Responsa

ARR 101-106

CCAR RESPONSA

American Reform Responsa

39. Unworthy Man Called to Torah

(Vol. LXII, 1962, pp. 119-124)

QUESTION: At the regular Sabbath service, it is the custom of the congregation to call two men up to recite the blessings over the Torah reading. One Sabbath morning, after the service, an officer of the congregation protested the fact that a certain man had been called up to the Torah that day. He said that the man (who was a lawyer) did not have a good reputation in his professional career. Is it justified to debar a man from being called up to the Torahbecause his character is open to question? Or is his reputation or character irrelevant to his being called to perform this religious function?

ANSWER: The question asked is of considerable importance because the answer given to it might well be applied to various other religious functions for which people are called up to the pulpit. The subject has been discussed sporadically in the literature. Simon ben Zemach Duran (14th-15th century, Tashbets II.261) was asked whether unmarried youths may be prohibited from reading the Torah, either because the honor of the Torah requires only mature married adults to be called or because an unmarried youth could not remain clean minded. He answered that, according to the law, a young man is permitted to be called up to the Torah, and added that even sinners are not forbidden to be called to the Torah; but, nevertheless, if the congregation, in order to make “a fence against evil,” desires to forbid certain groups to come up, the congregation is always permitted to do so.

Duran is cited in a recent volume of responsa, Mispar Hasofer, by Isaac Zvi Sofer (Jerusalem, 1961, Responsum #5), not with regard to the calling up of young unmarried men, but with regard to the more characteristically modern question as to whether a public violator of the Sabbath may be called up to the Torah. Sofer follows the decision of Duran, namely, that whatever be the actual rights of the individual in this matter, the congregation always has the right, as a congregation, to make decisions excluding sinners from being called up. He adds that many Hungarian congregations have long made such a decision as a “fence against evil doers.”

The difficulties involved in this question are reflected in the very wording of the dispute as it was presented to Simon ben Zemach Duran. Some of the disputants considered that what was involved was kevod haTorah (the honor due to the Torah), and therefore the dignity of the service. Other disputants insisted that to come up to the Torah reading was an obligation, a mitzvah, and therefore we have no right to keep a man from his religious duty.

The fact is that the legal literature never clearly defines the true status of this function. For example, is being called up to the Torah to be deemed as a religious duty incumbent upon every Jew, just as praying three times a day is a duty? If it is a duty, then it would not be possible to debar a man from it, and thus prevent him from performing mitzvah. Maimonides says (Hilchot Tefila XIV.6) in a somewhat analogous situation, speaking of a priest who had sinned: “We do not tell a man to add to his sin by neglecting a mitzvah.”

But being called up to the Torah may not be a mitzvah at all. It may be a right that any Jew can claim, and therefore one could protest if he were not called up to the Torah for a long time. There is no doubt that many pious Jews consider this a right which they can demand. A Yemenite, some time ago in Israel, sued the officers of his congregation on the ground that they were prejudiced against him and had not called him up to the Torahfor a long time. He was suing for what he called his rights as a Jew. Certainly many Jews have that feeling, whether or not it is so in the law. Then again, it may be neither a duty on a man’s part, which he may fulfill, nor a right, which he may demand, but a privilege which the congregation confers. In that case, the congregation can bestow that privilege upon whomever it deems worthy and withhold it from whomever it judges unworthy.

Since this basic definition of what the status of the ceremony is (duty, right, or privilege), has not been clarified in the law, the probabilities are that the status is vague, and that it has the nature of all three of these possible classifications. It is necessary, therefore, to see to what extent it partakes of each.

Is it a duty, a mitzvah, incumbent upon every Jew, to be called up to the Torah? When a boy who is to be Bar Mitzvah is called up to the Torah, his father is required to recite the blessing “Baruch shepetarani.” Now, clearly in this case, this is a religious duty incumbent upon the father. How could we possibly prevent him from performing this mitzvah, even if he were a notorious sinner? Yet, even in this case, it is to be observed that it is doubtful whether the blessing is really required. The requirement is found in a note by Isserles in Orach Chayim 225.1, and even he is uncertain about it, and, therefore, suggests that in reciting the blessing, the father should leave out God’s name–a practice which is followed in the case of all blessings of dubious validity, so that God’s name not be recited in vain.

If, then, it is not–broadly speaking–a duty to go up to the Torah, is it a right which a Jew can claim? To some extent this may be so. Certainly a Kohen can count it as his right to be called up to the Torah first. The law frequently discusses who should be called up to the Torah (after the Kohen and the Levite have been called up for the first two portions): a bridegroom in the week of his marriage has precedence over a Bar Mitzvah; next, a father whose child is circumcised that week; then a mourner, on his Yahrzeit. Are all these rights which a man can demand? The most that can be said is that they have become customary rights. The law does not make them firm rights, but a man can well be aggrieved if he is denied them. If, for example, someone gives a large sum of money for the privilege of being called up, the old congregations would certainly call him up, and no one of the categories above would feel that they had a right to dispute.

