Despite all of this, it can be argued–and we think persuasively–that a higher standard of conduct was demanded of

the hospital in this case. That argument rests upon upon what we would term the higher aspirations of Jewish law,

the deeper significance that lies behind the concrete details and precedents of halakhic history and which binds

them together in a framework of meaning and purpose.

Let us consider, first of all, the question of medical malpractice. We have seen that halakhah offers a wide

immunity to physicians from the requirement to compensate patients for damages. We have also seen that this

immunity is justified, not out of special sympathy with the physician, but on the grounds that medicine is a

mitzvah, the way in which we as a community fulfill the commandment of pikuach nefesh, the

responsibility to preserve human life.9 We exempt physicians from damages precisely in order to

insure that this mitzvah will be performed. We exempt them because, if we held them liable, they would

refrain from practicing medicine out of fear of financial ruin. We exempt them, in other words, mipnei tikun

olam, out of concern for the betterment of public life and the welfare of all.10 It is this concept,

therefore, which expresses the higher aspirations of Jewish law as these relate to the practice of medicine. That is

to say, the very definition of medicine, the structure of the medical profession and the rules concerning the

relationship between physician and patient are determined by the demand that medicine serve the public interest,

promote the general welfare, and achieve the goal of tikun olam. It is tikun olam which declares

the higher aspirations of Jewish medical law, which provides the background and the justification for the varied

rulings and precedents in halakhic history. It is because of this principle that, as we have seen, the law on occasion

assumes a lenient, “favorable” stance toward medical practicioners.11 But just as surely, there are

times when this same principle demands from us a very different kind of response. The halakhah, after

all, does not exempt physicians from liability for damages caused either maliciously or through gross negligence,

for to protect them in such cases would be to endanger society, not to better it; it would frustrate the goal of

tikun olam. Indeed, whenever the physician acts in a way that is contrary to this principle, he or she

ceases to practice “medicine” in the halakhic understanding of that term. Similarly, whenever the medical

profession acts in a way that undermines our conception of tikun olam, it forfeits our respect and our trust,

and it no longer serves as our agent in the fulfillment of the mitzvah of pikuach nefesh.

Given this understanding of the higher aspirations of Jewish medical law, our evaluation of the hospital’s actions in

this case takes on a very different tone. Granted that the hospital did not act “negligently” in that it met “the

standards of the time”; but did it act properly? Did it act according to its responsibility to contribute

toward a better world? Was it an agent for the realizaton of tikun olam? Our answer is no. It is not enough

that physicians and hospitals adhere to the letter of the law (the din) and thereby excuse themselves of

monetary liability, for the medical profession must be held to standards that go beyond the norm. For as a

physician is not just another professional, the hospital is no ordinary business. The hospital is the place where

human beings confront death and suffering, hope and mortality. It is a place where lives are saved, where the

mitzvah of pikuach nefesh is performed; but as the tragic consequences of this case teach us yet

again, our dealings with the hospital can be suffused with terrible pain and anguish. It is for this reason that the

medical profession has come in the past several decades to realize what we Jews have always known: that doctors

must heal the soul as well as the body. Hospitals today regularly employ chaplains and social workers, because they

are aware of the vital spiritual dimension of their responsibility to care for their patients. The hospital must

therefore conduct itself in all matters so as to retain the public’s trust and the confidence, for once it loses these, it

loses with them the ability to provide the necessary care for the emotional and spiritual side of illness.

In our case, we find that this hospital, by studiously ignoring for several years the effects of its actions upon these

innocent children, is no longer worthy of trust and confidence. Its conduct, though legally blameless, was at best

morally insensitive, at worst repugnant. Its actions, though they may have met the “standards of the time” as

recognized by law, seriously weaken the public’s trust in the medical establishment and in its ability to perform

faithfully the mitzvah of pikuach nefesh. The hospital, in short, did not live up to its obligation, as defined

in Jewish tradition, to go beyond the minimum legal requirement, to contribute to tikun olam.

