Responsa

5780.4 Conversion of a Committed Unitarian Universalist

Sh’elah
A woman whose boyfriend is a rabbi wishes to convert to Judaism. She is quite knowledgeable and is also enrolled in a formal course of study under Reform auspices. The woman is only months away from ordination as a Unitarian Universalist minister and intends to serve a UU church. She finds no conflict between her UU faith and Judaism, and notes that there are already born Jews serving as UU ministers. Should the beit din allow the conversion of this woman? (Rabbi Lisa Rubin, Director, Exploring Judaism, Central Synagogue, New York)

T’shuvah
We know that at different times and in different circumstances, rabbis have set different standards for conversion. This reflects the reality that “halachic decisions cannot be understood in terms of rabbinic law alone, but must be studied in the framework of the sociological and organizational needs of the decisor and those whom he supports.”[1] How a rabbi weighs a prospective convert’s motivation and commitment depends on the circumstances. “Given the complexity of human behavior and the near impossibility of sorting out ‘sincere’ from insincere motivations, Jewish law leaves the decision to the discretion of the rabbi, who must determine whether the candidate for conversion chooses Judaism for reasons the community would find acceptable.”[2] In the words of R. Joseph Karo, “Hakol l’fi r’ot beit din”—“It is up to the court to decide as it sees fit.”[3]

In making a decision about this woman’s suitability as a prospective giyoret, we are being asked whether Judaism and Unitarian Universalism are compatible commitments. Let us first consider what it means to be a Jew, whether by birth or by naturalization (conversion).

I. What is conversion to Judaism and what does it entail?

A. Conversion: Becoming a ben/bat b’rit
The religion of ancient Israel had no formal process of “conversion.” When the Torah refers to the ger it does not mean a “convert,” i.e., one who has accepted the religion of Israel. Rather, it means a non-Israelite who lives permanently among the Israelites—a non-citizen, who was obligated to adhere to some Israelite laws, and had the privilege of participating in some rites.[4] However, even before the Babylonian Exile, the people of Israel also engaged with the question of whether a non-Israelite could become a devoted adherent of the God of Israel, and if so, whether that made them an Israelite/Judean/Jew.[5] (Indeed, some scholars view the Book of Ruth as a post-exilic polemic against the view of Ezra-Nehemiah that the community of Israel is restricted to born Israelites.[6]) Negotiating the relationship between ethnic Jewishness and religious Jewishness was a complex process that extended over centuries.[7] In the context of first the Persian, and then the Greco-Roman, environment, our sages recognized the Torah’s ger toshav, “resident stranger,” as an increasingly obsolete category and instead reinterpreted ger to mean “proselyte,” i.e., one who wishes to join the house of Israel by committing not only to the God of Israel, but to the way of life ordained for Israel in the Sinai covenant.

Acknowledging the God of Israel as the one God who created the universe, i.e., rejecting idolatry, was not sufficient, however, to make one a Jew. Rather, to the rabbis it made one a righteous gentile, an adherent of the seven commandments of the children of Noah.[8] Becoming a ger tzedek, a “righteous proselyte,” was something entirely different. That required committing not only to the God of Israel, but also to the laws of Israel, i.e., to the Sinai covenant. To convert means becoming a party to the covenant, a ben/bat b’rit.

Our sages saw Ruth as the paradigmatic convert, and her interaction with Naomi became the paradigm of how Jews should treat prospective converts.[9] A midrashic reading of the dialogue between Ruth and Naomi[10] reinterprets it to become the model for standard conversion procedure: investigation into self-serving motives as opposed to genuine spiritual seeking; discouragement from taking on a burdensome fate; warnings about the demands of this new lifestyle; teaching the prospective convert the practicalities of living a Jewish life, but without too much burdensome and discouraging detail; ensuring that they understand the consequences of adherence or non-adherence to the mitzvot (i.e., reward and punishment in the world-to-come), and then finally formalizing their entry into the community of Israel through circumcision (for males) and immersion. All these are also detailed in a baraita that becomes the basis for all subsequent discussion of conversion. The baraita includes this provision: “If he accepts (kibbel), we circumcise him immediately….”[11]

The crucial term here is kibbel, “accept.” Prior to carrying out the formal procedures (circumcision and immersion) that effect the change in legal status, the ger/giyoret must accept the responsibilities of being a party to the covenant (ben/bat b’rit). That is what it means to be a Jew.[12] We formally affirm that inherited status of ben/bat b’rit for each newborn Jewish child, either through b’rit milah or b’rit bat; we formally extend that status to those who wish to join the house of Israel as parties to the covenant by naturalizing them through gerut, conversion. “Just as Israel entered the covenant (nichn’su lab’rit) by means of three commandments, so converts enter – by means of ritual circumcision, immersion, and [when the Temple stood,] bringing an offering.”[13]

The baraita’s language of “acceptance” is the same language the Mishnah uses to explain the significance of reciting the Sh’ma twice daily:

Rabbi Joshua ben Korḥa said: Why does [the paragraph beginning] Hear, O Israel precede [the paragraph beginning] If, then, you obey the commandments? So that one first accepts upon oneself the yoke of the kingdom of Heaven (’ol malchut shamayim), and then after that, the yoke of the commandments (’ol hamitzvot).[14]

Thus Rashi explains that the essence of conversion is entry into the covenant, expressed as “accepting the yoke of the commandments:”

“We inform them about some of the commandments”—For now, by means of immersion, they are completing the process of conversion. Therefore at the moment of fulfilling the commandment of immersion, they must accept upon themselves the yoke of the commandments.[15]

And Maimonides phrased it in this way:

Thus for all generations, if an idolator wishes to enter the covenant and to take refuge beneath the wings of the Divine Presence, and accept upon himself the yoke of Torah [emphasis added], he requires circumcision, immersion, and the making of an offering; or for a woman, immersion and an offering. For it is written (Num. 15:15): There shall be one law for you and for the resident stranger.[16]

B. What must a convert believe?
Modern readers may find it strange that the Tannaitic locus classicus on conversion does not explicitly address belief. But Jews stood out in the Greco-Roman context as the only genuine monotheists. Indeed, they were so exceptional in this regard that Roman law recognized their right not to offer sacrifices to the emperor or to other gods. Furthermore, we know that Greco-Roman synagogues attracted a considerable number of non-Jews who attended with some regularity, but did not formally join the community.[17] Anyone with a serious interest in actually becoming a Jew knew perfectly well that the Jews were monotheists and that they believed in a God who created the universe and revealed to them the laws by which they were to live. Accepting the commandments thus implicitly affirmed acceptance of the Commander.[18]

Maimonides, for whom correct belief was of paramount importance, chose to add a doctrinal component to the process of conversion: “…and we inform them of the essential principles of the religion, which are the unity of God and the prohibition of idolatry….[19] While this view was not adopted by either the Tur or the Shulchan Aruch,[20] many later authorities were troubled by the fact that the foundational halachic text, the baraita in Y’vamot, does not explicitly set a standard for belief. Since the halachah regards the formal conversion procedures (milah and t’vilah) as valid after the fact, it is possible that someone could go through the formal process of conversion without making an explicit and clear statement of what they actually believe about the meaning of those acts, or committing to living a covenantal life.[21] In theory, of course, the sages viewed this as unlikely in the extreme, since the halachah mandates that the beit din should examine a prospective convert’s motivation and reject any for whom conversion is a means to personal gain (a spouse, status, money, etc.), leaving only a sincere desire to enter the Sinai covenant. In practice, however, the issue has always been less clear cut, for how can anyone measure the sincerity of another person? Sincerely accepting the obligations of the covenant, however, is what is required. Thus, for example, R. Solomon Zalman Lipschitz (1765–1839) explained that the halachah meant only that a formal conversion was valid after the fact even if the convert was not properly taught; but “[failure to] accept the commandments obviously invalidates [the conversion], for this is the essence of conversion and the entry into the Jewish religion.”[22]

R. Mark Washofsky has summarized this matter as follows:

A candidate’s sincerity is judged by his or her demonstrated desire to practice Judaism in accordance with our beliefs and interpretations. We insist that the convert declare his or her free choice to enter the covenant between God and Israel, renounce all other faiths and religions, pledge loyalty to the Jewish people, and promise to live a Jewish life and raise his or her children as Jews. As Reform Jews, we define our range of acceptable “beliefs and interpretations” as liberally as we can;…[o]n the other hand, we are a religious community, and we therefore share in common certain ideas as to what that designation means….One who wishes to join our community but who rejects the most central elements of Jewish religion as we interpret it is not ready for conversion.[23]

II. Can a Unitarian Universalist be a ben/bat b’rit?

In the case before us, the prospective giyoret insists that there is no conflict between becoming a faithful Jew and remaining a faithful Unitarian Universalist, even becoming a Unitarian Universalist minister, because there are no conflicts between the beliefs of the two religions. We reject that contention. To put it simply: Unitarian Universalism does not require an exclusive commitment to any particular religious tradition, but Judaism does. Our tradition likens the covenant to a marriage between God and Israel—but it is not an open marriage.

Liberal Judaism affirms the value of religious pluralism in our society. Our understanding of pluralism allows us to engage in interreligious dialogue, participate in interfaith worship that is respectful to all faiths involved, and occasionally borrow non-Jewish patterns and styles of worship and adapt them to our own distinctly Jewish worship. That understanding, however, also presumes the existence of real and essential differences,  distinctions, and boundaries between religious faiths and faith communities. Judaism, therefore, is different from other faiths in its commitments and practices, and it is frequently the task of rabbis to call our people’s attention to this distinctiveness and the boundary lines that define our unique religious tradition.[24]

According to its official website, “Unitarian Universalism is a liberal religious tradition that was formed from the consolidation of two religions: Unitarianism and Universalism.”[25] A history of the religion provided there traces its roots to the pre-Nicene Christians who rejected trinitarianism and offers this conclusion: “Our history has carried us from liberal Christian views about Jesus and human nature to a rich pluralism that includes theist and atheist, agnostic and humanist, pagan, Christian, Jew, and Buddhist.”[26] The Unitarian Universalist website further states:

We have radical roots and a history as self-motivated spiritual people: we think for ourselves and recognize that life experience influences our beliefs more than anything.

We need not think alike to love alike. We are people of many beliefs and backgrounds: people with a religious background, people with none, people who believe in a God, people who don’t, and people who let the mystery be.

We are Unitarian Universalist and Buddhist, Christian, Hindu, Humanist, Jewish, Muslim, Pagan, atheist and agnostic, believers in God, and more [emphasis added].[27]

And:

Our beliefs are diverse and inclusive. We have no shared creed. Our shared covenant…supports “the free and responsible search for truth and meaning.” Though Unitarianism and Universalism were both liberal Christian traditions, this responsible search has led us to embrace diverse teachings from Eastern and Western religions and philosophies….

We are united in our broad and inclusive outlook, and in our values, as expressed in our seven Principles. We are united in shared experience: our open and stirring worship services, religious education, and rites of passage; our work for social justice; our quest to include the marginalized; our expressions of love.[28]

And:

In Unitarian Universalism, you can bring your whole self: your full identity, your questioning mind, your expansive heart. By creating meaningful communities that draw from many wisdom traditions, and more, we are embodying a vision “beyond belief:” a vision of peace, love, and understanding.

We have more than one way of experiencing the world and understanding the sacred….

Explore the links below to learn how Unitarian Universalists weave these traditions and identities into who they are today.

Atheist and Agnostic / Buddhist / Christian / Earth-Centered / Hindu / Humanist / Jewish / Muslim[29]

This commitment to openness to belief is matched by a commitment to openness in praxis.

