Responsa

TRR 102-103

TWO INSEMINATION QUESTIONS

1) A man, told that he is dying of cancer, leaves his sperm in the custody of his doctor. He dies. His wife demands the sperm (to be used for insemination). Has she a right to it?

2) A husband’s sperm, unmixed (or in some cases mixed with the wife’s seed) is inserted into the womb of another woman who is engaged for the purpose of maturing the child (i.e., a surrogate mother). When the child is born, whose child is it? (Asked by S.S., Detroit, Michigan.)

ANSWER:

With regard to the entire modern discussion as to whose child it is that is born of the surrogate mother, or the first question. does the widow have the right to demand possession of her husband’s sperm, there is one basic fact involved, and that is the right of a wife to sexual relationship from her husband. This right is based primarily upon Scripture, Exodus 21:10, which speaks of a wife’s right to food, clothing and sexual relationship. This right is more fully described then in the Mishnah (Ketubot 5) and in the Talmud (Ketubot 61b) and as law in the Shulhan Arukh Even Haezer 76:1. It is reasonable to conclude that if the sexual relation in marriage is the wife’s right, then she might well claim ownership of his sperm. She therefore has the right, at least more than anyone else, to demand possession of the deposited sperm, perhaps for artificial insemination or however the physician will decide to use it.

As for the surrogate mother, the wife certainly has some claim on the possession of the child, since it is her husband’s sperm which was put into the body of the surrogate mother, and all the more right if it is the mixture of the husband’s sperm and her seed that was put into the body of the surrogate mother. And, thirdly, if the surrogate mother agreed at the outset that she was merely the instrument of maturing the child’s body.

So, all in all, based upon the wife’s right to her sexual intercourse, we may conclude that she has the right to her husband’s sperm when it is used in this way.

TRR 125-127

JEWISH DONOR FOR INSEMINATION

QUESTION:

A Jewish man has been asked by a doctor to be a paid donor of semen for artificial insemination. He has agreed to to do but he has insisted that his semen should not be used for Jewish women, but he is also doubtful if it is used for Gentile women, since the child born would be a Gentile child. Are his doubts justified? (Asked by Rabbi Steven B. Kaplan, Fremont, California.)

ANSWER:

As for his objection, that his semen should not be used for Jewish women, especially members of the congregation, that is understandable because gossip about the children could in future years be quite unpleasant. It is, however, his objection to the use of his semen to result in the birth of Gentile children which needs to be discussed.

There is an apparent justification for his doubts as to the use of his semen to aid in the birth of Gentile children. The Mishnah, indeed, voices some objection to a Jew aiding in the birth of the Gentiles of their day The Mishnah (Avodah Zarah 2.1) says that a Jewish midwife should not aid at the birth of a child of an idolatrous woman, lest she thereby increase the number of idolators in the world. But on the basis of the Mishnah, even that aid is permitted if the midwife is a professional, because professional services are in a different category. So the law is codified in the Shulhan Arukh (Yoreh Deah 154:2) that a Jewish woman may not aid at the birth of an idolator unless it is her paid profession to do so. Therefore the fact that this man is being paid for the donation of seed is a permissive element in the case.

But there is a much stronger basis for permitting him to give his seed than the fact that he is paid. Haim Benvenisti (17th Century, Constantinople) comments in his Shiurei Kenesset Hagdolah on the statement in the Shulhan Arukh that Mohammedans are not to be considered idolators (and therefore we are permitted to aid them in the birth of their children). And, of course, Christians are certainly not considered idolatrous in Jewish law See, for example, Isserles’ note to Shulhan Aruldi (Orah Hayyim 156). His statement is based upon earlier opinions (e.g. Rabbenu Tam) and is a clear attitude in Jewish law.

Furthermore, besides this negative statement that they are not to be deemed idolators, there is the positive obligation upon us (as the Talmud says in Gittin 61a) to help Gentiles with charity, to heal their sick, to bury their dead, to comfort their mourners, etc., for the sake of “the paths of peace.” Specifically, to aid Gentiles with regard to childbirth has a strong precedent. Bachrach in his Havot Yair, responsum #185, speaks of the great authority Ramban (Nachmanides) who was a physician and with medicines helped a Christian woman to be able safely to give birth to a child. Bachrach said, “Whom have we greater than Nachmanides,” etc.

To sum up: The fact that this donor is paid is an argument on the permissive side. The fact that the children will be Christian is no objection. They are not idolators. It is our duty to help them in many human ways and especially in the example of Nachmanides, in this specific way.

TRR 64-65

CIRCUMCISING CHILD OF AN APOSTATE MOTHER

QUESTION:

The Jewish wife in a mixed marriage has given birth to a baby boy. They want the child circumcised. However, the situation is complicated by the fact that the mother has converted to Christianity. Should this child be circumcised? (Asked by Rabbi Michael B. Berk, San Jose, California.)

ANSWER:

Since the mother was born Jewish and the child follows the status of the mother, the only question involved is the fact that the mother has converted to Christianity. Nevertheless, in the eyes of Jewish law, she is still Jewish and her child is Jewish, and there is no reason why there should not be a bent milah.

Now as to the question of the wife having converted to Christianity. The easiest way to deal with the relevance of this statement is to consider the status of an apostate in Jewish law The specific question then becomes this: Has the woman’s conversion to Christianity abolished her status as a Jewess in the eyes of Jewish law?

The answer to this question is negative. If a Jew converts to Christianity, he is considered a sinner, of course, but as the Talmud (Sanhedrin 44a) says: “Although a sinner, he is still an Israelite.” This is more than a social statement. It is a legal principle. A woman married to an apostate must receive a get from him and he can validly give it. In other words, he has legal status as a Jew. This applies to her also. Regardless of her conversion, the child should have a berit milah. Certainly her apostasy does not change the status of the infant.

TRR 81-84

THE MERCY-KILLING OF AN ANIMAL

QUESTION:

A pet dog of a child was “put to sleep” by a veterinarian because the animal was incurably ill. The child was saddened by the loss of its pet and actually became depressed. The family asked the rabbi whether they had done wrong in having the sick animal put to death and they wanted to know whether Jewish tradition can give them a basis for justifying the event to the child.

ANSWER:

There is a great amount of discussion and law in the tradition on the question of the rights of animals, especially the question of cruelty to animals. But as far as I can find there is no clear statement in the legal tradition as to whether we are justified in putting to death an incurably sick animal. Actually, the question could hardly have come up in the Mishnah and Talmud, since pet dogs were rare. In fact, the Mishnah (Baba Batra 7:7) prohibits keeping a house-dog (unless it is chained). So, too, the Talmud (Shabbat 63a; Shulhan Arukh Hoshen Mishpat 409.3), but Isserles records a change of popular sentiment in this regard.

As to the rights of an incurably sick human being, the tradition is clear. Even though there is no hope for his recovery and even though he suffers great pain, we have no right to give him the release of death. But on the other hand, we are not in duty bound to exert efforts to keep him alive in his agony, nor even to pray for his recovery. Certainly we may not take any overt action to hasten his death. The law permits changing any outside situation which may tend to keep him alive. That is to say, we may remove what prevents him from dying but may not take any direct action leading to his death. See the discussion and the references in Modern Reform Responsa, pp. 197 ff.

Does this human precedent apply in the case of an incurable animal? That is to say, is it equally true that we may not take any direct action to bring about its death? On this specific question there is no clear statement, but the abundance of discussion of the rights of animals can lead us to an acceptable conclusion.

The prevention of cruelty to animals is a clear mandate in the tradition, beginning with Scripture itself. The Torah forbids us to neglect an animal that is staggering under his burden, to muzzle an ox on the threshing floor to keep him from eating the grain. The animal must be given the right to rest on the Sabbath as a human being must rest. Even a stray animal must be taken and given shelter until its owner is found. The Talmud, discussing this principle of prevention of cruelty to animals, deals with many questions of what may or may not be done to an animal (e.g., Baba Metzia 90a) and the Shulhan Arukh (Hoshen Mishpat 338) has a number of enactments registered as law.

There are certain definite statements as to the rights of animals under special circumstances that have bearing on our question. The law states that wolves and lions should be destroyed because they are dangerous. There is some exception made with regard to trained or tame animals, but Rabbi Eliezer says (M. Sanhedrin 1:4) that whoever kills them acquires merit. By this precedent, therefore, we may say that if the dog is dangerous, for example, it has rabies, then there is no question that for the safety of man, he must be put to death.

In general, the point of view of tradition is that animals may be used for the benefit of man. Thus it is clear that they may be put to death, as mentioned above, for their flesh or for their hides, etc. Putting an animal to death is not considered to be a violation of the general prohibition of cruelty to animals provided, of course, the animal is not killed in a way that would cause it suffering.

This general point of view, that killing an animal does not violate the prohibition of causing cruelty, is based upon the discussion in the Talmud (Hullin 7b) between Judah Hanasi and Phineas ben Yair. Thus modern Israeli medico-legal writings permit the use of animals in experimentation which may benefit sick human beings. See Lev Avraham II 71, and the medico-legal journal Assia Vol. I, 268, and especially the more classic reference, Jacob Reisher’s Shevut Ya-akov III, 71. Thus it is not a violation of the prohibition of cruelty to end an animal’s life if this is not done in cruel fashions and also if it is done for a worthy purpose.

Of course, if an animal is killed just for a man’s pleasure in hunting it, this is definitely against the law as stated by Ezekiel Landau (Noda Biyehudah, II 10. Cf., also Treasury of Responsa, pp. 215 ff.) But if the animal is killed for a worthy purpose (and, of course, mercifully) then to use the phrase of Jacob Reischer, “There is not the slightest prohibition in it” (ein bo hashash issur).

