Responsa

5773.5

CCAR RESPONSA COMMITTEE

 

5773.5

 

Burial of an Animal in a Jewish Cemetery

 

 

Sh’elah.

 

An elderly, lonely woman has a small service dog with which she has an emotional as well as functional relationship.  She has requested that the dog be buried with her at her passing.  Aside from the logistics and timing, I’m asking about how tradition and modern sensibilities can be reckoned into a judicious balance on this issue. I have read Rabbi Solomon B. Freehof’s responsum on the subject, “Burial of a Pet Animal,”[1] which concludes with a prohibition. I realize that we must balance larger communal standards with individual need, but I wonder if there have been any discussions more recent than Freehof’s responsum. (Rabbi Daniel Weiner, Seattle, WA)

 

 

T’shuvah.

 

Rabbi Freehof takes an unequivocal position in the responsum you cite, which opens with the words: “No question of this sort was ever asked in any of the traditional Jewish legal literature, and it is certain that if such a question had been asked, it would have been dismissed with derision.” Much of the text of his ruling is taken up with a survey of our tradition’s negative attitude toward dogs, in particular, an attitude that stretches back to the Bible[2] and continues pretty much unabated[3] until relatively recent times.[4] Rabbi Freehof acknowledges that popular attitudes have changed. There is today “a great love for dogs” that “represents a dramatic reversal of the sentiments of the biblical and the Jewish past.” This, however, would not have swayed the authors of our sacred texts; the question of animal burial “could not come up because the very thought would be too horrid to contemplate.” Rabbi Freehof concludes: “Therefore, while modern sentiment has changed perhaps for the better with regard to these animals, the whole mood of tradition is against (burying them in a Jewish cemetery).”

 

You ask, essentially, whether our position has changed since Rabbi Freehof penned his t’shuvah. On the one hand, it is obvious that our attitude toward animals as pets, to say nothing of service animals such as the one of which you speak, continues to be much more positive and accepting than that reflected in our sources. Many of us have pets, and we have experienced the deep bonds of affection that unite us to them. Our more recent responsa emphasize our duty to care for our animals[5] and to protect them from cruel treatment.[6] Yet we do not dissent from Rabbi Freehof’s ruling. Our opposition to cemetery burial for dogs and other animals is not based upon any sort of contempt for them but upon the fact that there exists in Jewish ritual practice a clear and indelible distinction between animals and human beings. This distinction is real and relevant for us today; it explains, at least in part, our ongoing instrumental orientation toward our animals.[7] It also explains why, although we may consider our pets as “part of the family,” they are not members of our religious community. It is precisely because we are capable of affectionate relationships with animals[8] that we need explicitly to insist upon this distinction: for all our love for our animals, we do not count them in the minyan, we do not put their names on the Kaddish list, and we do not bury them in cemeteries consecrated for the interment of human beings.

 

This last point deserves some emphasis; our disinclination to bury animals in our Jewish cemeteries does not mean that we would oppose reserving ground away from the cemetery for the burial of pets and service animals. We do experience grief upon the death of these animals, and it is entirely proper for rabbis and congregations to explore means by which their members might express that grief. There are fitting ways in which we might, as you put it, “balance larger communal standards with individual need.” We should not try to achieve that balance, however, by way of symbols and rituals with which we mark the passing of human beings.

 

For these reasons, we continue to hold with Rabbi Solomon B. Freehof that pets and service animals should not be buried in a Jewish cemetery.

 

 

NOTES

 

1.         Current Reform Responsa (Cincinnati: HUC Press, 1969), no. 41, pp. 165-169.

 

2.         See Deuteronomy 23:19, I Samuel 17:43, II Kings 8:13, and Ecclesiastes 9:4.

 

3.         On the prohibition against raising dogs see M. Bava Kama 7:7, B. Bava Kama 82a, Rambam in Yad, Nizkei Mamon 5:9, and Shulchan Aruch Choshen Mishpat 409:3. In all of these texts, the prohibition is waived if one lives “close to the border,” that is, in an area where danger threatens and dogs are a necessary measure for security.

 

4.         Freehof cites Isserles’ comment to Shulchan Aruch Choshen Mishpat 409:3: since “people nowadays raise dogs anyway… we might as well bow to their actions.” This, however, is a most grudging concession. Isserles in fact says that “nowadays, when we live among the Gentiles, the raising of dogs is permitted in all cases.” As explained by R. Eliyahu the Gaon of Vilna (Bi’ur HaGRA ad loc., no. 2), our situation “nowadays,” when we live among the Gentiles, is similar to that of living “close to the border”: we are always in danger, and dogs are permitted for that reason. Dogs may be kept for their utility, much like other domesticated animals. But nothing in these texts suggests a more accepting attitude toward animals kept as pets.

 

5.         See our responsum “Responsibility Toward Pets,” New American Reform Responsa (New York: CCAR Press, 1992), no. 240, pp. 391-393, http://www.ccarnet.org/responsa/narr-391-393 .

 

6.         “Dissection and Cruelty to Animals,” CCAR Responsa no. 5769.7, http://www.ccarnet.org/responsa/nyp-no-5769-7.

 

7.         That is to say, despite our more positive attitude toward animals, we continue to utilize them for such legitimate human purposes as work, food, medical experimentation, and the like.  This obviously raises the question of what constitutes a legitimate human purpose that might override, say, the prohibition against causing “undue” suffering to animals (tza`ar ba`aleri chayim); see our responsum no. 5769.7 (preceding note). It is a very good question, but it is a subject for another time.

 

8.         This is the essential difference between animals and those inanimate objects that are properly buried with the dead (a tallit; earth from Eretz Yisrael, etc.).

 

 

 

 

 

 

5774.1

CCAR RESPONSA COMMITTEE

 

5774.1

 

The Menorah and the Christmas Tree in a Holiday Display

 

 

Sh’elah.

 

Some Jewish staff members at Memorial Sloan-Kettering Cancer Center (MSKCC) have complained that during the Christmas season they feel that there is not a Jewish “presence” to offset the overwhelming non-Jewish presence of Christmas wreaths and trees. They are asking that 1) during Hanukkah the lit menorah (electric as flames are dangerous in a hospital setting) be displayed wherever the Christmas trees and wreaths are displayed and 2)  unlit electric menorahs be displayed along with Christmas trees after the end of Hanukkah up to and including during Christmas.

 

Some worry that this proposal, rather than honor the miracle of Hanukkah, simply turns a genuine Jewish religious object into a “cultural” artifact to counter a non-Jewish “cultural” symbol. (This year Hanukkah will be over by the time Christmas begins.)

 

Is it halachically proper to 1) display an unlit electric menorah during Christmas after Hanukkah has ended and 2) especially to display an unlit or lit electric menorah next to a Christmas tree in a hospital? (Rabbi Harry D. Rothstein, Staff Chaplain, Memorial Sloan-Kettering Cancer Center, New York)

 

 

T’shuvah.

 

“Holiday displays” that include the symbols of various religious traditions have for several decades been the subject of legal controversy in the United States. Some communities erect them on public property, seeking thereby to meet the legal and constitutional objections that the government is giving its endorsement to any one particular religion.[1] Since the Memorial Sloane-Kettering Cancer Center is a private institution, these constitutional issues do not apply. Our sho’el, however, asks if there are halachic objections, that is, principles of Jewish law and tradition, to holiday displays even in privately-owned spaces.

 

There is no specific halachic impediment to placing a lit menorah next to a Christmas tree during the festival of Hanukkah. While we might well have aesthetic or other objections to a display of this kind (see below), the menorah would satisfy the religious functions for which it is intended: to fulfill the mitzvah of kindling the Hanukkah lamp (l’hadlik ner shel Hanukkah) [2] and to “proclaim the miracle” (pirsumei nisa).[3] On the other hand, there are three potential halakhic objections to including the menorah in a holiday display once Hanukkah has ended and the menorah no longer serves a specifically ritual purpose. Let us consider each in turn.

 

1. Dishonorable Treatment of Sacred Objects. The first potential objection is suggested in the sh’elah itself: to display a hanukkiah (Hanukkah menorah) next to a Christmas tree risks transforming a “genuine Jewish religious object” into a “cultural symbol,” particularly once Hanukkah has ended and the menorah no longer fulfills its fundamental religious purpose. To do so, it could be argued, offends against the standards of honor and reverence with which we are taught to treat religious objects such as the Torah scroll.[4] Yet while the hanukkiah is a religious object, that is, one that customarily[5] fulfills a religious function, the halachah contains no ritual prohibition (isur) against displaying it for purposes other than the ritual end it usually serves. As we have previously written, “the menorah itself is not a sacred item and there is no degree of sanctity connected with it.”[6] And given that it is the widespread custom in our communities to display Torah scrolls in glass museum cases for educational purposes,[7] it would certainly be permitted to place a menorah in a display intended to serve a similarly legitimate goal.

 

2. Chukot Hagoyim. One might think that the proposed holiday display violates the prohibition of chukot hagoyim, the imitation of Gentile customs and practices.[8] The point of this isur, as Maimonides describes it,[9] is that Judaism and the Jewish people remain distinct and recognizably different from the surrounding cultures and peoples. A display that mixes our own symbolism with that of another religion might well frustrate this purpose. Still, there have always been limits to the prohibition; not every non-Jewish custom and practice has been deemed off-limits to Jews.[10] The tradition tends to apply it to practices that are specific to and characteristic of non-Jewish religious observance; on the other hand, “Gentile” practices that serve legitimate purposes do not fall within its sway.[11] For these very reasons, we think, the prohibition does not govern our case. As our sho’el notes, the proposed holiday display is cultural rather than religious in nature; we would not define it as the sort of non-Jewish religious practice with which the isur is concerned.[12] Moreover, the desire to maintain a “Jewish presence” during the December holiday season could be said to serve a “legitimate purpose,” namely, to raise the consciousness of our own people and to educate the public that Jews as well as Christians celebrate a festival during that time of the year.

 

3. Misleading Impressions. The third potential objection is that the display of a hanukkiah next to a Christmas tree might communicate a false or misleading message. The viewer of the display could draw any of several wrong conclusions: that the holidays symbolized by the two objects are really one and the same, that Hanukkah is “the Jewish Christmas,” or even that the Christmas tree is a legitimate element of Jewish observance. This, we stress, is no minor irritant. Jewish tradition strongly condemns g’neivat da`at, deceitful conduct and the conveying of false information;[13] neither we nor the hospital administration should contribute, however innocently, to this end. Still, as a matter of technical halachah, it is not absolutely necessary to remove the menorah from the display in order to forestall these erroneous conclusions. It would not be difficult to place a sign or a video screen at the display that would explain to passersby the meaning of Hanukkah and the symbolism of the menorah. The sign or screen would note that the menorah is illuminated during the festival but remains unlit once the holiday is over.

 

Conclusion. Our t’shuvah has addressed the specific query that was submitted to us: is it halachically proper to place a menorah next to a Christmas tree in a holiday display such as the one described? We have found no impediments based in Jewish law that require that we object to the display.

 

On the other hand, as we noted above there are other and to our mind persuasive reasons that would lead us to object. Chief among these is the tendency, all too prevalent in our culture today, toward religious syncretism, the mixing and blending of religious traditions. We are religious liberals, not separatists; we happily participate in interfaith activities, discussions, and services because we believe that to do so strengthens the bonds of understanding, civility, and respect among the different religious groups in our communities. But syncretism is the opposite of interfaith work, because by blurring the lines that distinguish one religious tradition from another it expresses an attitude of disrespect toward each of them. The proposed display is no doubt a well-intentioned effort to include Jews as well as Christians in the celebration of the holiday season. But the very term “holiday season” implies that Hanukkah and Christmas are somehow related culturally and religiously, that the two festivals are essentially the same. As we suggest above, this need not amount to an act of out-and-out deception. But, because the festivals are not essentially the same, it is precisely the wrong message to convey to our people.

 

The menorah should not be displayed next to the Christmas tree. If the hospital’s Jewish staff members desire a “Jewish presence” during the season, it would be far better to arrange for a Hanukkah display that is kept separate and distinct from the Christmas decorations, just as Judaism itself, for all it may share in common with other faiths, is a religious tradition separate and distinct from all others.

 

 

 

 

NOTES

 

1.         The governing precedents include Lynch v. Donnelly, 465 U.S. 668 (1984), and County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989).

 

2.         This is a matter of controversy. Some authorities, for various reasons, rule that one can fulfill the mitzvah only by means of an oil- or wax-fueled flame. Among them: R. Yitzchak Shmelkes, Resp. Beit Yitzchak, Yore De`ah  no. 120; Sha`arim Metzuyanim B’halachah, ch. 139, note 5; R. Benzion Meir Hai Ouziel, Mishpetei Ouziel, vol. 1, Orach Chayim 7, and see R. Walter Jacob, New American Reform Responsa no. 76 (New York: CCAR Press, 1992), pp. 118-119 (http://www.ccarnet.org/responsa/narr-118-119, accessed October 9, 2013). We could argue this question either way, but that is not our intention here. For purposes of this sh’elah, we will assume, along with the sho’el, that an electric menorah (which, for safety reasons, is the only kind permitted in many hospitals) serves a particularly religious/ritual function during (but not after) the festival of Hanukkah.

 

3.         See B. Shabbat 23b. As Maimonides formulates it, the purpose of the mitzvah is “to make visible and reveal the miracle” (l’harot ul’galot hanes; Yad, Hanukkah 3:3).

 

4.         On the Torah scroll see B. Kiddushin 33b, Yad, Sefer Torah 10:9, and Shulchan Aruch Yore De`ah 282:2. On other religious objects see B. Megilah 26b, Yad, Sefer Torah 10:4, and Shulchan Aruch 154:3.

 

5.         We say “customarily” because there is no actual halachic requirement that the mitzvah of Hanukkah be performed by using a nine-branched candelabrum. We can fulfill that mitzvah by lighting even one light or lamp, any sort of light or lamp that is designated as the ner shel Hanukkah during its illumination. See B. Shabbat 21b.

 

6.         R. Walter Jacob, note 2, above, at p. 119. This fact distinguishes a menorah from the crèche that was at issue in the Lynch decision (note 2, above).

 

7.         See R. Walter Jacob, New American Reform Responsa (New York: CCAR, 1992), no. 137, http://www.ccarnet.org/responsa/narr-218-220, and R. Solomon B. Freehof, Contemporary Reform Responsa (Cincinnati: Hebrew Union College Press, 1974, no. 23.

 

8.         The prohibition is based upon Leviticus 18:3 (uv’chukoteihem lo teleichu, “you shall not follow their laws”): Sifra, Acharei Mot, parasha 9; B. Chulin 41b; B. Avodah Zarah 11a; B. Sanhedrin 52b.

 

9.         “It is forbidden to adopt the customs of the Gentiles or to imitate them in their manner of dress or grooming… Jews should not imitate the Gentiles but rather remain separate and distinct (muvdal) from them in their manner of dress and in their behavior as they are separate and distinct from them in their culture and their beliefs” (Yad, Avodat Kochavim 11:1).

 

10.       The Sifra (note 7, above) asks rhetorically: “does this [i.e., the prohibition of chukot hagoyim] mean we are not to build buildings or plant crops as they do?” The answer is no: the prohibition deals only with practices (chukim) that are culturally specific to them. The Talmud suggests that we may copy Gentile practices so long as we can find legitimate precedents for those practices in our own sources (B. Sanhedrin 52b) or when the practices in question are not intended specifically for idolatrous worship (Tosafot ad loc., s.v. ella, and see B. Avodah Zarah 11a and Tosafot ad loc., s.v. v’i). R. Yitzchak bar Sheshet (Rivash, 14th-century Spain and North Africa) ruled that Jews in his country need not abandon certain mourning customsthat characterized Muslim practice; “if you say otherwise, we might as well forbid eulogies, on the grounds that Gentiles, too, eulogize their dead” (Resp. Rivash, no. 158).

 

11.       This standard was formulated in the fifteenth century by the Italian posek R. Yosef Colon: only those that a) offend our standards of modesty and propriety, or b) are adopted by Jews for no other apparent reason than to imitate the Gentiles are prohibited under the terms of Leviticus 18:3; Resp. Maharik no. 88. While not all authorities accept this standard, it has been adopted as halachah by R. Moshe Isserles, Shulchan Aruch Yore De`ah 178:1. Among those recent poskim who accept it are R. Yechiel Ya`akov Weinberg (20th-century Germany/Switzerland), Resp. S’ridei Eish 2:39 and R Ovadyah Yosef (20th-21st century Israel), Resp. Y’chaveh Da`at 4:33. The CCAR Responsa Committee follows this reasoning as well. For a case in point, see our responsum “Amazing Grace,” Teshuvot for the Nineties (New York: CCAR, 1997), no. 5752.17, pp. 21-22, http://www.ccarnet.org/responsa/ccarj-fall-1992-65-66-tfn-no-5752-11-21-22 .

 

12.       It is at most an element of the American “civil religion,” which makes use of religious symbolism and modes of expression for civic purposes that are common to all members of the community. We do not object in principle to Jewish participation in the civil religion. “We generally take part in ceremonies which are religiously neutral these ceremonies are neutral and non-Christological,” and we accept certain of its ritual expressions – “prayers for the government during the service, the national flag on the bimah, national anthems printed in our prayer books and Haggadahs, liturgies for a communal Thanksgiving and Memorial Day service, and the like” – into our own practice. See our responsum “Blessing the Fleet,” Teshuvot for the Nineties, no. 5751.3, pp. 159-164, http://www.ccarnet.org/responsa/tfn-no-5751-3-159-164 .

 

13.       B. Chulin 94a; Yad, De`ot 2:6; Shulchan Arukh Choshen Mishpat 228:6. A second issue, quite possibly, is “do not place a stumbling block before the blind” (Leviticus 19:14), which our tradition interprets as an act of deception that does lead an innocent or naïve person into sin or into acting to her harm (Sifra K’doshim, parasha 2, 2). False impressions about the distinction – or lack thereof – between Christianity and Judaism can be harmful indeed.

 

 

 

 

 

 

 

 

5773.4

CCAR RESPONSA COMMITTEE

5773.4

 

Quick Response Codes Embedded in Tombstone

 

 

Sh’elah.

 

Congregational leaders are considering a new service offered by a monument maker that embeds Quick Response (QR) codes into cemetery markers and gravestones. In addition to name, date and other familiar information, a QR code would be embedded into the stone from which users of smartphones and other devices could scan the code to reach a website that displays pictures, audio and video of the deceased. Are QR codes an acceptable new integration of technology in the cemetery or is it a violation of the way we are guided to remember the deceased through the blessing of cherished memories? (Rabbi David Lyon, Houston, TX

 

 

T’shuvah.

 

We live in a time when new electronic and digital technologies are rapidly altering the ways in which we conduct our professional and personal lives. These changes have dramatically impacted our religious communities, both in the ways we administer our affairs and in the realm of actual religious practice.[1] As has been true throughout the history of technology, these new innovations tend to be both exciting and troubling. They are exciting in that they offer interesting, more efficient, and possibly even more meaningful ways to achieve the goals and purposes for which we come together as Jewish religious communities. They are troubling in that they challenge the accepted ways of observing our faith and the traditional standards of social propriety. Our sh’elah is a perfect case in point. It reminds us that a question concerning new technology is not merely about technology. Rather, it calls upon us to balance our openness to the exciting prospects of change with our reverence for forms of observance that we have come to regard as sacred.