Many Unitarian Universalists and our congregations celebrate Christian holidays like Christmas, Jewish holidays like Passover, and Pagan Winter Solstice, among others. Our holiday services use the stories and traditions creatively, calling us to our deeper humanity and our commitment to the good.[30]

How compatible is this Unitarian Universalist self-understanding with Judaism?

 

  1. God
    The Torah says: I am the ETERNAL your God who brought you out of the land of Egypt, the house of bondage; you shall have no other gods besides Me.[31] But a Unitarian Universalist is free to choose to worship multiple deities or powers, including the earth, Jesus,[32] Hindu deities, and more; or no deities.[33] It may well be that as an individual, a UU feels most comfortable relating to God as articulated by Jews. But according to the UU website, UU worship is characterized by the inclusion of spiritual practices (prayers, holidays, and rituals) from all traditions. For a Jew to engage in the worship of any power in addition to God is to engage in shituf, adding other powers alongside the One God, and we are forbidden to do so.[34]
  2. Torah
    To be a ben/bat b’rit means to be committed to the primacy and exclusivity of Torah as one’s spiritual path. UUs are committed to finding meaning equally in a range of places. How can a committed Unitarian Universalist affirm the unique authority and exclusive claim of Torah in their life? As this committee has said:

    Reform Judaism is a religious movement of Jews dedicated to the covenant between God and the Jewish people. If we do not insist that the ger meet this fundamental standard and find herself ready to affirm the reality of God in Jewish religious life and experience, it would be a legitimate question whether we have any standards at all.[35]

    In the case before us, we can simply replace the word “God” with the word “Torah.” This individual may feel that her religious outlook and way of life are compatible with a Jewish outlook and way of life. But avowing a desire to commit to Torah while also maintaining a commitment to remain open to other ideas, philosophies, religions, and spiritual practices is completely illogical. The Sinai covenant requires an exclusive commitment on our part, not just an agreement to go along with it as long as it is compatible with another system of sacred meaning that holds one’s primary loyalty.

  3. Israel
    Each of us has multiple identities, and at different times and in different contexts we bond with different circles—by family, by family role, by gender, by nationality, by politics, by skin color, by leisure interest, by occupation, etc. But kol Yisrael areivim zeh bazeh—“All Israel are responsible one for the other.” We Jews are an extended family; we are each other’s community. And our collective relationship with God calls us to be an am kadosh, a holy people, of which the synagogue, the k’hilah k’doshah (holy community), is a representation in miniature. Just as we may not simultaneously be married to two people, so we may not be fully committed to two sacred paths, or two holy communities. The synagogue must be a Jew’s holy community. Yes, there are Jews who find meaning in Unitarian Universalism. But as the UU website shows, they do it by selecting elements of their Jewish heritage to fit into the UU framework.

    Many Unitarian Universalists (UUs) have a connection to Judaism. Whether we are ethnically, culturally, or spiritually Jewish, whether we’re married to a Jewish person, or simply inspired by Jewish wisdom, we have a place in Unitarian Universalism. One of the six sources we draw upon in our worship and religious education is “Jewish and Christian teachings which call us to respond to God’s love by loving our neighbors as ourselves.”
    We honor Jewish holidays with a progressive and inclusive twist. UUs with Jewish heritage hold Passover seders, celebrate Hanukkah, and mark the High Holy Days. When we worship together, Judaism comes into play in a variety of ways depending on the congregation. In the fall our Sunday services often draw on themes from Rosh Hashanah and Yom Kippur. Our winter holiday-themed services often tell the story of Hanukkah. In the spring, we tell the stories of Moses and the Exodus, and some congregations gather around an all-ages all-faiths table to join in a celebratory Passover Seder led by Jewish UUs. Any time of year in our congregations, we may hear wisdom from the Bible, some midrash, a Hasidic tale, or a funny story from a Jewish culture.[36


    This is not, by any stretch of the imagination, living in covenantal relationship with the God of Sinai.

    We are troubled that this prospective convert cannot see any conflict between Unitarian Universalism and Judaism. Yes, both traditions reject the trinitarian doctrine that became the basis of organized Christianity; but so does Islam, and no one would claim that one can simultaneously be a faithful Jew and a faithful Muslim. To reduce Judaism to the rejection of trinitarianism is absurdly simplistic, and deeply disingenuous. We do not intend to disparage Unitarian Universalism in any way. As the Pittsburgh Platform put it, “We recognize in every religion an attempt to grasp the Infinite, and in every mode, source or book of revelation held sacred in any religious system the consciousness of the indwelling of God in man.”[37] But that does not mean that all traditions are interchangeable. To be a Jew is to follow a distinct and distinctive spiritual path. The UU path is perfectly acceptable for a UU. We cannot say, however, that it is an acceptable path for a Jew who wants to be faithful to the covenant between God and the Jewish people.

    We are in no way closing the door to interfaith activities. Nor are we engaging in a knee-jerk Jewish reaction to anything with Christian overtones, however attenuated and superficial. We are not saying that Jews should not attend, as guests, the sacred experiences of our neighbors, our friends, and, sometimes, our relatives. We value the opportunity to engage, as individuals and as congregations, with our neighbors from other religious traditions, in ways that respect the distinctiveness and maintain the integrity of all traditions present. Indeed, as the chasm grows in our society between those who live with an awareness of the transcendent and those who are insensible of it, it is not at all surprising that religious Jews will sometimes find more commonality with religious non-Jews than with non-religious Jews. But all of that is different from what we are facing here, which is the contention that one can be simultaneously a Jew and something else, that one can live wholeheartedly devoted to two paths. For faithful Jews that is beyond the pale.

 

III. Additional considerations
The would-be giyoret argues that she knows many Jewish UUs, including UU ministers, apparently implying that it would be unfair to hold her to higher standards than born Jews. It is true that born Jews can explore other paths, and that “they remain part of us as long as they do not abandon our people or join a different religion.”[38] But a Jew who indicates that they are “separating themselves from the community” (poresh min hatzibur) by adopting another religion is considered a mumar, a “changed” Jew, i.e., an apostate. The mumar does not cease to be a Jew; Jewishness—acquired through birth or through conversion—is permanent. However, the mumar ceases to be a Jew in good standing in the community, and is excluded from participation in Jewish ritual.[39] Were any beit din to convert this woman, she would immediately become a mumar, and therefore no beit din should convert her. If at any time she wishes to commit to an exclusive fidelity and enter the covenant, she would be welcome.

Furthermore, this individual is about to become a UU minister. Were a beit din to convert her, she would then constitute a role model for Jews who might be exploring Unitarian Universalism. They would learn from her that it is perfectly acceptable for a Jew to share their commitment to God and Torah with other religious frameworks, and that it is perfectly acceptable for a Jew to participate wholeheartedly in a wide variety of spiritual practices that, in their own context, teach messages that are not compatible with a Jewish covenantal commitment. At that point she would become, for them, chotei umachti et harabim—“one who transgresses and causes others to transgress.”[40]

Finally, the question alludes to the fact that this individual is in a relationship with a Jew. Although conversion for the purpose of marriage is expressly forbidden by the Talmud and the codes, nevertheless the very same halachic literature has plenty of examples of individuals whose conversions were not purely motivated by religious devotion, but who came to a genuine devotion.[41] In the modern era, the reality is that many individuals first encounter Judaism through a prospective spouse, and we are happy for it. As this committee has said:   “…[I]t is difficult to imagine a more ‘sincere’ purpose for choosing Judaism than the desire to join one’s spouse in creating a cohesive Jewish home and family.”[42] In the case before us, however, it is clear that conversion would not lead to a “cohesive Jewish home and family.”

IV. Conclusion

In 1971, a distressed rabbi inquired of R. Solomon Freehof concerning a proposed interfaith activity that was acceptable to the Christians involved, but trod on Jewish sensibilities. In supporting the rabbi’s negative response, Freehof offered commiseration: “Here, therefore, is again a case where the ecumenical mood unfairly makes us look narrow and provincial.”[43] Half a century later, those sentiments still resonate. We want to be open and welcoming to all those who sincerely want to join us. But in a time and place where many people think that religious identity is just as fluid and self-defined as gender identity, we must dissent, and insist on the uniqueness and distinctiveness of the covenant between God and Israel, and expect that those who join us will accept what that means. We therefore advise the beit din that they should not proceed with this conversion.

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

 