Clearly, then, the prohibition against “mercy killing” of a human being cannot be extended to the case of sick animals. The basic reason for the prohibition against mercy killing of a human being is that human life may never be taken (except under special circumstances such as capital punishment with due process of law, or the harsh necessity of war). But in this regard the status of animals is entirely different. The life of an animal can be taken under normal every-day circumstances, as a kosher animal may be killed for food or a non-kosher animal for its hide, etc. However, with regard to the mercy that must be shown to living creatures, the law virtually equates animals and man. As stated above, the law is firm in its demand for mercy to animals.

Therefore we may come to the following conclusion: If an animal has been terribly injured in a traffic accident or if it is incurably sick, suffering pain or the miseries of helplessness, then since in general the killing of animals is permissible if there is a useful purpose for it, and since also mercy is a mandate with regard to animals, therefore we may well conclude that according to the spirit of the tradition to end the life of a suffering animal, it is quite permissible and indeed justifiable.

5776.2

CCAR RESPONSA COMMITTEE

5776.2

Transgender and an Existing Marriage

 

Sh’elah.

A couple in my community was legally married 19 years ago. In recent months, one member of the couple has come out as transgender. The couple is planning to remain married and began wondering what that would mean for the status of their marriage. Obviously if there are any legal implications, I would recommend speaking with a lawyer, but what are the implications from a Jewish perspective? The responsa that I’ve seen address conversion and marriage after a transition, but don’t address the status of an existing marriage. Would the transition require another formal commitment, especially to have a new ketubah with the correct names and accurate gender language? Would the cisgender partner’s immediate and continued acceptance of the trans partner’s true identity uphold the marriage (I’m thinking of parallels in Ketubot that discuss a how a husband or a wife has to respond to the revelation of an undisclosed flaw that might have impacted their original decision to marry)? Are there other considerations? (Rabbi Keren Gorban, Pittsburgh, PA)

 

T’shuvah.

1. The Status of the Marriage. Would a married person’s determination that s/he is transgender bring the marriage to an end? On this point, your citation of the halakhic discussion of previously undisclosed “flaws”[1] brings us to an important distinction between divorce (gerushin) and the annulment of a marriage (hafka`at kiddushin). A divorce dissolves a marriage that had been legally valid and binding, while an annulment invalidates the marriage ab initio, that is, the marriage is declared to have never been legally valid and binding in the first place. Thus, if a man marries a woman explicitly on condition that she not bear any of those flaws, the marriage is subsequently held to be null and void should it turn out that she does bear any one of them.[2] On the other hand, if a man marries a woman without making such an advance stipulation, then should she bear any of these flaws the marriage is valid, though the husband has valid grounds for divorce should he choose that option.[3]

This distinction holds for us, although we Reform Jews would understand these rules to operate for either spouse in an egalitarian manner. A person’s gender identification is obviously of relevance to a prospective spouse, and should one conceal that relevant information prior to the marriage, we would have grounds to declare the kiddushin invalid under Jewish law. In the case before us, however, no deception is involved; the person in question did not determine that s/he is transgender until nineteen years into the marriage. Moreover, since “the couple is planning to remain married,” it is clear that the person’s spouse has accepted the situation. Therefore, the issue of “flaws” and their concealment does not apply here, and the marriage would not be invalidated on that account.

2. Is the Transgender Individual a “New Legal Person”? There is, however, another basis on which we might think that the existing marriage is invalidated. The Talmud[4] declares that “one who converts to Judaism is like a newborn child”: the proselyte is a new legal personality, which means among other things that his or her previously-existing bonds of family relationship are now considered to be severed.[5] It could thus be argued that one’s identification as transgender, which clearly reflects a dramatic transformation of his/her self-image, renders that individual a new legal person; if so, his/her marriage might be considered null and void on the grounds that the one who originally entered into it no longer exists. This argument, however, fails to convince. If the transgender individual is a new legal person, then it follows that all his/her existing family relations (in addition to the marriage) are severed. In addition, we would have to conclude that all the transgender person’s existing obligations – contracts, debts, and moral promises – are similarly null and void because this person never entered into them. This would be an absurd situation, both under Jewish law and the law of the land (dina d’malkhuta).[6] We must conclude rather that though this individual has undoubtedly experienced a significant personal transformation, s/he remains, after “coming out” as transgender, the same legal person as before. The marriage therefore remains valid and binding.

3. Is a New Ketubah Required? Given that the spouse who now identifies as transgender will likely adopt a new name, is it necessary for the couple to write a new ketubah that reflects the name-change and that contains accurate gender language? Halakhic authorities have discussed a similar question: is a ketubah rendered invalid when either spouse changes his or her name? Some say “yes.” R. Yitzchak Yaakov Weiss (Britain and Israel, d. 1989) holds that the existing ketubah is no longer valid and, because it is forbidden for a couple to live together without a ketubah, a new one must be written as soon as possible.[7] But others disagree, for two principal reasons. First, the existing ketubah is not invalid because, after all, the witnesses who signed that document testified truthfully: the bride and groom agreed to be married under the names by which they were known at that time. Were we to conclude that a ketubah becomes invalid when either spouse changes her or his name, we would have to draw the same conclusion with respect to other documents (promissory notes, contracts, etc.), leading to an absurd situation such as that described above. And second, one cannot successfully write a valid new ketubah, because since the couple are already married, the witnesses to this new document cannot legitimately testify that “on this date, the groom said to the bride ‘be my wife, etc.’” as is customary for these documents.[8] We hold with this latter opinion. The existing ketubah (like the existing marriage) remains valid, because each spouse recognizes that the other is the same legal person as s/he was before the name change, so that the promises expressed by the document remain in force.

Conclusion. The realization that one is transgender marks a moment of significant personal transformation, but that individual remains the same legal person as before. His/her marriage remains valid, and there is no need to write a new ketubah. Should the couple wish, they may write an addendum to their ketubah that states the fact of the name change.[9]This, however, is not a requirement flowing from the spouse’s new name and gender identification.

 

NOTES

1.             The “flaws” mentioned in the Mishnah are those physical blemishes that disqualify a Kohen from performing the Temple service; see M. Ketubot 7:7 and M. B’khorot ch. 7.

2.         M. Ketubot 7:7; B. Ketubot 72b; Mishneh Torah, Ishut 7:7; Shulḥan Arukh Even Ha`ezer 39:3.

3.         See M. Ketubot 7:7, B. Ketubot 72b, Yad, Ishut 7:8, and Shulḥan Arukh Even Ha`ezer 39:5. The marriage is of “doubtful” validity (מקודשת מספק), a situation that creates a double disadvantage for the wife: the husband is required to divorce her, but upon dissolution of the marriage she does not receive the sum specified in her ketubah.

4.         B. Y’vamot 22b and elsewhere: גר שנתגייר כקטן שנולד דמי.

5.         See Mishneh Torah, Isurei Bi’ah 14:11 and Edut 13:2. Does this mean that the Jew-by-choice is not required, and perhaps even forbidden, to say Kaddish for his or her non-Jewish parents or other relatives? Some authorities – Mishneh Torah, Avel 2:3 and Shulḥan Arukh Yore De`ah 374:5 – take this position. Our view, based upon the halakhah that a proselyte is obligated to honor his or her parents (see Mishneh Torah, Mamrim 5:11: a ger should not be seen as having descended to a lower level of moral and religious obligation upon conversion), is that the convert does say Kaddish for non-Jewish relatives. See Contemporary American Reform Responsa (New York: CCAR, 1987), no. 121, http://www.ccarnet.org/responsa/carr-182-184.

6.         As one example of the potential absurdity under civil law: would the transgender person lose his/her national citizenship on the grounds that this “new legal person” was neither born nor naturalized in the country?

7.         Resp. Minḥat Yitzchak 7:117 and 10:132. The prohibition against cohabitation without a ketubah is stated in Shulḥan Arukh Even Ha`ezer 66:1 and 3, although the commentators ad loc. note that this “prohibition” lacks a clear Talmudic basis. See also R. Menashe Klein, Resp. M’shaneh Halakhot 14:140.

8.         R. Yosef Shlomo Elyashiv, cited in E. Bar Shalom, Sefer Mishpat Haketubah (Jerusalem, 2011), vol. 7, p. 470; R. Shmuel Halevy Wosner, Resp. Shevet Halevy 8:286, par. 3.

9.         Sefer Mishpat Haketubah (see preceding note), p. 471, offers a similar suggestion.

5775.2

CCAR RESPONSA COMMITTEE

5775.2

St. Valentine’s Day and Other “Secular” Holidays

 

Sh’elah. 

Is it acceptable for Jews to participate in the customs and celebrations of St. Valentine’s Day and other non-Jewish holidays that are currently regarded as “secular” but that originated as religious observances? (Rabbi David Vaisberg, New York, NY)

 

T’shuvah.

The quick and easy way to answer our sh’elah would be to say: “Go and see what the people are doing,” i.e., let the minhag, the widespread custom, indicate the correct standard of practice.[1] In this case, we would discover that Jews in our communities take full part in the activities of such non-Jewish holidays as St. Valentine’s Day, Halloween, Thanksgiving, New Year’s, and Mardi Gras, and we would therefore conclude that the answer to our sh’elah  is “yes.” But it is the task of rabbis not simply to accept the existence of a custom as a fait accompli but, at times, to submit that custom to careful Judaic scrutiny. Even if our people participate in these non-Jewish holidays, we should inquire as to whether our sources raise any objections to that participation. We should ask, as well, as to the line that we must draw between those non-Jewish holidays that are acceptable to us and those which we feel Jews ought not to observe.

