Responsa

CARR 109-112

CCAR RESPONSA

Contemporary American Reform Responsa

68. Status of a “Completed Jew” in the Jewish

Community

QUESTION: There are a number of individuals in the

community who consider themselves as “completed Jews” or “Messianic Jews”; they accept

Jesus as their savior, but, nevertheless, still feel Jewish “in their hearts.” How should the

congregation view such individuals? (Rabbi A. S. Task, Greensboro, NC)ANSWER:

Individuals who feel a vague attachment to one or another religion pose no problem for those

religious groups which leave identification solely in the hands of the individual. Judaism,

however, does not do so. It is not the individual who defines whether she is Jewish but the group.

For us in the Jewish community anyone who claims that Jesus is their savior is no longer a Jew

and is an apostate. Through that belief she has placed herself outside the Jewish community.

Whether she cares to define herself as a Christian or as a “fulfilled Jew,” “Messianic Jew,” or any

other designation is irrelevant; to us she is clearly a Christian. It is true that this individual may

be somewhat different from other Christians as she continues to follow certain Jewish practices

and folkways, but we should remember that various Christian sects do likewise. For example, the

Seventh Day Adventists observe shabbat as their day of rest. There are some Black

Christian groups who also follow specifically Jewish observances, and there have been other

groups like this in the past centuries. We should, therefore, consider a “completed

Jew” as an apostate. What would her status be for us? Judaism has always considered those

who left us as sinners, but still remaining as Jews. They could always return to Judaism through

teshuvah, and the exact response of Judaism depended very much on the conditions of

the time. Hai Gaon (as quoted by Aderet Responsa, VII #292) felt that an apostate could

not be considered as a Jew. Centuries later the rabbis of the Mediterranean Basin had to face

the problems of the Marranos (anussim). Their attitude differed greatly and may be

summarized under five headings: (1) Apostates were Jews who had sinned but,

nevertheless, remained Jewish (Isaac ber Sheshet; Simon ben Zemah of Duran, but on some

occasions he did not grant this status; Solomon ben Solomon; Zemah ben

Solomon). (2) Those who considered the apostate as Jewish only in matters of

matrimony (and so their offsprings were Jewish), but not in any other area (Samuel de

Medina). (3) Marranos (anussim) were non-Jews in every respect including

matters of marriage; their children were not considered to be Jews (Judah Berab, Jacob Berab,

Moses ben Elias Kapsali, etc.). (4) An apostate was worse than a Gentile (ben

Veniste, Mercado ben Abraham). (5) Descendants of the Marranos who have been

baptized were like Jewish children who have been taken captive by non-Jews, and their children

are Jewish (Samuel ben Abraham Aboa). A full discussion of the problem may be

found in H. J. Zimmel’s Die Marranen in de Rabbinischen Literatur pp. 21 ff. One extreme

position was held by Solomon ben Simon Duran (Rashbash Responsa #89) who felt that

not only the apostate but also the children would continue to be considered Jewish forever into

the future as long as the maternal line was Jewish. He also felt that nothing needed to be done

by any generation of such apostates when they returned to Judaism. No ritual bath or any other

act was considered necessary or desirable. In fact, he emphasized that no attention be given to

their previous state, for that might discourage their return. Rabbenu Gershom similarly urged the

quiet acceptance of all who returned to Judaism (Mahzor Vitry pp. 96, 97). The

other extreme has been presented by Hai Gaon as cited in a slightly different fashion by Rashi

(in his commentary to Kid. 68b and Lev. 24.10). He felt that any returning apostate, or the

children of a Jewish mother who had apostasized, were potentially Jewish but must undergo a

process akin to conversion if they wished to become part of the Jewish community. That point of

view was rejected by most later scholars, as for example, Nahmanides (in his commentary to

Leviticus 24.10; Shulhan Arukh Yoreh Deah 268.10 f; Ezekiel Laudau, Noda

Biyehuda #150, etc.). We, therefore, have two opposing positions in rabbinic literature; both,

of course, represented reaction to particular historic conditions. Solomon ben Simon of Duran

wished to make it easy for a large number of Marranos to return to Judaism; unfortunately this

did not occur. Even when it was possible for Jews to leave Spain, the majority chose to remain.