 

1. The Tombstone in Jewish Tradition. The Jewish custom of placing a marker at the gravesite is first mentioned in the Mishnah.[2] The practice of marking a burial site[3] was initially undertaken to warn passersby, particularly kohanim, that a body was buried under the spot, so that they could avoid coming into contact with that major source of ritual impurity.[4] Soon afterwards, however, the minhag was widely accepted as a means of memorializing the deceased,[5] and it became an integral part of burial practice.[6]

 

Our tradition offers little in the way of firm guidance as to what may or may not be carved upon the tombstone. In his comprehensive compendium on the halakhot of mourning and burial, Rabbi Yekutiel Greenwald writes that “originally, no words were carved upon the matzeivah (tombstone). It was placed at the grave simply so that the kohanim might avoid defilement. I have no way of determining just when people began to carve the praises of the deceased upon the tombstone.” He goes on, however, to cite the evidence of tombstones dating back at least one thousand years that bear inscriptions including names, dates of death, assorted encomia, and prayers that the deceased should rest eternally in paradise or in the heavenly academy (yeshivah shel ma`alah).[7] Over the years, rabbis have expressed reservations concerning some sorts of inscriptions. Rabbi Moshe Sofer, for example, condemns the practice of carving the image of the deceased upon the tombstone in bas-relief, lest those who pray in the vicinity of the stone appear to be worshiping a graven image.[8] Greenwald himself urges us to refrain from inscribing excessive praises and exaggerated language upon the matzeivah, and he encourages communities to supervise these matters.[9] Yet the story he tells is of a minhag that has developed over the centuries in accordance with changing tastes. Each Jewish community in each generation has determined its own standards for what is proper and improper to inscribe upon a tombstone.

 

2. The Tombstone and Community Standards. Thus, there is no one fixed, permanent standard in the halakhah for determining what is proper or improper to inscribe upon a matzeivah. For this reason, we cannot say that either the letter or the spirit of our tradition would prohibit QR codes. Does this mean that QR codes are permitted, to use the language of our sh’elah, as “an acceptable new integration of technology in the cemetery”? Not necessarily. If there is nothing “sacred” – permanent and unchanging – about precisely what appears upon our tombstones, there is something sacred about the reverence with which we should conduct ourselves in the cemetery.[10] This reverence partakes of the value of k’vod hameitim, the honor we are required to show toward the dead. This reverence is defined not so much by individual preference as by the standards of behavior and decorum set by the community, for while the gravesite itself is considered the property of the deceased and his or her heirs,[11] “the cemetery is like a jointly-owned courtyard (chatzar hashutafim), and nothing can be done therein without the consent of the other owners.”[12] Those who administer the cemetery, acting in the name of the community whose loved ones lie buried there, are charged with the duty of enunciating and enforcing the standards of proper conduct within its boundaries.

 

It follows that we, the members of the Responsa Committee, cannot impose our own standards of taste and propriety upon those of the local community. We can point out, simply, that there are good arguments for allowing the QR codes. The information to which they link, the website devoted to the deceased’s memory, might well be of solace and comfort to the mourners. We can imagine that they will be especially helpful to grandchildren and great-grandchildren, allowing them to see the face, to hear the voice, and to read stories about one for whom they retain few if any strong personal memories. In this sense, the QR code can be viewed as the modern technological version of the tombstone itself, which our people have used for centuries as a means of perpetuating the memory of the loved ones they have lost. New technology, precisely because it is new, may strike us at first as strange, foreign, and out of place. Eventually, though, we come to accept its presence and to appreciate the advantages it brings.

 

At the same time, there can be problems with QR codes in the cemetery. The codes may link to audio and video content that many would find offensive or disturbing. Then, too, there is the possibility of hacking. someone with the requisite technical skill could post content on the website that would be embarrassing to the memory of the deceased. These are unsettling possibilities, and they call upon the cemetery authorities to exercise their supervisory power. They, as we have seen, are charged with the duty to enforce the community’s standards of conduct, decorum, and respect within the cemetery; standards relating to QR codes are no exception. The authorities can set rules concerning the context to be available via the electronic links, the volume level of any audio material, and all other relevant matters. And they would have the right and the responsibility to check periodically to insure that no content deemed inappropriate is publicly available via the QR codes.

 

So long as these provisions are observed, we think that QR codes can be permitted in a Jewish cemetery as a way of enhancing the memory of the deceased for those who visit the grave.

 

 

 

NOTES

 

1.         We cite, by way of example, two of our recent responsa: “A Minyan Via the Internet?”, no. 5772.1, and “Conversion Beit Din Via Videoconference,” no. 5773.3.

 

2.         M. Sh’kalim 2:5. The term used is nefesh al kivro, which is explained as the matzeivah, or grave marker (Bartenura ad loc.).

 

3.         M. Sh’kalim 1:1; M. Mo`ed Katan 1:2.

 

4.         B. Mo`ed Katan 5a and B. Nidah 57a, derived from Ezekiel 37:15; Yad, Tumat Meit 8:9.

 

5.         See tractate S’machot (Evel Rabati) 4:12: “We do not place a nefesh on the gravesites of the righteous, for their words are their memorials (shedivreihem heim zikhronam).” This is not to say that the presence of a tombstone today indicates that the deceased was not a righteous person! It indicates, rather, that the term nefesh in this context refers to a “memorial” for the deceased.

 

6.         See Tur, Yoreh De`ah 348 (and Shulchan Arukh, Yoreh De`ah 348:2), based upon Resp. Harosh (R. Asher b. Yechiel), k’lal 13, no. 19: the tombstone is one of the regular elements (mah sher’gilin la`asot) of burial.

 

7.         R. Yekutiel Greenwald, Kol Bo al Aveilut (New York, 1947), pp. 380-382.

 

8.         Resp. Chatam Sofer 6:4.

 

9.         Greenwald (note 7, above), p. 380, par. 3.

 

10.       The cemetery is to be treated with the reverence normally accorded the synagogue. See R. Solomon B. Freehof, Reform Responsa for Our Time, no. 26, B. Megilah 29a, Yad, Aveil 14:13, and Shulchan Arukh Yoreh De`ah 368:1.

 

11.       B. Bava Batra 120a. On the significance of this, see R. Solomon B. Freehof, American Reform Responsa, no. 99, http://www.ccarnet.org/responsa/arr-335-341 (accessed June 5, 2013).

 

12.       Resp. Chatam Sofer (note 8, above).

5773.3

CCAR RESPONSA COMMITTEE

 

5773.3

 

Conversion Beit Din via Videoconference

 

 

Sh’elah.

 

When conversions take place in small towns, it is often difficult for the local rabbi to secure the participation of two colleagues in order to make up the beit din (court). Would it be acceptable to convene a beit din by way of videoconference, with two colleagues participating electronically to oversee the conversion ceremony (giyur)? (Rabbi Louis Rieser, Boynton Beach, FL)

 

 

 

T’shuvah.

 

The current edition (1988) of the Rabbi’s Manual of the Central Conference of American Rabbis (CCAR) states our policy as follows:[1] “A rabbinical beit din is desirable for giyur. Where it is not available, the rabbi should choose two informed synagogue members as witnesses.”[2] In its 2001 position paper on conversion, the Conference elaborated upon this position: “A beit din of three rabbis represents the most appropriate framework for formalizing giyur. In addition, the use of a beit din can also contribute to a sense of legitimacy as perceived by the prospective ger/giyoret, and it can give the rabbi who has been working with the candidate the opportunity to see the candidate through another set of eyes… The final authority to approve or reject the candidacy of any given individual for giyur rests with the beit din.”[3] The Conference therefore prefers a rabbinical beit din for giyur, although it accepts as valid a beit din that includes two “informed” non-rabbis when the presiding rabbi cannot secure the participation of colleagues.

 

Our sh’elah poses a suggestion that did not exist as a practical option for those who formulated these statements: does a rabbinical beit din convened by electronic means meet the Conference’s stated preference? Our t’shuvah, accordingly, will have to consider some ancient provisions of Jewish law in light of the way we live today, in a world that has been fundamentally altered by the Internet, electronic media, and digital technology.

 

1 The Beit Din as a Requirement for Giyur. Conversion to Judaism is traditionally accompanied by a set of formal rites. These acts[4] – circumcision (or hatafat dam b’rit[5]) for males and immersion (t’vilah) for males and females – are linked in our people’s historical memory to the covenant of Sinai: “just as your ancestors entered the covenant through these rituals, so does the ger enter the covenant through them.”[6] By requiring the Jew-by-choice reenact the ritual process by which our ancestors formed a religious community, the conversion process expresses the conviction that like all born Jews the ger/giyoret was present at Sinai[7] and therefore shares fully equal status as a member of the people of Israel.

 

The ceremony of giyur takes place under the supervision of a beit din. The Talmudic sages learn this requirement by way of midrash: because the Torah mentions the Hebrew root sh-p-t, “to judge,” in connection with the word ger (“resident alien,” a term the Rabbis translate as “proselyte”),[8] we conclude that a conversion must take place before a beit din.[9] The function of the beit din, as described by Rashi,[10] is “to attend the proselyte (nizkakin lo), immerse him, and inform him of some of the lighter and weightier mitzvot.” Although the authorities dispute the extent of the court’s supervision – must every one of the conversion rites take place in the presence of the beit din? – the consensus is that the judges must at the minimum be present for kabalat hamitzvot, the moment at which the prospective Jew-by-choice accepts upon him- or herself the obligations of Jewish life,[11] in order to determine his or her readiness for this dramatic transition.[12] As our CCAR policy puts it (see above): “The final authority to approve or reject the candidacy of any given individual for giyur rests with the beit din.”

 

2. The Composition of the Beit Din. Must this beit din be composed of three rabbis? As we note in a previous responsum, a non-rabbi may in principle serve as a judge on a beit din.[13] A judge requires no specialized legal training because, as the Talmud explains, in a gathering of three persons “it is impossible that there should not be one who knows something of the law” (B. Sanhedrin 3a). This raises the obvious question: what happens when this presumption does not apply, when none of the three members of the court is at all knowledgeable of the law? The question is even more pointed when the court is a beit din for conversion, which our sources suggest must consist of “three scholars (talmidei chakhamim).”[14] Moreover, there is an opinion that holds that conversion is one of those matters that can be adjudicated only by judges who possess s’mikhah, the “ordination” that began with Moses and Joshua and that was practiced until the end of the Talmudic period (more on this below).[15] It would seem, therefore, that giyur is a special case; the complexity and sensitivity that attend to conversion may require a beit din of higher-than-average Torah learning and education. Our responsum thus stresses the importance of rabbinical supervision for giyur, and this conviction is reflected in our Conference’s stated preference that “a rabbinical beit din” be present at conversion.

 

True, the CCAR does not regard this preference as an absolute requirement. And this leniency, too, is rooted in the halakhic tradition, which asks how it is permissible to accept converts “in our time,” when our rabbis do not possess the s’mikhah practiced during the Talmudic period. The answer is that the ordained sages of ancient times have commissioned us to act in their stead and to accept conversions, “so as not to bar the door to gerim.”[16] Our Conference’s policy is a simple extension of this logic. Precisely because we do not wish to hinder the entry of Jews-by-choice into the covenant, we have declared that, in cases where it is not feasible to secure a beit din of three rabbis, a conversion may be supervised by one rabbi and two informed non-rabbis. With all that, however, we continue to hold that, when possible, it is desirable to convene a rabbinical beit din to oversee the formal process of giyur.

 

3, Convening a Beit Din by Electronic Means. Must all the members of the beit din be physically present at the conversion? Our sources seem to say so. For example, the text offering the most detailed description of the giyur procedure (B. Y’vamot 47a-b) depicts the judges as “standing over” the ger (omdim al gabav). And then there is the statement of Rabbi Yehudah: “one who converts in the presence of a beit din (b’veit din) is a valid proselyte; one who converts privately (beino l’vein atzmo) is not a valid proselyte (B. Y’vamot 47a).” Yet we believe that these texts are meant to be understood not in their literal sense but in accordance with their purpose, which is to ensure that conversion be a public rather than a private process, supervised by the community’s legal institutions. The judges “stand over” the ger because they exert direct authority over the giyur. Rabbi Yehudah’s real concern is that the conversion take place “under the auspices” of the beit din, that is, in its legal presence, rather than “privately,” that is, outside the community’s supervision. Consider as well Rashi’s description of the beit din’s function, also cited above:[17] “to attend the proselyte, immerse him, and inform him of some of the lighter and weightier mitzvot.” None of these supervisory actions necessitates that the judges be physically present; every one of them can be accomplished by a court that attends the ger/giyoret through videoconference.[18]  Such a court, in other words, meets – and does not contradict – the requirement that conversion take place “in the presence of a beit din.” The Talmudic authorities and Rashi, to be sure, could only imagine these acts being performed in a direct, “hands-on” manner. Were they alive today, in a world where digital technology has dramatically expanded the ways in which we encounter and communicate with each other, we think they would agree with our reading of the tradition: a court convened via videoconference is a valid beit din for the purpose of supervising giyur.[19]

 

4. Conflicting Considerations. On the other hand, a “virtual” beit din of this sort can involve its own set of problems. Some of these fall into the category of technical difficulties: equipment malfunctions, weak signals, and other mishaps that can sever the connection between the offsite rabbis and the conversion ceremony. Others are more subjective in nature. One member of this Committee is concerned that the use of video and computer technology to constitute a beit din will serve to reduce the seriousness of the conversion ceremony in the eyes of the ger/giyoret, the community, and the rabbis themselves. It is also possible that the electronic importation of a beit din will negate the intimacy of the conversion moment, threatening the sense of community that we wish to impress upon this new Jew-by-choice at the moment she or he becomes one of us. We acknowledge these problems, and those communities that decide to convene batei din by way of videoconference should be prepared to address them.

 

One way to do so is to increase the size of the beit din: that is, the local rabbi would see to it that at least two “informed” laypersons participate in the court at the mikveh, along with the two rabbis who appear via video. This procedure fulfills the spirit of the ruling by Maimonides, repeated in the Shulchan Arukh, that “even though a beit din of three is sufficient, it is praiseworthy to increase the number of judges.”[20] Having three judges physically present at the ceremony would emphasize the immediate, communal nature of the conversion process. It would also ensure that a valid beit din has been constituted even if technical difficulties prevent the offsite rabbis from participating in the session.

 

Conclusion. It is permissible for the local rabbi, who officiates as rosh beit din at the conversion ceremony, to include two colleagues by way of videoconference to complete the composition of the court. Such a beit din would meet the CCAR’s stated preference that “a beit din of three rabbis represents the most appropriate framework for formalizing giyur.”

 

At the same time, we do not think that the Conference’s policy mandates that we adopt this procedure, even when videoconference is the only means by which a rabbinical beit din can be assembled. We say this in view of both the technical difficulties and the potential aesthetic and spiritual objections that we have indicated. The local rabbi may continue to follow the stated policy by including “two informed synagogue members” along with him or her on the beit din. Alternately, the rabbi may choose to adopt the approach we describe in section 4 of this t’shuvah, combining the local beit din with two colleagues who participate by videoconference.

 

 

 

NOTES

 

1.         Ma`aglei Tzedek: A Rabbi’s Manual (New York: CCAR Press, 1988), p. 232.

 

2.         The word “witnesses” is inexact; the members of a beit din perform the role of judges rather than witnesses.

 

3.         Divrei Giyur: Guidelines for Rabbis Working with Prospective Gerim, Adopted by the Central Conference of American Rabbis, June, 2001, par. 8a, http://www.ccarnet.org/rabbis-communities/professional-resources/guidelines-for-rabbis-working-with-prospective-gerim (accessed December 8, 2013).

 

4.         See B. Y’vamot 46b; Yad, Isurei Bi’ah 13:1-6; Shulchan Arukh Yoreh De`ah 268: 1-2.

 

5.         The taking of a symbolic drop of blood from a male convert who was previously circumcised. This is the subject of a machloket in B. Shabbat 135a and among the subsequent authorities; see Tosafot, Y’vamot 46b, s.v. d’rabbi yose. The practice is therefore to follow the stringent option on both sides: to take the drop of blood in the event that hatafat dam b’rit is indeed required but not to recite a blessing over the act in the event that hatafat dam b’rit is not required (and the recitation of an unnecessary blessing would be a b’rakhah l’vatalah) . See Shulchan Arukh Yoreh De`ah 268:1.

 

6.         B. K’ritot 9a, in a midrash on Numbers 15:15 (“There shall be one law for you and for the resident stranger (ger)… You and the ger shall be alike before Adonai”): just as your ancestors entered the covenant (of Sinai) through circumcision, immersion, and the bringing of a sacrifice, so must the ger enter that covenant through circumcision, immersion, and the bringing of a sacrifice.” The requirement of a sacrifice leads the Talmud, in the K’ritot passage, to ask the obvious question: how are we able to admit proselytes today, after the destruction of the Temple? The answer is found in Numbers 15:14, “And when, throughout the ages, a ger has taken up residence with you…,” which is understood as an authorization to accept proselytes “throughout the ages,” even when the Temple is not standing. The formal requirement for the bringing of a sacrifice is delayed until such time as the Temple is rebuilt; see Yad, Isurei Bi`ah 13:5.

 

7.         B. Shevuot 39a: all future generations of Israelites, including those who shall one day convert to Judaism, were present at the giving of the Torah. See also B. Shabbat 146a.

 

8.         The sages are the tana R. Yehudah (B. Y’vamot 47a) and the amora R. Yochanan (B. Y’vamot 46b and B. Kiddushin 62a-b). While R. Yehudah explicitly bases his statement upon Deuteronomy 1:16, there is a dispute as to the verse R. Yochanan has in mind; Rashi (Y’vamot 47b, s.v. mishpat k’tiv beh and Kiddushin 62b, s.v. mishpat k’tiv beh) believes it to be Numbers 15:15, while Tosafot (Y’vamot 47b, s.v. mishpat k’tiv beh) holds that R. Yochanan, like R. Yehudah, learns the rule from Deuteronomy 1:16.

 

9.         That this is the accepted halakhah is stated in B. Y’vamot 46b (sh’ma minah ger tzarikh sh’loshah). See also Halakhot G’dolot, ch. 8, Hilkhot Milah; Yad, Isurei Bi`ah 13:6; Shulchan Arukh Yoreh De`ah 268:3.

 

10.       Kiddushin 62b, s.v. tzarikh sh’loshah.

 

11.       The machloket is indicated by R. Yosef Karo in Shulchan Arukh Yoreh De`ah 268:3, a point on which he expands in his Beit Yosef to Tur Yoreh De`ah 268. The position designated in the text as “the consensus” (and the one cited favorably by Karo) is that of Tosafot Y’vamot 45b, s.v. mi and Kiddushin 62b, s.v. ger.

 

12.       See R. Yosef Karo, Beit Yosef to Tur Yoreh De`ah 268: the decision to accept or to reject a prospective Jew-by-choice is left in all cases to the discretion of the court (hakol l’fi r`ut einei beit din). Karo bases this conclusion on the analysis of Tosafot, Y’vamot 24b, s.v. lo bimei david. See also Siftei Kohen, Shulchan Arukh Yoreh De`ah 268, no. 23.

 

13.       “Who is a Rabbi?”, Reform Responsa for the Twenty-First Century (New York: CCAR, 2010), no. 5759.3, vol. 1, pp. 319-321, http://www.ccarnet.org/responsa/nyp-no-5759-3, especially section 1.

 

14.       B. Y’vamot 47b, where Rabbi Yochanan emends the baraita text that originally specified “two talmidei chakhamim.” The emendation brings the total to three – i.e., the classic numerical composition of a beit din – and is accepted by all later authorities. The point here is that both the original version of the baraita and the “corrected” version of R. Yochanan require that those supervising the conversion be scholars.