[1] Moshe Zemer, “Ambivalence in Proselytism,” in Walter Jacob and Moshe Zemer, editors, Conversion to Judaism in Jewish Law, Studies in Progressive Halacha, vol. 3 (Pittsburgh: Freehof Institute of Progressive Halacha, 1994), 93; David Ellenson, Tradition in Transition (New York: Lanham, 1989), 92-93.
[2] Mark Washofsky, Jewish Living: A Guide to Contemporary Reform Practice (New York: UAHC Press, 2000), 210.
[3] Bet Yosef to Tur YD 268 s.v. u-mah she-katav rabeinu.
[4] See David L. Lieber, “Strangers and Gentiles,” in Encyclopaedia Judaica, 2nd ed., edited by Michael Berenbaum and Fred Skolnik, (Detroit, MI: Macmillan Reference USA, 2007), Vol. 19, 241-242. Gale eBooks (accessed July 20, 2020). https://link.gale.com/apps/doc/CX2587519250/GVRL?u=ohlnk162&sid=GVRL &xid=ee7b53d5.
[5] See the extensive discussion of whether to render the classical Greek term Ioudeios as Jews or Judeans in English, and the implications of that decision, in Timothy Michael Law and Charles Halton, editors, Jew and Judean: A MARGINALIA Forum on Politics and Historiography in the Translation of Ancient Texts (Creative Commons, Marginalia Review of Books, 26 August 2014).
[6] Adele Reinhartz, “Ruth,” in Adele Berlin and Marc Brettler, editors, The Jewish Study Bible, 2nd edition (NY: Oxford University Press, 2014), 1574.
[7] See Shaye J.D. Cohen, The Beginnings of Jewishness: Boundaries, Varieties, Uncertainties (Berkeley: University of California Press, 1999).
[8] BT Avodah Zarah 64b; Yad, H. Melakhim 8:10.
[9] BT Y’vamot 47b; Ruth Rabbah 2:22-25, 3:5.
[10] Ruth 1:8-18.
[11] BT Y’vamot 47a-b.
[12] “Now then, if you will obey Me faithfully and keep My covenant, you shall be my treasured possession among all the peoples. Indeed, all the earth is Mine, but you shall be to Me a kingdom of priests and a holy nation (Ex. 19:5).” “Then [Moses] took the record of the covenant and read it aloud to the people. And they said: ‘All that the ETERNAL has spoken, we will do and obey!’ (Ex. 24:7)” “I make this covenant, with its sanctions, not with you alone, but with but both with those who are standing here with us this day before the ETERNAL our God and with those who are not with us here today (Deut. 30:13).”
[13] BT Gerim 2:4.
[14] M. B’rachot 2:2.
[15] BT Y’vamot 47b, Rashi s.v. u-modi’in oto mik’tzat mitzvot.
[16] Yad H. Issurei Bi’ah 13:4.
[17] See Moshe David Herr et al., “Rome,” in Encyclopaedia Judaica, 2nd ed., edited by Michael Berenbaum and Fred Skolnik, vol. 17 (Detroit, MI: Macmillan Reference USA, 2007), 406-417. Gale eBooks (accessed July 22, 2020). https://link.gale.com/apps/doc/CX2587516895/GVRL?u=ohlnk162&sid=GVRL&xid=188ad9fb. On the presence of pagans in synagogues see, e.g., Paula Fredericksen, When Christians Were Jews: The First Generation (New Haven: Yale University Press, 2018), 190f.
[18] For a contemporary parallel, consider this: The booklet published by the US Citizenship and Immigration Service for immigrants to use in preparing for their citizenship test begins with an introduction to the US constitution, but nowhere explicitly states that the US is not a monarchy. US Citizenship and Immigration Service, Learn About the United States: Quick Civics Lessons for the Naturalization Test, revised February 2019. https://www.uscis.gov/citizenship/learners/study-test/study-materials-civics-test. Accessed 3 July 2020.
[19] Yad H. Issurei Bi’ah 14:2. His view was strenuously endorsed by the Maggid Mishneh in his comment on H. Issurei Bi’ah 14:1.
[20] Tur ShA YD 268.
[21] Yad H. Issurei Bi’ah 13:17; ShA YD 268:12. There is extensive discussion of this question in the Entsiklopedya Talmudit entry on Gerut (vol. 6, columns 431ff.).
[22] ShU”T Ḥemdat Shlomo Yoreh De’ah 29-30, cited in “Gerut,” Entsiklopedya Talmudit, vol. 6, col. 231, n. 80.
[23] Washofsky, Jewish Living, 210.
[24] Reform Responsa for the 21st Century (RR21), vol. 2, 5764.3: “May a Jew Join the Society of Friends?” https://www.ccarnet.org/ccar-responsa/nyp-no-5764-3/ .
[25] https://www.uua.org/beliefs/who-we-are/history. Accessed 17 July 2020.
[26] Mark W. Harris, Unitarian Universalist Origins: Our Historic Faith. https://www.uua.org/beliefs/who-we-are/history/faith. Accessed 17 July 2020.
[27] https://www.uua.org/beliefs/who-we-are. Accessed 17 July 2020.
[28] https://www.uua.org/beliefs/what-we-believe. Accessed 17 July 2020.
[29] https://www.uua.org/beliefs/what-we-believe/beliefs. Reformatted to save space. Accessed 17 July 2020.
[30] https://www.uua.org/beliefs/what-we-do/worship/holidays. Accessed 17 July 2020.
[31] Ex. 20:2–3.
[32] The Unitarian Universalist Christian Fellowship web page states: “Most Unitarian Universalist Christians vary in their opinions about the relationship of Jesus to God.  Some would be comfortable stating that Jesus was the Son of God; meaning that his relationship with God, while a mystery, imbued him with a special quality of being and knowing that has not been experienced since.” http://uuchristian.org/our-history-beliefs. Accessed 17 July 2020.
[33] On the difference between an atheist and an agnostic with respect to conversion, see American Reform Responsa (ARR) #65 “Gerut and the Question of Belief” regarding the conversion of a professed agnostic. It concludes: “We would not have accepted her if she denied the existence of God, but we should accept this convert with the feeling that her attachment to Judaism and the knowledge of it are sufficient to bring her into Judaism and to help her develop a commitment to this religion.  As her Jewish life continues, she may also change her views on the nature of God.” https://www.ccarnet.org/ccar-responsa/arr-209-211/.
[34] Yad H. De’ot 1:6. See Recent Reform Responsa (RRR) #10: “Jew Joining the Unitarian Church.” https://www.ccarnet.org/ccar-responsa/rrr-56-58/.
[35] Teshuvot for the Nineties (TFN) 5754.15: “Atheists, Agnostics, and Conversion to Judaism.” https://www.ccarnet.org/ccar-responsa/tfn-no-5754-15-147-152/.
[36] https://www.uua.org/beliefs/what-we-believe/beliefs/judaism. Accessed 17 July 2020.
[37] “Declaration of Principles” (1885), https://www.ccarnet.org/rabbinic-voice/platforms/article-declaration-principles/.
[38] TFN 5754.15.
[39] BT Sanhedrin 44a: “A Jew who has sinned remains a Jew.” The literature on the mumar is voluminous. R. Solomon Freehof provided a compendium of the major sources in Reform Jewish Practice and Its Rabbinic Background [vol. I] (Cincinnati: HUC Press, 1944), 140-144. See also Reform Responsa for the 21st Century (RR21), vol. 1, 5758.11: “On Patrilineal Descent, Apostasy, and Synagogue Honors,” https://www.ccarnet.org/ccar-responsa/nyp-no-5758-11/.
[40] Rashi to BT B’rachot 35b s.v. le-Yerav’am ben Nevat; and He’arot of R. Elyashiv ad loc.: “The explanation is simple: When a person commits a transgression and others see him, they will learn from him to do it.”
[41] See, e.g., the well-known story about Hillel and the proselytes, BT Shabbat 31a.
[42] TFN 5754.15.
[43] R. Solomon B. Freehof to R. Morris Kipper, Coral Gables, FL, 20 Apr 1971. “Responsa Corr Apr May Jun 71,” Freehof Papers, Rodef Shalom Congregation, Pittsburgh.

 

If needed, please consult Abbreviations used in CCAR Responsa.

5780.3

5780.3

B’rit Milah During COVID-19 Pandemic

 

Note: This responsa deals with the ritual aspects of b’rit milah. A doctor should always be consulted in regard to the medical aspects of b’rit milah.

Question
What should be the proper procedure regarding b’rit milah during the COVID-19 pandemic?
(submitted by Rabbi Julie Pelc Adler, Director, Brit Milah Program of Reform Judaism)

Response
In the midst of the current pandemic, it is understandable that parents and mohalim/ot are confused and frightened.  We will examine the issues here carefully, one by one.

1. The importance of b’rit milah

In emphasizing the importance of b’rit milah the Talmud equates it to all the other mitzvot and, indeed, credits it with preserving the very existence of the world.[1]  In Christian lands it was an unmistakable, permanent marker of Jewishness; in Muslim lands, it marked Jewish male children.  Its complex psychological significance in a classically male-centered Jewish spirituality cannot be overstated.[2]  It is true that the first generations of Reformers were deeply ambivalent about it; Kaufmann Kohler, for example, called it “a barbarous cruelty,” and recommended its abolition.[3]  It is quite likely that most Reform Jews would have ceased to practice circumcision had it not been for the view that gained currency in the early 20th century, that circumcision conveyed hygienic and health benefits.[4]  Before World War II, lengthy post-partum hospital stays for middle- and upper-class women and their infants made it easy to arrange a hospital circumcision, with or without ritual. In the postwar era, however, shortened hospital stays led to numerous inquiries about the acceptability of circumcision before the eighth day, or the reality of Jews simply ignoring b’rit milah in favor of medical circumcision. While Responsa Committee chair Israel Bettan authored a strenuous objection to that widespread practice in 1954,[5] Solomon Freehof was far more accommodating in 1960.[6]  All Reform responsa since then, however, have followed R. Bettan in insisting on the importance of milah on the eighth day as a religious rite.[7]  As a movement we have encouraged Reform Jews to choose b’rit milah on the eighth day, and have facilitated this by training Reform mohalim/ot.

2. Circumstances for delaying b’rit milah

We are forbidden to endanger ourselves. As Maimonides writes: “The Sages prohibited many things because they are life-threatening.  And anyone who ignores their words, and says, ‘I can go ahead and endanger myself; what business is it of anyone else what I do to myself?’ or ‘I pay no attention to that’ – they are to flog him for rebelliousness.”[8]  We are obligated to preserve ourselves from danger (and, as parents, we are responsible for preserving our children from danger). There is, therefore, unanimous agreement among all halakhic authorities that we delay b’rit milah if the infant is not healthy enough to undergo it.[9]
By contrast, there is far less consideration of whether b’rit milah might risk the well-being of an otherwise healthy infant.[10]  However, there is a faint thread running through the halakha that is worth examining in detail.  It begins with this Talmudic passage:

Rav Pappa said:  Therefore, on a cloudy day or on a day when a south wind is blowing, we do not circumcise [an infant], nor do we draw blood.  But nowadays, when people are accustomed to ignore [these strictures, we rely on the assurance that] Adonai preserves the simple (Ps. 116:6) [and we proceed on the assumption that no harm will follow].[11]

This statement was never codified in the later halakha, but the Nimukei Yosef cites it approvingly:

The Ritba wrote in the name of his teacher [with reference to this passage]:  From here we learn that whoever does not wish to circumcise on a cloudy day has permission to do so, and is acting with clear justification in not relying on Adonai preserves the simple.  And similarly it is appropriate not to circumcise on Shabbat if it is cloudy.[12]

The discussion of this issue by the Arukh Ha-Shulḥan makes abundantly clear that the underlying concern is whether conditions are such that performing the rite could endanger the infant:

…But Rabbenu Yeruham wrote that neither a cloudy day nor a south wind delays the b’rit milah, because Adonai preserves the simple. However, the strain of a journey—meaning that the infant is ill from the strain of having made a journey, does postpone the b’rit, until he is well. Another authority wrote that anything other than some illness in the infant himself—such as having to go on a journey—does not delay the b’rit, just as we do not delay it for the sake of blowing winds.

Obviously, we do not delay the b’rit for the purpose of going on a journey, but rather we carry it out.  But it seems to me that it is obviously forbidden to take the infant on a long journey until he has recovered from the circumcision, lest he be endangered. However, it may be permissible to take him in a wagon, since in that case he is placed in one spot and appropriately covered with blankets and pillows. Also, one can see, when they have brought him on a journey by wagon, whether any weakness appears in him. This requires examination by experts in the body and face of the infant.  Indeed, we have never heard what the Nimukei Yosef wrote, that on cloudy days it is permitted to delay the b’rit. In fact, it is because Adonai preserves the simple that we are lenient on optional matters such as drawing blood on the eve of Shabbat…and thus all the more so with regard to an important commandment such as circumcision. And the proof of this is that not a single one of the authorities saw fit to mention this. So we learn that we do not use its guidance in fulfilling our obligation. Thus has the custom spread, and there is no changing it.[13]

It is quite obvious that the original authority, Rav Pappa, was expressing a genuine medical concern, based on his best knowledge. As subsequent generations’ medical knowledge changed, however, they dismissed these concerns as nonsense—but did not replace them with their own medical concerns. This may reflect the tacit trend toward stringency evident in the halakha over time, as seen in other practices such as the discontinuation of hafka’at kiddushinas a way of preventing agunot, or the Ashkenazic invention of “glatt kosher.”
Fortunately, we are under no obligation to adhere to the codified halakha when a minority viewpoint has clear merit.  And as we have stated before, we rely on medical expertise:  “As rabbis, we are not competent to render judgments in scientific controversies. Still, we do not hesitate to adopt ‘the overwhelming view’ as our standard of guidance in this and all other issues where science is the determining factor.”[14]
It is clear to us that b’rit milah may be delayed when performing the rite would endanger an otherwise healthy infant.