Certainly, the calling up partakes also of the nature of a privilege, because the congregation often calls up a man in order to honor him. It will call up the rabbi for the third portion, which is the first to which a non-Kohen or non-Levite can be called up. That honor is certainly involved in the Torah reading is clear from the statement in B. Megila 23a, where it is said that while women may be called up as one of the seven on the Sabbath, we do not call up women because of “the dignity of the congregation” (mipenei kevod hatsibur).Thus, the dignity and propriety of the situation involved is a significant consideration.

Is it possible to decide the matter more closely than merely upon the vague fact that being called up to the Torah partakes somewhat of the nature of all three (a duty, a right, or a privilege)? Ephraim Margolies, the famous scholar of Brody (1762-1828), wrote a book dealing specifically with the questions involved in the reading of the Torah (Sha-arei Efrayim, many editions). In section I, paragraph 32, he discusses who should not be called up to the Torah. Most of this discussion is based chiefly upon two passages in the Shulchan Aruch which provide some material analogous to our problem. One, in Orach Chayim 128, deals with sinful priests and their rights to go up to bless the people; and the other, in Yoreh De-a 334 (also Orach Chayim 55.11), speaks of a man who has been put under ban, as to whether he may be included in the Minyan, etc. The implications of these two laws and their bearing on our question about calling an unworthy man up to the Torah have been rather fully explored in an interesting responsa sequence. It is found in Shetei Halechem(331) by Moses Hagiz, a Palestinian rabbi who lived in Amsterdam (1671-1750).

The incident which evoked this series of responsa throws some light on the social conditions of the time. In one of the Sephardic congregations (Amsterdam or London), a man embezzled the money of the Chazan and ran away with the Chazan’s wife. The guilty couple fled to Spain, but, terrified by the Inquisition, they came to London. Meantime, the Chazan, in poverty and anguish, died. The culprit in London was told by the Chacham to make a public confession of guilt. This he did in the synagogue, in the presence of the congregation. Thereafter he was frequently called up to the Torah. One Yom Kippur, the brother of the dead Chazan was in London and saw this man holding the Torah at “Kol Nidrei.” He bitterly protested. He said that this man had not returned the embezzled money or made any attempt to do so; his repentance is, therefore, insincere, and such a scoundrel should not be called up to the Torah.

Although this was a quarrel within the Sephardic community, many Ashkenazic scholars were consulted, as well as the rabbis of Mantua, etc., and among the Ashkenazim were the famous scholars Jacob Reischer of Metz (Shevut Ya-akov) and Jacob Emden of Altona. Between them, they dealt with the implications of the references to the sinful priest in Orach Chayim and the excommunicated man in Yoreh De-a. Most of the opinions were to the effect that since the man had made no attempt to restore what he had stolen, his repentance was incomplete, and therefore he should not be called up to the Torah. This would indicate the feeling, at least on the part of most of the scholars, that a non-repentant sinner should not be called up to the Torah. This opinion is generally based on the Orach Chayim statement that if a Kohen has committed certain crucial sins, such as marrying a divorced woman or willfully defiling himself by contact with the dead, then if he is not repentant, he is not permitted to bless the people.

Two of the scholars–one anonymous and the other Jacob Emden–say that this is a bad analogy. A Kohen, if he repents, may bless the people because blessing the people is a mitzvah, a commandment imposed upon him (“Thus shall ye bless,” Numbers 6:23). Thus, it is clear in the mind of these scholars that being called up to the Torah is not a commandment before which he may not put obstacles. As for the analogy with the law in Yoreh De-a, that a man who is under ban may not be counted in the Minyan, Jacob Emden says that the law clearly states that only the man who has been officially put under ban is debarred. As long as a sinner has not been put officially under ban, he may still be counted in the Minyan. This sinner in London has not been put under ban officially; therefore, he may still be counted in the Minyan. Jacob Emden then adds that being called up to the Torah is less important than being counted in the Minyan. Women and children, although they may not be counted in the Minyan, may nevertheless (according to the Talmud, Megila 23a) be called up to the Torah. So it is conceivable that this wicked man in London could be excluded from the Minyan and yet be called up to the Torah. But Jacob Emden says that since he was not put under ban, and since, anyhow, being called up to the Torah is not as strict a matter as being counted to a Minyan, then it might be a kindness to let him be called to the Torah. This might help him towards righteousness. Besides, he adds, we “must not close the door in the face of the would-be repentant.” In fact, Ephraim Margolies in his handbook says that if it is not definitely proved that a man is a sinner, we ought to allow him to be called up.