Rashi’s harsh attitude probably reflected the small number of apostates who were a thorn in the

side of the French community. The later tradition chose a middle path and encouraged the

apostate’s return along with some studies, but without a formal conversion process. Even if an

apostate indicated no desire to return to Judaism, he would, nevertheless, be considered as part

of the Jewish people (San 44a). A summary of special laws which were applied to

apostates would include a number of matters mainly connected with family law. The marriage of

an apostate who left Judaism under duress, if performed according to Jewish law, was valid (Yeb

30b; Shulhan Arukh Even Haezer 44.9). The rules of divorce when apostates were

involved were modified; such individuals were not considered to be reliable witnesses except in

the case of an agunah. Penalties could be imposed on their inheritance (Kid. 18a)

although they did possess the right of inheritance (B. B. 108a, 11a). Normal mourning rites

should not be observed for such persons (M. San. 6.6; Shulhan Arukh Yoreh Deah

345.5). Clearly apostates stood outside the community in all but relatively few matters until their

repentance. Each of these cases cited above, of course, dealt with apostasy under

greater or lesser duress. Outside pressures played a major role in the lives of the individuals

involved. This is not the case with the “Completed Jew.” We would, therefore, be stricter with her

than with individuals who were forced into a position of becoming Christian. For us such modern

willing apostate is a non-Jew. In this matter we would disagree with the Talmud and later

tradition (Bech. 30b; see “An Apostate Proselyte,” American Reform Responsa, #71 for

further references). We can not, and should not, exclude such individuals from

attendance at services, classes or any other activity of the community, for we always hold the

hope that they will return to Judaism and disassociate themselves from Christianity. But they

should be seen as outsiders who have placed themselves outside the Jewish community. This

should be made very clear to them and to the Jewish and general community, especially as

many such individuals are active proselytizers . Such individuals should not be accorded

membership in the congregation or treated in any way which makes them appear as if they were

affiliated with the Jewish community, for that poses a clear danger to the Jewish community and

also to its relationships with the general community. We certainly do not want these

individuals to speak for Judaism in any public forum. In conclusion, we should make the

distinction between ourselves and these individuals very clear to them, to the Jewish community

and to the general community around us.September 1983

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 210-211

CCAR RESPONSA

New American Reform Responsa

133. Jewish Status and the Lost Tribes

QUESTION: A young man interested in Judaism has stated that he wishes to be considered Jewish through his descent from one of the ten lost tribes. His parents raised him in the Mormon tradition. (Mark Kaplan, Cincinnati OH)ANSWER: Let us look at the statement on patrilineal descent. “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. “Depending on circumstances, mitzvot leading toward a positive and exclusive Jewish identity will include entry in the covenant, acquisition of a Hebrew name, Torah study, Bar/Bat Mitzvah, and Kabbalat Torah (Confirmation). For those beyond childhood claiming Jewish identity, other public acts or declarations may be added or substituted after consultation with their rabbi.” This indicates that if one of the parents is Jewish and the child has been raised as a Jew or has made a commitment to Judaism as an adult, we would consider that individual as a Jew. There is some debate in the tradition about apostasy in a previous generation and how the descendants should be treated (H. J. Zimmels Die Marranen in der Rabbinischen Literatur pp 21 ff). Here, however, the individual involved was raised in a Mormon family and it is from that association with the lost ten tribes that this has been derived. Joseph Smith the founder of the Church of Latter Day Saints considered America colonized by two groups, both related to the Bible. The first came to this continent after the dispersion of the Tower of Babel, and the second after the destruction of Jerusalem in 587. These as well as other speculation about the American Indians as the ten lost tribes have led to various pieces on the subject (Israel Worsley A View of the American Indians, etc). We can, however, not recognize these individuals as Jews even if their claim were true. Rabbinic Judaism has developed far beyond the Biblical period. The young man, therefore, should be treated as any other convert.April 1989