3. Does performing b’rit milah at this time endanger the infant?

The reality in North America is that parents can take many steps to minimize the chances of infection, but under current circumstances it is virtually impossible to eliminate all possibility of infection. Asymptomatic individuals are not being tested; the incubation period can be lengthy; and the virus is extremely contagious.  In many areas, by the time the infant reaches his eighth day, it is already highly probable that he has already been exposed to someone who is carrying the virus, unless he was born at home under conditions of strict isolation, and the medical practitioner(s) who delivered the baby were known to have tested negative for the virus. In other areas, it appears that this will be the case before too long.
As of this writing, there is not enough science available to stand as definitive research on COVID-19 in infants. Anecdotal evidence continues to mount, however, indicating that infants do not appear to be seriously affected. Infant deaths from the virus are so rare that individual cases are being reported as news.  It appears that in each case there were underlying health complications.[15]  It seems counterintuitive, and understandably goes against parents’ instinctive reactions, but so far the evidence is that babies, including newborns, are far less susceptible to COVID-19 than are older adults, unless the infants have some other health problem. It appears that the adults who would be present at a b’rit milah could be at greater risk than the infant himself.
Furthermore, there is no guarantee that this virus will disappear soon. Experts are saying that it will continue to circulate until there is a vaccine to treat it, with some saying that we will, therefore, require social distancing for 12-18 months.[16]  After that much time has elapsed, circumcision will be much more difficult and will carry its own set of risks.
Medical literature regards “newborn” circumcision as routine, requiring only local anesthesia, up to about age six weeks.[17]  Beyond six weeks, or when the baby grows larger than twelve pounds, it may be advisable to wait until he is six months old and perform the procedure under general anesthesia. There is a small indication that bleeding is a more likely complication for an older baby. Furthermore, as the baby ages, the foreskin is thicker and less pliable, so it is more difficult from a technical point of view to perform the circumcision using the more traditional Mogen clamp.
It would appear, then, that there is no absolute guarantee of safety for the infant; but he is no more at risk in a b’rit milah performed on the eighth day, even during the pandemic, than he will be at any time in his first year of life. That assumes, of course, that the b’rit milah is carried out in a way that does not add needless risk. It should be in the home, and there should be no one present other than the parents and the mohel/et. All standard procedures to minimize transmission should be followed, including wearing masks and gloves. It would be advisable to reduce danger to the parents by not having the rite performed by a mohel/et who has been working in a hospital or clinic where COVID-19 patients are being treated.
Some parents will, doubtless, consider a medical circumcision immediately after birth, followed by hatafat dam b’rit at home. We would point out that the most significant risk factor for the virus is the number of people to whom one is exposed at close range. A hospital procedure will bring the infant into contact with at least as many adults as will a b’rit milah performed at home.

Conclusions

  1. B’rit milah on the eighth day is a mitzvah that we as Reform Jews take extremely seriously.
  2. We take seriously the obligation of sh’mirat ha-guf, preserving our well-being, and we therefore recognize danger to an otherwise healthy infant as a valid reason for postponing a b’rit milah.
  3. In keeping with our commitment to taking into account the best scientific and medical advice, given what we know about COVID-19, its transmission, and the danger it poses to infants, we do not find that performing the b’rit milah on the eighth day, with appropriate precautions, poses a more significant risk to the infant than delaying it until the pandemic has passed.

As we wrote recently, the COVID-19 pandemic constitutes a genuine emergency situation (sha’at had’ḥak).  “In an emergency situation a bet din is responsible for taking action for the welfare of the community, and may issue a temporary ruling (hora’at sha’ah) to prevent the kahal from going astray.”[18]  People can “go astray” in all sorts of ways, including by allowing self-preservation and concern for our families to turn into irrational fear and panic. We pray that this pandemic will pass, and that as many lives as possible will be spared, and that people’s livelihoods will not be destroyed; but in the meantime we will—we must—continue to live our lives.

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

 

 

[1] Nedarim 32a.

[2] See Lawrence A. Hoffman, Covenant of Blood: Circumcision and Gender in Judaism (Chicago: University of Chicago Press, 1996), and Shaye J.D. Cohen, Why Aren’t Jewish Women Circumcised? Gender and Covenant in Judaism (Berkeley: University of California Press, 2005).

[3] “Authentic Report of the Proceedings of the Rabbinical Conference Held at Pittsburg, Nov. 16, 17, 18, 1885,” in Walter Jacob, ed., The Changing World of Reform Judaism:  The Pittsburgh Platform in Retrospect (Pittsburgh:  Rodef Shalom Congregation, 1985), 101.

[4] See David Gollaher, “From Ritual to Science: The Medical Transformation of Circumcision in America,” Journal of Social History vol. 28, no. 1 (Autumn 1994): 5-36.

[5] ARR #55, “Circumcision on a Day Other Than the Eighth Day of Birth.”

[6] RR #21, “Circumcision Before Eighth Day.”

[7] ARR #56, “Circumcision Prior to the Eighth Day” (1977); CARR #28, “Berit Milah” (1978); CARR #100, “The Pressured Mohel” (1988).

[8] Yad, H. Rotze’aḥ 11:5. See also Isserles’ gloss to ShA YD 116:5.

[9] Yad, H. Milah 1:16-17; ShA YD 262:2, 263:1.

[10] This question did arise in connection with metzitzah b’feh. The majority opinion is that metzitzah is a hygienic matter, not an integral element of the mitzvah, and therefore any technique that makes it safer is permitted. Isaac Klein, A Guide to Jewish Religious Practice (NY: Jewish Theological Seminary, 1979), 424.

[11] Yev. 72a.

[12] Nimukei Yosef, Yevamot 24a, s.v. ve-ha-id’na.

[13] Arukh Ha-Shulḥan YD 263:4-5.

[14] RR21, vol. 2, 5759.10, “Compulsory Immunization.”

[15] For example, see this news story: https://www.theguardian.com/world/2020/mar/29/coronavirus-illinois-governor-announces-rare-death-of-baby, accessed 10 April 2020.

[16] See, e.g., https://abcnews.go.com/Politics/federal-government-18-month-plan-life-return-normal/story?id=70046439, accessed 10 April 2020.

[17] For the research that provided the information in this paragraph I thank Dr. Bryan Hecht, M.D., Division Director of Reproductive Endocrinology, Obstetrics and Gynecology, MetroHealth, Cleveland, board certified in Obstetrics and Gynecology and Reproductive Endocrinology and Infertility, and a certified Reform mohel.

[18] Yad H. Mamrim 2:4, cited in 5780.2, “Virtual Minyan in Time of COVID-19 Emergency.”

5780.2

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

5780.2: Virtual Minyan in Time of COVID-19 Emergency

Question:

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

Answer:

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

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

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

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

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

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

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

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

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

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

5780.1

5780.1

COLLECTING FOR TZEDAKAH IN THE SYNAGOGUE ON SHABBAT

Question

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

— Rabbi Michael Sternfield, Bradenton, FL

 

Answer

The sho’el makes two central assertions:

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

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

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

 

  1. The classical halakhah
  1. Money and Shabbat in the halakhic tradition

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

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

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

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

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

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

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

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

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

If you refrain from trampling the sabbath, אִם־תָּשִׁיב מִשַּׁבָּת רַגְלֶךָ
From pursuing your affairs on My holy day; עֲשׂוֹת חֲפָצֶיךָ בְּיוֹם קָדְשִׁי
If you call the sabbath “delight,” וְקָרָאתָ לַשַּׁבָּת עֹנֶג
Adonai’s holy day “honored”; לִקְדוֹשׁ ה‘ מְכֻבָּד
And if you honor it and go not your ways, וְכִבַּדְתּוֹ מֵעֲשׂוֹת דְּרָכֶיך
Nor look to your affairs, nor strike bargains… מְּצוֹא חֶפְצְךָ וְדַבֵּר דָּבָר…

 

The Gemara says about this verse:

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

Rashi comments here:

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

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

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

The major codifiers developed these ideas more systematically.

  1. Mishneh Torah Hilkhot Shabbat

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

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

  1. Shulḥan Arukh Oraḥ Ḥayyim

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

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

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

  1. Arukh Ha-Shulḥan Oraḥ Ḥayyim

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

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

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

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

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

  1. Tzedakah as money

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

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

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

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

We may summarize the halakhic consensus with the following table:

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

(MITZVAH)

 YES YES NO

 

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

 

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

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

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

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

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

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

 

  1. Existing CCAR guidance
  1. From Gates of Shabbat:

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

  1. From Mishkan Moeid:

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

 

III. The question before us

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

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

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

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

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

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

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

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

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

 

Summary:

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

 

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

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

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

[3] M. Shabbat 7:2.

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

[5] M. Beitzah 5:2.

[6] B. Shabbat 148a.

[7] B. Shabbat 149a.

[8] B. Shabbat 150a and elsewhere.

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

[10] Klein, Guide, 83.

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

[12] Shulḥan Arukh OḤ 310:7.

[13] Arukh Ha- Shulḥan OḤ 310:10.

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

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

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

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

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

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

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

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

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

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

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

5774.5

 CCAR RESPONSA COMMITTEE

5774.5

On Genetically Engineered Foods

 

Sh’elah.

A new product called Golden Rice has been developed to help prevent blindness in children due to vitamin A deficiency. However, this product uses what is called recombinant DNA technology, in which two genes normally not present in rice are introduced into the rice genome. While there remains some uncertainty and dispute about the effects of this technology, there is absolutely no scientific evidence that Golden Rice is harmful or dangerous to the environment. Would Jewish tradition permit its use to save the vision of children? (Steven Abrams, M.D., Houston, TX)

T’shuvah.

Jurists speak of the distinction between questions of law and questions of fact.[1] A question of law “is one to be answered in accordance with established principles, one which has been already authoritatively answered, explicitly or implicitly, by the law,”[2] while a question of fact is decided not by reference to a legal rule or principle but by “weighing the strength of evidence and credibility of witnesses.”[3] The answers to questions of fact will often depend upon the testimony of experts – scientists, physicians, and the like – who are regarded as qualified to establish the “facts” to which the law must speak.[4]

Your sh’elah presents us with both a question of law and a question of fact. While the answer to the former is, in our view, tolerably clear, we as a committee find it quite difficult to resolve the latter. While this difficulty may prevent us from reaching a definitive conclusion in this responsum, however, it need not prevent you or anyone else from arriving at their own conclusions based upon their own considered judgment and weighing of the facts.

  1. Genetic Engineering of Plants and Jewish Law. We turn first to the question of law: does the production of genetically modified food or organisms (GMOs) violate an explicit or implicit prohibition of Torah? Golden Rice, our particular case, is created through the addition of two genes to the rice genome by means of a bacterial agent. This enables the rice grain to synthesize beta-carotene, a chemical that the body converts into vitamin A (retinol).[5] While beta-carotene is naturally synthesized in the leaves of the rice plant, that process is “turned off” in the grain; the genetic modification essentially restarts the process in the grain, the part of the rice plant that is actually consumed.[6] The goal, as our sho’el indicates, is to combat vitamin A deficiency, which “is the leading cause of preventable blindness in children and (which) increases the risk of disease and death from severe infections.”[7]

As is the case with most procedures of genetic modification (GM) of plants, Golden Rice is the result of the injection of genetic material (in the form of recombinant DNA) from a “donor” species into a host organism. Is this process the sort of “mixture” that transgresses the ritual prohibition (isur) in Leviticus 19:19: “you shall not sow your field with two kinds of seed (kilayim)”? At least one noted halakhic authority thinks it does,[8] yet his appears to be very much a minority viewpoint. Other scholars hold that the analogy does not fit, for several reasons. First, the prohibition of kilayim applies only to “mixture” accomplished in the “natural and accepted way,” that is, by sowing seeds, and not when it is done by synthetic means in a laboratory setting.[9] Second, when the DNA extracted from the donor plant, its chemical structure is transformed in the laboratory. It is therefore no longer the DNA of a separate species (a “diverse kind”) of plant but that of a non-plant, a different substance altogether (davar chadash), and the “mixture” no longer meets the definition of kilayim.[10] Third, while the aim of the isur is to prohibit the creation of new species of plant, the GMO is not in fact a new species but rather a member of the same species bearing new characteristics.[11]

We could argue, of course, that GM violates the spirit, even if not the letter, of Leviticus 19:19. No less a figure than Ramban (Nachmanides) seems to make that argument in his commentary to the verse, where he explains that the prohibition of kilayim teaches that God’s creation is perfect as it is and that one who “mixes” the species denies that perfection.[12] We might therefore conclude that Jewish tradition regards GM as an impermissible tampering with ma`aseh bereishit, the Divinely-created order of the physical universe. But even if we read Ramban’s comment as relevant to genetic modification technology – a dubious interpretation at best[13] – it is far from a unanimous opinion. Rashi holds that this isur lacks any discernible rationale; it is simply one of the commandments known as gezeirot, “decrees of the Sovereign that have no other purpose or explanation (ta’am).”[14] Additionally, the rationale that Ramban offers for kilayim contradicts much opinion within the Rabbinic tradition that denies that we must accept physical reality as “perfect as it is” and that openly acknowledges human control over the natural order.[15] One of the most famous statements of this position, indeed, is Ramban’s own commentary to Genesis 1:28 (“… God said to [the man and the woman]: Be fertile and increase, fill the earth and master it…”): “God has given to humankind power and sovereignty over the earth, to do as they please with the animals and all that crawl upon the earth, to build, to uproot, and to plant.” That comment, expressing the incontrovertible observation that all human civilization has involved “tampering” with the order of creation, has in turn been cited by contemporary halakhists in support of a permissive approach toward genetic engineering.[16]

For our part, we side with the preponderant view within the halakhic tradition that the prohibition of kilayim does not apply to contemporary techniques of genetic modification. And while we will not attempt to resolve the apparent contradiction between Ramban’s comments to Leviticus 19:19 and Genesis 1:28, we will repeat what we have written in a previous t’shuvah:[17] “we cannot say that Jewish tradition requires that we regard the existing natural order, including the existing genetic structures of the various species of plant and animal life, as sacred and inviolate.” As we noted there, the new technologies of genetic modification, when used with wisdom, open the door to many hopeful and exciting possibilities in the field of medicine and human health. We should therefore take care not to draw strained analogies that might question the religious permissibility of these scientific advances. For these reasons, we conclude that Jewish law contains no ritual prohibition that in principle forbids the application of genetic modification technologies for the betterment of the world and of mankind.