Ephraim Margolies, in his handbook, is specific about who should not be called up. A man who is known to have taken bribes should not be called up to read the passage dealing with justice and laws; and a man whose wife neglects the Mikveh, etc., should not be called up to read the passage which deals with these matters. On fast days, a man who is not fasting is not called up to the Torah (Sha-arei Efrayim 1.17). The commentator Sabbatai Lifschitz (Sha-arei Rachamim) bases an explanation of these selective restrictions upon the Peri Megadim (Joseph Teomim) to Orach Chayim 141, end of paragraph 8, in which he indicates that such a man would be bearing false witness to the passage being read. But in spite of these selective restrictions, where there would be a shocking contrast between the reading from Scripture and the character of the man called up, Margolies concludes that, in the spirit of Jacob Emden: “If we call him up and some indignant worshiper scolds him, the embarrassment may lead the sinner to full repentance.” The commentary in Sha-arei Rachamim to this passage in Margolies adds another leniency as follows: Although it is not permissible to call a blind man to the Torah, nevertheless, we do call up blind people and illiterates because (they do not read the Torah and) we rely upon the reading by the official reader. Thus, he continues, we can call up sinners who should not be permitted to read the Torah(themselves) because nowadays we count on the reading by the official reader.

We may, therefore, conclude as follows: While it is not clear in the law whether being called up is a duty, a right, or a privilege, the ceremony clearly partakes of each of these. A man of dubious reputation should not be called up for certain specific passages, where his character contradicts the reading. Nor, of course, should a notoriously evil man, as the one mentioned by Moses Hagiz, be allowed to shame the congregation by being called up to the Torah. But in general, in less heinous offenses, as long as the man has not been excluded or ostracized by the community, we should not “shut the door in his face.” We should always consider the honor of the congregation, yet be lenient and avoid complete exclusion.

Solomon B. Freehof

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 36-37

 

CCAR RESPONSA

 

New American Reform Responsa

 

23. A Kohen and Torah Honors

QUESTION: What is the position of a kohen among us? As a kohen has priority in the Torah readings, may he agree to accept a Torah honor in another position? (Nora Deutsch, Seattle WA)

ANSWER: Among us as Reform Jews the kohen and the Levite possesses no special status and both the honors as well as the disabilities which remain among Orthodox Jews are disregarded by us. However, your congregation seems to be somewhat more traditional and therefore the question.

All of the kohanim nowadays are, of course, of doubtful status as no strict genealogies have been maintained. When a priest is called to the Torah as the first and receives this honor, it is done as a minhag (custom) and not because the individual is entitled to that honor (Shulhan Arukh Orah Hayim 457 and commentaries; Ribash Responsa #94). As the matter is only a minhag the kohen may refuse and not ascend to the Torah altogether or take a Torah honor later, but in a traditional congregation he should at least be offered that honor in order to indicate that no doubt has been cast upon his status,and that the congregation thinks him fit for the honor although he may not wish to accept it.

December 1990

 

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 198-199

 

CCAR RESPONSA

 

Contemporary American Reform Responsa

 

135. English Torah

 

Blessings

QUESTION: It has been a minhag in the

congregation to recite the Torah blessing in Hebrew, although a major segment of the

rest of the service is in English. Recently the Torah blessings were recited in English, to

the dismay of a number of congregants. Should the congregation insist that they be recited in

Hebrew by all who are called to the Torah? (I. A., Pittsburgh, PA)

ANSWER:

Two separates issues are involved here. One is the use of the vernacular in prayer, and

these prayers in particular, and second, what weight is to be given to congregational minhag

(custom). Let us begin with the matter of prayers in the vernacular.

It is clear that

a large proportion of our people were no longer familiar with Hebrew, even in the time of Ezra

and Nehemiah (Neh. 8:8), so the Scriptural reading had to be translated for them. By the time of

the Mishnah, the common people no longer used Hebrew, therefore, the shema,

tefilah and the birkhat hamazon were permitted in the vernacular (M.

Sotah 7.1). This, then, also was the later decision of the Talmud (Sotah 32b ff); it enabled

individuals who recited petitions to pray sincerely and with full knowledge of what they were

saying. A parallel stand was taken by later authorities, so the Sefer Hassidim of the

eleventh century (#588 and #785) stated that those who did not understand Hebrew should pray

in the vernacular. Maimonides provided a similar statement (Yad Hil. Ber. 1.6), while the

Tur and Shulhan Arukh made a distinction between private and public prayers.

Private prayers were preferably said in Hebrew, while those in the congregation might be recited

in the vernacular. They expressed a preference but did not exclude the vernacular in either

instance (Tur Orah Hayim 101; Shulhan Arukh Orah Hayim 101.4). Aaron Cho~in,

Eliezer Lieberman and others, who defended the changes made by the Reform Movement in the

last century, and its use of the vernacular, however, insisted that a number of prayers should

continue to be recited in Hebrew (Qinat Ha-emet; Or Nogah, Part I). Of course,

they felt that nothing stood in the way of using the vernacular.