Let us now turn to the hospital’s decision to conceal the fact of the tainted transfusions from the patients and their

families. For the sake of argument, we shall grant that the hospital is being truthful when it defends this

concealment on the grounds that it wished to avoid the spreading of panic. Still, despite the precedents cited above

which appear to support a physician’s decision to withhold “bad news” from a patient, the hospital’s conduct in this

case cannot be justifed. We say this, again, because the higher aspirations of Jewish law require such a response.

As we have seen, the halakhic approach to medical confidentiality is based upon the paramount value of medical

care: the welfare of the patient. The authorities who hold that physicians may conceal information concerning a

patient’s critical condition do so precisely because they believe that the communication of any news which will lead

to depression, despair, and the consequent weakening of the patient’s will to live is medically harmful. Such news,

therefore, like unnecessary drugs or surgeries, should not be “administered” to the patient. It follows that, in cases

where it is clearly to the advantage of the patient to know the truth of his situation, that truth ought to be revealed.

Medical thought today, proceeding from our heightened understanding of the importance of the spiritual dimension

of medical care, has come to see that it is generally to the advantage of the patient to be well informed of all aspects

of his or her condition. A feeling of control over one’s fate, a sense that one is able to make informed decisions

about one’s medical treatment, can be a powerful source of strength to a patient, a boost to morale and an antidote

to depression.12 The higher aspirations of the halakhah, which would have us look beyond

the specific rulings and precedents in order to comprehend the ultimate goals and purposes of Jewish law, would

therefore lead us to conclude that, while each case must be judged on its individual merits, in general “honesty is

the best policy.”13

What about the merits of our case? For our part, we can see no defensible reason for withholding the news

of the contaminated blood. Concealment cannot in any way have been beneficial to the patients. On the contrary:

what was called for was immediate monitoring of their medical condition so that treatment, if necessary, could

begin as quickly as possible. Nor was concealment helpful to the general public. In most cases, news such as this

eventually leaks out. And then, not only might the “panic” the hospital feared actually ensue, but the public also

loses respect for and confidence in those entrusted with its health and safety. The higher aspirations of Jewish law,

in other words, forbid the hospital from hiding behind this or that halakhic decision as a way of avoiding its

responsibility.

4. Reform Considerations. Our own Reform tradition, with its emphasis upon social justice, would clearly

demand that physicians and medical institutions be held to a high standard of ethical conduct, regardless of the

narrow assessment of legal liability. And our stress upon the value of personal autonomy would certainly argue

against the concealment from the patients of news concerning their condition, particularly in a case where such

concealment offers no tangible benefits to them or to the community as a whole. Moreover, we consider it our

special responsibility as Reform Jews who interpret Torah in order to apply its teachings to daily life to allow those

teachings to speak to us in their best and noblest voice. In our understanding, the true message of Jewish law lies

not in the precise holdings of this or that rabbi or in the consensus opinion of the current leading Orthodox

scholars, but rather in the principles and insights which give meaning to the individual rulings and which serve as

the moral and religious goal toward which all halakhic decision ought to strive. Put differently, we do not believe

that the halakhah can exist separately and apart from its higher aspirations. In this case, those aspirations

surely demand from us the answer we have reached.

5. Conclusion. The hospital was not justified in concealing the facts of this case from the patients, their

families, or the public. Moreover, it bears a significant moral responsibility to offer treatment to these children,

even if the courts have not found them liable for monetary damages. How this responsibility should be met is an

issue to be worked out among the parties. That it should be met is impossible to deny. And it is only by

meeting its responsibility that the hospital can live up to the standards demanded of it by the higher aspirations of

Jewish law.