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 71-72

CCAR RESPONSA

Contemporary American Reform Responsa

42. Jewish Status and Mistaken

Identity

QUESTION: A young woman has been raised to consider herself

as Jewish. Her mother assured her that her “real” father was Jewish and that she herself had

some Jewish lineage in her genealogy. She did not receive any kind of Jewish education, but

had Jewish friends and occasionally attended some Jewish ceremonies at home and in the

synagogue. Upon reaching maturity she discovered that there was, in fact, no Jewish ancestry at

all. What is her status? (Rabbi E. H. Hoffman, Brookline, MA)ANSWER: This young

woman will undoubtedly need some counseling in regard to her Jewish identity and probably also

in connection with her family life. After all, she grew up thinking that someone who was actually

her father was not her father. We should be sympathetic to her and guide her in every way

possible so that she may overcome whatever difficulties are present. As far as her

Jewish identity is concerned, we would follow the ruling of the Central Conference of American

Rabbis: “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. “Depending on circumstances, mitzvot leading toward a positive and

exclusive Jewish identity will include entry into the covenant, acquisition of a Hebrew name,

Torah study, Bar/Bat Mitzvah, and Kabbalat Torah (Confirmation).

For those beyond childhood claiming Jewish identity, other public acts or declarations may be

added or substituted after consultation with their rabbi.” This statement indicates that

identity is conferred through lineage and acts of identification. In this instance the young woman

in question has not fulfilled either one of these requirements, so we would encourage her to

become Jewish through conversion. It might make her feel better to realize that even if there had

been one Jewish parent and she lacked a formal Jewish education, the requirements would have

been the same. A young woman like this will need some special attention above and

beyond what we normally provide for those who join us, and that should certainly be

given.July 1985

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 102-103

CCAR RESPONSA

New American Reform Responsa

63. The Tower as a Havdalah Spice Box

QUESTION: What is the origin of the spice box in the form of a tower? Is this connected with the tower of David in Jerusalem? (Mitchell Davids, Albany, NY)ANSWER: In the earliest discussions of havdalah the spice was held simply in the hand rather than in a container; for example a bunch of myrtle (Shab 33b; Jacob Moelln Sefer Maharil 19d). When a variety of spices rather than a single spice was used for havdalah, then a container became necessary (Isaac of Vienna Or Zarua II #92). Early illustrations show a round container (Sefer Minhagim Venice 1590). In some German illustrations from 1553, it appeared like a tower and the accompanying text indicated that this followed a traditional form (Franz Landsberger “Ritual Implements for the Sabbath” in Joseph Guttmann Beauty in Holiness p 186). Two suggestions about this form have been made: Kayser felt that the tower was reminiscent of the medieval fortified towers in which spices and other valuables were kept. Landsberger rejected this as the towers were too open for fortifications. He accepted the suggestion of Rachel Wischnitzer-Bernstein which related the tower to the Biblical verse: “His cheeks are as a bed of spices as towers of perfumes” (Song of Songs 5.13) and added that such towers were often among the gifts presented to the infant Jesus by the Three Kings along with myrrh and other spices. Towers became a favorite form of the besamim box and were fabricated by Jews and non-Jews as the markings indicate. There is no connection with ancient Jerusalem.September 1987

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 103

CCAR RESPONSA

New American Reform Responsa

64. Shape of the Havdalah Spice Box

QUESTION: An artisan has asked whether a spice box needs to take a special form. He remembers spice boxes in a shape of a tower as well as animals. What limits are there for this object? (John Rosen, Syracuse NY)ANSWER: The spice box in the form of a tower has been discussed in the previous responsum. However, the form was not limited to towers. There are also spice boxes in the shape of a hand (Landsberger Op cit p 189), or a round container with an Islamic crescent at the top (A. Kanof Ceremonial Art in Judaic Tradition p 109), as a tree with birds, or a ship with some sailors (Ibid 64). In addition, spice containers in the form of flowers, fruit, buildings, a model synagogue, a Faberge egg, statues of Adam and Eve leaving Paradise, a windmill (A. Kanof Jewish Ceremonial Art; Journal of Jewish Art; Judith C. E. Belinfante Joods Historisch Museum; Isaiah Shachar Jewish Tradition in Art; Beverly R. Cohen The Cofeld Judaic Museum; and auction catalogs). I have also seen besamin boxes in the form of a miniature railway engine and a small airplane. In other words, it is possible to be playful and there are no restrictions. The artist in question may design a besamim box in any shape as long as it is not related to the object of another religion.May 1990