 

15.       Tosafot Y’vamot 46b-47a, s.v. mishpat k’tiv beih, and Tosafot Gitin 88b, s.v. b’milta. The reasoning is as follows: the linking of the word sh-p-t (“mishpat”) to the ger (see note 7) suggests that conversion requires a court that possesses all the authority of the Biblical shoftim. On the nature of ancient s’mikhah and its relationship to the ordination we practice today, see the responsum “Who is a Rabbi?”, (note 13, above), section 2.

 

16.       See the Tosafot citations in the preceding note. Since we continue to accept converts into the community even in the absence of ordained judges, our current judges must operate under a special grant of authority from the shoftim of old, who were concerned that we not “bar the door to gerim.” The phrase “so as not to bar the door to gerim” (shelo tin`ol delet bifnei gerim) appears in the Midrash in an agadic context; see B’reshit Rabah, ed. Theodor-Albeck ch. 46 and Midrash Sekhel Tov to Genesis ch. 17. Tosafot, in a chidush that does not appear in earlier sources, translates this idea into a principle of halakhah.

 

17.       See note 10, above.

 

18.       One possible difficulty to this conclusion is the phrase “to immerse him (l’hatbilo).” This transitive verb, expressed in the Hebrew hif`il, might suggest that the members of the beit din physically submerge the ger in the water, which obviously cannot be done by judges who appear via video. This difficulty, though, is only apparent; the halakhah makes no requirement that the judges physically submerge the proselyte. Indeed, the texts use l’hatbilo (or the participle matbilin) interchangeably with the word taval, an intransitive verb (kal) indicating that it is the ger who immerses himself – under the supervision of the beit din.

 

19.       On a related topic, see Michael Wigoda, “Ha’arakhat ma’atzar b’videokonferens,” http://www.justice.gov.il/MOJHeb/MishpatIvri/HavotDaat (accessed February 6, 2013), an opinion submitted to the Knesset’s committee on constitutional law in 2005. Wigoda, who heads the Jewish law section of the Israel Ministry of Justice, argues that while halakhah normally require that court testimony take place in the presence of the parties involved, there are circumstances under which the purpose of this rule – i.e., to see that justice is done – would override this formal requirement and permit witnesses to testify via video and not in the physical presence of the defendant or of one of the parties to the action. The traditional law governing the beit din, in other words, makes room for the use of videoconference in order to achieve the law’s underlying purpose.

 

20.       Yad, Sanhedrin 2:13; Shulchan Arukh Choshen Mishpat 3:4. The source of this preference, say the commenators, is the practice of Rav Huna (B. Sanhedrin 7b).

 

 

 

5772.3

CCAR RESPONSA COMMITTEE

 

5772.3

 

Child Support and Unexpected Pregnancy: A Parent’s Rights and Responsibilities

 

 

Sh’elah.

 

A young man has learned that a casual sex partner has become pregnant. He is not eager to become a father. The young woman refuses to undergo an abortion, which he would prefer. Instead, she proposes to raise the child as a single mother with the help of her parents and offers to terminate his parental rights and responsibilities.

 

May the young man agree to the legal termination of paternity, and if so, is he absolved of the responsibilities Jewish tradition assigns to a father? If he does not or may not agree to the termination of paternity, is he obligated to help pay for the expenses of pregnancy? If the young woman were to choose abortion, would he be obligated to share in the expenses of that procedure? (Rabbi Barry Block, San Antonio, TX)

 

 

T’shuvah.

 

Any reasonable conception of morality, Jewish or otherwise, demands that the individual take responsibility for his or her actions. Each one of us must accept responsibility for the predictable and foreseeable consequences of the deeds we perform in the world. At the same time, the precise definition of that responsibility will depend in large part upon social context. When the parameters of what we consider to be acceptable social behavior change as greatly and as rapidly as they have changed in our time, we may find that the obligations we once regarded as obvious are no longer self-understood.

 

What are the obligations, financial and otherwise, of this young man toward this young woman and toward their yet-to-be born child? How do we measure his moral responsibility against the backdrop of our contemporary social context, the web of values and beliefs that guide and govern the way individuals act in the world? Jewish tradition, we think, offers some important resources to help us work our way toward a set of answers.

 

1. A Parent’s Financial Responsibility towards a Child.

 

In his great code the Mishneh Torah, Maimonides summarizes as follows the Jewish law concerning a father’s financial responsibility toward his children:[1]

 

Just as one is required to pay his wife’s maintenance (m’zonot)[2], so he is obligated to pay the maintenance of his minor children until they reach the age of six years.[3] Beyond that point and until adulthood, he supports them in accordance with rabbinic edict.[4] If he does not comply with that edict, he is to be scolded and pressured (to do so). If he still refuses to comply, it shall be declared publicly that “So-and-so is a cruel person who refuses to support his children. He is lower than an unclean bird that does feed its young.” But he is not coerced to provide maintenance for them once they have reached the age of six.

 

The above applies when it is not clear that the father has the means to pay tzedakah. But if he does have the means to pay tzedakah and his wealth is sufficient for the children’s needs, he is coerced as a matter of tzedakah to support them until they reach adulthood.

 

In brief, one has no choice but to provide for the support of one’s child. A father’s obligations in this regard are enforceable at Jewish law, just as one’s general tzedakah obligations are enforceable,[5] whether or not he was married to the child’s mother at the time of conception.[6]

 

Some of the specific details of this p’sak (ruling) reflect their original social context, and for that reason we would not apply it literally in our own time. For example, we Reform Jews would insist that the financial responsibility toward children be assessed on both parents. The remedy of public humiliation, moreover, may strike us as distasteful and counterproductive; there are better and more effective ways of dealing with parents who will not provide for their children. Yet we find the basic thrust of this law to be entirely just and proper. One who brings children into the world bears a moral obligation to support them until such time that they can support themselves.[7] Since we hold that this obligation falls equally upon father and mother, there is also no reason to exempt this young man from sharing in the expenses of pregnancy. Although he may not be “eager to become a father,” he knew quite well that his “casual sex partner” might become pregnant. As we noted at nthe outset of this t’shuvah, it is a fundamental principle of law and ethics that we assume responsibility for the foreseeable consequences of our actions. All of this suggests that Jewish tradition would not absolve this young man of his responsibilities as the father of his child.

 

2. Adoption and the Termination of Financial Responsibility toward the Child. On the other hand, there are two considerations that would tend to modify this conclusion.

 

The first of these concerns adoption, a possibility raised by the young woman in our sh’elah. The classical Jewish sources do not mention the institution of adoption. Although we read that “when one raises an orphan in his household, it is considered as though one gave birth to that child,”[8] Talmudic halachah does not recognize that guardian as the child’s legal parent. Still, adoption has become a common practice in our communities, and Jewish law has responded to that reality. Specifically, it has had to address the question of whether adoption as we know it today establishes a legally-recognized relationship of parent to child. The halachic discussion is complex; suffice it to say that our own understanding of it has led us to conclude that a child’s adoptive parents are its “real” parents in every respect.[9] The biological parents, by allowing the adoption of their child, effectively waive or renounce the “honor” that the child owes them under the terms of Exodus 20:11.[10] By waiving that expectation and allowing others to fulfill the parental role in the child’s life, the biological parents also absolve themselves of the duties entailed by parenthood. In our case, the young man is being asked to waive his parental rights by allowing the young woman to adopt their child. And since a parent’s financial obligation toward a child stems from his or her standing as a parent, by terminating his parental role he effectively terminates as well his financial responsibilities towards that child.

 

3. The Best Interests of the Child. The question, of course, is whether he ought to allow the young woman to adopt the child and become its sole parent. This raises our second consideration, the principle of tovat hayeled, “the best interests of the child,” which looms large in the Jewish legal discussion of child custody. In theory, Talmudic law prescribes that when the parents are separated their children live with the mother until the age of six years. After that time, girls continue to live with their mothers while boys live with their fathers.[11] In practice, however, decisions about these matters have for many centuries been based upon the consideration of the child’s best interests.[12] Should the court find it better in any particular case for the child to be placed with one parent or the other, it may award custody to that parent even when this would contradict the Talmudic standard.[13] Today, “the best interests of the child” is recognized as the supreme consideration as a general rule and not merely in exceptional cases. Thus, in the Israeli rabbinical courts, “the basis for every decision concerning the custody of children is the principle of tovat hayeled as determined by the beit din.”[14]

 

Let us, therefore, ask a deceptively simple question: with respect to our sh’elah, which course of action would best achieve the goal of tovat hayeled? It is quite arguable that we would frustrate this purpose by forcing this young man to assume the financial and other duties of a father. To do so, against his will and despite what would appear to be the young woman’s strenuous opposition, may result in tension and strife between the two parents as they struggle over both the child’s upbringing and the relationship that will have been forced upon them. That conflict could last for many years, quite possibly to the detriment of the child. By contrast, in terminating his paternal rights and responsibilities, the young man may raise the likelihood that his child will grow up in a stable and cohesive home environment. Put simply, his decision to bow out of the life of his future child may well be in the child’s best interests.

 

We described this question as “deceptively simple” because, quite obviously, its answer depends upon a complex web of factors, issues, and considerations. It is not, at any rate, an answer that we can provide at a distance. Decisions like this require a careful judgment of the particular situation, one that can be made only by the parties involved, preferably with ample professional counseling. They must decide as best they can, even though they may never be absolutely certain that they have “gotten it right.” Such is the task that confronts the young man and the young woman of whom our sh’elah speaks. If in their best judgment they conclude that their child will fare better if the father terminates his paternal role and allows the mother to become the full custodian of the child, Jewish tradition would support them in their decision.

 

4. Abortion Expenses. Our sho’el asks whether the young man would be obligated, “(i)f the young woman were to choose abortion,” to share in the expenses of that procedure. The key term in this question is “choose.” Our responsa have discussed the issue of abortion several times over the years. They have concentrated upon the central question of the warrant for abortion, the circumstances under which abortion is morally justified.[15] In our view, abortion is maternally indicated: that is, the procedure is justifiable when necessary to preserve the mother’s health, to spare her serious anguish and suffering (and not merely to save her life). The choice for or against abortion is, for this reason, the mother’s decision to make. While she is certainly encouraged to consult with others before making her decision, we have never suggested that any other person, including the fetus’s father, exercises authority in saying “yes” or “no” to the abortion. By that same token, it can be argued that since the decision is entirely up to her, she rightly bears the financial consequences that follow from it.

 

On the other hand, while the decision is entirely up to the woman, the circumstances in which she is forced to consider that decision were created by an act that involved two persons. We think, therefore, that the answer to this question ought to flow from the same fundamental principle we describe above, namely that we assume moral responsibility for the foreseeable consequences of our actions. The young man shares financial obligations with respect to pregnancy and childrearing because pregnancy was a foreseeable (if undesired) consequence of their decision to engage in a sexual relationship. In the same way, he can be said to share financial obligation for the abortion procedure, should the young woman decide upon that course, because the abortion is a foreseeable consequence of that same decision.

 

Conclusions.

 

1. A parent has a moral obligation to provide financial support for his or her child, whether or not he or she is married to the other parent and whether or not the pregnancy was intended.

 

2. This obligation falls equally upon both parents. Thus, the father ought to share with the mother in the expenses of her pregnancy.

 

3. A parent may terminate the rights and responsibilities of parenthood, including financial obligations, by placing the child for adoption, whether with the other parent or with a third party. In all such cases, the overriding principle is the child’s best interests.

 

4. A decision for abortion lies ultimately with the mother. Should she decide upon this course, the father should share in the expenses of the procedure.

 

 

NOTES

1.              Yad, Ishut 12: 14-15. His sources are B. Ketubot 65b and B. Ketubot 49b. The decision is repeated in Shulchan Aruch Even Ha-ezer 71:1.

 

2.         While the literal translation of the Hebrew term is “food,” the legal requirement of m’zonot includes clothing and housing as well; see Yad, Ishut 13:6 and Shulchan Aruch Even Ha-ezer 73:6-7. M’zonot, in addition, extends to the payment of medical expenses (B. Ketubot 52b; Piskei Din Rabani-im vol. 10, p. 219ff). In addition, see B. Kiddushin 29a: “the father is obligated… to teach his son Torah, to enable him to marry, and to teach him a trade.” That is to say, a parent’s financial obligation to a child extends to the provision of a range of social goods, including education, that are deemed essential for a happy and successful life.

 

3.         See the sources cited in note 11, below: given that the father has custody of his son once the latter reaches the age of six years, the father can as a matter of law refuse to provide for the son’s maintenance if he remains with his mother. This would seem to be the reason, in theory, for the determination that a father has a Toraitic obligation to support his children only until that time. As we have seen, however, rabbinic law extends this obligation until the child reaches majority.

 

4.         The “rabbinic edict” is a takanah adopted by the Tanaitic authorities at Usha (B. Ketubot 49b). And while the age of majority is classically set at thirteen years for boys and twelve years for girls, recent halachic practice, in keeping with the temper of the times, extended the period of support to fifteen years. See A. Freimann, “Hatakanot hachadashot shel harabbanut harashit l’eretz yisrael b’dinei ishut,” Sinai 13-14 (1943-1944) pp. 451-458.

 

5.         B. Bava Bata 8b and Ketubot 49b. See Yad, Matanot Aniyim 7:10. Where Rambam notes that this coercion can be accomplished by various means, either corporal or legal (i.e., the court attaches the property or wages of the individual until his obligations have been met).

 

6.         Jewish law does not recognize the special status of a child “born out of wedlock”. The father’s obligations to the child exist because he is the child’s father and not because he is married to the child’s mother. See B.Z. Schereschewsky, Dinei Mishpacha, 4th edition (Jerusalem: Rubin Mass, 1992), pp. 391ff.

 

7.         We will not enter here into the question of the level of support, except to say that, as a matter of Jewish legal theory, it is set in accordance with the needs of the child and not according to the wealth of the parent (Yad, Ishut 13:6). This distinguishes child support from the maintenance of one’s wife, the level of which classically does depend upon the husband’s financial status (B. Ketubot 48a; Magid Mishneh, Ishut 13:6).

 

8.         B. Megilah 13a.

 

9.         For a discussion of the literature, see our responsum no. 5753.12 in Teshuvot for the Nineties, pp. 201-207 (http://www.ccarnet.org/responsa/tfn-no-5753-12-201-207).

 

10.       B. Kiddushin 32a; Yad, Hilkhot Mamrim 6:8; Shulchan Aruch Yore Deah 240:19.

 

11.       B. Ketubot 65b and Rashi ad loc., s.v. yotzei b’eiruv imo; B. Ketubot 102b; Yad, Ishut 21:17; Shulchan Aruch Even Ha-ezer 82:7.

 

12.       Resp. Rashba Attributed to Ramban, no. 38; R., David ibn Zimra (Egypt, 16th-17th century), Resp. Radbaz, 1:123; Isserles, Even Ha-ezer 82:7.

 

13.       R. Mordechai Halevy (17th-century Egypt), in his Resp. Darchei Noam, no. 26, explains that this practice does not depart from Talmudic law but rather reinforces it. The Talmud, he argues, bases its standard upon an evaluation of the child’s best interests: as a general rule (al has’tam) it is best for all young children to live with their mothers and for boys over the age of six to live with their fathers. Like all general presumptions, this one is refutable; should the court determine in any particular case that the presumption actually works to the disadvantage of the child, it may award custody to the other parent.

 

14.       Piskei Din Rabbani’im, vol. 1, p. 56. See also Piskei Din Rabani’im, vol. 11, p. 366: “Even though the halachah declares that a minor daughter should always be placed with her mother, if the court determines that it would be better for her to live with her father it is empowered to transfer her custody to him.” On the jurisprudence in both the Israeli rabbinical and state courts on this point, see Schereschewsky (note 6, above), pp. 398-399, especially at note 2.

 

15.       See, especially, “Abortion to Save Siblings from Suffering,” no. 5755.13, Teshuvot for the Nineties, pp. 171-176 (http://www.ccarnet.org/responsa/tfn-no-5755-13-171-176), which contains references to previous discussions.

 

 

5772.1

CCAR RESPONSA COMMITTEE

 

5772.1

 

A Minyan via the Internet?

 

 

Sh’elah.

 

A recent ice storm in our city greatly impeded travel and, consequently, fewer than ten congregants were able to make it up the hill to our synagogue for Shabbat services. Fortunately, we live-stream our Shabbat services and knew from the online tally that over 70 unique computer sites were logged on to services. While understood not to be the ideal, in this new communication age where live-streaming, video-conferencing and related technologies enable congregants to connect beyond the walls of the synagogue, can we effectively count those whom we know to be “technologically present” as part of a minyan? (Rabbi Ron Segal, Atlanta, GA)

 

 

T’shuvah.

 

1. On the Minyan in Reform Jewish Practice. We have discussed the requirement of minyan, a quorum of ten adult Jews for public prayer (t’filah b’tzibur),[1] in several responsa over the years. Most of these have tended toward a lenient position, largely out of sympathy for those who attend worship services: why should they be denied the opportunity to hear the Torah read and to say Kaddish simply because others were unable (or did not feel motivated) to come to the synagogue?[2] This sympathy, enjoys a long precedent in Jewish law. Various authorities have sought ways to relax the ten-person rule; while most of these leniencies were ultimately rejected,[3] others became part of accepted practice.[4] Our most recent statement on the subject (1992) assumes a more positive attitude toward the minyan requirement. In that t’shuvah, we stress the abiding value of public, communal prayer, arguing that the idea of minyan “deserves renewed attention” in Reform practice.[5]

 

Your query is one that we have not previously discussed: may individuals be counted as part of a minyan even though they are not physically present at the place where the service is held? Does one’s virtual presence, through an Internet or other electronic connection, qualify as “presence” for purposes of including him or her in the quorum for public prayer? We are fortunate, however, that others have already considered it. These include, notably, a responsum authored by Rabbi Avram Israel Reisner for the Committee on Jewish Law and Standards of the Rabbinical Assembly[6] and an article by Rabbi Jason Rosenberg, a corresponding member of this Committee.[7] Our presentation of the halakhah will follow closely upon their work, which we would encourage you to consult for a more detailed legal analysis. Like those writings, ours too will have to consider a most fundamental question of interpretation: how are we to read the relevant texts of our tradition in the age of the Internet? Do the technologies of electronic and digital communication that currently exist (to say nothing of these that are sure to be developed) demand a radically new understanding of those sources that speak of such concepts as “presence” and “community”?

 

2. Physical Presence and the Counting of a Minyan. The traditional discussion begins with M. Pesachim 7:12, which defines the space in which the Passover sacrifice is to be eaten:[8] “From the middle of the doorway toward the inside is considered as ‘inside’; from the middle of the doorway toward the outside is considered ‘outside.’” That is to say, those who stand or sit “outside” are not included in the company (chaburah) that eats the sacrifice within the house. Importantly for our purposes, the amora Rav (in B. Pesachim 85b) applies this spatial mapping to the act of public prayer. He holds that one who stands from the middle of the doorway toward the inside of the house or room is counted in the minyan along with those assembled within the house, while one who stands from the middle of the doorway toward the outside is not included in the minyan.[9] The leading codifiers rule accordingly: “all of (the members of the minyan) must be assembled in one place (b’makom echad), and the prayer leader (sh’liach tzibur) must be with them in that place,”[10] i.e., one contiguous, undivided physical space.