  1. GMOs and the Environment. That last sentence raises the question of fact. The technologies of genetic modification are said to offer exciting prospects for what we call tikun olam, the betterment of the world. They herald the introduction of new and hardier strains of food crops that can withstand disease and climate change and thus help feed our planet’s growing population. Some of these strains, such as Golden Rice, are touted for their contributions to human health and nutrition. But these claims must be evaluated against the possibility that the introduction of new or modified species into the world’s ecosystem may be a source of significant environmental harm. To cause such harm is not only an evil in and of itself; it also transgresses against our religious obligation to safeguard the natural world. That obligation, as we have written,[18] is known as bal tashchit, and it is derived from the Torah’s injunction against the wanton destruction of fruit-bearing trees (Deuteronomy 20:19-20).[19] From this, we learn that Torah requires us to be faithful stewards of the environment, and we do not keep that faith when we ignore the damaging effects of genetic technology.

At the same time, the bal tashchit prohibition is hardly absolute. Our tradition forbids “destructive” behavior precisely when it is “wanton,” when it is undertaken as it were for its own sake, but permitted when undertaken for the sake of some recognized useful purpose (to`elet).[20] If so, it does not follow that, on Jewish grounds, we must oppose the introduction of a new technology simply because that technology is “destructive” in some way. Rather, we have to measure the nature and extent of its potentially damaging effects and balance them against the benefits that the technology possibly offers to humankind. Any responsible Jewish decision concerning environmental action would demand a cost-benefit analysis of this nature, a careful evaluation of the facts of the case.

And in this case, the facts are very much in dispute. On one side stands an impressive array of scientific organizations, such as the European Commission,[21] the American Association for the Advancement of Science,[22] and the British Royal Society,[23] that argue for the health and environmental safety of plants produced by GM technologies.[24] With respect to Golden Rice, there is evidence that the new strain can contribute substantively to the battle against vitamin A deficiency.[25] On the other side, we find respected scientific and environmental organizations raising cautions against genetic modification in general[26] and Golden Rice in particular.[27] The objections center upon the claim that the health benefits advertised for Golden Rice are either unproven or superfluous (that is, other “natural” sources of vitamin A exist) or that whatever benefits it offers do not warrant the risks, such as possible threats to biodiversity, posed by the introduction of genetically modified organisms into the environment. Meanwhile, at least one health agency associated with the fight against blindness and malnutrition and that in general supports the use of GM foods as a source of vitamin A is currently acting as an “independent evaluator” on the Golden Rice project, with the aim of testing the product’s safety and efficacy.[28] This would indicate that, in the agency’s view, the issues surrounding Golden Rice have yet to be conclusively resolved.

  1. A Note on Science and Culture. All this presents a substantial problem for us, especially if our goal is to arrive at a definitive answer here and now to your sh’elah. Generally, when the Responsa Committee considers inquiries involving science and technology, we rely upon the consensus view among the scientific community to answer the relevant questions of fact. As we have written:[29]

As rabbis, we are not competent to render judgments in scientific controversies. Still, we do not hesitate to adopt “the overwhelming view” as our standard of guidance in this and all other issues where science is the determining factor. … (W)e rely upon “the overwhelming view” of scientists, not because scientists are immune to error, but because today’s science is a discipline defined by a rigorous methodology that leads to the recognition and correction of mistakes. The findings of any researcher are tested and retested carefully; they are subject to close scrutiny and peer review… It is precisely because scientists acknowledge that they can be wrong…that “the overwhelming viewpoint,” the consensus opinion among practitioners,[30] is worthy of our confidence.

The question, then, is not whether we “listen to” science. Of course we do, because facts matter, because we want our decisions to be grounded in empirical reality, and because science is the way in which our intellectual culture determines the answers to many questions of fact.[31] The question, rather, is how we should proceed in cases where a scientific consensus does not exist or where, if it does exist, it is challenged by those whose opinions ought to command the public’s respectful attention. Ours is such a case. Our reading of the evidence cited above suggests to us that a consensus or “mainstream” viewpoint, supportive of GMO technology in general and of the Golden Rice project in particular, may well be developing among the scientific community. This developing consensus, however, has yet to overcome all (or the preponderance of) reasonable doubt and objections; it has yet to settle firmly the questions of fact. It persuades some but not all of the members of this Committee. Thus, the findings of science do not – yet – determine our response to this sh’elah.

Conclusion. We can answer the question of law: Jewish tradition does not prohibit, on ritual grounds, the modern technological processes that lead to the genetic modification of plants, unless it can be shown that those processes pose a significant risk to the natural environment and to human health. But we are divided over the question of fact: do the processes of GM pose such a risk? Consequently, we as a committee cannot respond definitively at this time to your sh’elah.

That we cannot do so, however, does not mean that no response is possible. Your sh’elah, as we have emphasized, requires an evaluation of the scientific facts surrounding genetic modification and, in this instance, the product known as Golden Rice. You as a physician are certainly as qualified as we rabbis to arrive at an educated judgment as to those facts. If that judgment leads you to conclude, as you put it, that “there is absolutely no scientific evidence that Golden Rice is harmful or dangerous to the environment” and that it makes a real and substantive contribution toward the remedy of vitamin A deficiency, you are entitled to support the development of that product, on good Jewish grounds, as a contribution to human health. Others within our Reform Jewish community, of course, may disagree with you, but this is not a bad thing. For as long as the disagreement centers upon an honest difference of opinion over the question of fact, over the implications of GMOs for the environment, we consider it a machloket l’shem shamayim, “a dispute for the sake of Heaven” that will spur the study, argument, and debate that will ultimately yield the truth.[32]