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 92-93

CCAR RESPONSA

Contemporary American Reform Responsa

56. Two Soviet Jews of Doubtful

Descent

QUESTION: A young Soviet Jewish man has met a young

Soviet Jewish woman. Both have come to the United States recently from the Soviet Union.

Their parents are deceased and neither one is absolutely certain whether their mothers were

Jewish. While living in the Soviet Union, they suffered the disabilities of all Jews. Since their

arrival in the United States, they have participated in programs at the Jewish Community Center

and a number of synagogues in various cities in which they have lived. Shall we consider them

Jews and marry them, or shall we demand certain prerequisites before marriage? (A. M. – L. Z.,

Pittsburgh, PA)ANSWER: Let us begin by inquiring about the identity of these two

young people while they lived in the Soviet Union and now that they have settled in the United

States. As they suffered the disabilities of Soviet Jews certainly the Soviet government

considered them to be Jews, and they were accepted as Jews by their co-religionists in the

Soviet Union. To the best of their knowledge no one has ever questioned their Jewish identity.

Although the Russian Jewish community possesses very little Jewish knowledge the tradition of

matrilineal descent remains widely known among them. We may, therefore, presume that the

mother was Jewish in both instances and that the parents wished to have their children

recognized as Jews. During their stay in the Soviet Union they suffered because of their Jewish

identity and emigrated. It is, therefore, likely that the mothers of both young people were Jewish

if we follow the initial assumption, and so we may marry them as any other Jewish young people

in accordance with tradition. Furthermore, we may do so in keeping with our recent Reform

resolution on patrilineal descent as these individuals have identified themselves with the Jewish

community and participated in Jewish life to the best of their ability.March 1984

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 202-203

CCAR RESPONSA

New American Reform Responsa

129. Rumors about the Status of Soviet Jews

QUESTION: A family has emigrated to the United States from the Soviet Union. They received help from the Federation and were adopted by a synagogue. Now several Soviet Jews have protested and indicated that they do not feel that this family actually is Jewish. The protest is based on alleged mixed marriage which took place two generations ago. What is the status of this family? Need they do anything formal to adjust their status? (Steven Thomas, Detroit MI)ANSWER: The nature of this question is rather sad as it revealed some tensions, and an antagonistic spirit among a few of our new Soviet immigrants. Let me begin with the resolution of the Central Conference of American Rabbis passed in 1983 which stated: “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 parent and child, to Jewish life. Depending on circumstances, mitzvot leading toward a positive and exclusive Jewish identity will include entry into the covenant, acquisition of a Hebrew name, Torah study, Bar/Bat Mitzvah, and Kabbalat Torah (Confirmation). For those beyond childhood claiming Jewish identity, other public acts or declarations may be added or substituted after consultation with their rabbi.” From this we can see that in the current generation we would definitely consider the family Jewish. As they suffered as Jews while in the Soviet Union. Upon arriving in the United States they have established close ties with a synagogue. Even if there was some vague Christian tradition in the past through mixed marriage this family has identified itself as Jewish. What of questions about the past? Such an aspersion was raised against the descendants of the Exilarch Bustenai (“Maasei Bustenai” Bruell Jahrbücher 1876 pp 102 ff; G. Margoliouth “Some Fragments” Jewish Quarterly Review Vol 14 pp 303 ff). The facts in that case are clouded by political implications, but we do know that some of the descendants assumed the same high office and brushed aside the allegations. We should also take into account the statement of Solomon ben Simon of Duran who claimed for Marranos that if the mother in each generation was Jewish the Jewish lineage would continue indefinitely (Responsa #89). In this case we do not know whether the allegations were made about the mother or the father. We must anyhow condemn the gossip which surrounds this family. There are strong statements against gossip (Hafetz Hayyim Sefer Hafetz Hayyim Rehilut). As the family in question has thoroughly identified itself with the Jewish community we should accept them and vigorously defend their Jewishness against any and all who question it.March 1990

