Responsa

NYP no. 5769.3

CCAR RESPONSA

5769.3

Tzedakah, Recession, and Social Policy

She’elah

The CCAR Committee on Justice and Peace has submitted to us the following three inquiries.

Question 1. Does a severe recession affect our approach to public tax policy and our commitment to social services? Some argue that in a recessionary period we need to both cut taxes and services in order to balance the budget, which will affect programs that address poverty and homelessness. Others advocate greater spending and a renewed commitment to the poor, who bear the greatest burden during a recession. How does our legal tradition balance these conflicting influences?

Question 2. How does a congregation balance its budgetary needs with the economic challenges its members now face? Specifically, is fund raising acceptable as people are losing their jobs and homes? And must members be held to their financial commitments and/or pledges made before the recession, as their own financial status changes? And finally, how must a congregation balance its programmatic needs against its obligations to its staff during a recession? Specifically, if choices must be made, must it look to preserve employment of its custodial and secretarial staff first, understanding that they will have the hardest time coping financially before preserving programmatic initiatives?

Question 3. With regard to individual obligations: May one say “no” to tzedakah during a recession?

Teshuvah

We write this teshuvah in the spring of 2009, a time of great economic turmoil throughout the world. Many individuals have either lost their jobs or live in immediate fear of losing their jobs. Others have been forced to accept reductions in salary, wages, and benefits. Many who have struggled to save for their retirement or for the education of their children have watched those savings melt away in the present collapse of the financial markets. The resulting anxiety is felt in every one of the levels mentioned in these three inquiries: in the arena of government policy; in the sphere of synagogue and other Jewish institutional activity; and in the lives of individual members of our community. It is difficult, at this moment, to imagine a more pressing and challenging reality than the economic crisis we currently face, the deepest such crisis, we are told, since the Great Depression of the 1930s.

In submitting these questions to us, the CCAR Committee on Justice and Peace asks for our help in framing a text-based response to this challenge. What manner of guidance does Torah, as expressed through our sacred texts and the tradition of their interpretation, offer to our communities as they struggle through these troubled times? At the outset, we should note the very real limitations upon our ability to arrive at such a response. While we hold our our Jewish tradition to be a torat chayim, a “living Torah” that speaks to the circumstances of contemporary life, we know that it may not offer clear and certain answers to the financial difficulties we face. We search our classical sources in vain for detailed responses to the mortgage foreclosure crisis, the freezing of the credit markets, the need to stimulate the domestic and international economies, and the appeals for emergency financial support (or bail-outs) for industries, banks, and nations burdened with foreign debt. This is the case, first of all, because our texts were written long ago, reflecting an economic and commercial context quite different from the one that prevails today. More importantly, though, our tradition has historically recognized that decisions touching upon social and economic policy are not to be made by rabbis and scholars of texts and their interpretation. These matters are instead the preserve of the community itself, the lay political structure acting through the agency of its leaders and on the basis of practical wisdom. At the same time, it is not the case that Torah has nothing to say. Our tradition is hardly neutral as to the general direction of the policies adopted by communal institutions. On the contrary: the rabbis have insisted that those decisions not transgress against fundamental Jewish moral values. Thus, while acknowledging that the political leadership must wield wide discretionary authority in doing its job, rabbis have long served as a kind of “collective conscience” for the community, acting as a check-and-balance against arbitrary political decisions that would lead to unjust results.[1]

The Responsa Committee sees its role in this light. We wish to know the basic values and general directions – as opposed to any specific policies[2] – that our tradition would require of our communities. In seeking these answers, we will study the Judaic concept – the better word is mitzvah – of tzedakah. It is under this rubric that our textual tradition works out its understandings of how we are to respond to the issues of poverty and economic deprivation in our community, issues that lie at the heart of the questions that we have been asked. Tzedakah, to be sure, is a religious obligation and as such is not the same thing as “policy.” Yet precisely for this reason, because it speaks of fundamental religious and moral values, the idea of tzedakah can serve as one of those “checks-and-balances” upon a discourse driven entirely or primarily by economic thought and concern for practical political efficiency. Framed in this way, a discussion of tzedakah can help focus our attention upon the values that should influence our policy decisions, the direction in which those decisions ought to take us.

In this light, let us consider some aspects of the mitzvah of tzedakah that may be of special relevance to our questions. In doing so, we shall try to derive some general guidance as to the best answers to them.

1. Tzedakah is a Mitzvah. As we have indicated, Jewish tradition defines tzedakah as a mitzvah, a religious duty. As the Shulchan Arukh, the most authoritative compilation of the traditional halakhah, formulates the rule: “Every person is obligated (chayav) to donate tzedakah. This applies even to the poor person who himself is supported by tzedakah; he is obligated to donate from the amount that is provided to him.”[3] Maimonides (Rambam) locates the source of this mitzvah in several Biblical verses: “If there is a needy person among you, one of your kinsmen in any of the settlements of the land that Adonai your God is giving you, do not harden your heart and shut your hand against your needy kinsman. Rather, you must open your hand and lend him sufficient for whatever he needs” (Deuteronomy 15:7-8); and “If your kinsman, being in straits, comes under your authority, and you hold him as though a resident alien, let him live by your side. Do not exact from him advance or accrued interest, but fear your God. Let him live by your side as your kinsman” (Leviticus 25:35-36).[4] The word chayav, “obligation,” places tzedakah in the category of actions that the individual has no choice but to undertake. It is a chovah, a duty, and not a free-will gift of the heart. Although it is certainly better to give tzedakah willingly and happily (as befits the fulfillment of a mitzvah) than in an attitude of reluctance (that would testify that we are helping the poor against our will),[5] we frequently remind ourselves that the Hebrew word tzedakah means “justice” and not “charity”: if justice is an obligation that demands our compliance, whether we like it or not, then so is tzedakah.