NOTES

  1. The distinction has long served in common law to help decide whether a particular issue should be decided by a judge or a jury. Thus, in the words of Chancellor Coke, “the most usual trial of matters of fact is by twelve such men [i.e., jurors], for ad quaestionem facti non respondent judices [judges do not answer a question of fact]; and matters in law the judges ought to decide and discuss; for ad quaestionem juris non respondent juratores [jurors do not answer a question of law]”; Edward Coke, Commentary on Littleton (Thomas edition, 1818), p. 460.
  2. John Salmond, Jurisprudence, 4th edition (London: Stevens and Haynes, 1913), p. 15.
  3. “Question of Fact,” Cornell University Law School, Legal Information Institute, http://www.law.cornell.edu/wex/question_of_fact (accessed January 21, 2014).
  4. The same holds true for Jewish law, especially when rabbis must rule on questions involving scientific or medical knowledge. For example, halakhah clearly permits the suspension of Shabbat and Yom Kippur prohibitions in cases of sakanat n’fashot (danger to life) or even potential danger to life (safek n’fashot), but the determination of just what medical situations constitute “danger” is left to the judgment of qualified physicians (M. Yoma 8:5-6) and, at times, of the patient him/herself (see Shulchan Arukh Orach Chayim 618:1). The question of law, in other words, is decided by the texts and sources, while the question of fact is decided by those who are qualified to evaluate the medical situation. And see note 30, below.
  5. Beta-carotene has an orange pigment, which accounts for the “golden” color of the genetically-modified rice.
  6. For a detailed description of the science and technology behind the genetic modification of plants, see Suzie Key et al., “Genetically Modified Plants and Human Health,” Journal of the Royal Society of Medicine 101:6 (2008), pp. 290-298, http://jrs.sagepub.com/content/101/6/290.full (accessed January 21, 2014). For Golden Rice specifically, see  http://www.goldenrice.org/Content2-How/how1_sci.php (accessed January 21, 2014). The following is the abstract of the publication by the researchers who developed Golden Rice: “Rice (Oryza sativa), a major staple food, is usually milled to remove the oil-rich aleurone layer that turns rancid upon storage, especially in tropical areas. The remaining edible part of rice grains, the endosperm, lacks several essential nutrients, such as provitamin A. Thus, predominant rice consumption promotes vitamin A deficiency, a serious public health problem in at least 26 countries, including highly populated areas of Asia, Africa, and Latin America. Recombinant DNA technology was used to improve its nutritional value in this respect. A combination of transgenes enabled biosynthesis of provitamin A in the endosperm”; Xudong Ye et al., “Engineering the Provitamin A (β-Carotene) Biosynthetic Pathway into (Carotenoid-Free) Rice Endosperm,” Science 287:5451 (January, 2000), pp. 303-305.
  7. World Health Organization, “Micronutrient Deficiencies,” http://www.who.int/nutrition/topics/vad/en (accessed January 21, 2014). The webpage notes two “salient facts”:  1) an estimated 250 million preschool children are vitamin A deficient and it is likely that in vitamin A deficient areas a substantial proportion of pregnant women is vitamin A deficient; and 2) an estimated 250 000 to 500 000 vitamin A-deficient children become blind every year, half of them dying within 12 months of losing their sight.
  8. R. Shelomo Zalman Auerbach, Resp. Minchat Sh’lomo 2:100. The volume appeared in 2000. Auerbach’s conclusion here contradicts the view reported in his name by his nephew R. Yechiel M. Stern in Sefer Kashrut Arba`at Haminim (Jerusalem, 1992), p. 182, namely that the prohibition applies only when the material drawn from either of the plants has the capability, if planted in the ground, of growing on its own.
  9. Rabbi Dov Leor, “Handasah genetit b’tz’machim,” Da`at 28 (1999), http://www.daat.ac.il/daat/kitveyet/emunat/28/02807.htm#_ftn2 (accessed January 21, 2014). See also R. Avraham S. Avraham, Nishmat Avraham, vol. 4 (Jerusalem, 2007), p. 181, in the name of Rabbi Y. Y. Noivert.
  10. See Professor Eliezer Goldschmidt and Dr. Aryeh Maoz, “Handasah genetit b’tz’machim: reka mada’I v’hebetim hilkhati’im,” Assia 65-66 (1999), http://www.daat.ac.il/daat/kitveyet/assia/goldshmit.htm (accessed January 21, 2014). Goldschmidt and Maoz display a much deeper familiarity with the technology in question than does Rabbi Auerbach.
  11. Goldschmidt and Maoz (note 10, above). This argument is also advanced by Rabbi Ya`akov Ariel, “Hitarvut B’ma`aseh B’reshit,” in Y. Raziel, Shibut Geneti: Mabat Torani (Jerusalem, 2004), pp. 74-85, http://98.131.138.124/articles/GC/cloning11.asp# (accessed January 21, 2014). That the purpose of the isur is to prevent the creation of new “species” (minim) is stated by Ramban (Nachmanides) in his commentary to Leviticus 19:19 (see note 13, below).
  12. See also Sefer Hachinukh, mitzvah no. 244.
  13. Ramban understands the mitzvah as cautioning against the creation of brand-new species: והטעם בכלאים, כי השם ברא המינים בעולם, בכל בעלי הנפשות בצמחים ובבעלי נפש התנועה, ונתן בהם כח התולדה שיתקיימו המינים בהם לעד כל זמן שירצה הוא יתברך בקיום העולם. וצוה בכחם שיוציאו למיניהם ולא ישתנו לעד לעולם, שנאמר בכולם “למינהו” (בראשית א), והוא סיבת המשכב שנרביע בהמות זו עם זו לקיום המינין כאשר יבואו האנשים על הנשים לפריה ורביה. והמרכיב שני מינין, משנה ומכחיש במעשה בראשית, כאילו יחשוב שלא השלים הקב”ה בעולמו כל הצורך ויחפוץ הוא לעזור בבריאתו של עולם להוסיף בו בריות. As we have seen the procedure we address here does not create a new species but seeks to change a particular characteristic in an existing one; see Nishmat Avraham (note 9, above), p. 184, addressing Ramban’s comment.
  14. Rashi to Leviticus 19:19, on the word chukotai. See also ibn Ezra to the verse, who describes the prohibition of “mixtures” as a purely ritual expression – a zikaron – similar to the festivals, the shofar, and tefilin.
  15. The created universe, that is, has been entrusted to us to use, to exploit – and to alter – for our own benefit. See B’reishit Rabah, 11:6, the conversation between Rabbi Hoshaya and a “philosopher”: “everything that God created during the first six days requires subsequent action: mustard requires sweetening, wheat must be milled, and even human beings require improvement (tikun).”
  16. See Ariel (note 11, above) and Avraham (note 9, above).
  17. CCAR Responsa no. 5768.3, “On Human Genetic Modification,” http://www.ccarnet.org/responsa/nyp-no-5768-3, section 1.
  18. CCAR Responsa no. 5769.7, “Dissection and Cruelty to Animals,” http://www.ccarnet.org/responsa/nyp-no-5769-7 , section 1. The principle has become a major element in the construction, during the last several decades, of a rhetoric of Jewish environmental ethics. See, for example, Barry Freundel in Ellen Bernstein, ed., Ecology and the Jewish Spirit (Woodstock, VT: Jewish Lights, 1998), p. 73 (“Any discussion of Jewish law and the environment must begin with… Deuteronomy 20:19-20″); Eilon Schwartz, “Bal Tashchit: A Jewish Environmental Precept,” in Martin Yaffe, ed., Jewish Environmental Ethics: A Reader (Lanham, MD: Lexington Books, 2001), pp. 230-249; Rabbi Yonatan Neril, “Summoning the Will Not to Waste,” http://www.coejl.org/resources/summoning-the-will-not-to-waste (accessed January 31, 2014); and “Eikhut Has’vivah,” Encyclopedia Y’hudit, http://www.daat.ac.il/encyclopedia/value.asp?id1=44 (accessed January 31, 2014).
  19. See Yad, M’lakhim 6:8:-10. This mitzvah teaches us, say some authorities, to perfect our moral character, “to train our souls to love the good and the beneficial… and to keep ourselves far from evil and destructive behavior”; Sefer Hachinukh, mitzvah no. 529.
  20. See our responsum 5769.7 (note 18, above), at notes 6 and 7.
  21. See A Decade of EU-funded GMO Research (Brussels: European Commission, 2010; ftp://ftp.cordis.europa.eu/pub/fp7/kbbe/docs/a-decade-of-eu-funded-gmo-research_en.pdf, accessed February 3, 2014), at p. 18: “The main conclusion to be drawn from the efforts of more than 130 research projects, covering a period of more than 25 years of research, and involving more than 500 independent research groups, is that biotechnology, and in particular GMOs, are not per se more risky than e.g. conventional plant breeding technologies.”
  22. American Association for the Advancement of Science, “Statement by the AAAS Board of Directors On Labeling of Genetically Modified Foods,” http://www.aaas.org/sites/default/files/AAAS_GM_statement.pdf (accessed February 3, 2014): “The World Health Organization, the American Medical Association, the U.S. National Academy of Sciences, the British Royal Society, and every other respected organization that has examined the evidence has come to the same conclusion: consuming foods containing ingredients derived from GM crops is no riskier than consuming the same foods containing ingredients from crop plants modified by conventional plant improvement techniques.”
  23. “Making Science Work,” an address delivered by Sir Paul Nurse, president of the Royal Society, http://royalsociety.org/uploadedFiles/Royal_Society_Content/news/2013/2013-09-12-Making-Science-Work.pdf (accessed February 3, 2014), p. 12: “The generation of genetically modified foods by the introduction of genes by genetic engineering has been controversial in some countries around the world, including in the UK. The consensus view of the majority of expert plant scientists is that in principle this is a safe approach and can lead to considerable benefits.”
  24. Some of these organizations recognize the uncertainty inherent in the introduction of genetically modified organisms into the environment while holding that existing testing protocols are sufficient to protect both human and environmental health. See “Labeling of Bioengineered Foods,” Report of the Council on Science and Public Health, American Medical Association, 2012, http://www.ama-assn.org/resources/doc/csaph/a12-csaph2-bioengineeredfoods.pdf (accessed February 3, 2014); National Research Council. Safety of Genetically Engineered Foods: Approaches to Assessing Unintended Health Effects. (Washington, DC: The National Academies Press, 2004), http://www.nap.edu/openbook.php?record_id=10977 (accessed February 3, 2014), pp. 1-16; The World Health Organization, “20 Questions on Genetically Modified Foods,” http://www.who.int/foodsafety/publications/biotech/20questions/en/index.html (accessed February 3, 2014).
  25. G. Tang et al., “Beta-Carotene in Golden Rice is as Good as Beta-Carotene in Oil in Providing Vitamin A to Children,” American Journal of Clinical Nutrition 96:3 (2012), pp. 658-664, http://ajcn.nutrition.org/content/96/3/658.abstract (accessed February 3, 2014). For a discussion and a list of peer-reviewed studies see http://www.ajstein.de/cv/golden_rice.htm (accessed February 3, 2014).
  26. “While the risks of genetic engineering have sometimes been exaggerated or misrepresented, GE crops do have the potential to cause a variety of health problems and environmental impacts. For instance, they may produce new allergens and toxins, spread harmful traits to weeds and non-GE crops, or harm animals that consume them… In short, there is a lot we don’t know about the risks of GE—which is no reason for panic, but a good reason for caution”; Union of Concerned Scientists, http://www.ucsusa.org/food_and_agriculture/our-failing-food-system/genetic-engineering (accessed February 3, 2014).
  27. Among these is the environmental advocacy group Greenpeace: “’Golden’ rice is environmentally irresponsible, poses risks to human health, and could compromise food, nutrition and financial security.” See http://www.greenpeace.org/international/en/campaigns/agriculture/problem/genetic-engineering/Greenpeace-and-Golden-Rice (accessed February 3, 2014).
  28. “Addressing Vitamin A Deficiency,” Helen Keller International, http://www.hki.org/file/resource/Nutrition/HKI_GoldenRice_12272013.pdf (accessed February 3, 2014). The agency takes a generally positive attitude toward genetic engineering of foodstuffs undertaken for nutritional ends; see http://www.hki.org/reducing-malnutrition/biofortification (accessed February 3, 2014).
  29. “Compulsory Immunization,” Reform Responsa for the Twenty-First Century, v. 2, no. 5759.10, pp. 107-120, at p. 114. We have omitted the original notes to that text here; note 30, below, is new to this responsum.
  30. For the “consensus view” as a standard of medical obligation see the discussion of r’fuah b’dukah or r’sfuah vada’it in “The Treatment of the Terminally Ill,” Teshuvot for the Nineties, no. 5754.14, pp. 348-349, at notes 37-40.
  31. The Central Conference of American Rabbis, for example, bases its stance on the issue of climate change upon the consensus view among the world’s scientists, even if others in our society, preferring obscurantism to knowledge, ignore the scientific findings altogether or cling to outdated and discredited positions. See the resolution “Climate Change,” 2005, http://www.ccarnet.org/rabbis-speak/resolutions/all/climate-change (accessed February 4, 2014). See also the resolution of the Union for Reform Judaism, “Climate Change and Energy,” http://urj.org/about/union/governance/reso/?syspage=article&item_id=27421, as well as the resources posted by the Religious Action Center of the Union for Reform Judaism, http://rac.org/advocacy/issues/issueenv/issuecc (accessed February 4, 2014).
  32. M. Avot 5:17, and see Bartenura ad loc.

If needed, please consult Abbreviations used in CCAR Responsa.

5774.6

CCAR RESPONSA COMMITTEE

5774.6
“Resomation”: The Liquid Disposal of Remains

 

Sh’elah.

“Resomation” is a commercial name for the chemical process known as alkaline hydrolysis, in which bodies are chemically reduced by means of pressure and warm alkaline water leaving behind only porous white bone remains and waste-water.[1] The process takes two to three hours for completion. The cemetery industry also calls this process “Bio-Cremation”[2] because it produces a similar result to cremation with far less negative environmental impact.[3]

I ask the following three questions:

Since “Resomation” uses water instead of fire to consume the body (except the bones), does it circumvent our people’s historic, cultural and religious bias against cremation?

Given the traditional halachic requirement that the corpse be buried with all its parts in a grave or crypt, would “Resomation” (in which everything but the bones are liquefied and purified, but not saved for burial) be prohibited in Reform Judaism?

Given, as well, the increasing dearth of and high expense of cemetery space in large urban areas, may the bone remains be interred in an already occupied family grave or crypt? If so, what requirements would there be in order to respect the principle of the separation between bodies in a formerly single grave? (Rabbi John Rosove, Hollywood, CA)

T’shuvah.
  1. Alkaline Hydrolysis (“Resomation”): Is It Acceptable? In asking whether alkaline hydrolysis might be acceptable on Jewish grounds, our sho’el suggests an analogy to cremation. We should begin therefore with a look at the development of both the traditional Jewish and Reform Jewish positions on cremation. Our responsum no. 5766.2, “When a Parent Requests Cremation,”[4] contains a detailed discussion of our topic. The following is a brief summary of its conclusions.
  2. Although burial has been the historical Israelite and Jewish practice for disposing of human remains, cremation is not explicitly prohibited in the classical Biblical, Talmudic, or halakhic sources. It is only in the nineteenth century, when cremation becomes more widespread in European society, that we find Orthodox rabbis speaking out against it and finding reasons to prohibit it.
  3. Reform Judaism does not prohibit cremation. Our Conference adopted a resolution to this effect in 1892; that resolution has never been repealed, amended, or superseded by another Conference vote; and our subsequent halakhic literature (i.e., our responsa, guides to religious practice, and rabbi’s manuals) have repeatedly noted that cremation is an “acceptable” and “permissible” practice for Reform Jews.
  4. On the other hand, that same Reform halakhic literature has in recent decades significantly modified its previously affirmative stance. Though we still do not “prohibit” cremation, we actively discourage it for two reasons: first, burial is the normative traditional Jewish practice, and second, after the Holocaust cremation has taken on deeply negative associations with one of the darkest periods of our people’s history.