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 213-215

CCAR RESPONSA

New American Reform Responsa

135. Prerequisite for a Sofer

QUESTION: What training or characteristics must a sofer (scribe) possess in order to fulfill the traditional requirements? (Rabbi James S. Glazier, South Burlington VT)ANSWER: In the past, two categories of sofrim existed. Some acted as notaries and also kept the records for the rabbinic court while others dealt with the text of the Torah, the tefillin, megilot, and mezuzot. We, of course, are dealing with the latter kind of sofer. Although every Jew is obligated to write a Torah scroll for himself (Ex 15.2; Shab 133b; Shulhan Arukh Yoreh Deah 270.1), most have found the personal and technical requirements too difficult. Sofrim were therefore engaged for the task and the individual who involved them often wrote a symbolic word or phrase of the last column. In ancient times the community, of course, depended entirely upon the sofer for its written material and so a scholar was not to live in a community which did not have a sofer (San 17b). The qualifications of a sofer fall into two categories, skill and piety. A sofer must reproduce the script of the Torah accurately and may never do so from memory but must always follow a written copy which is before him and follow the very precise specifications which govern the shape of the letters, the paragraph divisions, the column length and width, etc. (Er 13a; Meg 18b; Shulhan Arukh Yoreh Deah 274: 1 ff). In addition he must concentrate on his work and think about the divine name appropriately whenever he writes it, so that the act of writing does not occur mechanically (Shab 104a). This demands an unusual degree of piety. If a sofer is a non-believer then the Torah which he writes should be destroyed (Yad Yesodei Hatorah 6.8). The individual who writes a Torah or prepares the other documents must be an adult male (Git 45b; Shulhan Arukh Yoreh Deah 281.3) and Jewish (M Git 4.6; 45b; J A Z 2.2 Shulhan Arukh Yoreh Deah 281.2). Women are excluded from the act of writing many of their ritual objects (Git 45b) by tradition, although the scroll of Esther is not included in that prohibition (Shulhan Arukh Orah Hayim 691.2; Meyer Perls Teshuvah Meahavah #2). The sofer possessed an honored status within the Jewish community, the Biblical Ezra was known as a sofer as were some great Talmudic authorities as Meir. In later times that was rarely accompanied by adequate compensation and most sofrim were poor. In addition, the sofer, of course, must be technically qualified (Ezrat Sofer 1769; Tikun Sofrim 1874; Sefer Midinei Ketib Tefilin (ed) Dubno; L. Low Graphische Requisiten und Erzeugnisse bei den Juden). The ink, the writing tools and the parchment are all carefully prescribed. Although the sofer is not responsible for the preparation of the parchment, he must be able to test its appropriateness. In addition he is responsible for all other ingredients for the ink, utensils, etc. It would be perfectly possible to train modern sofrim both male and female. Many would probably wish to engage in the preparation of more decorative items like ketubot as so many couples seek them. We should be certain that this work does not influence their efforts as Torah scribes.June 1988

If needed, please consult Abbreviations used in CCAR Responsa.

TFN no.5753.23 331-335

CCAR RESPONSA

Responsum on Smoking1

5753.23

She’elah

In view of the fact that it has been proven that tobacco smoking is extremely dangerous to human health, what should be the policies of the synagogue regarding smoking on its premises, including the offices? Should synagogues and rabbis take any action with regard to smoking of its members and others in the community off premises?