1. The Prohibition of Ḥukot Hagoyim. This most obvious potential objection to Jews’ participation in non-Jewish holidays is rooted in the Biblical injunction (Leviticus 18:3) uv’ḥukoteihem lo teleichu, “you shall not follow their laws.” While the verse refers explicitly to the “laws” of the Egyptians and the Canaanites, the Rabbis interpret it as a prohibition against the imitation and adoption of the customs of all Gentiles.[2] Jews realized early on that the forbidden “laws” could not encompass every existing behavior of the surrounding society, since it was impossible not to adopt at least some of those behaviors. As the Midrash explains, the verse cannot mean that we are forbidden to build buildings and to engage in agriculture merely because the Gentiles do the same! Rather, the prohibition applies only to the sorts of religious[3] and social practices (nimusot)[4] that distinguish one culture from another.[5] As Maimonides codifies the rule:[6]

We are not to follow the laws of the Gentiles[7] or seek to resemble them in their manner of dress, haircut, and the like… Rather, the Jew should remain separate from them, recognizable (as a Jew) by his manner of dress and by his other deeds, just as he is recognizable by his philosophy and his beliefs.

Over time, halakhah came to permit significant exceptions to the prohibition of ḥukot hagoyim. An early example is the Tanaitic statement that the rule does not apply to those who are k’rovim l’malchut, Jews who are “close to the government,” who must deal constantly with the authorities and who therefore must follow the latter’s expectations of appropriate grooming and dress.[8] More to the point here, despite the prohibition medieval Jewish communities adopted any number of the cultural practices of their neighbors – even some that were specifically religious in nature – and adapted them to their own needs. If some rabbis sought to protest against such borrowing, others were supportive. Addressing the custom in one community for mourners to visit the cemetery every morning during the seven days following the funeral, the eminent 14th-century posek R. Yitzḥak bar Sheshet urged his correspondent not to interfere with the practice, even though the Jews had apparently learned it from their Muslim neighbors. If we wish to forbid the custom for that reason, he wrote, “we might as well prohibit the eulogy, since the Gentiles, too, eulogize their dead.”[9] R. Yosef Colon (Maharik; 15th-century Italy) permitted Jewish physicians to don the distinctive robes worn by their Gentile colleagues. The prohibition against adopting “Gentile laws,” he argued, covers only two categories of “laws”: 1) customs that offend the rules of modest behavior; and 2) cultural practices that are unique to the Gentiles and serve no other rational and acceptable purpose (taam), so that the Jew would adopt them only because they wish to imitate the non-Jewish culture.[10] Maharik’s approach, though not accepted by all,[11] was codified by R. Moshe Isserles in the Shulchan Aruch[12] and is followed by many in the halakhic community today. Thus, leading Israeli Orthodox authorities have approved the sounding of a siren on Yom HaZikaron and Yom HaShoah, even though this custom was “borrowed” from the memorial practices of other nations, because it serves the acceptable purpose of rendering honor to the dead.[13]

2. “Secular” Versus “Religious” Celebrations. Our Reform Jewish approach to Leviticus 18:3 is based upon the conviction that the prohibition of ḥukot hagoyim does not apply to aspects of our contemporary surrounding culture that we experience as secular. Since the term “secular” is a broad one, difficult at times to define with precision, we will explain what we mean in detail.

First, in the negative sense, that which is secular is “non-religious” or, perhaps better, “non-sectarian” in nature. This helps us determine just how far we may go in adopting non-Jewish modes of expression to serve our own specifically religious needs. For example, it is well known that the style of our public worship – the architecture of our prayer spaces, our modes of liturgical music, our approaches to the leadership of communal prayer – are heavily influenced and have been so throughout history by the styles we have encountered in the surrounding culture. With respect to the content of our public worship, however, we have drawn the line. Thus, this Committee has cautioned against borrowing non-Jewish prayers and hymns, both because they are identified with other religions and because our own Jewish liturgical tradition is sufficiently rich to afford us abundant resources for worship.[14] Since we regard it a mitzvah to preserve the distinctly Jewish elements of our identity, particularly as this touches upon our religious practice, inappropriate borrowing from other religions runs afoul of the prohibition against the imitation of non-Jewish customs and ceremonies.

Second, in the positive sense, that which is secular in our culture is that which all citizens of the community can share in common and in which they can participate on an equal footing with all their fellow citizens. To put this in traditional Jewish terminology, in a liberal democracy all of us should be considered k’rovim l’malckhut, for we are the malchut; the government and the culture belong to us, they are of us, and we do not regard them as alien entities. Secular customs, as the common space in which all of us can meet, serve the “rational and acceptable purpose” (to use Maharik’s terminology) of uniting the members of a disparate and multicultural society into a common bond.

For these reasons, we have no objections to Jews’ participation in national patriotic holidays. These special days are secular in both the senses we have described: they are non-religious, and they speak equally to all the citizens of the state. True, these holidays are major events in the calendar of what has been called the “civil religion,” the set of beliefs, texts, rites, and ceremonies by which the citizens express their collective national identity.[15] The civil religion, one could argue, is a religion, a sort of non-sectarian “faith” (the “cult of the nation,” of “God and country”) and is therefore not secular at all. We, however, resist this conclusion; as we have written elsewhere, participation by Jews in their nation’s civil religion “is a proper expression of their full participation in the life of the general community.”[16] Although patriotism can be and all too often has been twisted into the form of a quasi-religion,[17] we see national holidays as occasions that, in Maharik’s words serve the “rational and acceptable purpose” of uniting the citizens of the state and of reminding them of their social and ethical duties toward each other. They are secular observances precisely because they belong to us all, and for that reason they cannot be dismissed as ḥukot hagoyim.

For these reasons, too, we see no reason why Jews should be prohibited from participating in holidays we deal with here: Valentine’s Day, Halloween, Thanksgiving, New Year’s, Mardi Gras. Although these holidays originate in Christian practice,[18] they are now secular observances; neither we nor the vast majority of our fellow citizens perceive them as religious festivals. They are in this regard easily distinguishable from Christmas, Easter, and other obviously religious holidays which it is clearly inappropriate for Jews to celebrate.[19] And here is where we depart from the stance taken by some of our Orthodox colleagues. For example, Rabbi Moshe Feinstein, the leading American Orthodox halakhic authority of the twentieth century, has famously ruled that Jews are forbidden to take part in the festivities” (שמחות) and “feasting (סעודות) of American Thanksgiving, not, to be sure, because he thinks of Thanksgiving as a religious holiday – he doesn’t – but because he defines it as the sort of “Gentile custom” that Leviticus 18:3 forbids Jews to observe.[20] The wording of his argument suggests that Rabbi Feinstein does not recognize the existence of the cultural realm that we have defined as “secular.” We, by contrast, do recognize the existence of the secular; Thanksgiving and these other holidays pertain to the culture that we share with all others in the society and in which we participate as full and equal members. As such, they are not “Gentile” festivals, and we would not prohibit them on that basis.

3. Secular vs. Religious Holidays. We have stated that secular non-Jewish holidays are “easily distinguishable” from “Christmas, Easter, and other obviously religious holidays.” An obvious objection to this is the claim that for many non-Jews in our society these holidays have become non-religious celebrations, so that by the logic of this t’shuvah Jews should be permitted to participate in their observance. We acknowledge that the line separating “religious” from “secular” is not a hard and fast one. As the examples of St. Valentine’s Day and Halloween demonstrate, and as the Rabbis of the Talmud were aware, holidays with religious origins can lose their religious connotations over time.[21] But other holidays are and remain essentially religious in nature. By this we do not mean that everyone in the non-Jewish population celebrates them as religious festivals but rather that they retain their central role in the doctrine and practice of non-Jewish faiths. It is our task to distinguish between these two categories. That requires a careful act of judgment, and judgments, of course, can be controversial. Still, we fill quite confident in saying that, despite all the tinsel and reindeer and Santa Claus and bunny-and-egg displays, Christmas and Easter retain a status in Christian thought and practice that is quite different from that enjoyed by Halloween and St. Valentine’s Day. The religious meaning of those days is still central in the eyes of many of our Christian neighbors, who would rightly feel insulted were we to declare those days – wrongly – to be “secular” observances.

4. A Final Note. We do find it sadly ironic that we are talking about Jews taking part in secular non-Jewish holidays while the level of our community’s observance of many of our own holidays leaves much to be desired. We state therefore for the record: there is a difference between permission and encouragement. Jews are certainly permitted to participate in secular and national holidays, but they ought as well to take part in the full range of observances that mark our Jewish calendar. Our communities should never ignore the task of strengthening the specifically Jewish nature of our Reform Jewish life.

Conclusion. It is permissible for Jews to take part in the celebration of St. Valentine’s Day and other secular holidays, even if these originated in other religious traditions.  As part of the common culture in which we all participate, these days are not to be thought of us “alien” and “foreign” – much less “Christian” – so as to fall under the terms of Leviticus 18:3.

 

NOTES

1.            The Talmudic phrase is פוק חזי מאי עמא דבר, which occurs in B. B’rachot 45a and B. Eruvin 14b as the answer to the question: What is the halachah?

2.         And not only those of the Egyptians and the Canaanites to whom the verse explicitly refers; Sifra, Aḥarei Mot, parashah 9, ch. 12.

3.         This insight flows from the word that the verse uses for “law” – ḥok, חוק- which the Rabbis tend to interpret or translate as ritual obligations (e.g., rules covering forbidden foods, manner of dress, and the Temple service) that cannot be derived by human reason; they are obligatory solely because God has enjoined them upon Israel. By contrast, an obligation that is derivable through human reason is indicated by the word משפט, mishpat.  See Rashi to Lev. 18:4.

4.         Sifra, Aḥarei Mot, parashah 9, ch. 13, and see Onkelos and Rashi to Lev. 18:3. The word nimusot is the Rabbinic Hebrew translation of the Greek nomos.