Notes

  1. Turand Sh.A,. YD 336:1, drawing from Nachmanides (see below, n. 2), consider medicine a species of the commandment to save life (pikuach nefesh; Lev. 18:5 and BT Yoma 85b). Maimonides, on the other hand, learns the mitzvah of medical practice from Deut. 22:2, inasmuch as the commandment to restore a fellow’s lost object is expanded to include the restoration (saving) of his life (BT Sanhedrin 73a; Rambam, Commentary to M. Nedarim 4:4). 
  2. Ramban,Torat Ha’Adam, Inyan Hasakanah (ed. Chavel, 41-42). 
  3. BT Sanhedrin6b (and Rashi ad loc.), a midrash on II Chr. 19:6. The operative rule is ein lo ladayan ela mah she`einav ro’ot, “the judge can rule only on the basis of the evidence before him”; i.e., so long as the judge’s ruling corresponds to the facts and the law as he sees and understands them, he is absolved of blame should other evidence which he could not have been expected to know demand a different ruling. 
  4. Ramban citesTosefta Baba Kama 6:6: the trained and licensed physician who causes damage to a patient is exempt under earthly law (patur midinei adam) but remains obligated under the law of heaven (chayav bedinei shamayim). 
  5. R. Shimeon b. Tzemach Duran (15th century North Africa),Resp. Tashbetz, v. 3, # 82. Duran argues that injury caused with a metal implement is under Torah law a more obvious case of chavalah (physical damage) than is injury caused by medication. Given what we know about poisons and dangerous chemicals, however, this is a difficult distinction to maintain. See R. Eliezer Waldenberg, Resp. Tzitz Eliezer, v. 4, # 13. 
  6. R. Nissim b.Gerondi, Chidushim, Sanhedrin 84b; Waldenberg, op. cit. 
  7. De’iba`eileh la’asokei ada`ata; BT Baba Kama 21b, 52a, 52b and elsewhere. 
  8. Ramban,Torat Ha’Adam, ed. Chavel, 46; Sh.A YD 338:1; Siftei Kohen, YD 338, # 1; Bayit Chadash, YD 338;R. Betzalel Stern, Resp. Betzel Hachokhmah, v. 2, # 55; R. Moshe Feinstein, Moriah, Elul 5744, 53; R. Immanuel Jakobovits, Jewish Medical Ethics (New York, 1959), 120-121; R. Shelomo Aviner, in Asya 3 (1983), 336-340; R. Yitzchak Zilberstein, in Emek Halakhah–Asya (Jerusalem, 1986), 163. 
  9. See at note 1, above.
  10. The phrasemipnei tikun olam is applied to doctors in Tosefta, Gitin 3:13; that passage, in turn, is cited by Tashbetz, note 5, above. 
  11. A similar case is that of doctors’ fees. Although one should not be paid for performing amitzvah (BT Bekhorot 29a), the halakhah permits physicians (like rabbis) to be compensated for their expenses and for the value of their time and training. To do otherwise would deter people from practicing medicine and thus frustrate the goal of tikkun olam. See Ramban, Torat Ha’adam (Chavel ed.), 44-45; Tur and Sh.A YD 336:2. 
  12. See the essay of and the literature cited by Dr. Shimeon Glick inAsya 42-43 (1987), 8-15. 
  13. Orthodox halakhists, too, show signs of coming to this conclusion; see R. YigalShafran, “Amirat ha’emet lacholeh `al matzavo,” Asya 42-43 (1987), 15ff. 