 

On the other hand, the Talmud (ad loc.) also cites the statement of R. Yehoshua ben Levi: “Not even a partition of iron can separate the people of Israel from their Heavenly Father.” This would suggest that worshipers can be included in a minyan even if they are separated from each other by walls or spatial distinctions (“inside” and “outside”). Some passages in the Talmud do seem to support R. Yehoshua’s position. For example, one who stands outside of a synagogue on Rosh Hashanah and hears the sound of the shofar fulfills his obligation under that mitzvah, even though the synagogue wall separates him from the congregation and from the toke`a (the one who sounds the shofar).[11] The tension between these two viewpoints ultimately led the Tosafot to offer a compromise between them.[12] For purposes of counting a minyan, the law follows Rav: we include only those worshipers who assemble in “one place,” with no partitions among them. Meanwhile, for purposes of fulfilling an obligation that does not require a minyan, such as hearing the shofar, the law follows R. Yehoshua ben Levi. In such a case, the crucial factor is intention (kavanah): if one intends to fulfill the obligation, one can do so even though one is not physically present.[13]

 

One more factor should be mentioned. The Mishnah,[14] codified by the later authorities,[15] holds that persons who eat their meals in separate rooms may be counted together for purposes of zimun (the quorum required for reciting the introduction to birkat hamazon, the Grace after Meals) so long as some of those in each room can see some of those in the other. We also read that “if some are eating their meal inside the house while others eat their meal outside,” both groups are counted together for the zimun if the leader of the Grace is seated at the threshold of the house and can see the members of both groups.[16] Moreover, if the two groups are eating in two separate rooms and cannot see each other, they can join together for zimun if the same server (shamash) waits upon both groups.[17] Some authorities (though not all)[18] apply the rules for zimun to the counting of a minyan for prayer: “one who stands outside the synagogue… but looks through a window at the congregation is counted in the minyan along with them.”[19]

 

3. “Virtual Presence” and Public Prayer. Our sources thus provide a complex definition of the space in which a prayer community is to assemble. While a minyan ordinarily must be present in makom echad, one undivided physical space, some mitzvot can be fulfilled by individuals who stand outside that space, physically separate from the congregation but joined to it through their own determination (kavanah). We have also seen that physically separate individuals can be linked together by means of some factor – eyesight;[20] the prayer leader; a server – that forms them into what we might call a single network.

 

We could cite this complexity in support of a “yes” answer to our sh’elah. If the Rabbis were prepared to stretch the concept of minyan to include the “networks” described above, would they not have applied the same logic to the virtual communities of our own time? If one can be counted in a minyan even though one stands outside the synagogue wall and gazes through the window, can we not count those who are linked to the synagogue service by way of digital and electronic technologies that foster a closer and more immediate sense of connection and presence and that truly “enable congregants to connect beyond the walls of the synagogue”? A good argument could certainly be made that we can and should do so.

 

That argument, however, does not persuade us. The Internet and contemporary electronic communication have radically transformed the world in which we live; they have done much to “bring near those who are far away.”[21] But they have not erased the distinction between reality and virtual reality, and that distinction is key to understanding the message of our tradition. The Rabbis may have expanded the definition of makom echad, but the boundaries of that place remain physical; for them, a prayer community is constituted by a group that assembles in real time and in one contiguous space. It is this physical coming-together that they have in mind when they speak of communal prayer (t’filat tzibur or t’filatan shel rabim), which, because it is always recited “at a favorable time,”[22] they hold to be preferable to the act of praying alone.[23] Out of this concern they emphasize the centrality of the synagogue in Jewish life, going so far as to suggest that any community of at least ten Jews is obligated to secure for themselves a physical space in which to meet for communal prayer.[24] Indeed, the physical act of walking (or even running) to the synagogue for community prayer carries its own special reward.[25] None of this means, of course, that our tradition does not value private prayer, prayer recited apart from a minyan, but simply that it regards the ideal prayer as the one offered together with the community.[26]  And by “community” it means a minyan, a quorum of worshipers assembled b’makom echad, in one place, physically present to each other.

 

The same distinction lies at the heart of our own conception of “community.” There is a difference in essence, and not merely in degree, between a community that assembles in physical proximity and one that is constituted by digital transmission and pixels on a screen. The former enjoys a human presence and sense of immediacy that is lacking from the latter. A real community, unlike a “virtual” one, is a community that facilitates close communication with our fellow human being. It is a venue in which we can make palpable and physical contact with the other, shake their hand, share an encouraging touch or embrace. A real community is an act of coming together that symbolizes in the most powerful way our determination to bridge the gaps of space that separate us into our individual lives and worlds. By no means do we deny the value of electronic communication to the work of our synagogues. Thanks to digital technology we enjoy marvelous opportunities to expand the reach of our religious life,[27] to study Torah, and to bring our people closer to one another, opportunities of which even our most recent ancestors could only dream. We are thankful for the blessings of the Internet, even as we are mindful of the challenges it poses to us. But so long as we are capable of distinguishing between reality and virtual reality, so long as we conceive of the ideal prayer community as one that is physically constituted, whose members occupy a shared physical space, we cannot expand the definition of minyan to include those whose presence with us is virtual rather than real.

 

Conclusion. Whether through dial-in, live-streaming, or video connection, it is a good thing to encourage those who cannot attend the synagogue to be “technologically present.” Such persons, however, are not part of the minyan, because the minyan is the community of those are truly present with us, that is, in the real (as opposed to virtual) sense of that term.

 

 

 

NOTES

 

1.         To be precise: a minyan is required for the recitation of dvarim sheb’k’dushah,  liturgical rubrics that pertain to “sanctification.” These include Bar’chu, K’dushah, the Kaddish, and the reading of the Sefer Torah (Torah scroll). See M. Megilah 4:3; B. Megilah 23b; Yad, T’filah 8:6; Shulchan Arukh Orach Chayim 55:1 Turey Zahav ad loc., no. 1 and Mishnah B’rurah ad loc., no. 5. For discussion, see Teshuvot for the Nineties, no. 5752.17, pp. 23-28, especially at note 4.

 

2.         See American Reform Responsa, no. 3, p. 5 (1936); R. Solomon B. Freehof, Recent Reform Responsa, no. 1, pp. 14-18 (1963); and R. Walter Jacob, New American Reform Responsa, no. 4, pp. 5-6 (1993).

 

3.         For example, an old Palestinian tradition fixed the minyan requirement at seven or six individuals (Sof’rim 10:6). The Babylonian amora Rav Huna suggested that nine worshipers plus the Ark containing the Torah scroll could constitute a minyan (B. B’akhot 47b). A ruling attributed to Rav Hai Gaon permits nine adult males plus a minor to constitute a minyan (Or Zaru`a I, Hilkhot S`udah, ch. 196; Hil. HaRosh, B’rakhot 7:20), while other customs required that the minor hold a Torah scroll or a chumash (i.e., a scroll containing a single book of the Torah) in order to count in the minyan. Some permitted a slave or a woman to constitute the tenth person and to complete the minyan (Beit Yosef, Orach Chayim 55, in the name of R. Simchah of Vitry).

 

4.         For example, if the minyan begins reciting a particular rubric of the service, the remaining worshipers may complete that rubric even if some of them leave and a minyan is no longer present. This is true provided that a majority of the minyan remains (Y. Megilah 3:4; Tosafot, Megilah 23b, s.v. v’ein; Shulchan Arukh Orach Chayim 55:2-3). Moreover, a minyan may be completed by individuals who have already fulfilled their obligation to pray, so long as they do not constitute the majority of the minyan (Yad, T’filah 8:4 and Kesef Mishneh ad loc.).

 

5.         Teshuvot for the Nineties, no. 5752.17, pp. 23-28 (http://www.ccarnet.org/responsa/ccarj-spring-1993-73-78-tfn-no-5752-17-23-28). Three members of the Committee dissented somewhat from the majority position. In their view, the recitation of Kaddish should be exempted from the minyan requirement.

 

6.         Rabbi Avram Israel Reisner, “Wired to the Kadosh Barukh Hu: Minyan via Internet,” OH 55:15.2001, http://rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/19912000/reisner_internetminyan.pdf (accessed January 26, 2012).

 

7.         Rabbi Jason Rosenberg, “Worship in the Cloud: Halachic Concerns around Broadcasting Worship Services over the Internet,” to appear in a forthcoming volume of the Solomon B. Freehof Institute of Progressive Halakhah.

 

8.         Cf. Exodus 12:46.

 

9.         See Rashi, B. Pesachim 85b, s.v. v’khen l’’tfilah.

 

10.       Yad, T’filah 8:7; Shulchan Arukh Orach Chayim 55:13. The traditional commentaries link this decision to the discussion in B. Pesachim 85b; see, especially, R. Yosef Karo, Beit Yosef, Orach Chayim 55.

 

11.       M. Rosh Hashanah 3:7; B. Rosh Hashanah 27b.

 

12.       Tosafot, Pesachim 85b, s.v. v’khen l’t’filah; Rosh Hashanah 27b, s.v. v’sh’ma kol shofar; Sotah 38b, s.v. m’chitzah ma’i.

 

13.       See B. Rosh Hashanah 29a, Yad, Shofar 2:5 and Shulchan Arukh Orach Chayim 589:9.

 

14.       M. B’rakhot 7:5; B. B’rakhot 50a.

 

15.       Yad, B’rakhot 5:12; Shulchan Arukh Orach Chayim 195:1.

 

16.       Hilkhot HaRosh, B’rakhot 7:30; Shulchan Arukh Orach Chayim 195:2 and Magen Avraham ad loc., n. 3.

 

17.       B. B’rakhot 50b, and see the sources in note 15, above.

 

18.       See Mishnah B’rurah 55, no. 52.

 

19.       Shulchan Arukh Orach Chayim 55:14. In his Beit Yosef ad loc., R. Yosef Karo attributes this ruling to Rav Hai Gaon (11th century).

 

20.       R. Yechiel Mikal Epstein (19th-20th century Lithuania) offers an interesting explanation for why one is counted in the minyan simply by looking through the window toward the other worshipers. The Hebrew phrase translated here as “looking: reads mareh lahem panim, literally, “he turns his face toward them.” Given that “the Sh’khinah dwells with every community of ten Jews,” one’s face is the critical factor, “since the Sh’khinah is principally manifest upon the human face, as it is written (Exodus 34:30), ‘the face of Moses shone with light’”; Arukh Hashulchan, Orach Chayim 55, par. 20.

 

21.       M’karev r’chokim; B’reshit Rabah, parashah 39.

 

22.       “Rabbi Yochanan said in the name of Rabbi Shimeon bar Yochai: What is the meaning of the verse (Psalms 69:13) ‘But as for me, may my prayer come before You, Adonai, at a favorable time (et ratzon) ’? When is the time of God’s favor? Whenever the community prays together” (B. B’rakhot 7b-8a).

 

23.       See Yad, T’filah 8:1: “One must strive to join the community (in its prayer), and one ought not to pray alone so long as one is able to pray with the community.”

 

24.       See Yad, T’filah 11:1: Every community in which ten Jews live must designate a physical space (bayit) where they may assemble for prayer at all the appointed times. This place is called a synagogue.”

 

25.       “It is a mitzvah to run to the synagogue… but it is forbidden to run from the synagogue”; Shulchan Arukh Orach Chayim 90:12. And see Magen Avraham to Orach Chayim 90, no. 22: “If there are two synagogues in a town, it is a mitzvah to attend the one that is farther away, since one receives a reward for the extra steps it takes to get there.”

 

26.       The Rabbis do suggest a form of alternative to public prayer: those unable to go to the synagogue should recite their private prayer at the very moment that the community holds its own service (B. B’rakhot 8a; Shulchan Arukh, Orach Chayim 90:9). Yet this “virtual” substitute is not considered the equivalent of public prayer, and the one who prays separately from the community, even if simultaneously with them, is not counted in the minyan.

 

27.       Among these opportunities are those of the traditional ritual variety. Rabbi Reisner (note 6, above) concludes that while an individual who “attends” a service through electronic means is not counted in the minyan, he or she is nonetheless able to fulfill such obligations as the recitation of Kaddish, provided that a minyan is present in the place where the service is being held.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5771.5

CCAR RESPONSA COMMITTEE

 

5771.5

 

Reciting Blessings over Tube Feeding

 

 

Sh’elah.

 

Over the course of multiple life-threatening esophageal ruptures, I spent 6 months being fully sustained by feeding tubes – certain times only through a Jejunostomy tube (J-tube) and certain times through a combination of the J-tube and a Gastrostomy tube (G-tube).  Throughout most of that time period, I was torturously conscious and aware of my situation.  I asked an Orthodox friend of mine if there was a blessing I could say over my tube feedings, and she informed me that because tube feedings are not considered a form of eating, there was no blessing I could say.  At the time I already felt that almost everything had been taken from me, so when I learned of this facet of halakhah I felt that I was being isolated from Judaism as well.

 

I therefore ask this question of you: from the standpoint of our Reform responsa tradition, is it appropriate to recite a blessing over tube feeding? (Courtney L. M. Berman, Cincinnati, OH)

 

 

T’shuvah.

 

Your Orthodox friend is correct. By that, we mean that she is accurately representing the consensus view among contemporary Orthodox poskim (halakhic authorities) on the question you pose. At the same time, not all halakhic authorities follow that consensus, and an argument can be made that the consensus does not reflect the best interpretation of the sources upon which it is based. The majority of this Committee support the consensus view, namely that tube feedings are not to be defined as “eating” and that, therefore, it is inappropriate to recite the blessings for food over tube feedings. One member of the Committee dissents from this position.

 

Our t’shuvah will proceed in three stages. First, we will examine the discussion of this issue in the halakhic literature, so as to explain both the consensus and the minority opinions among traditional and Orthodox poskim. Second, we will present the viewpoint of the majority of this Committee. Finally, we will offer the dissenting opinion.

 

1. The Halakhic Discussion. The blessings we recite before eating food, as well as birkat hamazon (the “grace after meals”), are called birkhot hanehenin, literally “blessings over things that bring enjoyment.”[1] That term indicates the central importance of the concept of hana’ah, variously translated as “enjoyment,” “pleasure,” “benefit,” or “profit”: we recite blessings as an expression of gratitude to God for deriving benefit from God’s world. As the Rabbis teach, “it is forbidden to derive benefit/pleasure (hana’ah) from the world without reciting a b’rakhah.”[2] But precisely how do we derive this hana’ah? That question lies at the center of a Talmudic machloket (dispute) over the nature of the Torah’s prohibitions against the eating of various foods. Rabbi Yochanan holds that to be held culpable for violating these laws, a person must experience hana’at garon (literally, “enjoyment of the throat”): that is, one must orally ingest a minimum amount of the forbidden food within a prescribed limit of time. Resh Lakish, on the other hand, holds that the key is hana’at me`ayim, “satiation”: one transgresses the prohibition once the minimum quantity of the forbidden food collects in his stomach, no matter how slowly he or she consumes it.[3] The accepted halakhah follows Rabbi Yochanan.[4] From here, later authorities conclude that, for halakhic purposes, the act of akhilah (“eating”) is defined by the ingestion of food through the mouth.[5]

 

This definition serves as the basis for some important rules of law. For example, one may take a medication that contains prohibited ingredients provided that one consumes it in an unusual manner that does not bring “enjoyment” (she-lo k’derekh hana’atan), because even though the prohibited substance reaches the stomach, the patient has not technically “eaten” it.[6] Similarly, a patient may be fed through a stomach or intestinal tube on Yom Kippur, since artificial nutrition that bypasses the throat is not defined as “eating” and is therefore not prohibited on that day.[7] Critically for our question, Orthodox poskim apply this same standard to the issue of b’rakhah. One fed through a tube is exempt from the requirement of reciting a blessing, since, in the words of Rabbi Ya`akov Breisch, “the recitation of a blessing was established only over the act of eating, and ‘eating’ is defined exclusively as the oral ingestion of food.” [8] And since the blessing is not required, to recite it would violate the prohibition against b’rakhhah l’vatalah, reciting a blessing that is not “required” in that setting.[9]

 

The above summarizes what we have called the “consensus” position, the opinion of most contemporary Orthodox poskim.[10] On the other hand, some prominent halakhists hold the opposite view. They regard satiation, rather than taste or hana’at garon, as the factor that triggers the requirement to recite a b’rakhah.[11] If so, it would follow that one fed through a J-tube or a G-tube should say a benediction, for he or she is definitely gaining satisfaction from the artificial nourishment even though no “eating” is involved. While most Orthodox poskim, to repeat, do not draw this conclusion, the arguments supporting it lead some of them to suggest a compromise: it would be “a good thing” for the patient being fed in this way to hear the blessings recited by another person “who can thus enable (the patient) to fulfill his obligation (sheyotzi’o y’dei chovato).”[12] At first glance, of course, this compromise position seems self-contradictory. How can we speak of enabling a tube-fed patient to fulfill the “obligation” to recite a b’rakhah when, according to the law, no such obligation exists? Rabbi Eliezer Yehudah Waldenberg (d. 2006), the outstanding Orthodox medical-halakhic authority, hints at the thinking behind this notion:

 

It is common in a hospital setting that the patient being fed by a tube shares a room with another patient who eats in the usual manner and who can fulfill the patient’s obligation (v’sheyukhal l’hotzi’o) by reciting birkat hamazon (grace after meals) on his behalf. This can be a very reassuring thing for the tube-fed patient who is passionate about fulfilling the mitzvot and who is distressed (mitzta`er) when he is unable to do so.[13]

 

Waldenberg knows that the consensus Orthodox position – a view he shares[14] – can impose a severe spiritual toll upon the religious patient. To exempt such a person from the requirement of b’rakhah is to separate him or her, at least for that moment, from the community that expresses its identity through the performance of mitzvot. He and other poskim, it seems, are sensitive to the concern you raise: they do not want observant Jews to feel “isolated” from their Judaism. For that reason, they recommend a solution that, by extending the “obligation” of b’rakhah to individuals in this situation, stands at odds with the consensus position.

 

2. The View of This Committee. The majority of us side with the consensus position: it is inappropriate to recite the benedictions for food over tube feeding. We say this, first and foremost, because of the very real distinction between food and medicine. We recite a blessing over the hana’ah we receive from food because eating is an act that we consciously choose to do. Our b’rakhah expresses our thanks for God’s bounty at the very moment we decide with intention (kavanah) to benefit from it. By contrast, we do not recite benedictions over actions that we do not choose consciously to perform, even though we derive benefit from them. We do not say a blessing, for example, over breathing or enjoying the sunshine, because those are actions that we cannot intentionally choose not to do. The sustenance one receives from a feeding tube is comparable to these examples. Although a patient may consciously choose to allow the procedure, once the device is inserted it delivers medical treatments in the same way a saline IV delivers a nutritionally necessary solution. The body takes in the liquid without conscious intent, just as it breathes or absorbs sunlight. Thus it forms part of a medical regimen, a course of treatment undertaken in fulfillment of our tradition’s commandment to preserve life.[15] In this sense it is not an act of “eating,” and it ought not to be described as such.

 

It is critical for another reason, too, that we maintain the distinction between food and medicine. Consider the case of a terminally ill, end-stage patient who is being kept alive by way of a feeding tube. Is it permissible to remove the tube, to discontinue the artificial nutrition and hydration and to allow the patient to die when all hope for a satisfactory medical outcome has disappeared? In our 1994 responsum on that question,[16] we have written that the answer depends in large part upon whether we define artificial nutrition as “food” or as “medicine.” To the extent that the feeding tube is a medical procedure, introduced as a response to the patient’s illness, it is arguable that we are permitted to discontinue that procedure in a situation of therapeutic futility.[17] Should we in the present t’shuvah unequivocally define nutrition through a feeding tube as an act of “eating,” we would raise serious doubt as to the morality of the decision to discontinue artificial nutrition in end-stage cases. Since we do believe that such a decision is morally justifiable under Jewish tradition, we do not wish to engender unwarranted confusion in the minds of patients and family members who confront such fateful choices.