5.         This definition allows for some useful distinctions. See, for example, B. Avodah Zarah 11a: when a king of Israel dies, it is permissible as part of the funeral ritual to burn his bed and his personal property, even though Gentiles mourn their kings in the same way. Why? The burning is not a “law” (ḥukah), the sort of religious practice we are not permitted to copy, but simply a sign of respect.

6.         Yad, Hil. Avodat Kochavim 11:1. See also Rambam’s Sefer Hamitzvot, negative commandment no. 30.

7.         We adopt the reading הגוים, “Gentiles,” preserved in the edition of the Mishneh Torah edited by R. Yosef Kafiḥ (Jerusalem, 1983), in place of the printed version’s העובדי כוכבים, “idolaters.” Kafiḥ based his edition upon Yemenite manuscripts widely considered to be more faithful to Rambam’s original text than is the printed version.

8.         B. Bava Kama 83a; Yad, Hil. Avodah Zarah 11:3.

9.         Resp. Rivash, no. 158.

10.       Resp. Maharik, no. 88. The wearing of a uniform identifying one as a physician is clearly a rational and purposeful act, and it is certainly not an immodest one.

11.       See R. Eliyahu, the Gaon of Vilna, Bi-ur HaGra, Yoreh De-ah 178, no. 7.

12.       Isserles, Shulchan Aruch Yoreh De-ah 178:1. See also R. Mordechai Yaffe, L’vush, Yoreh De-ah 178:1.

13.       R. Hayyim David Halevy, Resp. Aseh L’cha Rav 1:44 and 4:4; R. Zvi Y’hudah Kook, T’ḥumin 3 (1982), p. 388; R. Y’hudah Henkin, T’ḥumin 4 (1983), pp. 125-129.

14.       See “The Lord’s Prayer,” Contemporary American Reform Responsa (CARR; New York, CCAR, 1987), no. 171, pp. 256-257, http://www.ccarnet.org/responsa/carr-256-257, and “Amazing Grace,” Teshuvot for the Nineties (TFN;  New York, CCAR, 1997), no. 5752.11, pp. 21-22, http://www.ccarnet.org/responsa/ccarj-fall-1992-65-66-tfn-no-5752-11-21-22.

15.       Although the term “civil religion” originates with Jean-Jacques Rousseau (The Social Contract, chapter 8, book 4), the concept as presently understood by sociologists traces back to a famous article by Robert Bellah, “Civil Religion in America,” Daedalus 96:1 (1967), pp. 1-21, http://www.robertbellah.com/articles_5.htm (accessed March 27, 2015). Bellah speaks to the experience of the United States, and it is controversial whether his observations extend past its borders; see, for example, Andrew E. Kim, “The Absence of Pan-Canadian Civil Religion: Plurality, Duality, and Conflict in Symbols of Canadian Culture,” Sociology of Religion 54 (1993), pp. 257-275, and John von Heyking, “The Persistence of Civil Religion in Modern Canada,” Cardus, October 21, 2010 http://www.cardus.ca/policy/article/2273 (accessed March 27, 2015).

16.       CCAR Responsum no. 5751.3, “Blessing the Fleet,” TFN, pp. 159-164, http://www.ccarnet.org/responsa/tfn-no-5751-3-159-164 .

17.       We must be vigilant to maintain the lines that distinguish religion from patriotism; otherwise, religion will inevitably be drafted into the service of the cult of state power. As we have written elsewhere: “We are properly suspicious of rhetoric equating ‘God and King’ or ‘God and Country’ While… such language may not be, strictly speaking, a case of idolatry, it connotes for many of us today some of the most disturbing historical tendencies of our time: chauvinism, racism, and ethnic intolerance. If it is true that God alone is worthy of our religious worship, we ought to avoid language which, rightly or wrongly, suggests otherwise”; TFN, no. 5753.8, “Flags on the Bimah,” p. 31, http://www.ccarnet.org/responsa/tfn-no-5753-8-29-32 .

18.       We will not enter the controversy over the source of Halloween: did it originate as a Celtic and probably pagan festival that was subsequently adapted into the Christian calendar, or was it a Christian festival to begin with? Suffice it to say that in its present form, as “the eve of All Hallows’ / All Saints Day,” its Christian associations are obvious.

19.       See below, section 3. We leave aside here the often vexing question of whether and to what extent Jews may take part in the apparently non-religious aspects of Christmas and Easter: office parties, gift exchanges, watching parades, etc. Clearly, as members of a religious minority that does not seal itself off from its environment, we will participate in at least some of these. When we say that it is “inappropriate” for Jews to celebrate these days, we have in mind the introduction of holiday observances, decorations and the like into our own homes. We do not think it unreasonable to insist that the Jewish home be a “Christmas-free zone” during the holiday season.

20.       Resp. Ig’rot Moshe, Oraḥ Ḥayim 5:20 (1981), section 6.

21.       See B. Avodah Zarah 11b: the Babylonian sage Rav Y’hudah permits his students to engage in commerce with pagans on one of the latter’s festival days. Although this contradicts the prohibition set forth in M. Avodah Zarah 1:1, Rav Y’hudah permits the activity on the grounds that the festival in question is not permanently fixed on the calendar and is therefore not a truly serious pagan observance (see Rashi, Avodah Zarah 11b, s.v. d’la k’vi-a).

 

 

 

 

TRR 7-9

A GENTILE BRIDEGROOM CALLED TO THE TORAH

QUESTION:

A Gentile young man is engaged to be married to a Jewish young woman of our congregation. We do not officiate at such mixed marriages. But may the young man be called up to the Torah at our Friday night Torah service? (Asked by Rabbi Sanford H. Jarashow, Massapequa, New York.)

ANSWER:

The question is complicated and, because of modern circumstances, is of considerable importance. The parents of the Jewish member of such a couple almost invariably plead with the Rabbi to officiate or co-officiate at such a marriage. When he refuses to do so, they plead with him to give the couple some semblance of Jewishness so that there will be hope that future grandchildren will be raised as Jews. The anxiety of the parents is understandable. We sympathize with them and wonder what we can do in concession to them.

First of all, we can inform them that a child born of a Jewish mother is Jewish by birth. Even if it were a Gentile mother and a Jewish father, and the child is therefore born Gentile, nevertheless in our Reform movement conversion of a child is easy. It simply has to be enrolled in our Sunday School and we accept the intention to raise the child as a Jew tantamount to a conversion. But here in this case, the parents in addition want some public symbol which will serve to mark the intention to raise the grandchildren as Jews. Hence, the question, whether we may call the Gentile bridegroom up to the Torah on Friday night.

First, it must be understood that the ceremony of calling worshipers to the Torah has an unclear status in Jewish law. Is being called to the Torah a mitzvah which every Jew must fulfill, or is it a privilege which a congregation confers on those whom it chooses to honor, or is it a right which every worshiper can demand as due him? The discussion of these various definitions of calling to the Torah will be found in Current Reform Responsa, p. 62 ff., under the heading, “An Unworthy Man Called to the Torah.”

The simplest answer to the three possible definitions of this ceremony (as to mitzvah, privilege or right) is to say that it is a well established custom. Perhaps it should be considered as law that a priest or a Levite be called first and second to the Torah; although even with regard to this right (or custom) if no priest or Levite is present, an Israelite may be called up first and second. Then beginning with the third portion to the end of the seven portions, the question of rights or duties rises. We may say that the following have “rights” established by custom: the father of a Bar Mitzvah, the Bar Mitzvah, the husband of a wife who is recovering from childbirth and is now in the synagogue, a man who has Yahrzeit, and a bridegroom on the Sabbath before his marriage.

What is the relative importance of these various “rights”? We can judge that from the well known handbook on Torah reading, Shaarei Ephraim by Ephraim Margolis. He says definitely that of all these rights mentioned above, the first obligation is to call a bridegroom up the Sabbath before his marriage. He uses the word Haiv, i.e., “obligation.” So it is clear that this custom popularly called Aufruf is, to the extent that any of these are mandates, the most important of all of them. Therefore it requires special care and consideration.

As to the further question as to whether a Gentile may be called to the Torah altogether, please see Recent Reform Responsa, p. 49, where it is clear at least that there is no harm in having Gentiles handle the Torah. Furthermore, it may be argued that our Reform custom of Friday night Torah reading is not according to the Halakhah and, therefore, there is less halakhic importance whom we call up.

But all this is secondary to the important question. Since calling up to the Torah of a bridegroom is deemed one of the most important of the various “obligations,” we are making a serious gesture when we call the Gentile partner to a forthcoming mixed marriage up to the Torah. Doing that seems to me to be more than we can properly do to allay the understandable grief of the Jewish parents.

5776.1

CCAR RESPONSA COMMITTEE

5776.1

Taharah When the Family Chooses Cremation

 

Sh’elah.

Is it permissible to perform taharah on a body that will be cremated? One of my congregants feels that a number of people would make this choice if given the opportunity. (Rabbi Karen Bodney-Halasz, Dayton, OH)

 

T’shuvah.

Taharah, the ritual cleansing of the corpse prior to burial, is understood as an expression of k’vod hamet, the desire to render honor to the dead.[1] Cremation, on the other hand, is condemned by much traditional opinion as a transgression against Jewish law and an act of nivul hamet or bizayon hamet, disrespect and disgrace to the dead. Accordingly, the combination of these two practices – that is, to perform taharah upon a body that will be cremated – might strike us, at first glance, as inappropriate or even contradictory.[2]

Our sh’elah asks us to test that impression. To do so, we will address each of its three principal elements: first, the nature and function of the taharah ritual; second, the practice of cremation in Jewish tradition and in our specifically Reform Jewish tradition; and third, the definition and meaning of k’vod hamet.