CARR 7-8

CCAR RESPONSA

Contemporary American Reform Responsa

5. Confidential Information

QUESTION: A rabbi has been told by one of his congregants that she suffers from a rare disorder which may kill her prematurely. The congregant now intends to be married. The rabbi does not believe that the groom is aware of his wife’s condition. Is it the rabbi’s duty to inform the groom or should the information given in a confidential manner be kept secret by the rabbi? The woman in question has stated clearly that she will commit suicide if the information is divulged to her fiance.ANSWER: The Biblical prohibition against “being a tale bearer” is quite precise (Lev. 19.16) even when the information is true and accurate (Yad Hil. Deot. 7.2). However, in this case this Biblical citation is opposed by others in the same chapter of Leviticus, “You shall not place a stumbling block before the blind” (Lev. 19.14). In other words, one must prevent someone from committing a sin or placing themselves in a position of personal or financial loss (Yad Hil. Rotzeah 12.4, 1.13). Nor should “one stand idly by the blood of your neighbor” (Lev. 19.16). This has been interpreted toindicate that one should do everything possible to protect life and property from injury directly or indirectly, including providing information (Yad Hil. Rotzeah 1.13 Shulhan Arukh Hoshen Mishpat 426.1). Hafetz Hayim (Israel Meir Kagan) argued vigorously for disclosure in a case specifically like this one especially as this may be a major factor in the perspective marriage and lack of such information may endanger the stability of the marriage in the future. Furthermore, in this instance, we are dealing with a life-threatening situation and not a vague problem which need not be revealed (Sefer Hafetz Hayim Hil. Rehilut #9). In analogous situations involving physicians there is some difference of opinion whether he should volunteer or can be compelled to provide such information, but that is only because it may be contrary to the Hippocratic Oath. Most authorities feel that physicians may be forced to testify (Eliezer Waldenberg, Tzitz Eliezer, 13 #81; Jacob Breish, Helkat Ya-akov 3, #136). However, Barukh Rakover argues to the contrary and feels that a physician is bound by the oath (Noam, Vol. 2). A rabbi, however, would be duty-bound to divulge the information he possesses. In this specific instance, the rabbi must weigh the danger of the woman committing suicide against the problem of not providing adequate information to the fiance. The quotation “do not stand idly by the blood of your neighbor” here weighs heavily on the side of the woman (Lev. 19.16) . If the rabbi is convinced that her threat of suicide is real, he may not divulge the information.November 1986

If needed, please consult Abbreviations used in CCAR Responsa.

ARR 406-410

CCAR RESPONSA

American Reform Responsa

133. Concubinage as an Alternative to Marriage

(1979)

QUESTION: Does Reform Judaism recognize concubinage as an alternative to formal marriage? If a man cannot or does not wish to divorce his disabled wife, may his “arrangements” with another woman be formalized? Can formal Jewish status be given to two retired individuals living together without marriage? Can these “arrangements” be formalized in a manner akin to the ancient form of concubinage? (CCAR Family Life Committee)

ANSWER: Each of the arrangements suggested by the question is clearly illegal and violates the laws of all the states within the United States and of the provinces of Canada. Therefore, no rabbi can formalize such an arrangement through a Jewish ceremony. Since the Paris Sanhedrin of 1807, we have recognized the supremacy of State in matter of marriage (See M.D. Tama, Transactions of the Parisian Sanhedrin, pp. 133ff). This has been accepted by most modern Jews. It would be helpful, however, to discuss briefly the forms of marriage and concubinage. We should understand that concubinage in Biblical times seems to have referred solely to wives in addition to the primary wife. From the Hellenistic period on, a concubine could be any wife of lower status. As is well known, Rabbinic tradition recognizes three forms of entering a full marriage. Consent was, of course, always necessary (Shulchan Aruch, Even Haezer 42.1), and all three forms were combined in the Jewish concept of marriage as developed during the Middle Ages.

The three ways of effecting a marriage cited by the Talmud are: through a document, through money, or by intercourse (Kid. 2a; Shulchan Aruch, Even Ha-ezer 25.4).

(a) The most common form featured a deed witnessed by two competent individuals and handed by the groom to the bride (Kid. 9a; Shulchan Aruch, Even Ha-ezer 32.14). This has remained the essential covenant of the modern wedding. The deed is the modern Ketuba signed by two witnesses.