 

Teshuvah

Until a few years ago, the hazardous nature of smoking was not on the public or Jewish agenda. On the contrary, there were rabbis who thought that smoking was beneficial because of its curative properties. This was the claim of the famed Rabbi Jacob Emden (1697-1776) : “Tobacco is a healthful substance for the body … its natural action is important in helping to digest food, cleanse the mouth, separate the humours, and help the movement of essential functions and blood circulation which are the root of health … It is indeed beneficial to every healthy man, not only because of the pleasure and enjoyment it affords, but because it preserves one’s health and medical fitness.”2

 

Eventually, the position of halachic decisions on smoking changed. At the turn of this century, their opposition was not a matter of health, but of propriety. Rabbi David Hoffmann (1843-1921), head of the Hildesheimer Rabbinic Seminary in Berlin, stated in response to a query : “It is known that the Gentiles are very punctilious and forbid smoking in their houses of worship, and therefore, it might appear, God forbid, as a desecration of the Divine Name if we should permit it”, and therefore forbade it for synagogues.3

 

As a result of more recent medical revelations on the health dangers of smoking, most rabbis came to the conclusion that not only is it without beneficial qualities, but on the contrary, the tobacco habit may be dangerous and even fatal. They dealt with two major issues : the danger to the non-smoker (in medical parlance: passive smoking) and the danger to the smoker himself/herself.

 

Danger to the Non-Smoker

 

A prominent halakhic authority, R. Moshe Feinstein of New York, forbade the widespread practice of smoking in rabbinical academies (yeshivot). He ignored medical findings, claiming that the deleterious effect of smoking had not been conclusively proved. Nevertheless, it should be prohibited even if it were not injurious to the health of others studying in the same room, but only disturbed them. He rejected the argument that

 

cigarette smoking helped students to concentrate. On the contrary, he considered leaving for a puff as considered a waste of time which could be spent in the study of Torah (bitul talmud torah). He also criticized the claim that since the room was already full of smoke, each smoker was adding only an insignificant amount. R. Feinstein retorted that each smoker was responsible for his portion of all of the smoke in the room and therefore for the discomfort of all those present who suffer from his habit.4

 

R. Eliezer Waldenberg of the Israel Chief Rabbinate Council went a step further, forbidding a host to smoke in his own home, if this habit bothers or harms his guests or members of the family, and especially children who might be present.5

 

Danger to the Smoker

 

Rabbinic respondents have been divided on the question of whether available medical evidence is sufficient to ban smoking as dangerous in the view of Jewish religious law.

 

R. Feinstein would concede only that, since “we may be wary of the danger of becoming ill from smoking, it would be better to be cautious.”

 

However, in his view, it is impossible to forbid smoking for two reasons :

 

1. Tobacco is in very wide use and has become an entrenched popular practice. The Talmud states about such a habit : “Since the multitude are accustomed to it, ‘the Lord will protect the foolish'”.6

 

2. “We must especially note that some of the great Torah scholars in past generations were smokers and still are in our day.”

 

The only thing that may be done is to advise against acquiring the habit and especially against allowing one’s children to learn to smoke. Nevertheless, in his opinion, the Torah does not rule out offering a light or matches to a smoker.7

 

The sephardic chief rabbi of Tel Aviv, R. Haim David Halevi, disagreed with this ruling. A youngster asked him whether he must obey his father who sent him out to buy a pack of cigarettes. R. Halevi responded : “In view of the fact that physicians have universally warned against the great danger of smoking to human health, and since, in my opinion, it is forbidden by the Torah which commands : “You shall carefully preserve your lives” (Deuteronomy 15:4), you are not permitted to buy him cigarettes. Furthermore, whenever you see him with a cigarette in his mouth, say to him, ‘Father, see what we are warned in the Torah about preserving life and we know that smoking is very harmful’ – in the hope that he will understand, overcome and refrain.”8

 

As a foremost expert on medicine in Jewish law, R. Eliezer Waldenberg accepts the findings of medical experts and proclaims that “smoking is the number one killer of humanity!” Disagreeing with R. Feinstein’s position, he declares “that there is no reason to congratulate oneself … and to rule that since smoking is widespread there is no reason to prohibit it.” R. Waldenberg points to medical findings that “cigarette smoking is the main cause of death from cancer … therefore it is certainly absurd to turn a blind eye on all this and to blithely conclude that (in a case like this) ‘The Lord will protect the foolish'”.9

 

The reality is that scientific evidence has conclusively proven that smoking is dangerous and even fatal. The United States Surgeon General has issued a 300 to 500 page volume every year on the dangers of smoking.10 There can no longer be any reasonable doubt about it.