Although there is no

discussion about the Torah blessing particularly, it is clear that they may be recited in any

language, according to the traditional view, and certainly according to our Reform

view.

Custom (minhag) has had an honored status in Jewish life for a very long

time. Both the Mishnah and Talmud discuss the customs (minhagim) of the

people and suggest that a variety of rites be guided by them (Ber. 45b; Pes. 66a; Sof. 14.18).

Naturally, customs which were accepted had to lie within the general framework of Jewish life

and be followed by respected individuals. In subsequent centuries, the minhag has played

an ever increasing role in Jewish life, so that Isserles was able to state: “No custom should be

abolished,” (Isserles to Shulhan Arukh Orah Hayim 690.17; Yoreh Deah 376.4). Isserles,

of course, listed hundreds of customs in his notes to Caro’s work.

Generally the mood

of modern Judaism has been very much in keeping with this tradition, and we have felt that

customs are binding and should be followed whenever possible.

If it is the custom of

the congregation to recite the Torah blessings in Hebrew, then every effort should be

made to continue this practice. This should, however, not totally exclude those who can not

recite the Hebrew blessings. If they are sufficiently young, they should be encouraged to study

Hebrew in preparation for the next occasion when they may be asked to participate. If they are

older, then perhaps an English recitation should be permitted despite the minhag.

Another solution would be for the rabbi to recite the berakhah in Hebrew for

individuals unable to do so, while they read the English translation.

September 1983

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 222-223

 

CCAR RESPONSA

 

Contemporary American Reform Responsa

 

149. An Aliyah to the Torah and Congregational

Dues

QUESTION: Are members of a family, which have refused to meet

its obligations of dues to the congregation, entitled to be called to the Torah? In this

instance, the family has resigned from the congregation, but the male member continues to

attend. May an aliyah be denied to this man as he is unwilling to support the

congregation? (Rabbi B. Lefkowitz, Taunton, MA)

ANSWER: The answer to this

question hinges on whether an aliyah is a right to which any Jew is entitled, a

mitzvah which he must fulfill or a privilege provided by the congregation and which,

therefore, may be restricted. In addition, we must balance the congregational honors with the

obligation to maintain a congregation. The traditional literature is not clear on these matters.

Those who claim that an aliyah is a right base themselves in part on the Talmud

(Ber. 55a), which states that those who do not read the Torah regularly will suffer a

shortened life.

Still others claim that it is a mitzvah, and of course, it would not

be proper to deny anyone the opportunity to perform a mitzvah. Some argue that this is

indicated by the blessing (shepatrani) which a father recites when his son becomes

Bar Mitzvah; it frees him from further obligation for his son. It would not be possible to

deny anyone, even the worst sinner, the opportunity to recite this blessing. However, there is

some debate in the traditional literature whether this blessing is necessary and whether it may

not be omitted (Isserles to Shulhan Arukh Orah Hayim 225.1). The entire matter has been

dealt with at length in Efrayim Margolis’ Shaarei Efraim. As women and children may be

called to the Torah (Meg. 23a), we need not be too strict on this according to some

scholars, including Jacob Emden.

The obligation to maintain the congregation is an

ancient one and can be traced back to the Biblical tithe, which was used to maintain the Temple

in Jerusalem. It is a mitzvah which makes it incumbent for all Jews to contribute to the

maintenance of a synagogue as well as other communal institutions (Shulhan Arukh Orah

Hayim 150.1). In the Middle Ages, wealthy individuals often sought to escape their communal

obligations, especially when large assessments were made upon the community by Gentile

oppressors. These individuals who possessed means and connections tried to use them to

escape the assessments. In many instances the community placed them under the ban in order

to force their cooperation (J. Wiesner, Der Bann). This clearly indicated that far more

serious methods than simply the removal of some synagogue honors were used to elicit the

cooperation of all Jews in the maintenance of the Jewish community.

In our age an

aliyah is considered a special honor by all. This perception should lead us to be careful in

selecting those thus honored. The modern scholar, Isaac Z. Sofer (Mistar Hasofer #5),

has stated that it is quite possible to exclude those who are considered sinners as a way of

building a fence and preventing sin from affecting the remainder of the community. He bases

this on an earlier decision by Simon ben Zemah of Duran (Tashbetz II,

#261).

The traditional literature has made no decision on this matter. However, it is

also clear that the congregation has the obligation to assure its proper maintenance; those who

do not help may be excluded from whatever is perceived to be an honor. It would be permissible

to exclude this individual from the privilege of an aliyah.