1. Taharah. The word taharah means “purification.” It is therefore a euphemism in our context, since a human corpse, which classical halakhah defines as the chief source of tum’ah (ritual defilement), cannot be “purified.” The ritual, rather, is based in the ancient minhag (custom) of “anointing and washing” the body upon death,[3] a ritual of cleansing that medieval authorities understood as an act of k’vod hamet.[4] The first source that refers to this practice as “taharah” is Rashi (11th century),[5] and later writers adopt the language of purification when describing it.[6] As our sh’elah indicates, the practice of taharah has become established in Reform Judaism, and as we have written, it is praiseworthy for a Reform Jewish community to establish its own ḥevra kadisha (burial society) to supervise this ritual.[7] Still, taharah does not enjoy the status of an absolute requirement; even within Orthodox communities, if taharah for some reason is not performed, the body of a Jew is nonetheless buried in a Jewish cemetery.[8] The mitzvah of burial[9] remains in effect even when the mourners do not observe this particular ritual of kavod.

We might learn from this that these two acts are not a “package” but must be considered separately. Just as burial is obligatory even in the absence of taharah, then taharah is permissible as a sign of respect for the dead even if the mourners have decided to depart from traditional practice and choose cremation. To put this differently, there is no contradiction; we do not object to a person’s performance of one mitzvah simply because she or he does not intend to perform another mitzvah.[10]

2. Cremation. There is, of course, another reason why we might think to prohibit taharah in this case. If we were to accept the “traditional opinion,” as noted above, that cremation is a sin and “an act of nivul hamet,” we might conclude that to allow taharah would be tantamount to endorsing that transgression. As we know, however, North American Reform Judaism views cremation differently. Please consult our responsum no. 5766.2, “When a Parent Requests Cremation,”[11] for a detailed discussion of the issue; for now, though, let us point to several conclusions that we draw there.

            a. It is not altogether obvious that cremation is forbidden by Jewish law. No explicit prohibition exists in the classical sources, and the nineteenth-century poskim (halakhic authorities) who do prohibit it base their rulings upon arguments that some, including our own R. Solomon B. Freehof, consider forced.

            b. The CCAR has been on record since 1892 as allowing rabbis to officiate at cremations, and subsequent statements of the Conference have affirmed cremation as an entirely proper procedure.

            c. More recent statements of the Conference have tended to prefer traditional burial and to discourage cremation, but all of these statements emphasize that cremation remains a permitted practice in Reform Judaism.

It’s vital that we keep these conclusions in mind when we think about this question. Our movement is deeply divided as to the appropriateness of cremation. Indeed, members of this Committee are of differing views. Now the fact that this maḥloket (dispute) exists within the Reform rabbinate does not mean that we think both views are equally correct and that we are not entitled to discourage the practice of cremation. On the contrary: as rabbis and teachers of Torah, it’s our job to discourage it should we see fit on Jewish grounds to do so. But we cannot say in the name of the CCAR or of the Reform movement that cremation is a “sin.” Therefore, we also cannot say in the name of Reform Judaism that the combination of taharah and cremation is an endorsement transgressive behavior. Each of these practices, undertaken separately or together, remains a legitimate choice for Reform Jews.

3. K’vod Hamet. As we said at the outset of this t’shuvah, “much traditional opinion” holds that cremation is an act of contempt and disgrace to the dead, of nivul/bizayon hamet. This raises the question of how we determine that a particular act is one of nivul or, for that matter, of kavod? Not long ago, we addressed this question as follows:[12]

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… We Reform Jews, active participants in both [the Jewish and the liberal Western] cultural traditions, cannot escape the fact that they differ on this issue [cremation]. 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.

Given that the definition of k’vod hamet is culturally determined, how then do we negotiate that choice when our two cultures pull us in opposite directions? We confess – and proudly – that we are not neutral on this issue. We think that, as a general rule, Reform Jews ought to honor their dead in Jewish ways. Other cultures, to be sure, have different approaches, but since we are Jews, we should prefer to find meaning and purpose in Jewish modes of expression. But precisely because we are cultural citizens of the liberal West as well as of the world of Jewish tradition, we recognize that the tension between these traditions will cause the specific boundaries of k’vod hamet and of nivul hamet to shift over time. Practices once regarded as “disgraceful” may now seem to us entirely coherent with our conception of kavod. If this is the case with cremation – and the record of our discussion of and experience with the subject suggests that for much of the Reform community it is the case – then we cannot say that the mourners’ choice of cremation is an act of nivul that negates their determination to honor to their dead by way of taharah.

Conclusion. While there is deep division in our movement over the appropriateness of cremation, that practice is a legitimate one for Reform Jews. Thus, there is no objection to the performance of taharah upon a body that will be cremated. Indeed, the desire of Reform Jews to adopt the practice of taharah is a trend that ought to be encouraged. We should do everything we can to support them in their desire to honor their dead through this ritual.

 

 

NOTES

1.             See R. Yekutiel Greenwald, Kol Bo al Aveilut (New York: Moria, 1947), 6:14, p. 89. The following sh’elah was submitted to him: the family of the deceased has refused to allow the ḥevra kadisha to perform the ritual of taharah on the body. In such a case, is it permitted to bury the deceased in a Jewish cemetery? Greenwald responded that yes, the burial is permitted. “Even though we must protest against” the family’s action, “given that taharah is performed only as a sign of honor to the dead (כבודו של מת), it is not our obligation to bestow honor upon him against the wishes of the mourners.”

2.         By “contradictory” we have in mind the metaphor of the tovel v’sheretz b’yado, one who immerses for the sake of ritual purification while holding a creature that is tamei, a source of ritual defilement. “Even should that person immerse in all the water in the world, the immersion is not successful” (B. Ta`anit 16a, and see Tosefta Ta`anit 1:5). Does that logic apply to our case? Does the cremation somehow nullify the good intentions of the taharah? See below in the text at note 10. 

3.         M. Shabbat 23:5. “Anointing” involved oil or spices; see B. Mo`ed Katan 27b and Mishneh Torah, Hil. Avel 4:1 (וסכין אותו במיני בשמים). For a good overview of the development of the taharah ritual see Greenwald (note 1, above), pp. 85ff.

4.         Naḥmanides, Torat Ha’adam, inyan hak’vurah, s.v. v’im tishal (p. 125, Chavel ed.). The Rokeaḥ (12th-century Ashkenaz) describes the practice as one of ḥesed shel emet, “true lovingkindness” toward the deceased.

5.         “Rashi” to B. Nazir 51b, s.v. us’khayei nasa. Scholars agree that Rashi himself did not author this commentary, which apparently originated in the academies of the Rhineland during the 11th-12th centuries.

6.         See, for example, Resp. Binyamin Ze’ev (Greece, 16th century), no. 204 (cited by Isserles, Shulḥan Arukh Yore De`ah 392:4), who quotes from the testament of a certain R. Eliezer Halevy: “I beseech you to purify me (שיטהרוני) upon death… so that I go to my eternal rest in purity (טהור) just as I walked to the synagogue every Shabbat.”

7.         Teshuvot for the Nineties, no. 5754.8, pp. 87-90, http://www.ccarnet.org/responsa/tfn-no-5754-8-87-90.

8.         See note 1.

9.         B. Sanhedrin 46b (based on Deut. 21:23); Mishneh Torah, Hil. Avel 12:1; Shulḥan Arukh Yore De`ah 362:1. For the Reform position see Shimeon Maslin, Gates of Mitzvah (New York: CCAR Press, 1979), p. 54.

10.       Rather than invoke the metaphor of the tovel v’sheretz b’yado (see note 2), we would make a different comparison: if a Jew decides to go to work on Saturday, why would we object to her welcoming Shabbat with kiddush on Friday night?

11.       Reform Responsa for the Twenty-First Century, vol. 2, pp. 193-207, http://www.ccarnet.org/responsa/nyp-no-5766-2. 

12.       “’Resomation’: The Liquid Disposal of Remains,” CCAR Responsum no. 5774.6, http://www.ccarnet.org/57746/.

 

 

 

 

 

 

 

 

 

 

5774.4

CCAR RESPONSA COMMITTEE – 2014

5774.4

Same-Sex Marriage as Kiddushin

Sh’elah.

In states where same-sex marriage and civil unions are legal by civil law, is it appropriate for Reform rabbis to officiate at a ceremony of marriage of two Jews of the same sex, and to consider the union kiddushin? Is it appropriate for Reform rabbis in states that have not yet legalized same-sex marriage to officiate at a ceremony of marriage of two Jews of the same sex, and to consider the union kiddushin?

T’shuvah.

1. Background. Our sh’elah is a complex one, consisting of several discrete issues: rabbinical officiation at weddings between two Jews of the same sex where such unions are legally recognized as marriage; whether such unions are considered kiddushin under the Reform Jewish conception of that Jewish legal term; and the Jewish legal status of same-sex unions in jurisdictions that as yet do not recognize them as legal marriage. Our answer begins with a historical summary of the CCAR’s stance in this arena.