 

Conclusion. For the reasons we have outlined, we think that it is inappropriate to recite a benediction for food over a tube feeding.

 

We are sensitive to the feelings that you bring to this sh’elah. You raise a powerful concern: no Jew should be made to feel “isolated” from Judaism at a time of illness. We think, however, that there are other prayers that you could recite, words more appropriate to the situation than the blessings over food. The Rabbis long ago composed such a prayer to be recited at the time of medical treatment: “May it be Your will, Adonai my God, that this treatment be a source of healing to me, for You are a gracious healer. Praised are You, Adonai, who heals the sick.”[18] We would suggest that prayer, along with any personal supplications that the patient may wish to add, as the best, most fitting Jewish liturgical response to illness.

 

A Dissenting View. One member of the Committee takes offers the following dissent.

 

I differ with the majority for two reasons.

 

First, the “consensus” Orthodox opinion, with which the majority agrees, rests upon a highly questionable interpretation of the relevant Talmudic source. In that passage,[19] Rabbi Yochanan and Resh Lakish dispute the precise point at which one becomes culpable for eating forbidden foods. The technical definition of “eating” is therefore entirely germane to the discussion.[20] Our subject, however, is b’rakhah, which the Talmudic passage never mentions. The later authorities, those identified with the “consensus” position, connect the two issues and deduce that we recite a blessing specifically over the act of eating. Yet we need not accept that connection. As we have seen, our sources[21] teach that we recite a b’rakhah as a statement of thanks to God for the hana’ah that our food provides. The patient who receives her sustenance from a feeding tube certainly derives hana’ah from it. She may therefore be obligated – and is at least entitled – to recite a blessing over that sustenance, even if she does not “eat” it.

 

Second, I think that the majority overstates the fear of “unwarranted confusion.” Put differently, we can allow persons in this condition to recite a blessing over tube feeding and still justify the discontinuation of artificial nutrition for end-stage patients. The question, as our 1994 responsum frames it,[22] is not whether the mechanism delivers “food” or “medicine” but whether it can be deemed a medical procedure, an action undertaken by medical personnel as part of the indicated course of treatment. Once that treatment loses its therapeutic rationale, we have moral grounds upon which to discontinue it. It does not matter that the tube delivers “food” if, as a medical procedure, it serves no legitimate therapeutic function; it may be disconnected, as any futile medical procedure may be discontinued. In the case of our sho’elet, by contrast, the artificial nutrition is hardly “futile” but serves an entirely legitimate therapeutic rationale. It is, in other words, her sustenance, over which she may rightfully recite a blessing.

 

The sho’elet wishes to recite such a blessing, and I see no sufficient reason, based either in traditional halakhah or contemporary concerns, to deny her that opportunity.

 

NOTES

1.         Birkat hamazon is often classified in a category by itself, since it is considered to be required directly by the Torah (Deuteronomy 8:10; B. B’rakhot 21a; Yad, B’rakhot 1:3). By contrast, the blessings recited before eating food or before benefiting from other things are considered Rabbinic in origin. See B. B’rakhot 35a; Tosafot ad loc., s.v. ela s’vara hu; Yad, B’rakhot 1:2; Chidushei haRashba, B’rakhot 35a; Meiri, Beit Hab’chirah, B’rakhot 35a.

2.         A baraita in B. B’rakhot 35a. The text continues: “one who benefits from the world without reciting a blessing is guilty of m`ilah,” the misappropriation of God’s property. The Amoraim explain that, prior to the recitation of a b’rakhah, “the earth and its fullness belong to Adonai” (Psalms 24:1), i.e., we are not authorized to draw benefit from the physical universe. Once a person recites the appropriate blessing, however, we say that “the heavens belong to Adonai, but the earth has been given to human beings” (Psalms 115:16) and we are permitted to derive hana’ah from the world.

3.         B. Chulin 103b. The terms hana’at garon and hana’at me`ayim, which figure prominently in all subsequent discussions of this topic, are found in Rashi ad loc., s.v. harei neheneh g’rono.

4.         Yad, Ma’akhalot Asurot 14:3.

5.         See R. Yosef Babad (19th-century Poland), Minchat Chinukh, mitzvah 313, no. 2: “there is no such thing as ‘eating’ in the absence of ‘enjoyment of the throat’” (b’lo hana’at garon la havei akhilah k’lal). See also R. Ovadyah Yosef (20th-21st century Israel), Resp. Yabi`a Omer, v. 5, Orach Chayim, no. 18: the word ve`akhalta (“you shall eat”) in Deuteronomy 8:10 “comes to tell us that what is required is ‘the enjoyment of eating’ (hana’at akhilah), that is, ‘enjoyment of the throat’ (hana’at garon).”

6.         B. Pesachim 25b; Yad, Y’sodei Hatorah 5:8 and Ma’akhalot Asurot 14:10-11; Shulchan Arukh Yoreh De`ah 155:3. The person described here is one who does not suffer from a serious (life-threatening) illness. In the event of a serious illness, the rules of pikuach nefesh apply, and the patient is permitted to take the medication even if that act involves normal eating. See Reform Responsa for the Twenty-First Century, v. 1 (New York: CCAR, 2010), no. 5758.8, pp. 139-146, http://www.ccarnet.org/responsa/rr21-no-5758-8/, at notes 5-10.

7.         R. Shalom Schwadron (19th-century Galicia) Resp. Maharsham 1:123-124; R. Chaim Ozer Grodzinski (20th-century Vilna), Resp. Achiezer 3:61; R. Avraham Steinberg (20th-century Poland), Resp. Machazeh Avraham 1:129. The distinction between patients suffering from serious and non-serious illnesses (see preceding note) apply here as well.

8.         R. Ya`akov Breish (20th-century Switzerland), Resp. Chelkat Ya`akov, Orach Chayim, no. 52: “b’rakhah nitkenet rak al akhilah, v’akhilah la mikarei rak derekh hapeh l’me`av”.

9.         The recitation of a b’rakhah l’vatala, according to some authorities, violates the prohibition against taking God’s name in vain (Exodus 20:7); Yad, B’rakhot 1:15, on the basis of B. B’rakhot 33a. Others regard the Exodus verse as an asmakhta, a textual indication of the law but not the law’s actual source. In their view, unnecessary b’rakhot are prohibited by Rabbinic decree (see R. Yitzchak bar Sheshet [14th-century Spain], Resp. Rivash, no. 384, end).

10.       See Resp. Machazeh Avraham (note 7, above); R. Eliezer Yehudah Waldenberg (20th-century Israel), Resp. Tzitz Eliezer 12:1; and R. Ovadyah Yosef (note 5, above): no blessings are required in the absence of hana’at garon.

11.       R. Ya`akov Emden (18th-century Germany), Mor Uk’tzi`ah, ch. 196 (82d) and Siddur Beit Ya`akov, Hanhagat Has`udah (“In my opinion, even if one received no pleasure [hana’ah] from the act of eating – for example, if he swallowed the food whole, without tasting it – if he was satiated by it, he recites the appropriate blessing”); R. Yosef Teomim (18th-century Germany), P’ri M’gadim, Eshel Avraham, 210:1; R. Meir Eisenstadt (18th-century Austria), R. Panim Meirot 2:27.

12.       Resp. Machazeh Avraham (note 7, above). See also R. Mordekhai (Leopold) Winkler (19th-century Hungary), Resp. L’vushei Mordekhai 1:32 and R. Eliezer Waldenberg (20th-century Israel), Resp. Tzitz Eliezer 13:35, sec. 3.

13.       See preceding note.

14.       See note 10, above.

15.       That is, the practice of medicine is the fulfillment of the mitzvah of pikuach nefesh, the obligation to preserve human life. For sources and discussion, see Teshuvot for the Nineties, no. 5754.18, at pp. 373-375 (http://www.ccarnet.org/responsa/tfn-no-5754-18-373-380), and Responsa for the Twenty-First Century, v. 2, no. 5761.7, at pp. 123-124 (http://www.ccarnet.org/responsa/nyp-no-5761-7).

16.       “Treatment of the Terminally Ill,” Teshuvot for the Nineties, no. 5754.14, section V, at pp. 353-355 (http://www.ccarnet.org/responsa/tfn-no-5754-14-337-364).

17.       We say “arguable” because each case must be judged on its own; as the responsum (see previous note) makes clear, the determination of “therapeutic futility” can be made only on the basis of a careful and prayerful decision with respect to this patient’s condition.

18.       The original form of this blessing, recommended for those who engage the services of a blood-letter, declares that we invoke God’s protection because “it was not intended for mankind to engage in medicine”  (B. Berakhot 60a). As Rashi (ad loc.) explains the passage, “that is, mankind was intended to pray for healing” rather than call upon the physician in times of illness. Maimonides omits that passage, presumably because he did not share the Talmud’s ambivalence about the propriety of medical practice; see Yad, Berakhot 10:21. Shulchan Arukh Orach Chayim 230:4 follows Maimonides on this point, and the commentators to that work note that the blessing is appropriate for all medical procedures. On the theological struggle over the propriety of medical practice in the classical sources, see our responsum no. 5754.18 (note 15, above).

19.       See note 3, above.

20.       The definition is similarly relevant to the question of how one fulfills the positive obligation to eat certain foods, such as matzah and maror on the night of the fifteenth of Nisan. See B. Pesachim 115b and Yad, Chametz umatzah 6:2: one who swallows matzah has fulfilled the obligation, while one who swallows the maror has not fulfilled the obligation, since one must taste the bitterness of the maror (Rashi, B. Pesachim 115b, s.v. bala maror lo yatzah). No such “taste” requirement applies to matzah; so long as the unleavened bread comes into contact with a person’s mouth, that person has “eaten” it and fulfilled the commandment. See Magid Mishneh to Yad ad loc. The point is that one is required to eat the matzah and the maror; hence, we need to define precisely just what “eating” entails. Our argument here is that the blessing over food has to do with the hana’ah the food provides and not with the manner in which one consumes it.

21.       See at note 2, above.

22.       See note 16, above.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

5771.4

CCAR RESPONSA COMMITTEE

 

5771.4

 

Priestly and Levitical Status in Reform Judaism

 

Sh’elah.

I am submitting this query on behalf of a congregant. According to the North American Reform movement, a child need not be born of a Jewish mother in order to inherit Jewish status. Rather, it is enough that the child be the offspring of one Jewish parent, either father or mother, and be raised as a Jew in order to be considered a Jew by birth.[1] Would a similarly gender-neutral policy apply to the k’hunah (priesthood)? Traditionally, a child is considered a kohen (priest) or a levi (Levite) if his or her father enjoyed that status.[2] In the view of Reform Judaism, can a child inherit priestly or levitical status through the maternal, as well as through the paternal line?  (Rabbi Dana Evan Kaplan, Kingston, Jamaica)

 

T’shuvah.

“Reform (Judaism) does not recognize a hereditary priesthood.”[3] This statement, presented without dissent in our official CCAR publications,[4] describes a fundamental aspect of our religious world view. It means, specifically, that the tradition of priestly status is irrelevant to us as a religious category and plays no role whatsoever in Reform Jewish observance today. Our common Reform practice testifies to this fact. In our communities, the kohen receives none of the privileges to which he is entitled under traditional Jewish law and custom.[5] Most notably, we have long since abolished the practice of granting him the first aliyah, that is, of calling him to the Torah prior to anyone else.[6] By the same token, we do not enforce any of the stringencies that traditionally apply to the priest in matters regarding marriage[7] and ritual purity.[8] Since we do not look forward to the rebuilding of the Temple and the resumption of sacrificial worship, we have no purpose or interest in perpetuating caste distinctions based in the ancient Biblical cult.[9] And in the absence of such a purpose or interest, it would arguably be unethical for us, as a movement dedicated to an egalitarian vision of Judaism, to maintain such distinctions in any form, even if it be “gender-neutral” in its structure.[10] It follows that there is not – and should not be – any uniquely “Reform” version of the k’hunah or redefinition of its rules.

 

To say that priestly yichus (inherited status) is irrelevant to our religious life should not suggest that the awareness of priestly status has completely disappeared from among our people. Reform Jews can and often do acknowledge the fact of their yichus as a matter of family tradition. They will often maintain the title “hakohen” or “halevi” in their Jewish names, as testimony that they was born to a father of either status. We certainly have no objection to this custom. We would emphasize, however, that when Reform Jews do recognize their priestly or levitical descent, they express thereby a sense of connection to historical institutions rooted in our Biblical heritage and not to some (non-existent) Reform version of those institutions.

 

Our Rabbi’s Manual offers an illustration. It declares that, precisely because we do not recognize a hereditary priesthood, the ceremony of pidyon haben, the redemption of the first-born son (Exodus 13:1, 11-15), is “incongruous for Reform Jews.”[11] Given, however, that “our colleagues will be called upon to participate in the ritual and interpret its rules,” the Manual proceeds to summarize those rules as they are formulated in Jewish tradition and to refer the reader to sources for the traditional pidyon haben liturgy. The message is clear: if Reform Jews choose pidyon haben for their sons, they are choosing to participate in a ceremony that reflects the context of the hereditary Biblical priesthood. Since we as a movement do not recognize that priesthood, there is no Reform, gender-neutral version of pidyon haben.

In the same way, there is no “Reform version” of the k’hunah. It is not for us to redefine the essence and structure of a Biblical institution that plays no part in Reform Jewish religious life.

 

NOTES

 

1.         The policy, adopted at the CCAR convention in 1983, is officially stated as follows: “The Central Conference of American Rabbis declares that the child of one Jewish parent is under the presumption of Jewish descent. This presumption of the Jewish status of the offspring of any mixed marriage is to be established through appropriate and timely public and formal acts of identification with the Jewish faith and people. The performance of these mitzvot serves to commit those who participate in them, both parents and child, to Jewish life.” For discussion, see David Polish and W. Gunther Plaut, Plaut, Rabbi’s Manual (New York: CCAR, 1988), pp. 225-227.

2.         M. Kidushin 3:12; Yad, Isurei Bi’ah 19:15; Shulchan Arukh Even Ha`ezer 8:1-3.

3.         Simeon Maslin, ed., Gates of Mitzvah (New York: CCAR, 1979), p. 72, note 19.

4.         It is cited as well in the Rabbi’s Manual (note 1, above), p. 228.

5.         The basic principle is derived from Leviticus 21:8, the commandment to “sanctify” the priest (v’kidashto). This is understood as a requirement “to grant him priority in all matters of holiness (k’dushah)”: let him read first from the Torah, let him lead b’rakhot, let him receive the best portion of the food served at the meal (B. Gitin 59b). This comes in addition to the matanot k’hunah, the “gifts” or donations that the kohen receives as a matter of Torah law. Traditionally, these number twenty-four; Maimonides enumerates them in Yad, Bikurim 1.

6.         Shulchan Arukh Orach Chayim 135:3: “The kohen reads first from the Torah, followed by the levi, followed by the yisrael,” (i.e., a Jew not of priestly or levitical descent).

7.         See Leviticus 21:7, the source for the rule that a kohen is prohibited from marrying a divorcee and, by way of midrashic expansion, a woman who was converted to Judaism (B. Yevamot 61a; Shulchan Arukh Even Ha`ezer 6:8).

8.         For example, the kohen is forbidden to come into contact or into close proximity with a corpse. The only exceptions are the relatives whom he is required to bury: his wife, his parents, his siblings, and his children. See Leviticus 21:1-3 and Sifra ad loc. This raises difficulties with respect to a number of activities. A kohen must take extreme care not to step upon a grave when visiting a cemetery (Shulchan Arukh Yoreh De`ah 371:5; R. Eliezer Yehudah Waldenberg, Resp. Tzitz Eliezer 4:15). The kohen is prohibited from entering a room or a building where a Jewish corpse lies (Shulchan Arukh Yoreh De`ah 371. And a kohen is prohibited from studying medicine when that involves the use of cadavers (R. Moshe Feinstein, Resp. Ig’rot Moshe, Yoreh De`ah 3:155).

9.         Another reason is based in more traditional halakhic considerations. Virtually all authorities recognize that today, the actual priestly or levitical status of any particular person is a matter of doubt (safek), owing to the nonexistence of genealogical records. For sources and discussion, see American Reform Responsa (ARR; New York: CCAR, 1983), no. 43. Thus, even if the k’hunah were somehow relevant to our religious practice, it would be problematic to award privileges and to enforce stringencies based upon one’s presumed – but not clearly determinable – ritual status.

10.       In this respect, our situation differs from that of the Conservative movement, in which the status of kohen retains its ritual significance. For this reason, perhaps, Conservative halakhists have found it necessary to do what we refuse to do here, namely to redefine some of the rules that have governed the institution of the priesthood since Biblical times. Thus, the Rabbinical Assembly’s Committee on Jewish Law and Standards (CJLS) has ruled that a rabbi may solemnize a marriage between a kohen and a divorcee, a relationship clearly forbidden by Biblical law (see note 7, above), in part on the ethical ground that “(we) no longer perceive a divorcee as a woman who has been discarded by her former husband and hence not suitable as a spouse for a kohen”; Rabbi Arnold Goodman, “Solemnizing the Marriage Between a Kohen and a Divorcee,” Committee on Jewish Law and Standards, EH6.1:1996, (http://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/19912000/goodman_marriagedivorcee.pdf?phpMyAdmin=G0Is7ZE%2CH7O%2Ct%2CZ1sDHpI8UAVD6 ). In a related responsum, the CJLS has eliminated the prohibition against the marriage between a kohen and a giyoret (Jew-by-choice); Rabbi Arnold Goodman, “Solemnizing a Marriage Between a Kohen and a Convert,” Committee on Jewish Law and Standards, EH6.8:1996 (http://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/19912000/goodman_marriageconvert.pdf?phpMyAdmin=G0Is7ZE%2CH7O%2Ct%2CZ1sDHpI8UAVD6) .

11.       The material in this paragraph is found in Rabbi’s Manual (note 1, above), p. 228. See also Gates of Mitzvah loc. cit., from which the Manual quotes the statement “incongruous for Reform Jews.”

 

 

 

 

 

5771.1

CCAR RESPONSA COMMITTEE

 

5771.1

 

Sterilization for the “Mentally Challenged”

 

 

Sh’elah.

 

I have received the following inquiry from the parents of Ann, a thirty-year-old woman with “mild learning disabilities” who has become engaged to a man who has similar disabilities. The fiancé’s father is concerned that, should they have biological children, the couple would not be able to care for them properly. He also fears that those children, like their parents, would be “mentally challenged.” He has suggested that his son have his seminal vesicles cut, and Ann have her tubes cut. Ann’s parents are quite conflicted. On the one hand, they do not want to deny their daughter the opportunity to have children. On the other hand, they worry that they might have to raise their grandchildren should Ann and her husband prove incapable of caring for them. “We are approaching sixty years old,” they say. “What is our longevity?” Does Jewish law permit this couple to undergo sterilization prior to their marriage? (Rabbi Samuel M. Stahl, San Antonio, TX)

 

 

T’shuvah.

 

As your question suggests, our Jewish tradition as a general rule prohibits the sterilization of human beings, but it permits the procedure under certain circumstances and for sufficient cause. Our t’shuvah will begin with a discussion of Jewish law on the subject of sterilization, and we will then ask how that law might guide us in the situation you have described.