December 1983

 

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 267-270

CCAR RESPONSA

New American Reform Responsa

161. Responsibility of an “AIDS” Carrier*

QUESTION: An individual has been diagnosed as having AIDS, the testing has been positive, there is little room for doubt as he has developed some initial symptoms. Years may pass before other symptoms appear. It is currently estimated that at least thirty percent of carriers of AIDS will be affected by the syndrome. As a carrier he is also a transmitter of the syndrome; he is aware of the fact that the active stage of AIDS is fatal. The young man in question insists on continuing to be sexually active and is careless about using preventive measures like condoms. Would Judaism consider him a danger to society or if married, to his wife? Would Judaism label his transmission of AIDS as murder? What are his responsibilities to society? (D. R. Pittsburgh PA)

ANSWER: We sympathize with anyone struck by this illness and must help them in every way possible. AIDS victims must be protected from needless discrimination yet society must also protect itself from obvious dangers. Let us view this question from two different perspectives. First, let us look at the matter of his sexual activity and Judaism’s attitude toward this. The question does not indicate whether the individual is homosexual, heterosexual, single or married. Let us initially assume that he is heterosexual, not married and that his sexual activities are conducted with a number of different partners. Traditional and Reform Judaism have, of course, rejected promiscuous sexual activity and we would reject his behavior on these grounds. In fact the Talmud assumed that if a man had intercourse, with a woman, that it was intended to be serious and would lead to marriage (eyn adam oseh beilato bilat zenut Yeb 107a; Ket 83a; Git 81b). There were many statements which prohibit sexual relations outside marriage (Prov 6.29,32; Lev 19.29, 20.10; Tos 1.4; etc) this applied to both men and women. All unmarried individuals were to refrain from sexual intercourse (Pes 113 a ff; Shab 152a; San 107a; Ket 10a; etc). Any male who violated this prohibition could be flogged (Ket 10a); more severe penalties were applied to females. The efforts of traditional Judaism to segregate men and women sought to remove the temptations of sexual intercourse outside of marriage. Men and women were to be separated on all festive occasions in public places; a man was even prohibited from walking behind a woman for this reason (Yad Hil Yom Tov 6.21). There are numerous similar citations in the Talmud, the codes and the responsa literature. Despite this, such extra-marital sexual relationships did exist and were sometimes defended as a human weakness. Looser standards were tolerated in some ages, for example in Judea in the Talmudic period (Ket 7b); in the Byzantine Empire and in various Balkan lands in the last centuries (L. Epstein Sex Laws and Customs in Judaismp 128). Yet consistent efforts were made to restrict sexual intercourse to marriage. In marriage, human sexuality was considered a positive experience. The tradition, of course, said much more on the subject. We would therefore reject this man’s promiscuous behavior and state that Judaism demands restraint and would punish violations when possible.

Now let us ask that what would our attitude be if the individual in question is married; we must ask whether he can continue sexual relations with his wife. If he remains careless about his use of condoms he will probably transmit AIDS to his wife. No one is permitted to endanger the life of a fellow human being; one must die rather than endanger another human life even if one’s own life is in danger (San 60 b ff; A Z 43b; 54a; Ket 33b; Shab 149a; Sefer Hamitzvot Lo Taaseh #2 ff, 10, 14; Shulhan Arukh Yoreh Deah 157.1). As every source of saqanat nefesh must be removed (Deut 4.9; 4.15; Ber 32b; B K 91b; Yad Hil Rotzeah Ushemirat Hanefesh 11.4-5 Hil Shevuot 5.7; Hil Hovel Umaziq 5.1) this individual should not permit himself to continue sexual relations with his wife. This may ultimately provide grounds for divorce which could be enforced by a bet din. A woman has always been able to seek a divorce if her husband was afflicted with leprosy (M Ned 11.12) or similar diseases. For that matter she could seek it if her husband engaged in a new field which was noxious to her as tanning of hides. (MKet 8.9) Certainly if the danger is great as with AIDS, grounds for divorce exist. We would discourage a divorce and rather encourage the wife to support her husband in this difficult period, when he needs her help. The couple must, however, refrain from intercourse or use stringent precautions.

We should also view this situation entirely from the point of view of transmitting a fatal disease. Traditional literature has dealt with dangerous contagious diseases through quarantine from the Biblical period onward (“Jewish Reaction To Epidemics – AIDS” W. Jacob Contemporary American Reform Responsa #82). Every effort was made to isolate the individual and to protect the general society in Biblical times from the dangerous but not fatal zoraat. In this instance we are dealing with a fatal disease whose effect is felt over many years. This means that a false sense of security may be given to both the carrier and the recipient. It also remains possible for the carrier to hide her/his condition from the recipient in the early stages of the symptoms.

We are aware of the tragic consequences for any individual who has AIDS and must sympathize with his/her plight. Every possible support and help must be extended to such individuals. His/her right to work and to function in a normal manner in our society must be protected as long as such individuals are willing to do their share in protecting society. We must also differentiate between absolutely positive testing for AIDS and those whose status is doubtful. Such individuals should undergo further tests. Yet such a respect for individual rights cannot be permitted to endanger others through reckless behavior.