The Central Conference of American Rabbis has for many years been fully supportive of social equality for lesbians and gays. In 1977 the Conference adopted a resolution calling for the decriminalization of same-sex intimacy between consenting adults and the prohibition of discrimination against gays and lesbians as persons.[1] In 1996 the CCAR endorsed a resolution supporting the right of gay and lesbian couples to share fully and equally in the rights of civil marriage. The resolution, apart from repeating the call for full civil rights for homosexuals, also calls for complete civil marriage equality and opposes any attempt to amend the U.S. Constitution to facilitate discrimination against homosexuals and their families.[2]

Our stance on officiation has changed sharply during the last quarter century. In 1990, the majority of an ad hoc committee of the Conference declared that only heterosexual relationships qualify as kiddushin and that special ceremonies solemnizing same-sex unions “are matters of continuing discussion and differences of opinion.”[3] The final clause of the 1996 resolution stated explicitly that it was not addressing the question of rabbinic officiation at same-sex marriages, thus leaving that question open.[4] Also in 1996, the Responsa Committee issued a t’shuvah that explored the question of whether a “Reform rabbi [may] officiate at a wedding or ‘commitment’ ceremony between two homosexuals” and whether such a union may be considered kiddushin from a Reform perspective.[5] The responsum was unusually long, encompassing two extensively argued opinions, one speaking for the majority and one speaking for the minority of the Committee. Its discussion ranged over a number of topics, including the attitude of Jewish tradition and of Reform Judaism toward homosexuality and the rights of gay and lesbian people, the history of the CCAR’s stance on the subject of homosexual marriage,[6] the nature of rabbinical authority, the definition of kiddushin, and the need recognized by both the majority and the minority opinions to find ways to bring same-sex couples into full and active participation within our communities. In the end, the majority held that “We do not understand Jewish marriage apart from the concept of kiddushin, and our interpretation of rabbinic authority does not embrace the power to ‘sanctify’ any relationship that cannot be kiddushin as its functional equivalent,” while the minority expressed the view that “a Reform rabbi may officiate at a wedding or ‘commitment’ ceremony for two homosexuals, although for important historical and theological reasons, that ceremony should perhaps not be called kiddushin.”

In 2000 the CCAR resolved that, “the relationship of a Jewish, same gender couple is worthy of affirmation through appropriate Jewish ritual” and called for support of colleagues who officiate at “rituals of union for same-gender couples” as well as those who do not.[7] This resolution, which is currently the latest statement by the CCAR on the issue, establishes its official position of the Conference and as such supersedes all previous statements of the Conference and of its constituent committees to the contrary. In particular, the resolution’s language overturned the majority opinion in the 1996 t’shuvah of this Committee, which had explicitly held against such ritual affirmation.

The 2000 resolution answers the first part of our sh’elah: since that date, the CCAR and all its constituent committees[8] have approved of rabbinical officiation at same-sex marriage ceremonies. Yet the resolution does not explicitly address the Jewish legal status of same-sex unions: can they be considered kiddushin? The majority opinions of both the 1990 resolution and the 1996 responsum answered in the negative. Now, in 2013, it is time to revisit this question. Much has changed, even since 2000, in our understanding of homosexual partnerships, and this change significantly affects the way in which we use the terms “marriage” and kiddushin to describe them.

2. Same-Sex Marriage as Kiddushin. Our sh’elah pertains to two individuals of the same sex. Both are Jews, both members of the covenant of Israel, and they wish to be joined in marriage in a ceremony — specifically kiddushin — in which a rabbi serves as officiant (m’sader). Our starting point is the recognition that homosexuality is neither a chait (sin) nor a to’evah (abomination), as was long a prevailing opinion. There is abundant scientific and psychological evidence that homosexuality is an inherent sexual orientation (and not a “lifestyle choice,” as has often been erroneously claimed). Our tradition is grounded in justice and ethics, and both demand that we recognize not only the full humanity and equality of homosexuals, but that their love and commitments are no less than those of heterosexuals. The minority view of the 1996 t’shuvah cited above noted:

The tradition’s linkage of marriage to the arayot is also problematic for us. It is a fact, first of all, that we no longer observe the laws of yibum, chalitzah, and mamzerut. And, as we discuss above, the very notion of arayot has been reconstructed in our discourse from a ritual to a moral problem. Thus, while we without any doubt acknowledge that numerous sexual relations remain forbidden, our primary concern is that the union between spouses be one that expresses our deepest moral conceptions of marriage, that it be one of exclusive sexual commitment. And there is no reason why gays and lesbians cannot establish such a union. When we stand under the chupah, we celebrate a joining together of two individuals in a relationship of equality and of love, one that promises emotional as well as sexual fulfillment, one which allows them to build a home that expresses Jewish values. This, in its essence, is what we mean when we call our marriages by the name kiddushin. If gay and lesbian couples, no less than their heterosexual counterparts can aspire to that kind of relationship, it would seem that kiddushin or “marriage,” as we Reform Jews understand those terms, are fit names for it [emphasis in original].[9]

In short: a union of marriage between two Jews deserves to be called kiddushin, the tradition’s term for Jewish marriage. We agree. The remainder of this sh’elah will explain why.

Mishnah Kiddushin 1:1 stipulates that Jewish marriage can be contracted in any of three ways: with money (as when a man gives a woman an object of value, such as a ring or a coin, and in the presence of two witnesses she freely accepts the object); through a sh’tar, a written deed in which the phrase “through this deed” establishes the marriage; or by sexual congress with the intention of creating a marriage bond. The Rabbis strongly disapproved of the third method.[10] Today, kiddushin (betrothal)[11] is transacted through the giving and acceptance of an object of monetary value (usually a ring).

At the core of this legal contract lie the underlying Jewish values that characterize kiddushin. These flow, we believe, from the verse “It is not good for a person to be alone” (Genesis 2:18), by which we understand that Torah supports loving and committed marital relationship as a natural state of human existence. We would hope that such relationships are a source of joy for the two people involved, and a blessing to family members, friends, and the Jewish community. Our tradition strongly frowns on celibacy and encourages life partnerships. Finding an ezer k’negdo (Genesis 2:20), a mutually supportive and enriching life partner, is an enduring Jewish value, as is living in a loving and committed relationship.[12]

Our tradition understands such a partnership contracted between two Jews as kiddushin. What are the salient and defining values of this institution?[13] We hold that they include three essential commitments:

  • The commitment of two Jews to establish a Jewish home together.
  • Their commitment to support and nurture one another physically, financially, emotionally, psychologically, and spiritually.
  • Their commitment, should their union be blessed with children, to raise those children together as Jews.

The union of a same-sex Jewish couple, no less than that of an opposite-sex couple, can be defined by these commitments. It therefore qualifies, in our view, as kiddushin. For this reason, we are not persuaded by the suggestion raised by some that same-sex marriages be designed by a different term. On the contrary: kiddushin is the term that designates Jewish marriage. Same-sex Jewish couples who forge a loving and devoted union and who commit themselves to establishing a Jewish home and raising a Jewish family should not be denied the rites that define marital status in the Jewish tradition. In all that we do and consider, we must operate by the halakhic principle Gadol k’vod ha-briot she-docheh lo ta’aseh she-ba-torah (“So great is the requirement of human dignity that it supersedes a negative commandment of Torah”).[14] Human dignity requires that same-sex couples be afforded the same opportunities as heterosexual couples to sanctify their marriages with kiddushin and the presence of their rabbi.

3. Kiddushin and Reform Judaism. The above, obviously, stands at odds with our traditional literature, which never applies the term kiddushin to same-sex unions. Yet it is quite consistent with our own Reform Jewish tradition, in which the understanding of kiddushin has long diverged from the way that institution was originally defined and structured in our sources.[15]

In its most original formulation, kiddushin is non-egalitarian and follows the model of kinyan (acquisition): the man actively acquires the woman whose role in the exchange is passive except so far as she accepts the token of her acquisition.[16] The man presents the object to the woman and she accepts it, her acceptance serving to bind her in marriage to him.[17] Reform Judaism, by contrast, has always defined kiddushin as an egalitarian and therefore mutual institution. The Philadelphia Conference of 1869 resolved that: “The bride shall no longer occupy a passive position in the marriage contract, but a reciprocal avowal should be made by the bridegroom and the bride, by pronouncing the same formula, accompanied by an exchange of rings.”[18] As Rabbi Moses Mielziner explains: “By this innovation it is intended to express the full equality of woman with man in the conjugal relation and in moral life, so that, just as he consecrates her to be his alone, so she consecrates him to be hers alone, in person and affection.”[19]  Accordingly, it has long been the practice in Reform Jewish weddings for two rings to be exchanged and for both of the couple to recite the traditional marriage formula harei atah/at m’kudeshet/m’kudash li.[20] In addition, we should consider developments in the ketubah, the legal document that traditionally served as a woman’s lien on the man’s property or estate upon dissolution of the marriage through divorce or death. Like the language of the ceremony and the exchange of rings, this aspect of Jewish marriage has long been equalized in Reform practice, which favors the use of modern, liberal ketubot texts that express equality in the relationship.[21]

These aspects of Reform Jewish marriage underscore a critical point. We are not now suddenly “changing” the traditional definition of kiddushin in order to accommodate same-sex marriage. Reform Judaism departed from that definition at least a century and a half ago when it restructured and reimagined kiddushin in accordance with our movement’s fundamental commitment to justice, equity, and egalitarianism. What has changed since 1869 – and 1990, and 1996 – is our recognition that same-sex unions, no less than opposite-sex unions, are a form of marriage. Given this recognition, it is clear to us that the same commitment to justice, equity, and egalitarianism applies in this case. Same-sex marriages therefore meet the long-standing Reform definition of kiddushin as a mutual and egalitarian marital covenant between two Jews.

3. Same-Sex Weddings in Jurisdictions That Do Not Yet Recognize Such Unions as Legal Marriage. It is CCAR policy that Reform rabbis should not officiate at weddings in the absence of a valid civil marriage license.[22] This does not prevent a rabbi from officiating at a ceremony of union for a same-sex couple in a state that does not recognize such unions as legal marriage, provided that the rabbi make clear to the couple that the ceremony as a matter of law is not a legally-binding marriage.[23] Still, the situation is ripe for confusion. The current state of civil law in the United States is similarly confusing. Since June 26, 2013, when the Supreme Court struck down DOMA (the “Defense of Marriage Act”),[24] same-sex couples who marry in states that legally recognize and register same-sex marriages are guaranteed equal protection under the law with respect to federal marriage benefits, including Social Security survivors’ benefits, insurance benefits, immigration, and tax filing. These protections are of great importance and value. However, there are important rights and protections not assured by the Federal Government in the realms of inheritance, medical care, and children. While couples who marry in states that recognize same-sex marriage enjoy these protections, couples in states that do not recognize same-sex marriage do not.