Based on the above, the sho’el’s analogy argues that “Resomation” should be at least as acceptable as cremation in Reform Judaism. Cremation, despite our discouragement of it, remains officially a permissible practice within our movement. Alkaline hydrolysis is certainly no more objectionable on moral or religious grounds than cremation. Indeed, since much of our recent turn against cremation stems from its symbolic evocation of the Nazi crematoria, it follows that “Resomation,” which does not involve fire, would be even less objectionable.

That argument, however, does not account for the other – and, to our mind, the stronger – reason for our opposition to cremation, namely that burial is the normative traditional Jewish practice. “Normative” in this context means first of all that we endorse burial precisely because it is Jewish, that is, the way in which Jews have for many centuries chosen to consign the remains of their loved ones, and that we find it meaningful to identify our own practice with that of our people.[5] “Normative” also means that burial is the specific means by which our tradition seeks to realize the value of k’vod hamet, the dignified treatment of the dead. And by that same token, our tradition has come to identify cremation, the reduction of the body to ashes, as an act of nivul hamet or bizayon hamet, the contemptible or disrespectful treatment of the dead.

This last point is crucial. Values like k’vod hamet and nivul/bizayon hamet are not given to objective definition. It is tradition, the collected wisdom and experience of a particular historical culture or community, which fills these lofty but vague concepts with specific meaning. This, quite simply, is why these universal values, relevant and applicable to all cultures, are observed differently in each of them. For example, the liberal Western tradition holds cremation to be an honorable and dignified means for the disposal of remains, while the Jewish tradition, which sees “a huge gulf between peacefully decaying in the ground and the roaring destruction of the cremation oven,”[6] differs fundamentally from that of the contemporary West on this issue. We Reform Jews, active participants in both these cultural traditions, cannot escape the fact that they differ on this issue. Ultimately, we must choose between them, for we can give substance and specificity to terms like k’vod hamet and bizayon hamet, the honorable or disgraceful treatment of the dead, only when we work within the boundaries of some particular cultural framework.[7]

For the members of this Committee, the choice is clear: we seek to mourn our dead and to honor them as Jews, that is, in accordance with the customs and traditions of our people. Accordingly, we do not see much of a distinction between cremation and alkaline hydrolysis. The latter, true enough, was not utilized by the Nazis.[8] But like cremation, it is a chemical process aimed at the rapid decomposition of human remains. Like cremation, it is a radical departure from traditional Jewish burial. And as with cremation, there is “a huge gulf” between the slow decay of burial and the rapid decomposition achieved through chemical inducement. Since the two procedures are so comparable, we cannot say that Reform Judaism would treat them differently. Thus, while it would not necessarily prohibit “Resomation” any more than it prohibits cremation, it would and should actively discourage the practice.

  1. Burial of Remains from “Resomation.” The second part of our sh’elah asks whether alkaline hydrolysis is prohibited on the grounds that the liquefied remains (other than the bones) are discarded and not saved for burial. Our response is the same we would give to a question concerning cremation: whatever remains survive the chemical decomposition process should be buried, in (partial) fulfillment of the traditional mitzvah to bury the dead.[9] Since, in theory, the liquefied remains can be preserved[10] (unlike cremation, where the incinerated remains are emitted into the atmosphere), every effort should be made to bury them along with the bones of the deceased.
  2. Burial of Remains in Same Grave or Crypt. Jewish tradition generally forbids the burial of more than one body in a single place. Each must have its own resting place.[11] The same should be true in our case: the remains from cremation or alkaline hydrolysis should be buried separately. If limitations of space are indeed an issue, Jewish tradition permits the burial of corpses or coffins on top of one another, provided that they are separated by at least six handbreadths of earth.[12]
  3. A Concluding Note. In his third question, our sho’el mentions the environmental and financial concerns that are often raised in discussion of cremation and other alternatives to traditional burial. Regardless of our attitudes toward cremation and “Resomation,” individuals should not feel driven to consider them for reasons of cost or care for the natural environment. While this is not the place to deal with this subject at length, we should stress that Judaism affirms the values of affordable[13] and ecologically-friendly burial.[14] Our communities can and should work to provide access to burial practices that reflect these teachings of our tradition.
NOTES
  1. “Resomation” is specifically the registered trademark of Resomation Ltd. (http://www.resomation.com , accessed June 12, 2014). Other names for the process include “aquamation,” the registered trademark of the Australia-based Aquamation Industries (http://www.aquamationindustries.com , accessed June 12, 2014). The sh’elah’s description of the process is based upon the details provided at both websites. See as well Ruth Davis Konigsberg, “Resomation,” New York Times, http://query.nytimes.com/gst/fullpage.html?res=9504E1DD1E39F930A25751C1A96F9C8B63 (posted Dec. 13, 2009, accessed June 12, 2014) and Marina Kamenev, “Aquamation: A Greener Alternative to Cremation?”, http://content.time.com/time/health/article/0,8599,2022206,00.html (posted Sept.28, 2010, accessed June 12, 2014).
  2. The trade name that Matthews International’s cremation division gives to its version of the process; see http://www.biocremationinfo.com (accessed June 12, 2014).
  3. See Davis, note 1, above: “(‘Resomation’) uses about a sixth of the energy of cremation and has a much smaller carbon footprint, according to Sandy Sullivan, the managing director of Resomation, a company in Scotland that has designed a resomation machine.”
  4. Reform Responsa for the Twenty-First Century (New York: CCAR, 2010), vol. 2, pp. 193-207, http://www.ccarnet.org/responsa/nyp-no-5766-2.
  5. See our responsum no. 5766.2 (preceding note, at p. 199): “This is what we mean by the positive reevaluation of ‘tradition.’ … We are now more inclined than ever before to adopt or to preserve a ritual observance precisely because it is ‘Jewish.’ We are more likely to regard a practice’s traditional pedigree as a reason for maintaining it, especially when there are no compelling moral or aesthetic arguments against that practice. We are therefore today more likely – though not obligated – to oppose cremation on the grounds that burial is a mitzvah, the ‘normative’ Jewish way of disposing of human remains.”
  6. The phrase is that of a corresponding member of this Committee, who concludes: “There can be no doubt that cremation is the very antithesis of k’vod hamet.”
  7. See our responsum no. 5766.2 (note 4, above, at p. 200): “such terms can only be defined from within a particular social context; to reach these definitions, we must choose to work within a particular culture’s set of values and affirmations.”
  8. And see our responsum no. 5766.2 (note 4, above), section 1, “Cremation in Jewish Law”: it is worth remembering that, although our classical texts do not explicitly prohibit cremation, opposition to it among Orthodox halakhic authorities solidified in the nineteenth century well before the Shoah.
  9. B. Sanhedrin 46b, on Deuteronomy 21:23; Yad, Hil. Avel, 12:1. On the burial of cremains in a Jewish cemetery see R. Walter Jacob, New American Reform Responsa (New York: CCAR Press, 1992), nos. 191-192, http://www.ccarnet.org/responsa/narr-304-305 and http://www.ccarnet.org/responsa/narr-306-307.
  10. In an addendum to his original question, our sho’el, Rabbi John Rosove, makes this point, on the basis of a conversation with a cemetery manager.
  11. The one great exception is a small child “who slept with its parents (or grandparents) in life.” That child may be buried along with his or her parent or grandparent. See Shulchan Arukh Yoreh De`ah 262:3 and R. Solomon B. Freehof, Recent Reform Responsa (Cincinnati: Hebrew Union College Press, 1963), no. 29.
  12. Shulchan Arukh Yoreh De`ah 262:4.
  13. See R. Shimeon Maslin, Gates of Mitzvah (New York: CCAR Press, 1979), p. 55: we should follow the example of Rabban Gamliel, who instructed that he be buried in simple linen shrouds rather than expensive ones to demonstrate that burial need not impose a crushing financial burden upon the mourners (B. Mo`ed Katan 27b). And see the conclusion of our responsum no. 5766.2 (note 4, above). “By ‘traditional burial,’ we do not mean to endorse many of the practices that, although associated with burial in the public mind, would be deemed as excessive or inappropriate by many of us. Among these are such elaborate and unnecessary steps as embalming, expensive caskets, and the like. Jewish tradition emphasizes simplicity and modesty in burial practices; individuals should not feel driven to choose cremation in order to avoid the expense and elaborate display that all too often accompany contemporary burial.”
  14. See the discussion (section 3, above) on limitations of space. We have encountered this problem numerous times throughout our history, and the tradition has proven itself capable of arriving at solutions to the problem of cramped cemetery space. In addition, there is no theoretical reason why Jewish tradition cannot accommodate the contemporary movement toward “green burial” – that is, burial in the absence of concrete vaults, expensive coffins, embalming, and the like (http://www.reuters.com/article/2013/05/11/us-usa-florida-burial-idUSBRE94A05620130511, accessed June 18, 2014; http://www.greenburials.org, accessed June 18, 2014). Indeed, a simple reading of our sources indicates that “green burial” is Jewish burial, the way that our classic texts envision the mitzvah.

5769.6

5769.6

Circumcision of a Transgender Female

 

She’elah.

I have worked with a woman in her late twenties this past year to prepare her for conversion and found her to be an excellent candidate. Late in the process, but before the conversion ceremony, she revealed to me that her sex assignment at birth was male and that she had been living a life of gender ambiguity from childhood. About two years before I met her, she chose to live exclusively as a woman. She sought and received legal status as a woman from the Commonwealth of Massachusetts, a process which requires certification of mental health by suitable professionals. She has begun and continues female hormone therapy. She has not had sex reassignment surgery and such surgery may or may not be part of her future. She has uncircumcised male genitalia.

I considered whether I would ask her to undergo milat gerim (circumcision for proselytes) as part of her conversion process.  I concluded that I would not require milah in her case because her entire involvement with the synagogue, her very identity within the Jewish community, has been as a woman. I accept her gender as female and, of course, milah is not required of women.

I have several questions for the Committee. What standards should Reform rabbis and congregations apply to accepting the gender assignment of members of our communities and those who wish to attach themselves to our communities? To the extent that we regard a requirement of milah and hatafat dam berit to be under the purview of rabbinic authority, should we require them of transgender women with male genitalia? What is the attitude of Jewish law, as understood in a Reform context, toward transgender people in general? In the past, the mental health of transgender people has been regarded as suspect by society in general and, on at least one occasion, by the Responsa Committee.[1] Have changes in medical understanding of gender identity and the social acceptance of transgender people affected the ways in which we apply Jewish law? (Rabbi Jeffrey Goldwasser, North Adams, MA)

 

Teshuvah.

We want to divide your query into two separate questions. The first of these concerns our general attitude toward the issue of “transgender” and of the position of transgender people in our community. The second deals with the more specific issue that you resolved in this case: should a Reform rabbi who normally requires circumcision for male converts[2] insist upon that requirement when the candidate is a transgender female?

  1. On Transgender. “Transgender,” as defined by the American Psychological Association, “is an umbrella term used to describe people whose gender identity (sense of themselves as male or female) or gender expression differs from that usually associated with their birth sex.”[3] Our attitude concerning transgender has undergone a significant change during the last several decades. Our general approach to the subject, however, has remained constant: we have turned to science, in particular to the mental health professions, to learn about a phenomenon that, to say the least, has been imperfectly understood. There was a time, not so long ago, when most scientists held that transgender people suffered from a mental or psychological illness. To this day, the authoritative fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) defines “a strong and persistent identification with the opposite gender” as Gender Identity Disorder (GID), which like all other disorders involves a specific etiology, set of symptoms, and course of treatment.[4] This theme has not entirely disappeared from the public discourse over transgender. As you note, at least some units of government continue to require “certification of mental health by suitable professionals” before persons can be legally accepted as belonging to a gender opposite from their birth sex. Previous Reform responsa on the subject reflected this broad scientific consensus. In recent years, GID has become the focal point of a growing controversy, with many mental health professionals arguing that a difference between a person’s gender identity and his or her birth sex does not in and of itself constitute a “disorder.”[5] As of this writing, the DSM is undergoing a revision, and it is quite possible that “Gender Identity Disorder” will either disappear entirely or be substantially redefined in its next (fifth) edition.