Our present knowledge of AIDS and the lack of any cure or immunization leads us to see a known carrier who is aware of his/her condition and engages in sexual relations without the regular use of condoms as guilty of endangering another human life. This must be made absolutely clear to such individuals; society can demand that they refrain from all sexual activity or to protect their partner with great care. Such partners must be adequately warned. We should in turn also warn everyone against promiscuous sexual behavior as it is considered morally wrong and may endanger their lives.

If such demands cannot be met by known carriers of AIDS then society must protect itself by isolating individuals who are known carriers and utilize every means at its disposal to protect the remainder of society. No individual has the right to endanger the life of another. It is incumbent on all members of society to protect themselves against such reckless and dangerous behavior.

July 1987

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 279-281

CCAR RESPONSA

New American Reform Responsa

169. Taharah and AIDS

QUESTION: At the present time the funeral director of the local Jewish funeral home refuses to permit taharah for AIDS victims. Are there circumstances under which taharah may be withheld? For example, dangerous infectious disease or should we insist that he treat AIDS victims like all other dead? (Rabbi Norman M. Cohen, Hopkins MN).

ANSWER: The fact that this question is asked at all indicates the progress of modern medicine in removing the danger of most infectious diseases. Through most of our long history the grave danger of plagues and major epidemics was, of course, recognized even while the danger of infectious diseases was not. Special precautions were occasionally initiated during major epidemics, but those who died from any disease were treated alike and were provided with the same preparation before burial. In fact crises like epidemics and plagues led to the creation of new burial societies and to renewed devotion to proper burial (I. Abrahams Jewish Life in the Middle Ages pp 355 ff). Special burial preparations were only made for those who were murdered or those who died in childbirth (For a summary see Grunwald Kol Bo al Avelut p 49 ff; and Sedei HemedIV (Avelut #141).

There was, of course, considerable discussion in the rabbinic literature about the reaction to plagues. Flight from the affected areas was encouraged (Shulhan Arukh Yoreh Deah 116.5; and commentaries; see also J. Preuss Biblical and Talmudic Medicine pp 151 ff. Solomon ben Simon Duran (Responsa Maharil # 195) approached the whole matter from a philosophical point of view and asked whether flight would be successful if an individual had already been destined for death. Isaac Luria devoted an entire chapter to the question (Yam Shel Shelomo 6.26). There were a large number of responsa which dealt with contagious diseases and ways to escape epidemics (H. J. Zimmels Magicians, Theologians, and Doctorspp 99 ff, 193 ff). Flight was the principal remedy.

Those who were not fortunate enough to escape and died were to be buried in the appropriate manner. It might be possible to throw quicklime on the grave in order to avoid the spread of the plague (Shulhan Arukh Yoreh Deah 374 Pithei Teshuvah; Jacob Reischer Shevut Yaakov II#97). Furthermore, the laws of mourning could be modified or suspended in these sad times (Shulhan ArukhYoreh Deah 374.11 and commentaries).

Although these modifications were readily undertaken, the basic rites of burial were followed as closely as possible. In other words there is no doubt that in times of mass deaths, when a large proportion of the community had fled, some normal honors accorded to the dead were no longer possible. Yet there was no question about taharah or any matter connected with burial or the preparation for burial.

The local funeral director is obligated to perform taharah and to treat AIDS victims as all other dead in accordance with local custom and the specific wishes of the family. The funeral director would be encouraged to take all possible precautions to prevent infection by AIDS.

April 1988

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 273-274

CCAR RESPONSA

New American Reform Responsa

164. AIDS and Free Needles for Drug Addicts

QUESTION:The spread of AIDS takes place in a number of ways. Among them is through infected needles shared by drug users. Among the suggestions of public health officials has been the providing of free needles for drug users. This somewhat curtails the spread of AIDS. Is it ethical to utilize this method which after all enables drug addicts to continue their habit? Ultimately that habit may be as destructive as AIDS. ( Leonard Silberman, New York NY)

ANSWER: As noted in some previous responsa there is surprisingly little material in the vast responsa literature about the use of addictive drugs (W. Jacob Contemporary American Reform Responsa#82). As you have indicated this is a matter of public policy rather than a specifically Jewish issue. We must ask ourselves what are we trying to accomplish. The free needles may somewhat curtail the spread of AIDS. They do, however, continue the problem of drug abuse, and do nothing to help the addict overcome his/her addiction. Can we in good conscience move along this partial path and ignore the larger question of drug addiction and its harm to the individual as well as the broader society?

The use of drugs whose harmful effect is known has, of course, been prohibited by Jewish law (Pes 113a; Eruv 54a; Nid 30b). No person is to endanger his/her life in any fashion (Deut 4.9; 4.15; Ber 32b; B K 91b; YadHil Rotzeah Ushemirat Hanefesh 11.4; Hil Shevuot 5.57; Hil Hovel Umazig 5.1). Even the use of experimental drugs whose benefit is uncertain has been permitted reluctantly, and only with the full consent of the ill person, and if there is reasonable chance that healing will occur. In this instance an additional factor is created by the involvement of health authorities in the use of drugs. In other words making it easier for those addicted to continue their habit.