In response to this situation, we strongly encourage Reform rabbis who live in such states to advise same-sex couples who seek a wedding to contract a civil marriage, prior to the chupah, in a jurisdiction that recognizes the legality of same-sex marriage. This will remove any objection that the rabbi is officiating at a wedding for a couple that lacks a valid civil marriage license. It will also insure that the couple will be entitled to federal benefits even should they choose to live in a state that does not recognize same-sex marriage. We also encourage Reform rabbis who officiate at same-sex marriages in states that do not provide for civil same-sex marriage to advise same-sex couples to seek legal advice and services in order to set in place legal mechanisms including estate planning, durable power of attorney, health care proxy, wills, and anything else required to protect the couple, as well as children the couple has or plans to have.

Conclusions.

1.  Since 2000, Reform rabbis in North America have officiated with the full support of the CCAR at the marriage ceremonies of Jews of the same sex.

2. We now affirm that, in light of the underlying purpose and values of Jewish marriage, as well as of our historic Reform Jewish understanding of the concept of kiddushin, Reform rabbis may consider these same-sex marriages to be kiddushin, utilizing in the marriage ceremony the Jewish forms and rites that are most appropriate to the Jewish partners involved.

3. Couples who marry in jurisdictions that grant legal recognition to same-sex marriages are entitled to, and protected by, both federal and state laws. In jurisdictions that do not grant such recognition, rabbis should advise couples who request their officiation to first seek civil marriage in a state that recognizes same-sex marriage

 

NOTES

  1. “Rights of Homosexuals,” http://www.ccarnet.org/rabbis-speak/resolutions/1977/homosexuals-rights-of-1977.
  2. “On Gay and Lesbian Marriage,” http://www.ccarnet.org/rabbis-speak/resolutions/1996/on-gay-and-lesbian-marriage-1996.
  3. “Report of the Ad Hoc Committee on Homosexuality and the Rabbinate, http://www.ccarnet.org/rabbis-speak/resolutions/1990/homosexuality-and-the-rabbinate-1990. A minority dissented, holding that “the relationship, not the gender, should determine its Jewish value – Kiddushin.”
  4. See note 2, above: “BE IT FURTHER RESOLVED, that this is a matter of civil law, and is separate from the question of rabbinic officiation at such marriages.”
  5. Reform Responsa for the Twenty-First Century (New York: CCAR, 2010), vol. 1, no. 5756.8, “On Homosexual Marriage,” pp. 213-256, http://www.ccarnet.org/responsa/nyp-no-5756-8.
  6. Note the statement at ibid., p.  227: “We would point out that no resolution of the CCAR has expressed its approval of [rabbinical officiation at same-sex marital unions].” That state of affairs, a critical element in the reasoning behind the responsum’s majority opinion, changed in 2000; see below.
  7. “Resolution on Same Gender Officiation,” http://www.ccarnet.org/rabbis-speak/resolutions/all/same-gender-officiation.
  8. It hardly needs to be stated – although for purposes of clarity we shall state it anyway – that a policy position adopted by the Central Conference of American Rabbis in convention assembled is the official policy of the Conference and, therefore, of all institutional elements of the Conference. While individual Reform rabbis may dissent from th Conference’s official policy as a matter of rabbinical autonomy, the policy is binding upon the Conference as an institutional entity. This includes all constituent committees of the Conference, which exist and operate under the institutional authority of the CCAR.
  9. CCAR Responsum no. 5756.8 (see note 5, above) at pp. 238-239.
  10. Such an act was considered licentious behavior (B. Kiddushin 12b and Rashi ad loc., s.v. d’rav mangid). While a marriage contracted in this way would retain its legal validity, the husband was subject to severe punishment by the Jewish courts; Yad, Ishut 3:21 and Shulchan Aruch Even Ha’ezer 26:4.
  11. Although our translation “betrothal” follows general practice, we should note that while the word “betrothal” in our society usually signifies a promise to marry (“engagement”), kiddushin bears a much firmer legal status. Kiddushin creates the marital bond, which can be severed only through divorce or the death of either spouse. Although the marriage exists at Jewish law from the moment of kiddushin, however, it is not consummated until the time of nisu’in (or chupah), a separate legal ritual that symbolizes the bride and groom establishing a common household. It has long been customary to combine these two rituals into one ceremony.
  12. See B. Y’vamot 62b on Genesis 2:18: marriage is a social ideal, a source of goodness to those involved quite apart from its procreative function.
  13. See the preceding note. We call these “values” because, as a matter of technical law, the absence of these elements from the marriage of two Jews does not technically render their union invalid. But they are central to our conception of what the rabbi, by virtue of his or her officiation at the act of kiddushin, ought to be affirming.
  14. B.Berakhot 19b; B.Shabbat 81b and 94b; B.Eruvin 41b; B.Megillah 3b; and B.Menachot 37b. There is a long dispute in the halakhic tradition over the precise scope of this principle: just which “negative commandment of the Torah” is superseded by the principle of human dignity? We need not enter that discussion here. We need say only that the concern for human dignity must guide our actions when no substantive considerations would demand another response.
  15. See the last sentence of the section of the 1996 CCAR responsum quoted above at note 9: we are speaking of marriage and kiddushin “as we Reform Jews understand those terms”.
  16. A woman’s consent is required for marriage; B. Kiddushin 2b; Yad, ishut 3:1; Shulchan Aruch Even Ha’ezer 42:1.
  17. Rabbi Gail Labovitz describes kiddushin as a fundamentally hierarchical institution in which a man acquires a woman; see her Marriage and Metaphor: Constructions of Gender in Rabbinic Literature (Lanham, MD: Lexington Books, 2009), chapter 2. (For a very different view of kiddushin and of the Rabbinic conception of Jewish marriage see Judith Hauptman, Rereading the Rabbis: A Woman’s Voice [Boulder, CO: Westview Press, 1988], pp. 60-76. An application of that view to Reform Jewish marriage can be found in Mark Washofsky, Jewish Living: A Guide to Contemporary Reform Practice [New York: URJ Press, 2010, pp. 152-154 and 406-407.) Traditionally, the woman’s acceptance of the ring or coin sanctifies or designates her exclusively for the husband, but since Judaism developed in an ancient and polygamous society, he is not sanctified or designated exclusively for her. Much of the subsequent history of Jewish marriage law has been taken up with efforts to rectify this inequity. While that history is much too complex to be summarized here, we would mention as but one example the edict (gezeirah) of Rabbenu Gershom b. Y’hudah (11th century) banning polygamy and the divorce of a wife without her consent. This edict became widely accepted among Ashkenazic Jews. Other communities, meanwhile adopted their own solutions to these problems.
  18. Protokolle der Rabbiner-Conferenz, abgehalten zu Philadelphia vom 3.bis zum 6. November 1869 (New York, 1870), p. 39. The translation appears in Moses Mielziner, The Jewish Law of Marriage and Divorce in Ancient and Modern Times (Cincinnati: Bloch, 1901), p. 59. The double-ring ceremony, understood as an expression of the egalitarian conception of Jewish marriage, was officially instituted in German Reform by the Augsburg Synod of 1871; see W. Gunther Plaut, The Rise of Reform Judaism (New York: World Union for Progressive Judaism, 1963), pp. 217ff.
  19. Mielziner, loc. cit.
  20. The reciprocal formula spoken by the bride – הרי אתה מקודש לי, in either Hebrew or English – has been in use at least as far back as the Minister’s Handbook (New York, CCAR, 1917), pp. 37-38, and has appeared in every subsequent edition of the CCAR Rabbi’s Manual.
  21. See Rabbi’s Manual (New York: CCAR, 1987), p. 237, and Washofsky (note 17, above), pp. 164-165 and 411.
  22. Rabbi’s Manual, p. 246; R. Solomon B. Freehof, Contemporary Reform Responsa (Cincinnati: Hebrew Union College Press, 1974), no. 21.
  23. Reform Responsa for the Twenty-First Century, “Jewish Wedding Ceremony in the Absence of a Civil Marriage License,” no. 5764.4, pp. 261-268, http://www.ccarnet.org/responsa/nyp-no-5764-4.
  24. United States v. Windsor, 570 U.S. ____ (2013) (Docket No. 12-307), http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf, accessed November 5, 2013.

5774.2

CCAR RESPONSA COMMITTEE

 

5774.2

 

Bar/Bat Mitzvah Observance Prior to Age Thirteen

 

 

Sh’elah.

 

Our congregation’s policy is to conduct Bar and Bat Mitzvah ceremonies only for students who are thirteen years of age or older. Recently, many families have asked to schedule their children’s ceremonies prior to the student’s thirteenth birthday. Often, families request the earlier dates for reasons of convenience – vacation schedules, travel plans, etc. Some who ask for dates just a few days before their children turn thirteen argue that, as a Reform congregation, our policy should be flexible enough to allow for a little leeway in the age-requirements. Other families, citing traditional Jewish practice, argue that we should allow Bat Mitzvah ceremonies to occur as early as age twelve. In one family, the parents of the student grew up Orthodox, and argued that the congregation should honor their families’ practice of celebrating their daughters’ Bat Mitzvah ceremonies when girls turn twelve. Some congregants have argued on behalf of earlier Bat Mitzvah ceremonies on the grounds that girls tend to mature at an earlier age than boys – physically, emotionally, and intellectually.

 

Under what circumstances, if any, should Reform congregations celebrate Bar or Bat Mitzvah ceremonies for students who have not yet reached the age of thirteen? (Rabbi Mark Glickman, Woodlinville, Washington)

 

 

T’shuvah.