 

1. Sterilization in Jewish Law. Although the Bible never explicitly outlaws the surgical sterilization (seirus) of humans, the tradition locates the prohibition in Leviticus 22:24, which deals with sacrificial animals: “Any animal that has its testicles bruised or crushed or torn or cut you shall not offer to Adonai; you shall not do it within your land.” The phrase “you shall not do it within your land” is understood to forbid the emasculation of any species, including humans, that lives upon the land. [1] We might also cite Deuteronomy 23:2: “No one whose testicles are crushed or whose male organ is cut off shall enter the assembly of Adonai.” The tradition interprets the phrase “to enter the assembly” as “to marry”; hence, a man who has been emasculated may not marry a Jewish woman, [2] and it would presumably be forbidden in the first place to injure him in this manner. Since these verses speak of male animals or humans, the question arises: does the prohibition of seirus apply to females as well? The Rabbis dispute this question,[3] and the subsequent halakhic literature concludes that the surgical sterilization of women is forbidden although not punished as severely as the seirus of a male. [4]

 

What is the reason for this prohibition? According to the predominant view in the tradition, [5] the Torah forbids the sterilization of humans because it prevents us from fulfilling the mitzvah of procreation (p’ru u’vu, “be fruitful and to multiply”; Genesis 1:28).[6] If this is the case, it would follow that the Torah ought to prohibit all forms of human sterilization and not only those performed by surgical means. And indeed, as we read in the Tosefta: “a man is not permitted to drink a sterilizing drug (ikarin) in order that he not beget children, and a woman is not permitted to drink a sterilizing drug in order that she not bear children.”[7] This text is not universally accepted. A variant manuscript reading preserves a conflicting rule: “… a woman is permitted to drink a sterilizing drug” even though a man is forbidden to do so.[8] This variant is supported by other Rabbinic sources,[9] and its position – that a woman may sterilize herself medically – is adopted by the major codes.[10] Why are women treated differently than men in this case? Commentators cite the majority view in traditional halakhah that the obligation of p’ru ur’vu is incumbent upon males but not upon females. [11] A woman therefore violates no Toraitic obligation[12] when she takes actions to prevent pregnancy, and the rules concerning the sterilization of women are accordingly more lenient than those that apply to men.

 

Reform Judaism does not regard procreation as a chovah, an obligation incumbent upon each and every individual. We take this position for two reasons. First of all, childbearing has historically posed (and to a great extent still poses) significant risks to the health and the lives of women, and it would be morally unacceptable to demand that women accept those risks in order to fulfill the terms of Genesis 1:28.[13] Second, Reform Judaism treasures individual freedom and does not tend to speak of “obligations” or absolute requirements, especially in matters so personal and so fateful as the decision to have children. At the same time, we are by no means neutral or indifferent to the choices that our people make in this realm. Childbearing is an undertaking of deeply important Jewish and religious – as well as personal – significance. We look upon it, therefore, as a mitzvah for the community, an act through which Jews find religious fulfillment and the community finds blessing, even though we do not regard it as an obligation that rests upon each and every individual Jew.[14] This is the position that our Conference enunciates in Gates of Mitzvah, the most systematic guide to Reform Jewish teachings concerning the Jewish life cycle:[15]

 

A-1 The mitzvah of procreation

 

It is a mitzvah for a man and a woman, recognizing the sanctity of life and the sanctity of the marriage partnership, to bring children into the world.

 

A-2 Birth control

 

Reform Judaism respects the right of parents to determine how many children they should have. In considering family size, however, parents should be aware of the tragic decimation of our people during the Holocaust and of the threats of annihilation that have pursued the Jewish people through history. Thus, while Reform Judaism approves of the practice of birth control, couples are encouraged to consider the matter of family size carefully and with due regard to the problem of Jewish survival.

 

These statements are intended as formulations of a general attitude. In a footnote to the above passage, Gates of Mitzvah notes: “There are people who, for a variety of valid reasons, will be unable to fulfill this mitzvah. It should be understood that any mitzvah prescribed in this book is a mitzvah only for those who are physically and emotionally capable of fulfilling it. Those who cannot are considered no less observant and no less Jewish.” How this comment might apply to the specific case before us is the subject of the next section of our responsum. At this juncture, it is enough to say that as a general rule Reform Judaism would strongly counsel against sterilization as a method of family planning for those who have not yet had children. Any irreversible step such as the surgeries mentioned in our sh’elah would definitely run counter to our movement’s teaching that giving birth to children, in addition to offering us one of the most profound blessings of human life, is a mitzvah, a means by which we can realize the higher purposes of Jewish existence and religious fulfillment.

 

2. When is Sterilization Permissible? Despite the general prohibition, under certain circumstances Jewish law will permit and even require the sterilization of human beings. The most obvious example concerns medical necessity: a person suffering from a serious disease is obligated to accept treatment needed to save his or her life even if that treatment would leave that person in a condition of sterility.[16] A key term here is sakanah, “danger,” as in the phrase choleh sheyesh bo sakanah,[17] “a patient suffering from a ‘dangerous’ or ‘serious’ disease.” In other words, sterilization is permissible in order to save a person from a condition that can be classified as sakanah.

 

The problem in this case is that the sakanah that the parents wish to prevent is not a medical danger to their “mentally challenged” children but a potential risk to any offspring that these children might bring into the world. That risk, in turn, is partly a medical one (the possibility that the offspring might inherit their parents’ learning disabilities) and partly a social and psychological one (the difficulties that may await them should their grandparents prove incapable of caring for them). The question we have to address is whether risks of this nature qualify as the sort of sakanah that can justify the extreme remedy of surgical sterilization.

 

We might find a precedent in a question that came before Rabbi Moshe Feinstein, the leading Orthodox posek (halakhic authority) in 20th-century North America.[18] The case concerned an eleven-year-old girl whose severe emotional difficulties required that she be committed to a state-run mental hospital. The girl was described as sexually active, to the point that the hospital physicians recommended that she be sterilized. Does halakhah permit the procedure? Rabbi Feinstein responded in the affirmative: sterilization is permitted “so that the other patients will not sexually abuse her (shelo yinhagu bah minhag hefker).” On its face, Rabbi Feinstein’s ruling is a puzzling one. Other authorities criticize it on the grounds that the remedy does not address the problem: “the girl will continue to be subject to abuse, since sterilization will not decrease her sexual appetite,” let alone the propensity of the other patients to have sex with her. Besides, if the goal is to prevent pregnancy and to forestall the need for abortion, that goal can be met with measures far short of sterilization.[19] In defense of Rabbi Feinstein’s decision, we could speculate that he was not confident that those other measures (birth control pills and the like) would succeed in preventing pregnancy as well and as certainly as sterilization. But there is another potential rationale for his ruling. It could be that his primary concern was not with the girl herself – he was presumably aware that sterilization would not prevent her from engaging in sexual activity – but with the fate of any children that might be born to her. What would become of those children, and who would ultimately care for them? If so, then we could say that a prominent halakhic scholar permits sterilization for reasons quite similar to those advanced in our sh’elah.

 

We think, though, that this interpretation is forced and improbable. Rabbi Feinstein speaks exclusively of the eleven-year-old girl herself; he never mentions the harm that might come to any children who could be born to her. Had that concern been present in his mind, we would expect him to have stated it explicitly. And had he done so, we would have expected him to explain (and not merely to state) his rationale: in what way might the potential dangers awaiting these not-yet-conceived children warrant a remedy as extreme as sterilization? His decision therefore does not apply specifically to our case, and it offers us little guidance as to whether Jewish law would authorize sterilization under circumstances such as those we are discussing here.

 

3. The Case Before Us. The question therefore remains: does Jewish tradition permit the sterilization of an individual in order to prevent him or her from posing a danger to potential offspring? If it does – and we have yet to find clear and convincing proof that it does – it would presumably allow the sterilization only in cases where the potential danger is serious and substantial. Accordingly, we would need to know just how serious and substantial is the danger in this particular case, because it is far from obvious that the mere existence of “mental disabilities” automatically disqualifies Ann and her fiancé from parenthood. This point is argued strenuously by the American Association on Intellectual and Developmental Disabilities, which formulates its policy as follows: “The presence of an intellectual and/or developmental disability does not in itself preclude effective parenting; therefore, the rights of parenthood must not be denied individuals solely on the basis of intellectual and/or developmental disabilities. Parents with intellectual and/or developmental disabilities should have access to support as needed to perform parental roles just as they are supported in other valued social roles and activities.” [20] This last sentence is key. With access to sufficient and proper support of family members, neighbors, and the wider community,[21] intellectually disabled people can function as parents; thus, they need not be presumed incapable or unfit for that role as a matter of course. Since we cannot measure the nature or extent of this couple’s mental disabilities, we cannot answer either “yes” or “no” with any real certainty. What we do know, however, inclines us more to “no” than to “yes.” First of all, the descriptions offered of our couple – Ann has “mild learning disabilities,” her fiancé is “mentally challenged” – do not suggest that their problems are so profound as to warrant sterilization as the only proper course. Rather than upon coaxing them into surgery that will deny them the blessings of parenthood forever, their parents should perhaps concentrate upon securing them the support services they will need in order to raise their children in a safe and secure environment.

 

The word “coaxing” raises a point of special sensitivity. Ann and her fiancé are adults, but their mental disabilities may render them susceptible to tactics of persuasion that for all practical purposes amount to coercion. This would contradict the ethical maxim that adults normally have the right to informed consent over actions taken on their behalf. The problem, of course, is that ours may be a situation in which informed consent is difficult or impossible to obtain.[22] For its part, Jewish tradition does not recognize the doctrine of informed consent or for that matter the more inclusive concept of patient autonomy as the exclusive indices of ethical correctness. On the contrary: the halakhah tends to regard healing as a paramount obligation, to the point that the need to accept vital medical treatment generally outweighs one’s “right” to refuse it.[23] Within the field of secular ethics, too, some argue that under circumstances involving “the best interests of the patient” a mentally disabled person must be sterilized even without his or her informed consent.[24] Yet we ought to be disturbed at the prospect of coerced sterilization undertaken for the supposed “benefit” of the individual or the community. Such measures, adopted in recent memory by a number of nations[25] (including liberal, democratic societies like the United States),[26] have stained the moral reputation of those nations. We regard them today as heinous, and rightly so. [27] Before we decide in favor of human sterilization – a step that, in cases such as this, cannot but involve an element of coercion – we must meet a very high burden of proof. We must be sure that such a fateful step is justified by the circumstances of the case.

 

Conclusion. Surgical sterilization, particularly for those who have not yet had children, stands in sharp conflict with the values of our Jewish tradition and with the positions enunciated by Reform Judaism. Ann may have “mild learning disabilities” and her fiancé may be “mentally challenged,” but those descriptions do not convince us that the couple are incapable of raising children with love and devotion, let alone that they would pose a significant danger to the children they might have. It is possible, of course, that the couple’s disabilities are more severe than these descriptions indicate; if so, it is possible that our answer would change. As a general rule, however, we would counsel against the “remedy” of sterilization for those with mental disabilities. The families, instead, should work to provide the support this couple will need should they bring children into the world. Their synagogue and their Jewish community, moreover, should stand by them and help them in any way they can.

 

 

NOTES

 

 

1.         The midrash is found in B. Chagigah 14b. A variant occurs in B. Shabbat 110b, where the idea is derived from the words lo ta`asu (“you shall not do it”) in the Leviticus verse; the phrase is re-read as lo te`asu, “it shall not be done” (see Rashi, s.v. lo ta`asu). See also Yad, Isurei Bi’ah 16:10; Tosafot Shabbat 110a, s.v. talmud lomar; Shulchan Arukh Even Ha`ezer 5:11. R. Yosef Karo (Beit Yosef to Tur Even Ha`ezer 5) notes the interpretive problem: be’artz’khem (“in your land”) is usually read as referring to the land that belongs to you, i.e., eretz ysirael, the land of Israel. Yet the prohibition is generally understood to be chovat haguf, an obligation incumbent upon persons, regardless of location. Tosafot (loc. cit.) solves the problem by suggesting that the prohibition stems from the suffix -khem (“your,” that is, “it shall not be done by you”) rather than from the beginning of the word (“your land”).

 

2.         Yad, Isurei Bi’ah 16:1. He may marry a female convert (giyoret) or a female Canaanite slave who has been freed and converted to Judaism (m’shuchreret), since the word “assembly” (kahal) in the verse is understood to exclude those who belong to these groups. See M. Yevamot 8:1-2.

 

3.         Sifra, Emor, Parashah 7; Tosefta (ed. Lieberman) Yevamot 8:4.

 

4.         Rambam (Yad, Isurei Bi’ah 16:11) defines the act as patur, meaning that it is forbidden but that it is not punishable by stripes (makot) as is the emasculation of a male (Magid Mishneh ad loc.; Beit Yosef to Tur, Even Ha`ezer 5). The passage includes the females of other species within the scope of the prohibition. See also Shulchan Arukh Even Ha`ezer 5:11 (“patur aval asur”).

 

5.         As we know, there is frequently as difference between the “original” meaning of a Biblical verse, the meaning that would have been ascribed to it by ancient (that is, “pre-Jewish”) Israelite readers, and the way in which the verse is understood and interpreted within the later Rabbinic Jewish tradition. At any rate, the Bible itself never draws an explicit connection between seirus and procreation. The Biblical prohibition may have been motivated by other concerns: a revulsion against human mutilation, perhaps, or by the association of this practice with idolatrous worship. See Jeffrey Tigay, Jewish Publication Society Commentary to Deuteronomy (Philadelphia: Jewish Publication Society, 1996), p. 210 (on Deut. 23:2), and the literature he cites in notes 24-27, p. 386.

 

6.         On the mitzvah of procreation, see M. Yevamot 6:6; Yad, Ishut 15:1; Shulchan Arukh Even Ha`ezer 1:1. Among the sources that connect the prohibition of seirus with the obligation of p’ru ur’vu are B. Shabbat 110b; Tosefta (ed. Lieberman) Yevamot 8:4; Tosafot Shabbat 110a, s.v. vehatanya; Chidushei HaRashba, Shabbat 111a; Chidushei HaRitva, Shabbat 111a; Sefer HaChinukh, mitzvah no. 311; R. Yoel Sirkes, Bayit Chadash to Tur Even Ha`ezer 5, s.v. ve’ishah.

 

7.         Tosefta (ed. Lieberman) Yevamot 8:4.

 

8.         See Lieberman’s note to Tosefta ad loc., as well as his Tosefta Kif’shutah to that passage. The Magid Mishneh commentary to Yad, Ishut 16:12 cites this same variant of the Tosefta passage.

 

9.         B. Shabbat 111a and Yevamot 65b.

 

10.       Halakhot Gedolot, ch. 36, Hilkhot Ketubot; Yad, Ishut 16:12; Shulchan Arukh Even Ha`ezer 5:12.

 

11.       M. Yevamot 6:6; B. Yevamot 65b; Yad, Ishut 15:2; Shulchan Arukh Even Ha`ezer 1:1 and 1:13.

 

12.       On the other hand, the tradition suggests that women partake of a similar, though non-Toraitic, obligation, derived from Isaiah 45:18, to help populate the world. See Magen Avraham to Shulchan Arukh Orach Chayim 153, no. 9 and Mishnah Berurah, Orach Chayim 153, no. 24.

 

14.       This discussion should evoke the distinction between chovah and mitzvah, a familiar one in halakhic literature. See our responsum no. 5758.3, “In Vitro Fertilization and the Mitzvah of Childbearing,” Reform Responsa for the Twenty-First Century (New York: CCAR Press, 2010), at p. 178 and note 47.

 

15.       Shimeon Maslin, ed., Gates of Mitzvah: A Guide to the Jewish Life Cycle (New York, CCAR Press, 1979). The quoted text is found on p. 11.

 

16.       The rules concerning pikuach nefesh, the obligation to set aside virtually every prohibition in the Torah in order to save human life, are generally derived from Leviticus 18:5: “You shall keep my laws… which one shall observe and live by them,” which the midrash interprets as “but not to die by them.” See B. Yoma 85b; Yad, Yesodei Torah 5:1ff; and Shulchan Arukh Yoreh De`ah 157:1. With respect to medicine in particular, the primary text is B. Pesachim 28a: “One may use anything for the purpose of healing, except for idolatry, sexual immorality (gilu’i arayot), and murder”; Yad, Yesodei Hatorah 5:6: Shulchan Arukh Yoreh De`ah 155:2. The rules concerning sterilization are somewhat more complicated, since some authorities apparently prohibit surgical or medical sterilization even for medical purposes (refu’ah); see Tur, Even Ha`ezer 5 and Beit Shmu’el to Shulchan Arukh Even Ha`ezer 5, no. 13. On the other hand, the great 14th-century commentator R. Yom Tov b. Ishbili, citing the phrase “nothing stands in the way of pikuach nefesh” (B. Yoma 82a and Ketubot 19a), permits sterilization for serious medical purposes. This position is taken by a number of recent halakhists, including R. Benzion Meir Hai Ouziel (Resp. Piskei Ouziel, no. 55) and R. Moshe Feinstein (Resp. Igerot Moshe, Even Ha`ezer 3:12). One might still insist upon a distinction between surgical sterilization, which is Toraitically forbidden for males, and sterilization by way of a drug, which does not literally involve that prohibition. We, however, see no reason to apply this distinction in a case of serious medical concern.

 

17.       B. Shabbat 30a and elsewhere; Yad, Shabbat 2:1ff; Shulchan Arukh Orach Chayim 328:11 and elsewhere.

 

18.       Resp. Igerot Moshe, Orach Chaim 2:88. The responsum dates from 1962.

 

19.       Rabbi A. S. Avraham, Nishmat Avraham, v. 5 (Jerusalem: Falk Schlesinger Institute, 1987), p. 102. R. Avraham adds that Rabbi Yehoshua Noivert, a noted Israeli halakhic authority, endorses his critique of Feinstein’s ruling.

 

20.       American Association on Intellectual and Developmental Disabilities (AAIDD), Position Statement: Parents with Intellectual and/or Developmental Disabilities. 2008. http://www.aamr.org/content_3434.cfm (accessed November 2, 2010).

 

21.       The AAIDD Position Statement (see previous note) offers the following examples of support services that ought to be made available to these parents: in-home visits to teach parenting skills; assistance with daily living skills; access to nutritional resources such as “ready to feed” formula; child care, early intervention services, and counseling; basic academic education for parents; assistance in accessing public benefits as appropriate; crisis intervention services, availability of intensive supports as needed, and volunteer mentoring programs.

 

22.       On the concept of “informed consent,” see Reform Responsa for the Twenty-First Century, vol. 2 (New York: CCAR, 2010), no. 5763.2, p. 149, at notes 29-31; http://www.ccarnet.org/responsa/nyp-no-5763-2. The issue there is whether in that particular instance “informed consent” is even possible. The same, obviously, applies here.

 

23.       For a discussion of the interplay between the doctrines of individual autonomy and pikuach nefesh in the context of a liberal approach to Judaism, see our responsum no. 5766.3, “Hunger Strike: On the Force Feeding of Prisoners,” Reform Responsa for the Twenty-First Century, vo.2, pp. 381-395, especially at section 2b (http://www.ccarnet.org/responsa/nyp-no-5766-3).