Those considerations are negative and would lead us to a negative conclusion. There is, however, another side to this question. AIDS is a fatal disease for which no cure is now known. Individuals who suffer from this syndrome can be helped for some time, but eventually death is certain. Use of drugs may also kill, but it is possible to be cured of this habit and only a serious overdose or very long term use will kill. Most deaths result from side effects of the drugs or crimes connected with drugs. Therefore drugs, although a major evil in our society, are the lesser evil for the individual.

We may therefore defend the providing of free needles to known drug users on the grounds that we are helping them to preserve their lives. They will be less likely to be afflicted by AIDS, and so will not spread this disease to others. Furthermore the possibility of a cure from their drug problems, although unlikely, exists. We may therefore say that in order to prevent a greater evil we will condone a lesser evil, and we do so on the grounds that saving a life permits anything accept murder and adultery. In this instance the life saving factor becomes predominant, and we would condone, albeit reluctantly, the distribution of free needles for this purpose.

June 1989

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 164-165

 

CCAR RESPONSA

 

New American Reform Responsa

 

102. Circumcision and AIDS

QUESTION: What precautions should a mohel take for his own protection and for the protection of other children in view of the AIDS epidemic? (Mark Cohen, New Orleans LA)

ANSWER: As AIDS is transmitted through blood and it is possible that the mohel may injure himself in the process of the circumcision, he should take every precaution possible. There would be no problem about wearing gloves. This would also be in keeping with the tradition (Sefer Haberit #179). The mohel should, of course, always be careful about the cleanliness and sterility of instruments used for the circumcision. It is presumed that our Reform mohalim would use the highest medical standards in their procedures and that there would be no reason to question them on these matters.

As we do not perform metzitzah either directly or indirectly and use other methods for seeing to it that the wound is clean and the danger of infection is minimized, we would have no other contact with the blood of the child. From Talmudic times we have sought and followed the best current medical opinion (Nidah 22b; Yad Hil Deah 4.1, 23ff; Shulhan Arukh Orah Hayim 571; Moses Sofer Hatam Sofer Yoreh Deah 175; Even Haezer Vol 2 #2; Moshe Feinstein Igrot Mosheh Yoreh Deah Vol 2 #69). In all of these matters we, therefore, rely on current medical advice and take the necessary precautions.

January 1991

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 271-272

 

CCAR RESPONSA

 

New American Reform Responsa

 

162. AIDS and a Dentist

QUESTION: A dentist has tested HIV positive. He is not yet suffering from any of the symptoms of AIDS, and now wishes to know whether he can continue his practice as long as he takes proper precautions. Must he inform his patients? (P.R. Phoenix AZ)

ANSWER: AIDS is a serious illness for which there is no known cure or vaccine, so we must take the infection of the dentist very seriously. We should be concerned with this AIDS victim as the disease is fatal; he needs our compassion.

The fear of the general population is understandable as little is known about the disease, its incubation period or a potential cure. We must be concerned with both the individual and the larger community, and in this instance with the danger which may exist. It is true that the dentist can protect his patients through the constant use of gloves; the danger would then be minimal. The dentist, of course, wishes to protect his livelihood and realizes that any notification to his patients would destroy his dental practice, and that is probably an accurate assumption.

We must be concerned with pikuah nefesh, the potential danger to the patient. If a patient feels that there is no risk, or is willing to assume a very slight risk, then that is fine, but the patient must be informed that a remote possibility of infection exists. Furthermore, unless the dentist informs his patients now, any patient later tested as HIV positive will blame the dentist rather than any other possible source. By withholding this information he will find himself accused and sued. We would agree with the tradition based on the Biblical statement “Do not place a stumbling block before the blind” (Lev 19.14; Pes 22b; MK 5a; Yad Hil Rotzeah 12; Sefer Hamitzvot, Lo Taaseh 299) and the obligation of avoiding unnecessary danger (Deut 4.9; 4.15; Ber 32b; B K 91b; Yad Hil Rotzeah Ushemirat Hanefesh 11.4; Hil Shevuot 5.57; Hil Hovel Umaziq 5.1). A patient would be well advised to be cautious about using this dentist even if the risk of HIV infection is small.

As the dentist must inform his patients of his condition, the dentist should be encouraged to sell his dental practice while that remains possible. He may not be able to continue some aspects of dentistry in a setting where his condition will be known, but will not effect patients, or simply retire from the field.