 

 

In their most basic sense, “Bar Mitzvah” and “Bat Mitzvah” are terms of status: they indicate that the person in question is a Jewish adult, responsible for fulfilling the obligations (mitzvot) that define the covenant between God and the Jewish people. One becomes Bar- or Bat Mitzvah simply upon reaching the age of Jewish majority, understood traditionally as thirteen for boys and twelve for girls. In Reform Judaism, our commitment to the principle of religious egalitarianism has led us to fix the point of Bar/Bat Mitzvah at age thirteen for girls as well as for boys. In today’s Jewish life, the term “Bar/Bat Mitzvah” usually denotes the celebration, the combination of religious services and social events, with which it is customary to mark a child’s transition to Jewish adulthood.[1] Our task is to consider whether and under what circumstances it is permissible to schedule this celebration prior to the child’s thirteenth birthday, that is, before he or she has become an “adult” according to Jewish tradition.

 

The Age of Jewish Adulthood. Let us examine, first of all, that tradition itself: is it in fact a hard and fast rule that a child becomes a Jewish adult at a definite chronological age? Some sources indicate that the answer is “yes.” We read in Mishnah Avot (5:21): ben sh’losh esrei lamitzvot, “at the age of thirteen a boy becomes obligated to fulfill the mitzvot,”[2] while girls, as we learn elsewhere, [3] attain adulthood at the age of twelve. Another mishnah, however, sets legal adulthood according to physical criteria: “a child who shows the signs of puberty is obligated to fulfill all the mitzvot of the Torah.”[4] While the commentators do their best to harmonize these conflicting standards,[5] the very existence of the conflict suggests that the rule “boys at thirteen, girls at twelve” is not so hard and fast.[6] And, indeed, Tanaitic (early Rabbinic) sources establish varying ages of “obligation” depending upon the nature of the particular mitzvah: when a child is able to walk while holding his father’s hand (on the requirement of pilgrimage to the Temple in Jerusalem);[7] when a child is emotionally able to be separated from his mother (on the requirement to “dwell in the sukkah”);[8] when he is sufficiently responsible to care for his t’filin;[9] and when he knows how to wave the lulav and how to don tzitzit.[10] The age of majority in matters of personal status – for example, eligibility to contract marriage –was originally determined according to signs of puberty.[11]

 

In his comprehensive study of the topic, Professor Yitzchak Gilat demonstrates that this wide variation in ages was the original state of Jewish law, which did not recognize thirteen or twelve as the points at which Jewish adulthood automatically begins.[12] It was only later, during the Amoraic (Talmudic) period, that the halakhah underwent a process of standardization, precisely because the existence of varying ages for adulthood required a specific decision regarding the maturity of each and every individual, a situation that places a heavy burden on any functioning legal system. The Sages, seeking to bring clarity and unity to the law, gradually came to accept the ages of twelve and thirteen as a chronological standard, the time when girls and boys became obligated to fulfill the mitzvot.[13]

 

Since that time, this rule has been a universal Jewish practice: Jewish ritual majority has been determined by a person’s chronological age and not by his or her physical maturity or intellectual acuity. It is also, we stress, the standard in Reform Judaism. When we say that young people in our congregations become Bar/Bat Mitzvah at age thirteen, we identify our practice with the standard that our people have observed for fifteen centuries and more. In our communities, of course, girls as well as boys become b’nei mitzvah at that age. This is due to our commitment to gender equality and to the separate (though related) fact that girls and boys learn together in our religious schools and therefore satisfy our educational requirements for Bar/Bat Mitzvah at the same time. Like all religious standards, this one reflects our history as a people, as well as the religious commitments we affirm as Jews in general and as Reform Jews in particular. Like all other rules, especially rules that have complex histories of development, it may admit of exceptions. But because we take our standards seriously, those exceptions should be weighty, substantive, and rare.

 

2. Exceptions to the Rule? The reasons given by the “many families” cited in our sh’elah do not meet this test.

 

Some ask that the age requirement for Bar/Bat Mitzvah be waived “for reasons of convenience.” That request is contradictory on its face. A standard of practice, by definition, is not a “standard” at all if it can be set aside whenever we find it inconvenient. On the contrary, a standard of practice is an expectation imposed upon us by factors that lie outside the realm of our own personal or family desires. It embodies an ideal, a goal, or a purpose toward which we are asked to strive even when it is inconvenient for us to do so. The definition of Bar/Bat Mitzvah as something that takes place at age thirteen is such a standard. It is not too much to ask families to plan their vacation schedules accordingly.

 

The second reason is likewise self-contradictory: that some of our congregants “grew up Orthodox” does not require that we modify standards of Reform practice in accordance with their family traditions. This is especially true when the standard involves one of the most fundamental commitments of Reform Judaism, that of gender equality. Bat Mitzvah, in our Reform context, means exactly what Bar Mitzvah means: our young women, who have received exactly the same religious education as our young men, become full and equal participants along with them in Jewish ritual life. That equality, obviously, is denied to them in Orthodox communities. This particular Orthodox standard is therefore out of place in our synagogues, where the standards of religious practice reflect our own values and affirmations.[14]

 

3. Situations of Urgency. There is, however, one reason that does justify an exception to the rule: the principle known as sha’at hadachak, “situations of urgency” under which it is permitted to set aside a particular rule or standard of practice in favor of a more lenient viewpoint.[15] Although the precise extent of this principle is the subject of a long controversy in the sources,[16] our long-standing policy has been to permit the scheduling of a Bar/Bat Mitzvah observance prior to age thirteen “in cases of serious emergency.”[17] The tradition, to be sure, does not define this category with precision; it gives us no laundry list of situations that qualify as sha’at hadachak. The decision is left to the considered judgment of the rabbi. A Reform rabbi will undoubtedly exercise this judgment with the “flexibility” that our sho’el’s congregants seek. But he or she should not agree to waive the age requirement for Bar/Bat Mitzvah – a firm standard of Reform Jewish practice – for the reasons cited in this sh’elah.

 

 

 

 

 

NOTES

 

1.         On the history of the Bar/Bat Mitzvah observance see “Bar/Bat Mitzvah on a Festival,” Reform Responsa for the Twenty-First Century (New York: CCAR, 2010), volume 2, no. 5762.6, pp. 39ff, http://www.ccarnet.org/responsa/nyp-no-5762-6/, at notes 1-4.

 

2.         On the age of thirteen as an indication of adulthood, see Bereshit Rabah, parasha 80: Genesis 34:25 describes both Shimeon and Levi as ish (“a man”), and R. Shimeon ben Elazar declares that Levi was thirteen at the time (and see Machzor Vitry and Bartenura to M. Avot 5:21).

 

3.         A baraita in B. Kiddushin 63b-64a.

 

4.         M. Nidah 6:11; Tosefta Chagigah 1:3.

 

5.         See Rambam and Bartenura to M. Nidah 6:11: the signs of puberty determine the onset of adulthood only when the girl has reached the age of twelve or the boy has reached the age of thirteen.

 

6.         See, for example, M. Nidah 5:6 and B. Nidah 45b: while R. Yehudah Hanasi sets thirteen (for boys) and twelve (for girls) as the age at which one is culpable for one’s vows, R. Shimeon ben Elazar reverses the numbers: boys become adults at twelve and girls at thirteen.

 

7.         M. Chagigah 1:1.

 

8.         M. Sukkah 2:8. On the phrase katan she’eino tzarich l’imo, see B. Sukkah 28b.

 

9.         Mechilta d’R. Yishma’el, Bo, parashah 17 (ed. Horowitz-Rabin, p. 68).

 

10.       Tosefta Chagigah 1:2.

 

11.       M. Yevamot 10:8; M. Nidah 6:1 and  6:12; Tosefta Nidah 6:2; and elsewhere.

 

12.       Y. D. Gilat, P’rakim b’hishtalsh’lut hahalachah (Ramat-Gan: Bar-Ilan University Press, 1992), pp. 19-31. Gilat suggests (at pp. 19-20) that the famous declaration in M. Avot 5:21 is the creation of a later time. He points out that the declaration is missing from the earliest textual witnesses to the tractate. See, for example, the variants in an early parallel of the Avot  text in B. Ketubot 50a.

 

13.       Ibid., at 28-31.

 

14.       We might also point out that allowing girls to observe Bat Mitzvah a full year ahead of boys would have severe consequences for our educational curriculum, which is also based upon our commitment to egalitarianism.

 

15.       See B. B’rachot 9a: k’dai hu Rabbi Shimeon lismoch alav b’sha’at hadachak, “Rabbi Shimeon is of sufficient stature for us to follow his opinion in an urgent situation.” That is, we are entitled to follow the minority (and lenient) viewpoint against that of the majority in the halachah when “the hour requires it” (Tosefta Eduyot 1:5; Rabad on M. Eduyot 1:5, as cited by R. Sh’lomo Edani (d. 1624), M’lekhet Sh’lomo to M. Eduyot 1:5).

 

16.       According to a statement in B. Nidah 6b, the sh’at hadachak principle applies only in cases where the halakhic rule in question has not been firmly set (la itamar hilkh’ta); when that rule has been established, then presumably it is not set aside even in “urgent situations.” But just what it means for the halachah to be “established” and for minority opinions to be firmly rejected is a controversy all its own. In general, our Reform approach to the halachah tends to preserve the plurality of voices and interpretations found within the sources and to avoid declaring that halakhic decision is “fixed” for all time. And in our case, “minority” views do exist: the fact that the original halachah does not recognize age thirteen as the absolute standard for adulthood, as well as the fact that to this day a congregation is permitted to call a minor to the Torah (B. Megilah 23a; Shulchan Aruch Orach Chayim 282:3).

 

17.       Rabbi’s Manual (New York: CCAR, 1988), p. 229.

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