Whatever the outcome of that controversy, its very existence affords us the opportunity to rethink the “general approach” described above. What we now know about transgender persuades us that we should consider it not as a scientific or bioethical issue[6] but as a personal and communal one. Our stance is not to be determined by the findings of mental health professionals but by our understanding of our religious duty as Jews. In other words, the question we should ask is not whether transgender is a “disorder” but rather how does Torah teach us to respond to transgender persons as human beings and as members of the Jewish people?

When we search for guidance in our texts, we find something of a parallel to the transgender person: the androgynos, the individual who (as the Greek term suggests) displays both male and female physical characteristics. We read in Mishnah Bikurim 4:1 that the androgynos is classified in some respects as a male, in some respects as a female, in some respects as both, and in some respects as neither. The rest of that chapter[7] works out the details that give life to these general statements, charting the ritual and legal status of the androgynos and defining that person’s role and duties under the halakhah. The Rabbis, it seems, were aware that not every individual falls clearly within the established gender boundaries, and the category of androgynos served as a special designation encompassing those who straddle the lines. To put this another way, although the traditional Jewish world view presumes the existence of two genders and assigns many religious and ritual responsibilities accordingly, the Sages found a place for this person, who otherwise would not fit within their conceptual world. To us, the great message of these texts is the duty of inclusion: like the Rabbis, we, too, are obligated to find a place within our midst for the outsider, the Jew who does not seem to fit within the established boundaries and social categories upon which our communities are normally based.

On the other hand, the parallel is not absolute; the androgynos is not “transgender.” The Rabbis had no concept of “gender,” understood as a personal sense of identity separate and apart from birth sex. In Rabbinic thought, a person’s sex assignment is that person’s gender; it is an empirical fact, established by the physical signs (the genitalia) that ordinarily associate us as either male or female. The problem is that, because the androgynos displays both male and female genitalia, his/her sex assignment – for the Rabbis, the same thing as “gender” – cannot be determined through empirical observation. And the Rabbis must find a way to make that determination, since one’s gender establishes many of one’s obligations under traditional Jewish law. Hence the debates in the halakhic literature over the nature of the androgynos: is this person a male, a half-male/half-female, or a separate gender that is neither male nor female?[8] The predominant view is that the androgynos is a case of safek, of factual doubt: perhaps male, perhaps female,[9] so that his/her ritual and legal status is set accordingly.[10] By contrast, the individual of whom you speak in your she’elah is in the eyes of Talmudic law unquestionably male and would bear all the responsibilities of a male under the traditional halakhic system.

 

For Reform Jews, committed to the principle of gender equality, this debate holds little practical significance. We differ from the Rabbis and from contemporary Orthodox Judaism in that, in our communities, men and women perform the same ritual roles. We therefore have no need as a community to determine the “correct” gender of any individual or to question any person’s expressed gender identity. We accept the person as that individual presents him- or herself, as male, female, or transgender. The person of whom you speak has chosen “to live exclusively as a woman.” That choice, which determines her gender identity, is enough for us, we accept her accordingly. Upon her conversion she will be “a Jew in all respects”;[11] our concern, quite simply, is to welcome her into the midst of the community of Israel.

 

  1. Circumcision for a Transgender Female Jew by Choice. The fact that we accept this person as a woman, however, does not necessarily answer our second question. You waived the requirement of milat gerim in this case on the grounds that “milah is not required of women.” That decision assumes that gender identity, the person’s subjective sense of self, is the determining factor in this question. In our view, however, the objective fact of birth sex is the more compelling consideration. While the Biblical sources of this mitzvah (Genesis 17:10-11 and Leviticus 12:2-3) make it clear that only a male (zakhar) is to be circumcised, they describe the essence of that ritual as the removal of the foreskin (basar orlato). This individual, who possesses a foreskin, is therefore a member of that group of people who are subject to this ritual. Let us be clear: we accept this individual as a female because she presents herself as such and because we understand today – as few could possibly have imagined until very recently in human history – that one’s gender identity is not automatically determined by one’s birth sex. But the objective reality of her birth sex (which, as we have seen, is a very different thing from “gender identity”) does make her one of those who according to our tradition are to carry ot berit, the sign of the covenant of Abraham and of Sinai.[12] Had she undergone sex reassignment surgery prior to her conversion – in other words, had she altered that objective reality through surgical means to bring her sex in line with her gender identity – circumcision would obviously not have been required of her.[13] In the absence of that surgery, we are persuaded that the better response is to urge milah in cases such as this.

 

The above reflects our deep devotion to the mitzvah of circumcision[14] as a powerful act of Jewish identity that links our modern-day community to the earliest generations of our people. There is no reason in principle to exclude a person from the opportunity to participate in this mitzvah simply because she is transgender. We should recall that the Rabbis, in their efforts to determine the status of the androgynos, included that individual in the community of those who are to be circumcised.[15] We Reform Jews are at our best when we, too, practice the policy of inclusion, and we should remember that as we work to find a place for transgender people within our own religious community.[16]

 

NOTES

  1. Teshuvot for the Nineties, no. 5750.8, pp. 191-196, http://data.ccarnet.org/cgi-  bin/respdisp.pl?file=8&year=5750
  2. The Central Conference of American Rabbis (CCAR) has held since 1893 that the traditional conversion rites are non-obligatory. See CCAR Yearbook 3 (1893), p. 36, reprinted in  American Reform Responsa (ARR), no. 68, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=68&year=arr. This resolution has never been repealed by the CCAR, but it has been modified by Divrei Giyur (see below in this note) and by a number of Reform responsa. See our responsum no. 5756.13, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=13&year=5756 , particularly at notes 35-36, for references to these responsa. 5756.13 also offers a detailed critique of the scholarship adduced in support of the 1893 resolution. Meanwhile, over the past several decades the stance of our movement toward those rites has become much more positive. Today, many Reform rabbis require milat gerim, circumcision for adult male converts. See Divrei Giyur: Guidelines for Rabbis Working with Prospective Gerim, adopted by the Central Conference of American Rabbis, June, 2001, section 8b; http://www.ccarnet.org/Articles/index.cfm?id=215&pge_prg_id=3818&pge_id=1637 (accessed January 26, 2010).
  3. American Psychological Association, Answers to Your Questions About Transgender Individuals and Gender Identity, http://www.apa.org/topics/sexuality/transgender.pdf (accessed January 15, 2010).
  4. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (Washington: American Psychiatric Association, 2000), code 302.85; http://allpsych.com/disorders/sexual/genderidentity.html (accessed January 15, 2010). This diagnosis continues to be accepted by such governmental agencies as the S. national Institutes of Health; see http://www.nlm.nih.gov/medlineplus/ency/article/001527.htm (accessed January 15, 2010).
  5. See the American Psychological Association’s Answers to Your Questions (note 2, above): “This diagnosis is highly controversial among some mental health professionals and transgender people. Some contend that the diagnosis inappropriately pathologizes gender variance and should be eliminated.” A psychological condition, in this view, is to be characterized as a disorder “only if it causes distress or disability.” On the efforts to insure that the next edition of the DSM omits GID, see Lois Wingerson, “Gender identity Disorder: Has Accepted Practice Caused Harm?” Psychiatric Times, May 19, 2009, http://www.psychiatrictimes.com/display/article/10168/1415037?verify=0 (accessed January 18, 2009).
  6. As an example, see our responsum no. 5757.2: “In Vitro Fertilization and the Status of the Embryo” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=2&year=5757 ): “given our positive attitude as liberal Jews toward modernity in general, it is surely appropriate to rely upon the findings of modern science, rather than upon tenuous analogies from traditional sources, in order to render what we must consider to be scientific judgments” (italics in original). In this case, the attitude we take toward transgender people is based upon an ethical rather than a “scientific” judgment.
  7. Scholars doubt that the fourth chapter of Bikurim formed part of the original Mishnah. While present in some manuscripts and printed editions, it is missing from others. Its contents appear to have been taken from Tosefta Bikurim 2:3-7. See Yaakov N. Epstein, Mavo lenusach hamishnah (Jerusalem: Magnes, 1948), 976, and Chanokh Albeck’s comments in his edition of the Mishnah (Tel Aviv-Jerusalem: Mosad Bialik-Devir, 1957), vol. 1, 307.
  8. This latter is the opinion of R. Yose in Tosefta Bikurim 2:7: “the androgynos is in a unique category (beriyah le`atzmo).”
  9. This is the position of Maimonides (Yad, Milah 3:6; Ishut 2:24; Nezirut 2:11; Chagigah 2:1, and elsewhere) and the Shulchan Arukh, Orach Chayim 331:5 (see Mishnah Berurah ad loc., note 18). Other authorities hold that the androgynos is half-male and half-female, and some describe him/her as a third gender, neither male nor female. See Encyclopedia Talmudit, 2:54ff.
  10. For example, the androgynos observes all positive ritual commandments that, because they are dependent upon the time of day or of the year, are traditionally incumbent upon men and not upon women. The androgynos observes them because he/she is possibly a male and therefore commanded to do so. By the same token, the androgynos does not recite the benediction over the performance of these mitzvot, because he/she is possibly a female and therefore not commanded to observe these mitzvot. Yad, Avodah Zarah 12:4 and Tzitzit 3:9. See at note 15, below.
  11. Taval ve`alah harei hu keyisra’el lekhol devarav; Yevamot 47b.
  12. See Keritot 9a: our male ancestors, the Rabbis taught, were required to undergo circumcision and immersion, while the women were required to undergo immersion, prior to the giving of the Torah. Today’s proselyte reenacts their experience when he or she enters the covenant.
  13. A male proselyte whose penis has been severed requires only immersion (tevilah) in order to convert to Judaism; Tosafot, Yevamot 47b, v. derabbi yose; Shulchan Arukh Yoreh De`ah 268:
  14. On berit milah as a mitzvah in Reform Judaism, see Simeon J. Maslin, Gates of Mitzvah (New York: CCAR, 1979), p. 14. On our evolving position with respect to milat gerim, see the sources in notes 10 and 11, above.
  15. That the androgynos is circumcised is declared in Yad, Milah 1:7 and Shulchan Arukh Yoreh De`ah 262:3, on the basis of the sugya in Shabbat 135a. The authorities are in dispute as to whether the traditional berakhah (benediction) should be recited over that act. Rambam (Yad, Milah 3:6, in a ruling adopted by Shulchan Arukh Yoreh De`ah 265:3) holds that no benediction is recited because the androgynos is not unquestionably male (eino zakhar vada’i). R. Avraham ben David of Posquierres objects: the circumcision of an androgynos is a matter of uncertainty over an element of Torah law, and in all such cases of doubt we rule stringently (B. Beitzah 3b). Thus, a berakhah should be required (Hasagat Haravad, Milah 3:6).
  16. We recognize, of course, that in any particular case the mara de’atra, the community rabbinical authority who supervises the conversion process, may judge the prospect of circumcision to be exceptionally difficult or stressful to a transgender female conversion candidate. We would support the rabbi’s decision not to demand circumcision of such a candidate as a proper application of the CCAR’s 1893 resolution on conversion rites (see note 2). We will not attempt to devise a precise formula to define the term “exceptionally difficult.” That is and must remain a matter left to the judgment of the mara de’atra, just as it is left to him or her to evaluate the motivations and sincerity of the prospective convert. In the latter case, says R. Yosef Karo, the decision must be left to the discretion of the authorities in charge (hakol lefi re’ut einei beit din; Beit Yosef to Tur, Yoreh De`ah 268). The same is true here.
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