 

24.       For an example of such an argument, see T. Tannsjo, “Non-Voluntary Sterilization,” Journal of Medicine and Philosophy 31:4 (2006), pp. 401-415. The issue, of course, is extremely controversial, and we do not mean to suggest here that we have resolved all the questions. For a balanced treatment of both sides of the dispute see D. S. Diekema, “Involuntary Sterilization of Persons with Mental Retardation: An Ethical Analysis,” Mental Retardation and Developmental Disabilities Research Reviews 9:1 (2003), pp. 21-26. Similar balance is present in the statement by the Committee on Bioethics of the American Academy of Pediatrics: “Sterilization of Minors with Developmental Disabilities,” Pediatrics 104:2 (1999), pp. 337-340, http://pediatrics.aappublications.org/cgi/content/full/104/2/337 (accessed November 4, 2010).

 

25.       The most obvious example is that of Nazi Germany. See the testimony gathered by the United States Holocaust Memorial Museum, “The Biological State: Nazi Racial Hygiene, 1933-1939,” http://www.ushmm.org/wlc/en/article.php?ModuleId=10007057 (accessed November 8, 2010). See, in general, George J. Annas and Michael A. Grodin, The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation (New York: Oxford University Press, 1992) and Robert Jay Lifton, The Nazi Doctors: Medical Killing and the Psychology of Genocide (New York: Basic Books, 1986).

 

26.       On the eugenics movement in the United States, which flourished during the early- to mid-twentieth century and which led to measures that legalized the compulsory sterilization of “undesirables,” see, in general, Wendy Kline, Building a Better Race: Gender, Sexuality, and Eugenics from the Turn of the Century to the Baby Boom (Berkeley: University of California Press, 2002); Harry Bruinius, Better for All the World: The Secret History of Forced Sterilization and America’s Quest for Racial Purity (New York: Alfred Knopf, 2006); M. A. Hasian, Jr., The Rhetoric of Eugenics in Anglo-American Thought (Athens: University of Georgia Press, 1996); and Daniel Kevies, In the Name of Eugenics: Genetics and the Uses of Human Heredity (New York: Knopf, 1985). We note the racist overtones of the movement in the “Conclusion” of our responsum no. 5768.3, “On Human Genetic Modification,” http://data.ccarnet.org/cgi-bin/respdisp.pl?file=3&year=5768.

 

27.       For an example of such abhorrent thinking on the part of otherwise enlightened intellectuals, consider the notorious decision of the United States Supreme Court in Buck v. Bell, 274 U.S. 200 (1927), which upheld the constitutionality of compulsory sterilization of “feeble-minded” persons. Delivering the opinion of the court, Justice Oliver Wendell Holmes wrote as follows (at p. 207): “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ARR 24-43-2

CCAR RESPONSA

American Reform Responsa

8. Ordination of Women

(Vol. XXXII, 1922, pp. 156-177)

The very raising of this question is due, no doubt, to the great changes in the general position of women, brought about during the last half century or so. Women have been admitted to other professions, formerly practiced by men only, and have proven themselves successful as regards personal achievement as well as raising the standards or furthering the interests of the professions. Hence the question suggested itself, why not admit women also to the rabbinical profession?

The question resolves itself into the following two parts: first, the attitude of traditional Judaism on this point, and second, whether Reform Judaism should follow tradition in this regard. At the outset it should be stated that from the point of view of traditional Judaism there is an important distinction between the rabbinate and the other professions in regard to the admission of women. In the case of the other professions there is nothing inherent in their teachings or principles which might limit their practice to men exclusively. In the case of the rabbinate, on the other hand, there are, as will soon be shown, definite teachings and principles in traditional Judaism, of which the rabbinate in the exponent, which demand that its official representatives and functionaries be men only. To admit women to the rabbinate is, therefore, not merely a question of liberalism; it is contrary to the very spirit of traditional Judaism which the rabbinate seeks to uphold and preserve.

It should be stated further, that these traditional principles debarring women from the rabbinate were not formulated in an illiberal spirit by the Rabbis of old or out of a lack of appreciation of women’s talents and endowments. Indeed the Rabbis of old entertained a high opinion of womanhood and frequently expressed their admiration for woman’s ability and appreciated her great usefulness in religious work. Thus, e.g., they say, “God has endowed woman with a finer appreciation and a better understanding than man” (Nida 45b); “Sarah was superior to Abraham in prophecy” (Tanchuma, Exodus, beginning); “It was due to the pious women of that generation that the Israelites were redeemed from Egypt” (Sota); and “The women were the first ones to receive and accept the Torah” (Tanchuma, Buber, Metsora, 18, p. 27a); and “They refused to participate in the making of the golden calf.” These and many other sayings could be cited from Rabbinic literature in praise of woman, her equality to man and, in some respects, superiority to him. So we may safely conclude that their excluding of women from the rabbinate does not at all imply depreciation on their part of woman’s worth.

But with all their appreciation of woman’s fine talents and noble qualities, the Rabbis of old have also recognized that man and woman have each been assigned by the Torah certain spheres of activity, involving special duties. The main sphere of woman’s activity and her duties centered in the house. Since she has her own duties to perform, and since especially in her position as wife and mother she would often be prevented from carrying on many of the regular activities imposed upon man, the law frees her from many religious obligations incumbent upon men, and especially exempts her from such positive duties the performance of which must take place at certain fixed times, like reciting the “Shema” or at prescribed seasons, like Sukkot (M. Kiddushin 1.7): “Vechol mitsvat aseh shehazeman geramah, anashim chayavim venashim peturut.”

This fact, that she was exempt from certain obligations and religious duties, necessarily excluded her from the privilege of acting as the religious leader or representative of the congregation (Sheliach Tsibur). She could not represent the congregation in the performing of certain religious functions, since, according to the Rabbinic principle, one who is not personally obliged to perform a certain duty, cannot perform that duty on behalf of others and certainly cannot represent the congregation in the performance of such duties: “Kol she-eino mechuyav badavar eino motsi et harabim yedei chovatan” (R.H. III.8; Berachot 20b).

On the same principle, she was expressly disqualified from writing Torah scrolls. Since she could not perform for the congregation the duty of reading from the Torah, the text prepared by her was also not qualified for use in connection with the performance of that duty (Gittin, 45b; Mas. Soferim 1.14). Women were also considered exempt from the obligation to study the Torah (Eruvin 27a; Kiddushin 29b-30a). Some Rabbis even went so far as to object to women studying the Torah (M. Sota III.4). This opinion, of course, did not prevail. Women were taught the Bible and given a religious education, and there were some women learned in the law even in Talmudic times. But to use the phrase of the Talmud (M.K. 18a), “Isha bei midrasha la shechicha,” women were not to be found in the Beit Hamidrash, in the academies and colleges where the rabbis assembled and where the students prepared themselves to be rabbis. Evidently, the reason that they could not aspire to be rabbis, was that the law excluded them from this religious office.

This law, that women cannot be rabbis, was always taken for granted in the Talmud. It was considered to be so generally known and unanimously agreed upon that it was not even deemed necessary to make it a special subject of discussion. The very idea of a woman becoming a rabbi never even entered the mind of the Rabbis of old. It is for this reason that we find only few direct and definite statements to the effect that women cannot be rabbis. Only occasionally, when the discussion of other questions involved the mentioning of it, reference–direct or indirect–is made to the established law that women cannot act as judges or be rabbis. Thus, in a baraita (Pal. TalmudShevu-ot 4.1, 35b, and Sanhedrin 4.10, 21c) it is stated “Harei lamedan sheha-isha einah dana,” “We have learned that a woman cannot act as judge,” i.e., cannot render decisions of law. The same principle is also indirectly expressed in the Mishna (comp. Nida 6.4 and Shevu-ot 4.1). In the Talmud (Gittin 5b), it is also indirectly stated that a woman cannot be a member of a Beit Din, i.e., a rabbi or judge. For there it is taken for granted that she could not be one of three who form a tribunal or Beit Din to pass upon the correctness of a bill of divorce or of any other document (see Rashi, ad loc.).

In the Midrash (Num. R. 10.5) it is also quoted as a well-known and established principle that women may not have the authority to render decisions in religious or ritual matters: “Shehanashim einam benot hora-a.” These Talmudic principles have been accepted by all medieval Jewish authorities. Maimonides (Yad, Sanhedrin II.7) declares that the members of every tribunal or Beit Din in Israel, which means every rabbi, dayan, or moreh hora-a in Israel must possess the same qualities which characterized the men whom Moses selected to be his associates and whom he appointed judges and leaders in Israel. These qualities, Maimonides continues, are expressly stated in theTorah, as it is said: “Get you from each one of your tribes men, wise and understanding and full of knowledge, and I will make them heads over you” (Deut. 1:13). Maimonides here has in mind the idea, entertained by the rabbis of all generations, that the rabbis of each generation continue the activity and are the recipients of the spirit of those first religious leaders of the Jewish people. For, as is well known, Mosheh Rabbenu and the Seventy Elders who formed his Council were considered the prototypes and the models of the rabbis of all subsequent generations (comp. Mishna, R.H. II.9). Likewise, R. Aaron Halevi of Barcelona (about 1300 C.E.) in his Sefer Hachinuch(nos. 74, 75, 77, 79, 81, 83), Jacob Asheri in Tur, Choshen Mishpat VII, and Joseph Caro in Shulchan Aruch, Choshen Mishpat VII.3–all expressly state the principle that a woman cannot officiate as judge or rabbi. It hardly need be stated that when some of the sources use in this connection the term “Judge” (dayan) they, of course, mean rabbi, for which dayan is but another name. In rabbinic terminology the functions of a rabbi are spoken of as being “ladin ulehorot,” to judge and decide religious and ritual questions. And even in our modern rabbinical diploma we use the formula “Yoreh yoreh, yadin yadin,” giving the candidate whom we ordain the authority to judge and decide religious questions and to give authoritative ruling in all religious matters. To be sure, the Rabbis do permit the women to be religious teachers, like Miriam, who, according to the Rabbis, taught the women while Moses and Aaron taught the men (Sifrei Zuta, quoted inYalkut Shim-oni, Behaalotecha, 741 end), and Deborah, whom the Rabbis believed to have been merely teaching the law (Seder Eliyahu R. IX-X, Friedman, p. 50; compare also Tosafot, B.K. 15a, s.v. “asher tasim” and parallels). Some authorities would put certain restrictions upon woman even in regard to her position as teacher (see Kiddushin 82a, and Maimonides, Yad, Talmud Torah II.4), but in general, the opinion of the Rabbis was that women may be teachers of religion (see Chinuch, 152, and comp. Azulai in Birkei Yosef to Choshen Mishpat VII.12); and as a matter of fact, there have always been learned women in Israel. These women-scholars were respected for their learning in the same manner as learned men were respected (see Sefer Chasidim, 978, and comp. also Sede Chemed I, letter Kaf, no. 99), and some of these women scholars would occasionally even give lectures in rabbinics; but they have never been admitted to the rabbinate, since all the rabbinic authorities agree, at least implicitly, that women cannot hold the office of a rabbi or of a Sheliach Tsibur and cannot perform any of the official functions requiring the authority of a rabbi.

This is the attitude of traditional Judaism towards the question of women rabbis, a view strictly adhered to by all Jewry all over the world throughout all generations, even unto this day.

Now we come to the second part of our question; that is, shall we adhere to this tradition, or shall we separate ourselves from Catholic Israel and introduce radical innovation which would necessarily create a distinction between the title Rabbi as held by a Reform rabbi and the title Rabbi in general? I believe that hitherto no distinction could rightly be drawn between the ordination of our modern rabbis and the ordination of all the rabbis of preceding generations. We are still carrying on the activity of the Rabbis of old who traced their authority through a chain of tradition to Moses and the Elders associated with him, even though in many points we interpret our Judaism in a manner quite different from theirs. We are justified in considering ourselves the latest link in that long chain of authoritative teachers who carry on their activity of teaching, preserving, and developing Judaism. For our time we have the same standing as they had (comp. R.H. 25a). The ordination which we give to our disciples carries with it, for our time and generation, the same authority which marked the ordination given by Judah Hanasi to Abba Areka or the ordination given by any teacher in Israel to his disciples throughout all the history of Judaism.

We should therefore not jeopardize the hitherto indisputable authoritative character of our ordination. We should not make our ordination entirely different in character from the traditional ordination, and thereby give the larger group of Jewry that follows traditional Judaism a good reason to question our authority and to doubt whether we are rabbis in the sense in which this honored title was always understood.

Nor is there, to my mind, any actual need for making such a radical departure from this established Jewish law and time-honored practice. The supposed lack of a sufficient number of rabbis will not be made up by this radical innovation. There are other and better means of meeting this emergency. This could be accomplished if our rabbis would follow the advice of the men of the Great Synagogue, to raise many disciples and thus encourage more men to enter the ministry. And the standard of the rabbinate in America, while no doubt it could be improved in many directions, is certainly not so low as to need a new and refining influence such as the influence brought by women to any profession they enter. Neither could women, with all due respect to their talents and abilities, raise the standard of the rabbinate. Nay, all things being equal, women could not even raise it to the high standard reached by men, in this particular calling. If there is any calling which requires a wholehearted devotion to the exclusion of all other things and the determination to make it one’s whole life work, it is the rabbinate. It is not to be considered merely as a profession by which one earns a livelihood. Nor is it to be entered upon as a temporary occupation. One must choose it for his life work and be prepared to give to it all his energies and to devote to it all the years of his life, constantly learning and improving and thus growing in it. It has been rightly said that the woman who enters a profession must make her choice between following her chosen profession or the calling of mother and home-maker. She cannot do both well at the same time. This certainly would hold true in the case of the rabbinical profession. The woman who naturally and rightly looks forward to the opportunity of meeting the right kind of man, of marrying him, and of having children and a home of her own, cannot give to the rabbinate that wholehearted devotion which comes from the determination to make it one’s life work. For in all likelihood she could not continue it as a married woman. For, one holding the rabbinical office must teach by precept and example, and must give an example of Jewish family and home life where all the traditional Jewish virtues are cultivated. The rabbi can do so all the better when he is married and has a home and a family of his own. The wife whom God has made as helpmate to him can be, and in most cases is, of great assistance to him in making his home a Jewish home, a model for the congregation to follow. In this important activity of the rabbi–exercising a wholesome influence upon the congregation–the woman rabbi would be deficient. The woman in the rabbinical office could not expect the man to whom she was married to be merely a helpmate to her, assisting her in her rabbinical activities. And even if she could find such a man, willing to take a subordinate position in the family, the influence upon the families in the congregation of such an arrangement in the home and in the family life of the rabbi would not be very wholesome. (Not to mention the fact that if she is to be a mother she could not go on with her regular activities in the congregation.) And there is, to my mind, no injustice done to woman by excluding her from this office. There are many avenues open to her if she chooses to do religious or educational work. I can see no reason why we should make this radical departure from traditional practice except the specious argument that we are modern men and, as such, we recognize the full equality of women to men, hence we should be thoroughly consistent. But I would not class the rabbis with those people whose main characteristic is consistency.

Jacob Z. Lauterbach

Discussion

Rabbi Levinger: I feel very strongly on this question. When we look at the various denominations in this country who are opposed to ordaining women as ministers we find that they are those who, like the Episcopalians and the Catholics, look upon their ministers as priests. To us the rabbi is merely a teacher and preacher. The question is not whether there are a great many women who want to become rabbis. Perhaps there are none at all. But we are called upon to act on a matter of principle, and if in the next thirty or forty years we produce but one Anna Howard Shaw, we want her in the rabbinate.

Rabbi Witt: I was present at the meeting of the Board of Governors when the matter came up, and it was decided to refer it to the Conference. After reading the responsa that were prepared by Rabbi Lauterbach, I feared that there would be much opposition. I trust that our action in this matter will be unanimous. It is not a matter of tradition at all. I must confess I was not in the least interested in Rabbi Lauterbach’s presentation. It seemed reactionary to me. I did not feel that it was the proper presentation of the subject.

I need not say that I honor Dr. Lauterbach for the learning contained therein, but the point he presents is not the point at issue. We have witnessed the revolution in the status of women. Five years ago I had to argue in favor of women’s rights when that question came up in the Arkansas legislature, but I did not feel that there would be need to argue that way in a liberal body of men like this.

There is a principle involved, and I hope that the stand we take will be one in line with all the progressive tendencies of our day; that we will have the vision to see what is before us. From the standpoint of today, shall we say to women that they shall not have the right to function as we are functioning?

The question is: Have they the qualifications to function as spiritual leaders?

What does it require to be a spiritual guide? It requires a great spirit and the quality of leadership. Some women have it and some women have not. Some men have it and some men have not. If we had a great leadership we would not have the questions which were so ably presented yesterday among the practical questions of the ministry. The one thing that was stressed was that if we had devoted leaders who could inspire following, all the problems would vanish.

I believe that this body of men should do nothing that would stand in the way of any forward movement in behalf of the womanhood of America. I cannot believe that a religion that is so splendidly spiritual and forward-looking as our religion will stand in the way of such a movement. I feel that this Conference can only act in one way, and that is to fall in line with what is the destiny of the women of the future.

Rabbi Weiss: In a large measure I agree with the previous speakers. I agree with all that has been said in favor of ordaining women as rabbis. I believe I am second to none in the rabbinate in the matter of idealism. But a vast measure of compromise must enter into all situations of life. I do not believe that we can have life exactly as we would like to have it. There is a vast debt due to cold austere justice, but there are fourteen million Jews in the world, and they must be considered. In the city of New York alone there are a million and a half who look upon you with a degree of respect but who have their own mode of procedure and who would look upon any radical action on your part as a line of cleavage in the House of Israel. I merely mean that we should proceed slowly. I believe that some compromise can be effected, such as allowing women to be teachers or superintendents; but I believe that it would be unwise at the present time to have them ordained as rabbis. Let me give one concrete illustration. Suppose a woman were to sign a marriage document. To many in New York today such a ceremony would hardly be recognized as binding.

Rabbi Brickner: There is much merit in what Dr. Lauterbach has said. He has not stressed the question of opinion, but the question of practicability. Modern psychologists agree that women do not differ from men so much in intellect. In fact, experiments prove that women are the peers of most men. There are women occupying positions in modern industry in which they could not be equaled by many men. It is not a question of equality. All that Dr. Lauterbach has said has already been said against women entering other professions. The question with us is one of practicability. The tendency in modern Judaism is to conserve Jewish values. We wish to be in touch with the masses of Jewish people. When I came away from Toronto the other day I clipped from the newspaper the vote of the Methodist Church in Canada. It represents the liberal traditions in Canada. And yet it voted by a small majority against permitting women into the ministry. It is not a question of principle or equality–on that we are all agreed. It is purely a question of practicability.

Rabbi Charles S. Levi: The matter before you is not a matter of the hour, but a matter of all times. It is a matter that touches upon the acknowledged leadership of our people, and reaches the lives of uncounted thousands of our American co-religionists. We are the links in the chain of time. We are the spokesmen who give expression to the great truths which bind the past to the future, and it is for us to keep alive the chain of tradition.