(b) In addition, it was possible to effect a marriage through the transfer of an item of value (kesef) in the presence of two competent witnesses. This remains as part of the modern wedding in the form of presenting a ring with the formula “Harei at mekudeshet…” (Kid. 2a,b; Shulchan Aruch, Even Ha-ezer 27.1).

(c) Finally, marriage can be effected through intercourse (bi-a) preceded by a statement indicating the wish to take this woman as wife and with two witnesses who saw the couple leave for a private place (Kid. 9b; Shulchan Aruch, Even Ha-ezer 33.1). This last method was severely frowned upon by the Rabbis, but bedi-avad it was valid. Marriage simply through intercourse with proper intent would be akin to “common law” marriage.

There is an additional form of marriage–the concubine (Pilegesh)–which needs to be discussed. Concubines were mentioned fairly frequently in the Biblical literature, especially for kings (II Sam. 3:7, 21:8ff, 5:13; I Kings 11:3; II Chron. 11:21, etc.). These references dealt with women who possessed the status of an inferior wife. We should remember that the nature of concubinage changed radically from the Biblical period to the Greco-Roman period (Louis Epstein, “The Institution of Concubinage Among Jews,” Proceedings of the American Academy for Jewish Research, vol. 6, pp. 153ff). Epstein has pointed out that the status of the Biblical concubine was determined by the ancient Near Eastern corporate family with the head of the household (Ba-al) possibly consorting with wives at various levels ranging from his main wife to a slave girl. The legal relationship of the half-dozen subsidiary wives is no longer clear to us. According to some ancient codes, the Pilegesh was second to the main wife and had definite rights as did her children. This was also her status in ancient Israel. The custom of concubinage died out during the late Biblical period, according to Epstein, and was then reintroduced among the Hellenistic Jews of the Roman Empire into a family structure which was no longer corporate, but monogamous. Among the Romans and Greco-Roman Jews, the Pilegesh became a mistress of doubtful legal status, and in Roman law, she had no legal status. Nevertheless, concubinage became an accepted institution during this period, and was carried over into the Christian era; concubines were frequently found among the ruling and upper classes, as well as among Christian priests. This was the form of concubinage known to the Talmudand the medieval Jewish literature, and it was read back into the Biblical period.

In the Talmud, according to R. Judah, quoting Rav, the difference between a wife and a concubine was that the latter had neither Kiddushin nor Ketuba (San. 21a; Maimonides, Yad, Melachim 4.4, and commentaries to this section). However, according to the Palestinian Talmud, a concubine had Kiddushin, but no Ketuba (Yerushalmi, Ket. 5.2; 29b). The former, not the latter, definition, was generally followed by most of the authorities (Caro to Yad, Melachim 4.4; de Boton to Yad, Melachim; Radbaz, Responsa, vol. IV, #225, vol. VII, #33; Adret, Responsa, vol. IV, #314; but Rashi, Ribash, Maggid Mishneh, and others followed the latter. The two definitions may refer to two levels of concubinage, as will be discussed later, or they may reflect errors in the original Talmudic text (G. Ellinson, Nisu-in Shelo Kedat Mosheh VeYisra-el,pp. 40ff). The sources clearly indicated that we are dealing with an individual of intermediate status who did not have all the rights of a married wife, but on the other hand was not to be considered as a prostitute either.