 

Many smokers today see their habit as a strictly private matter, asserting that no one has a right to interfere or tell them to stop. Many modern rabbinic respondents reply by

 

quoting Maimonides: “The Sages forbade many things which involve mortal danger, and anyone who did so saying : ‘Look, I am endangering myself and what does it matter to others’ or ‘I don’t care’, is beaten by the rabbinic court.” 11For according to the Halakhah,

 

we have stewardship rather than ownership of the body given to us by our Creator, and therefore may not jeopardize our life.

 

To whom, then, does one’s body and life belong? R. Moses Ribkes (17th century) taught : “The reason the Torah warned us about preservation of life is that God graciously created the world to benefit His creatures so that they may be aware of His greatness and may work in His service by observing His mitzvot.12

 

What are the operative conclusions of these rabbinic verdicts for the smoking Jew of our day? There is almost universal agreement that this habit involves pikuah nefesh. There is a consensus of halakhic opinion which may be summarized as follows :

 

(a) Smoking near anyone who may be disturbed or harmed by smoke is prohibited.

 

(b) It is forbidden to harm oneself by smoking. (If a smoker cannot stop immediately, then he must make every effort to reduce the number of cigarettes smoked per day and to receive help to be cured of the habit.)

 

(c) Children and adolescents are forbidden to begin or to become accustomed to smoking. Adults may not help or encourage them to acquire the habit.

 

(d) Encouraging smokers in their habit, by offering a cigarette or a light, is prohibited.

 

(e) Synagogues and rabbis should be involved in a serious educational campaign to convince congregants and members of the community. They should help to set up smoking cure groups.

 

(f) Synagogues and rabbinic organizations should counteract the smoking advertisements sponsored by the tobacco industry (especially with their minuscule notice of the danger to health.) More people die of smoking than of gun-shot wounds or AIDS, yet the public awareness is comparatively weak.

 

The above sources indicate that the Halakhah can and must be a developmental and dynamic phenomenon which has taken cognizance of the discoveries of medical science. Jewish law in its position on smoking has progressed from the 18th century rabbinic view that “tobacco is healthful for the body” to the present day opinion : “Smoking is the number one killer of mankind.” The Reform movement welcomes this halakhic progression.

 

Notes

Written by R. Moshe Zemer, a member of our Responsa Committee. It was previously published in Israel (in Hebrew) and was not part of our process, but has been included because of its importance. Mor u-ketzi’ah, O.H. section 511. Responsa Melamed Leho’il OH # 15. Responsa Igrot Mosheh, CM pt. 2, # 18. Responsa Tzitz Eliezer vo. 15, # 39. BT. Shabbat 129b; Psalms 116:6. Responsa Iggerot Mosheh, YD, pt. 2, # 49. Responsa Aseh Lecha Rav v.6, # 59. Op. cit. These have included, among others, volumes on Smoking and Health, 1964; The Health Consequences of Smoking, 1972; Smoking and Cancer, 1982; Smoking and Cardiovascular Diseases, 1983. Yad, Hilkhot Rechitzah 11:5. Be’er Golah CM 427, letter 90.