Rabbi Rauch: I listened with great interest to Dr. Lauterbach’s presentation and was at first inclined to agree with him, but as he proceeded it struck me that there was a great omission. He gave a fine presentation of the traditional point of view and even hinted at certain modern needs, but I regret to say that he failed to touch on what Reform Judaism has to say on the subject. And yet our whole interpretation of religious life is supposedly based on the principles of Reform Judaism. Now what has the philosophy of Reform Judaism to say in regard to woman? I know from experience because I was born in an Orthodox environment. There was a very clear line of distinction between the boy and the girl, and the education given to the boy and girl. The boy had to learn Scriptures, while the girl was not expected to learn them. Many duties were imposed upon the boy, few upon the girl. This went on for centuries. What happened when Reform came in? One by one the barriers separating the boy from the girl educationally began to be broken down. We admitted the girls into the same schools, and we tried to teach them the same things. Even in the important ceremony of Bar Mitzvah we brushed aside the traditional point of view and we said that the girl should be educated and confirmed the same as the boy. And in our congregations, which is the practical side of our religious life, we have given to women exactly the same status as to men. In my own congregation women conduct the summer services, and they conduct them just as well as–if not better than–they used to be when we got someone temporarily for the summer. In every line of endeavor in our temples we have proceeded on the theory that woman is the equal of man. What do they ask us to do? They want us to make it possible for women to work along the same lines as we men are working. We do not ask privileges for them. Let there be the same demands, the same rigorous training, and let the congregation decide whether the woman is doing the work well or not. I do not think that our course will be hurt by a liberal attitude.

Rabbi Englander: Personally, I was surprised to learn that the Board of Governors submitted this question to the Conference. I thought that after the faculty–a body composed of the teachers–had taken action, that would be sufficient guidance for action on the part of the Board of Governors. However, I wish to touch on one argument which has been raised to the effect that if we admit women as rabbis we would tend to create a schism in Israel. During all the conferences in recent years there have been many actions that we would not have taken had we feared this. We would not have set ourselves on record against Zionism. Had fear been taken into consideration, we would not have taken a stand on many subjects. Twenty years ago, this Conference put itself on record favoring absolute religious equality of women with men. Are we going back on our own action? In spite of all the arguments advanced by Dr. Lauterbach, the faculty set itself on record as favoring the ordination of women, although it stated that at the present time it believed it was impractical for women to enter the rabbinate. But I do not believe that the question of practicability is for us to decide. The only question before us is: Shall we, in the light of Reform Judaism, put ourselves in favor of admitting women to the rabbinate?

A motion is made that further discussion be discontinued.

Rabbi Morgenstern: I do not care to express any opinion upon this subject, because–you can readily understand–inasmuch as this question has been submitted by the College authorities to the Conference to get an expression of opinion, I am here rather to listen than to offer any opinion I myself may have. I realize that the time of the Conference is very precious and that you -cannot afford to give more time than is necessary to the discussion of this question, but I believe that the question is of such importance that it ought to justify the expenditure of as much time as may be necessary for a thorough discussion of the question. Several of the men lay emphasis upon the significance of the principle of not breaking with Catholic Israel. We have heard the arguments, but there are several valuable thoughts which have not yet been presented. And there is one phase of the question which has not been adequately discussed. We can all accept the opinion of Dr. Lauterbach as authoritative, namely, that from the point of view of traditional Judaism the ordination of women would not be permitted. We need not discuss that. But the practical aspect of the question has not been discussed. Namely, is it expedient, and is it worthwhile?

Rabbi Abrams: It seems to me that the question resolves itself into three parts. First, what is the principle? Second, is it consistent? Third, is it practical?

As a matter of principle, women ought to be ordained, as we now recognize that they are entitled to the same privileges and rights as men. Our ancestors never asked, is it practical? They asked, is it the will of God? And thus they settled the question for themselves. But we must ask the question, is it in keeping with the tradition of the past? In the whole paper of Rabbi Lauterbach we do not find the statement that women could not be ordained as rabbis. Indirectly we inferred that they may not be ordained because we do not find any women who were ordained. At the most, sentiment was against it; but sentiment has been against women going into many of the professions even today. But that does not mean that they should not be ordained or could not be according to traditional laws.

What is our ordination today? In spite of our claim that we are the descendants of the ancient Rabbis, we must admit that the function of the modern rabbi is entirely different from the function of the Rabbi of old. In olden times, he was the judge. That was his chief function. Preaching and teaching were secondary. If we were to lay claim to be lineal descendants of the ancient teachers, we must go to the prophets of the Bible. We are the followers of the prophets more than of the Rabbis. And if we would follow the example of the women of the Bible, we would find that many women served as prophets and that during Talmudic times many of them taught. So we are not inconsistent with the past if we put ourselves on record as favoring the ordination of women.

Rabbi Joseph L. Baron: I enjoyed thoroughly the scholarly paper of my teacher on the negative view of the question, and I shall not deny that the admission of women into the rabbinate will, like any innovation, shock some people and call forth opposition and ridicule. But I wish to point out several flaws in the negative argument. Professor Lauterbach intimates that the matter has hitherto never arisen as a practical issue because it has been taken for granted that a woman cannot, in the capacity of a rabbi, carry out, or represent the people in, a function in which she is not personally obliged to participate. How, then, can we infer from this that with the full entry of woman in all the religious functions of home and synagogue, she must still be denied the privilege of ordination? We broke with tradition long ago when we granted women an equal standing with men in all our religious functions.

I disagree entirely with the remark that by taking the proposed step, we shall create a schism. The Russian Jews, to whom reference has been made, do recognize and follow women leaders, as in the radical factions. And if women are not recognized as leaders in the Orthodox synagogue, let us not forget that neither are we recognized as such. There is a distinct difference made, even in the Yiddish terminology, between a Rav and a Rabbi. Again, we broke with tradition long ago when we declared that a rabbi need not be an authority on questions of kashrut; and I need not mention which, from the point of view of Orthodoxy, is the greater offense.

When I received the responsum of Dr. Lauterbach a week or two ago, I inquired as to the attitude of the members of a Unitarian Church in Moline, where a woman has been officiating for about half a year, and the reply was very favorable. That minister is not falling behind her male predecessors in her zeal and ability in handling all the problems of the church. So, as to the practicality of the matter, I believe that should be left entirely with the individual congregation.

Rabbi James G. Heller: I do not believe that the Conference has the right to appeal to its duty to “Catholic Israel” in order to settle this question. In the past, many decisions have been taken which evidenced no regard for mere keeping of the peace. The one question at issue, the one question that should be discussed by this Conference, is whether in principle the admission of women into the rabbinate is desirable, and whether it is in accordance with the historic teachings of Reform Judaism. The entire content of Dr. Lauterbach’s responsum can, to my mind, be summed up in that very logical inconsistency to which he refers toward the end of his paper in so laudatory a manner. He must complete the syllogism contained in his remarks. Since traditional Judaism, Orthodoxy, did not require women to perform certain duties or functions, did not permit them to share in certain duties or functions, did not permit them to share in certain religious acts, it could not allow them to become teachers of these same duties. And, per contra, since Reform Judaism requires and asks of women the performance of every religious duty in the catalogue, it cannot deny them the right to become teachers and preachers.

Rabbi Samuel S. Cohon: I wish to call your attention to the fact that in other professions there is a great deal of prejudice against women even where they administer with considerable success. You would imagine that women would welcome the services of women physicians; but in actual practice it is stated that women are more bitterly opposed to female practitioners than are men.

In the legal profession we also know that in many instances women are debarred from practice. But I believe that many of us who realize how much our wives have helped us, how they have cooperated with us, how they have borne many of the responsibilities, also realize that they should be given the opportunity to assume this work on their own accord, if they so desire. Of course, there will be prejudice against women in the rabbinate, but if one congregation is found that will welcome a woman, the opportunity should be granted.

Rabbi Frisch: We have made greater departures from tradition in Reform Judaism than the one which is before us, so we can afford to dismiss this question without further discussion. But I regard the ordination of women as the last step in the removal of restrictions in the Jewish faith. She is fitted by temperament and by all of her qualifications to the position of teacher, and she has been granted the right to participate in all our congregational activities as the equal of man. Civilization has had cause to regret every restriction which it has placed in the way of those who wanted to be free.

I have been wondering whether we are not denying ourselves a new source of strength, a new source of inspiration, by our reluctance to admit women to the rabbinate. I recognize the handicaps, but I believe that the women who surmount the obstacles will be greater spirits than the men who are in the rabbinate today. Will it be any greater reproach for a woman to give up the ministry for the sake of maternity than it is for a man to give it up to seek a livelihood in other work? I think it will be for a nobler reason. If we get women into our midst as rabbis, I believe that we will be enjoying some of the inspiration and strength which we feel we need. So I plead that we place ourselves on record as in full sympathy with a further emancipation of women by their ordination as rabbis in Israel.

Rabbi Stern: Emotionally I am conservative and I do not like to break with the past, but I cannot agree with Rabbi Lauterbach in this instance. Is it not essential for us first to decide what is the principle? I believe the practical will take care of itself. It is very interesting to note that in the city of New York a professor in the Seminary, the rabbi of an Orthodox congregation, had a Bar Mitzvah of girls. This is very interesting and shows that the other wing of Judaism is also making progress.

A motion that the opinions of members which have been sent in should be read

was introduced. The motion lost.

Rabbi Morgenstern: I think there is one possible source of information that we have not heard from and whose opinion would be very helpful to us. I mean the wives of the rabbis present. It would help us to get an expression of opinion from the women, if some of the wives would be willing to give us their ideas based on many years of experience in this work. I would ask that this opportunity be given to the ladies to express their opinions.

It was moved that the courtesy of the floor be extended to any of the ladies present who cared to take part in the discussion.

Mrs. Frisch: When I entered the hall this morning, I was opposed to the ordination of women as rabbis. I am now in favor of it. I have been much impressed with what I have heard.

The reason I was opposed to the ordination of women was what you would call the practical reason. I now feel that whatever practical reasons I may have had cannot be compared in value with the matter of principle which has been mentioned here this morning.

The practical reason that I had in mind was that I, as a wife and mother, did not understand how a woman could attend to the duties which devolve upon a rabbi and at the same time be a true home-maker. Candidly, I do not see at this moment how it can be accomplished. I cannot solve this question, but there may be some women who would prefer a life of celibacy in order to minister to a congregation.

Personally, I am selfish enough not to be willing to give up the happiness of wifehood and motherhood for this privilege, great though it may be. But I love the work of the rabbinate so much that could I have prevailed upon myself to forget the joys that come with home-making, I should have become a rabbi. I do not believe that privilege should be denied women, and it behooves us to go on record as being in favor of this development.

Miss Baron: I am connected with Jewish work in New York City and I know that since the Jewish woman has entered this work it has intensified the value of Jewish education. I believe that should the Jewish woman enter the rabbinate, she will be able to intensify the religious feeling of our people.

Mrs. Berkowitz: I am more than satisfied to be the silent member of our partnership, but I believe that it is the function of women to give spiritual value to the world, and especially the Jewish woman–imbued with the Jewish spirit–will naturally bring a certain quality to the ministry which some of our men lack. I think that might be enlarged and strengthened, and therefore should like to see our women become rabbis, if they wish to do so.

A motion that action on this resolution be postponed until next year lost.

A motion that a referendum vote of the members of be taken lost.

A motion that this resolution be referred to the Committee on resolutions lost.

Rabbi Joseph Leiser: The objections of Professor Lauterbach concerning the admission of Jewish women to the rabbinate are inadequate. His thesis, that the rabbinical profession is a career and involves the totality of life to the preclusion of even the function and offices of motherhood, is not valid and is no more applicable to the Jewish woman as rabbi than it is to the Jewish woman as lawyer, doctor, dentist, newspaper writer, musician, businesswoman, or teacher. In all these trades and professions, Jewish women are actively engaged beyond the consideration or limitations of sex and in spite of previous sex taboos. As a profession, the rabbinate ought to be open to women on a parity with that of men, provided women receive a degree for academic training carried on according to approved standards.

But my objection to the position maintained by Professor Lauterbach rests on more fundamental contentions than of sex discrimination in the rabbinate. The Professor fails to analyze the rabbinate in the light of its function and activity in the world today. He carries over into America, a modern America, the methodology and outlook of an Orthodox rabbi whose function is that of a lawyer, one who renders decisions in an ecclesiastical court from codes drawn up by established standards of behavior. Orthodox Judaism rests upon laws of conformity: one discharges his duties; one learns them and fulfills them. Whereas Reform Judaism releases the individual and enables him to realize his own nature, and therefore allows him to contribute whatever there is implanted within his soul and mind in humanity.

This difference in motivation is translated to the profession of the rabbi, as it is interpreted in Reform Judaism.

The mere repudiation of the authority of the Talmud and Shulchan Aruch is not sufficient to constitute one as a Reform rabbi; nor does the acceptance of these make one an Orthodox rabbi. To be sure, the Orthodox rabbi is learned in the law, since the very nature and constitution of his profession require it. But the Reform rabbi is not primarily a legal expert. The modern rabbinate has become an institution, just as the synagogue has developed functions other than those pertaining to worship and the discharging of ceremonial observances. In these days it serves more than one purpose, and therefore requires more than one type of professional labor.

The variety of activities that are now released in the ordinary synagogue calls for a number of workers, all of whom must be filled with the knowledge of God. The new work recently developed in the synagogue appeals particularly to the woman, who by nature and training is singularly fitted to undertake it.

It will be said in rebuttal that while the need and ability of these modern activities within the synagogue may require the professional assistance of women, these functions do not require the training and professional equipment of a rabbi. This is a mistake. Mere inclination provides access to those qualities of emotionalism and undisciplined enthusiasm which endanger the assistance of a woman. Professional training is required for the expert in the religious institution of the synagogue. In the departments of education, as our synagogues are elaborating them, a Jewish woman is particularly well qualified, providing her training in rabbinics is grounded in a thorough knowledge of the literature.

A Jewish woman is the logical adjunct to young people’s societies and organizations, and no synagogue is complete without these new features.

The social activities of a congregation are dependent on the social instincts of a woman. Her rabbinical training enables her to link up these activities with tradition and provides the background of Jewish consciousness to this work.

The pulpit, and whatever pertains to it, is–and remains–a plane wherein man is by nature and temperament best qualified, although not exclusively so. But woman, by reason of self-limitation, is not disqualified. Viewing the rabbi in the light of a prophet and the man of vision, he–more than woman–responds to this unusual endowment. Men are prone to be idealists. They are quick to see visions. They are the dreamers. To men is given the gift of prophecy, but not exclusively (as the careers of Hulda and Deborah testify). Men are called upon by God to be pathfinders, liberators, protagonists of right, brandishing the shining sword of justice before the hosts of evil-doers. In the defense of right, men will face the outrages of the world alone.

On the other hand, women are conservative, and seldom are impelled to stand forth and proclaim these eternal convictions. They are pacifists, importunists, moderators, trimming their sails to whatever winds blow on the seven seas of thought. Remember that while it was due to the merit of women that the children of Israel were redeemed from Egypt, it was only merit, not the fierce rebellion of a Moses, saying, “Let my people go free!” that wrought the miracle.

Were the woman as rabbi merely confined to pulpit discourses and the formal aspects of ceremonials, her admission to the profession would be inept and otiose. The synagogue, however, has enlarged its tent cords of service. It is an institution of which the pulpit is part, not the totality. Being only a feature of the institutional labor, there are spheres of activity in the synagogue that not only can be filled by woman, but are primarily her province.

Rabbi Neumark: I. “This fact that she was exempt from certain obligations…she could not…represent the congregation in the performance of such duties” (R.H. III.8; Berachot 20b). Against this argument the following can be said:

First, the traditional functions of the rabbi have nothing to do with representation of the congregation in the performance of certain religious duties from which women are freed. There are certain categories of men, such as are deformed and afflicted with certain bodily defects, who could not act as readers, but could be rabbis for decisions in ritual matters and questions of law.- The same holds true of people with a “foreign accent” in Hebrew.

Second, women are not free from the duties of prayer, grace after meal, and Kiddush, and they can read for others (cf. Mishna and Bab. Gemara, Berachot, 20a,b). Thus, even in our modern conception of the function of the rabbi, which includes reading, woman can act as representative according to traditional law. Of course, “Tefila” here is used in its technical meaning–“Eighteen Prayers”–while Prayer in its general meaning of Divine Service had the “Shema” in its center, and woman was freed from its obligatory reading. But no Orthodox Jew ever waited with the obligatory reading of the “Shema” for the public service; it has, at least in post-Talmudic times, always been done right in the morning, privately.

Third, the practice within Reform Judaism has decided in favor of admitting women as readers of the Divine Service. And since we are interested in the traditional law on the subject only in order to take from it a clue for Reform practice, this argument would be of no consequence even if it were valid, as it is not. If a woman is to be debarred from the rabbinate in Orthodox Judaism because she cannot serve as a reader, then the only logical consequence would be that Reform Judaism, which has decided in favor of the woman reader, should disregard the Orthodox attitude, and admit women to the rabbinate.

II. The reason why a Torah Scroll written by a woman was considered unfit is not, as Dr. Lauterbach claims, because she could not be reader of the Torah, but quite a formal one: Whosoever has not the obligation of binding (Tefilin), has not the fitness of writing (a TorahScroll) (Gittin 45b; Men. 42b). The above reason is given in Soferim I.13, but there, woman is not debarred from writing a Torah Scroll.

III. In Bavli, Mo-ed Katan 18a, it is not said that “women were not to be found in the academies and colleges where the rabbis assembled and where the students prepared themselves to be rabbis.” It is only said “Isha bei midrasha la shechicha,” “A woman is not often to be found in Beit Hamidrash. The academies and colleges of those days were not institutions for training rabbis, but institutions of learning, most of whose students were pursuing other vocations. A woman in those days was supposed to keep away from all public places, such as courts and the like, and even, as much as possible, from the streets: “Kol kevodah bat melech penima.”

IV. As to the direct question of the legal situation, I have discussed that matter in the opinion which I have submitted to the faculty of the Hebrew Union College. I want to add the following remarks: 1. The statement of Yerushalmi Sanh. 21c and Shev. 35b, that a woman cannot serve (occasionally) as judge, is not from a baraita, as Dr. Lauterbach claims, but occurs in a discussion between two Amoraim. 2.”Lamadnu” does not mean “we have learned,” but is a technical term for an inference on the virtue of an hermeneutical rule; in this case,Gezera Shava. 3. Nowhere in Talmudic but always by Tanya literature is a baraita introduced by “tanei,” “lamadnu,” and the like. 4. The emphasis on “men” in the quotation from Maimonides is not justified.

V. As to the practical question of the advisability to ordain women at the Hebrew Union College, I do not believe that the Orthodox will have any additional reason to object. They themselves employ women in their schools as teachers and readers, and our women rabbis will not do more than this. In fact, the entire question reduces itself to this: women are already doing most of the work that the ordained woman rabbi is expected to do, but they do it without preparation and without authority. I consider it rather a duty of the authorities to put an end to the prevailing anarchy by giving women a chance to acquire adequate education and an authoritative standing in all branches of religious work. The practical difficulties cannot be denied. But they will be worked out the same way as in other professions, especially in the teaching profession, from the kindergarten to post-graduate schools. Lydia Rabbinowitz raised a family of three children and kept up a full measure of family life while being a professor of bacteriology. The woman rabbi who will remain single will not be more, in fact less, of a problem than the bachelor rabbi. If she marries and chooses to remain a rabbi–God blesses her–she will retire for a few months and provide a substitute, just as rabbis generally do when they are sick or are involved in an automobile accident. When she comes back, she will be a better rabbi for the experience. The rabbinate may help the women, and the women rabbis may help the rabbinate. You cannot treat the Reform rabbinate from the Orthodox point of view. Orthodoxy is Orthodoxy and Reform is Reform. Our good relations with our Orthodox brethren may still be improved upon a clear and decided stand on this question. They want us either to be Reform or to return to the fold of real, genuine Orthodox Judaism whence we came.

See also:

“Resolution,” CCAR Yearbook, vol. 3, 1893, p. 40; vol. 32, 1922, p. 51; vol. 85, 1975, p. 70. “Resolution,” National Federation of Temple Sisterhoods, 1961, 1963.

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