Maimonides protested vigorously against concubinage, and sought to eliminate it by claiming that it was a right limited to royalty and not permitted to ordinary Jews (Yad, Melachim 4.4). The woman was, therefore, to be considered a prostitute (Zona), and both she and the male involved could be whipped (Yad, Ishut 1.4). Jacob b. Asher and Caro later also prohibited concubines (Tur and Shulchan Aruch, E.H. 26.1 and 2.6). This prohibition was accepted by most Jews, but not all. Concubines were permitted by many Spanish and Provencal authorities–such as Abraham ben David, Abulafia, R. Jonah, A. Nissim, R. Adret, R. Asher Meiri, etc. (Ellinson, op. cit., p. 54) although they disagreed of their precise status. Nahmanides also accepted concubines (Responsa, #284; commentary to Gen. 25:6), although he warned against the moral evil involved. Concubines were discussed in the Middle Ages among both Sefardic and Ashkenazic Jews, and were often considered outside the Cherem of R. Gershom (Tseida Laderech III, #1, 2; Adret, Responsa, vol. I, #1205, IV, #314; Rabbenu Nissim, #68; Asheri, #37.1; Meir of Padua, #19; Sh.A., Even Ha-ezer 13.7; Otsar Haposekim, Even Ha-ezer 26.3ff). Isserles permitted concubines as long as they were careful about Mikveh (Isserles to Sh.A., Even Ha-ezer 26.1). Most authorities previously cited based their prohibition and cautions on the Deuteronomic law prohibiting prostitution in Israel (Deut. 23:19ff; Lev. 19:29, 21:9).

The general mood of the Rabbinic authorities was to prohibit concubines or accept them only reluctantly. The latter position was partially the result of embarrassment about Biblical concubines. Concubinage was further restricted by the Cherem of Rabbenu Gershom (Sh.A., Even Ha-ezer 1.10; Aruch Hashulchan 1.23). This ordinance prohibited the individual from marrying an additional wife, unless special permissions were provided by one hundred rabbis from three districts. It also prohibited a husband from divorcing a wife against her will. This ordinance has continued in force for Ashkenazic Jews, but was not made universally effective among Sefardic Jews until 1950 (Schereschewsky, Dinei Mishpacha, pp. 72ff). These decrees and their legal interpretations virtually eliminated concubinage. An exception to the general prohibition of concubinage was the 18th century Jacob Emden, who favored the institution as a way of increasing the population of the Jewish community (Emden, She-elot Ya-avetsII, 16).

The status of a concubine with Kiddushin, but no Ketuba, was as follows: Regarding adultery and incest, she was considered a wife; in financial matters, her consort’s responsibility was limited, and he was obligated for neither maintenance nor ransom, but, if he became tired of her, he had to divorce her (Adret, ResponsaV, #242).

A concubine actually needed no formal divorce (Get), but some felt that for the sake of public appearance, she should have a Get. If the man with whom she lived did not wish it, or had simply disappeared, she could remarry without a Get (Shulchan Aruch, Even Haezer 26, 26.1). The children of a concubine bore no blemish and possessed all the rights of other children, i.e., inheritance, etc. (Adret, Responsa, vol. IV, #14, 315). A concubine who entered the relationship without Kiddushin or Ketuba needed no divorce when the relationship ended; in fact, a man could simply give her to his son (Asheri, #32.1; Ribash, #395). This woman was simply a mistress; she could not be charged with adultery, although she could be flogged for lewd conduct, and she had no legal or financial standing. All this would show that two forms of concubinage have existed in Jewish tradition till the beginning of the 19th century. Both of them were accepted only reluctantly (bedi-avad). The practice of concubinage was rare in northern Europe and became infrequent even in the Mediterranean basin after the 16th century. It continued to be discussed in the codes and in occasional responsa.

This discussion has clearly shown us that Judaism sought to remove the practice of concubinage, and various authorities prohibited it. Only the Biblical example made it difficult to eliminate it entirely as a recognized form of marriage. We cannot validate this form of marriage, as it violates our ideals of marriage and the laws of the states or provinces in which we live. It is contrary to the general development of Jewish law in the last eight hundred years.

Walter Jacob, Chairman

Leonard S. Kravitz

W. Gunther Plaut

Harry A. Roth

Rav A. Soloff

Bernard Zlotowitz

See also:

S.B. Freehof, “Wedding Without a License,” Contemporary Reform Responsa, pp. 98ff.

If needed, please consult Abbreviations used in CCAR Responsa.

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