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 13-15

CCAR RESPONSA

Contemporary American Reform Responsa

10. Silent Partners in a Medical Practice

QUESTION: What is the attitude of Jewish law to a partnership which provides the money for a medical practice? The individuals involved are not physicians, and therefore they would, on an indefinite basis, benefit from the income of that practice. Is it considered ethical to form a partnership in which the non-participating partners provide the funds for the medical practice which is carried out by a physician? May these individuals benefit from the healing which will occur through the medical practice? (Rabbi M. Staitman, Pittsburgh, PA)ANSWER: Let us divide this question into two segments. The first will deal with partnerships and loans, and the second with medical ethics. It is clear that Biblical and Talmudic laws were opposed to interest bearing loans. This prohibition was absolute when Jews dealt with co-religionists within the community (Lev. 25.35 ff; Deut. 23.20 ff). The prohibition was amplified and expanded by the Mishnah and Talmud (M. B. M. 5.1, 60b ff, 75b; Yad Hil. Malveh 4.2 ff, 7.11, 10.1 ff; Shulhan Arukh Yoreh Deah 161.1 ff). These restrictions, however, proved unrealistic in an economy which functioned on a monetary basis, and so a legal device known as heter isgah was invented and became common (Pisqei Harosh to B. M. 5.23; Mordekhai B. M. 3.19; Nahalat Shivah #40). In modern business transactions, the phrase al pi heter isqah remains sufficient, even if no formal document of this kind has been drawn up. Interest from aliens or foreigners was permitted even in Biblical times (Lev. 25.35; M.B.M. 5.6, 70b f), but was frowned upon and discouraged in the Talmudic period (Mak. 24a). During the Middle Ages in Christian northern Europe, when money lending was among the few avenues of livelihood open to Jews, the taking of interest from non-Jews was defended because of the heavy financial burdens placed upon Jews by the non-Jewish authorities (Tos. to B. M. 70b; Shulhan Arukh Yoreh Deah 159.1). Furthermore, as the monetary economy developed, moral restrictions against lending to non-Jews were voided through reasoningsimilar to that described above with the heter isqah. Some feel that loans to a teacher, physician or any other individual who helps the community should be considered in a highly positive manner. They are an investment which make it possible for him to continue in his profession, which he may otherwise abandon (Nathanson, Hoel Umeshiv Mahadurah Kamma, III, 160). Other authorities limit loans to capital advanced for goods and not for services or the employment of an individual (Imrei Yosher, I, 108; Meir Arak; Kitzur Shulhan Arukh 66.10; Shulhan Arukh Harav, Hilkhot Ribit #42). Let us now turn to the question of partnerships. Various forms of partnerships were reported in the Mishnah and Talmud (M. Ket. 10.4, etc.), and became widely accepted and used by the eleventh and twelfth century, particularly in Northern Europe (Mordekhai to B. K. 176; Rosh Responsa 89.13; Elon Hamishpat Haivri II, pp. 744 ff). Frequently one partner furnished the capital and the other performed the work. In such instances, some difference in remuneration is stipulated by law, so that the working partner receives a greater benefit than the others (M. B. M. 5.4, 104 b; Yad Hil. Sheluhin 6.1 ff; Tur Yoreh Deah 177). Furthermore, the active working partner is protected, because he can withdraw more readily from the arrangement (Tur Hoshen Mishpat 176.28). It is clear from the above statements that silent partners are permitted, and funds earned in this fashion are perfectly acceptable under Jewish law. A variety of provisions have been made for such arrangements. We must now ask whether there are any special restrictions on forming these kinds of arrangements for medical purposes. Fees were part of the acknowledged life of a physician, and the Biblical phrase, “cause him to be thoroughly healed,” was interpreted by the Targum (Ex. 21.19) to indicate that a fee should be paid. It was considered normal and proper for services rendered. The service of those who took no fees was not considered to be worth much (B. K. 85a). Various arrangements were made for the payment of fees, sometimes in advance, and sometimes for a completed treatment, etc. (Ket. 52b, 105a). The skill and knowledge of a physician has been highly praised, and appropriate compensation is suggested (Shulhan Arukh Yoreh Deah 336.3). Although a physician may be motivated by humanitarian concerns, he should also receive a salary for his efforts. That portion of his life is governed by the same standards as any commercial venture. A physician’s business arrangements and fees are treated as any other business venture. There is some difference of opinion on the role of loans, as well as silent partners, in some types of commercial enterprise. This would hold true for our case as well, but it would generally be permitted. A permissive stance has made it possible for modern traditional Jews to participate in the stock market, various forms of partnerships and other enterprises previously not known by the traditional literature. Jewish law does not distinguish between the employment of funds in a general partnership or a medical partnership. Nothing in Jewish law would prohibit silent partners in a medical practice.June 1984

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