January 1990

 

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 374-377

 

CCAR RESPONSA

 

New American Reform Responsa

 

234. Agunot

QUESTION: Should we marry women considered agunot by Orthodox rabbis? (Martin Cohen, Los Angeles CA)

ANSWER: In the long span of Jewish history, aside from the normal problems and aggravated circumstances surrounding divorce, the chief issue has been that of the agunah, a status caused by the disappearance of the husband or by his refusal to provide a religious divorce (get) for his wife. The second problem has often been solved through communal pressure which stopped short of actually forcing a get, as that would not be legally valid (Solomon ben Aderet Responsa IV #40; Simon ben Zemah Duran Responsa II #68; Tur and Shulhan Arukh Even Haezer 134 and 154; Responsa Reanana #43; Responsa Mabit 11 #138; Pisqei Din shel Batei Hadin Harabanim Vol II pp 300 ff).

Much more difficult is the problem of a husband who disappeared. Usually in the past this condition occurred when the husband had disappeared in time of war or during a long journey to distant lands. Despite a presumption of death, as it could not be proven, the wife continued to be considered as married. During the period of heavy Eastern European emigration to the United States and other western lands, some men were lost at sea or in the wild West, while others slipped away and thus relieved themselves of family responsibilities. In modern times, in addition to these cases of agunah, we have thousands of Orthodox women whose husbands simply refuse to provide a get and leave their wives with no solution. After civil courts have dissolved the marriage, only moral persuasion can be exercised on the husband and that is frequently difficult because of the hostility which exists between the individuals. Although some states, for example New York, now recognize the obligations of a ketubah and would enforce its provision until a get had been given, this is only minimally helpful as it is easy to escape its jurisdictions.

The problem of the agunah in modern times has been solved in a number of different ways. Our Reform method simply acknowledges civil divorce. For the Orthodox an annulment is possible, but very difficult. Some traditional Jews solve the problem when the original marriage was Reform or Conservative by not accepting the witnesses who signed the ketubah and so denying its validity. As no marriage has taken place in their eyes, no get is necessary (Moses Feinstein Igrot Mosheh Even Haezer #74 #75; David Hoffmann Melamed Lehoil Even Haezer #20).

Although this path may be technically correct from an Orthodox point of view, it is insulting to all Reform and Conservative Jews; it also does not satisfy psychologically. One of the problems with this approach is the Jewish doctrine that Jews who engage in intercourse do so with serious intent; furthermore, individuals, who have lived together for a period of time and are recognized as husband and wife by the community in which they live, are so accepted (Git 81b). The Orthodox authorities who suggested the above mentioned solution claim that this ruling does not apply to sinners (Moses Feinstein Op Cit #75; Jehiel Weinberg Seridei Esh Even Haezer #28).

A variety of modern proposals have incorporated some statement about divorce, or at least about the jurisdiction of the rabbinic court in the ketubah in order to solve the problem. The modern Orthodox scholar, Eliezer Berkovits, made such a proposal and urged the use of a conditional marriage; he subsequently defended it in his book Tenai Benissuin Vehaget. The rabbis of Turkey in 1924 made a similar proposal which was later rejected by Ben Zion Uziel of Israel (A. H. Freiman Seder Qiddushin Venissuin pp 391 ff).

A most determined effort in this direction was made by Louis Epstein for the Conservative Rabbinical Assembly in 1930; he suggested that a conditional divorce be given at the time of marriage. This approach which is halakhically sound was rejected by the Orthodox rabbinate and Epstein’s efforts to defend it failed. (I. Epstein Hatzaah Lemaan Taqanot Agunot; Lisheelah Ha-agunot). Many considered it inappropriate to deal with divorce in the wedding document. The Conservative Rabbinical Assembly has added a clause to its ketubah which simply states that the couple places itself under the authority of the Conservative bet din. This removes one of the objections to the document of Epstein (Rabbinic Manual pp 37 f). The effort of the Conservative Rabbinical Assembly was made under the guidance of Joshua Liebermann and has been incorporated in the ketubot used by the Conservative movement.

A more radical suggestion was made by the French Orthodox Rabbinate in 1907, which urged that all ketubot include a clause which indicate that a civil divorce decree would annul the marriage and the woman would be released and free to marry according to Jewish ritual subsequently. This suggestion was attacked by Orthodox authorities in other lands (A. H. Freiman Seder Kiddushin Venisuin p 390).

These efforts have tried to deal with the problem of agunot but largely to no avail, as the complications have usually led individuals who sought a second marriage to use a Reform rabbi who recognizes a civil divorce or a “Document of Separation” (W. Jacob (ed) American Reform Responsa #162) or to turn to the civil authorities. We should continue to perform such marriages of agunot as a way of helping the Jewish community with a difficult problem. We recognize civil divorce as sufficient. Our solution is within the range of those proposed by some Orthodox authorities and so is part of our effort to unite the Jewish community.

October 1988

Hoshen Mishpat

 

 

If needed, please consult Abbreviations used in CCAR Responsa.

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