To say that tzedakah is a religious duty, moreover, is to distinguish it from social or economic policy. Policy, remember, is evaluated by considerations of practicality and efficiency; a religious duty may be incumbent upon every member of the community quite apart from its outcomes. The best demonstration of this is the detail, stated in the Shulchan Arukh passage quoted above, that even the recipient of tzedakah must give tzedakah.[6] The poor person, after all, is one of us, a member of the community defined by adherence to the mitzvot; thus, the words of those Biblical passages apply to him or her no less than they speak to the rest of us. How we decide to spend community funds may be a policy decision; that we all must give tzedakah is a religious value that must be observed in any event.

2. Tzedakah is a Communal Responsibility. The sources cited thus far speak of tzedakah as an obligation incumbent upon the individual. Yet our texts make it clear that the mitzvah to aid the poor is too important to leave to individual decision. The responsibility for raising and disbursing tzedakah resources rests upon the community, which must maintain the social and political institutions necessary for this purpose. As Rambam puts it: “In every town where there exists a Jewish community, the members of that community are obligated (chayavin) to appoint tzedakah collectors, well-known, trustworthy persons who shall make the rounds each Friday, collecting from each individual the sum that is appropriate for him to give and that has been officially imposed upon him.”[7] The timing here is no accident: Friday is the day when the tzedakah officials wish to distribute funds to the poor to help them prepare for Shabbat. Friday is also the day when the Jews tend to be in the marketplace. This makes them more readily accessible to the tzedakah collectors who, as the texts make clear, are not likely to take “no” for an answer.[8]

This communal, institutional responsibility for tzedakah entails a wide grant of legal power. As the codes put it, “If one does not want to donate tzedakah, or if he gives less than is appropriate for him to give, the court can coerce him – physically if necessary – to give the amount for which he has been assessed. (The court may also) attach his assets and take from him” the appropriate amount.[9] This power of coercion over tzedakah is attested in Talmudic law,[10] yet as a number of commentators have noted, it appears to contradict the Rabbinic rule that “the courts do not enforce the observance of positive mitzvot for which the Torah specifies a reward.”[11] The logic seems to be that the promise of the reward is in and of itself a sufficient incentive for the fulfillment of the obligation, so that no manner of coercive inducement is necessary or desirable. In the case of this positive obligation (Deuteronomy 15:8: “you must open your hand and lend him”), the Torah does specify a reward: “for in return [for helping the needy] Adonai your God will bless you in all your efforts and in all your undertakings” (Deuteronomy 15:10). How, therefore, can Jewish law grant to the court the power to coerce an individual to fulfill the duty of tzedakah? Various ideas have been suggested as resolutions of this contradiction.[12] The most powerful and persuasive of these, in our view, is that put forth by R. Yom Tov ibn Ishbili (Ritva, 14th-century Spain): tzedakah involves “the plight of the poor” (machsoram shel aniyim).[13] That is to say, the demand to aid the needy is of such urgency that it overrides the usual rule that commandments that carry a specified reward are exempt from legal coercion. This commandment, it would seem, is too important to leave to the whim of individuals; if they do not wish to fulfill their obligation, the court must be given the power to see that they do. It is with this in mind, perhaps, that the tradition declares “the one who coerces others to give tzedakah receives a greater heavenly reward than the one who (merely) gives tzedakah.”[14]

3. The Administration of Tzedakah. The tradition makes various provisions concerning the proper ways for tzedakah institutions to administer aid to the poor. From these provisions, we garner a number of important insights.

First, the Torah itself requires that we give the poor person “sufficient for whatever he needs” (dei machsoro; Deuteronomy 15:8). The classical sources interpret this demand quite literally: the poor person must be compensated for whatever he or she has lost as a result of becoming poor. “Even if was his custom to ride upon a horse and have a servant lead the way, if he has become poor and lost these things, one is obligated to restore them to him.”[15] This, of course, is a standard often impossible to achieve.[16] Funds are not generally available to restore every person to his or her former economic state, and in any event, no individual donor is obligated to shoulder such a burden alone.[17] The point is that the needs of the poor themselves, rather than those of the donors, are central to the fulfillment of the mitzvah of tzedakah.

Second, the ultimate goal is to eliminate poverty itself. As Rambam famously puts it in his “eight levels of tzedakah,” the highest level is reached when one helps the poor person, whether through a gift, a loan, a job, or the establishment of a business opportunity, to the point that he no longer needs tzedakah in order to support himself.[18] Rambam’s language here is reminiscent of Leviticus 25:35, and some commentators have suggested his source for this halakhah is the midrashic commentary to that verse: it is better to keep a person from falling into poverty in the first place than to wait until he has become poor to help him.[19] His intent may also be to remind us, once again, of the centrality of the recipient to the mitzvah of tzedakah: in aiding the poor, we must do so in a way that does not embarrass them or injure their dignity.[20] From this it follows that those who do not qualify as “poor” are not to receive tzedakah and thus become an unjustified burden upon the community’s limited resources, and the tradition accordingly discusses the appropriate “poverty line” that distinguishes those deserving of assistance from those who are not.[21] Similarly, one’s gift to tzedakah must not be so large as to drive one into poverty.[22] Thus, while we have seen that even the poor are obligated to donate tzedakah, this obligation is annulled when one is so poor that he cannot support himself and his household.[23]

Third, tzedakah is assessed according to the economic status of the donor, rather than in the form of a poll tax (an equal donation from all).[24] Greater wealth brings greater responsibility toward the welfare of one’s fellow citizens.

4. Pledges to Tzedakah. Jewish law understands a pledge to tzedakah as a vow (neder), a self-imposed obligation that one is duty-bound to fulfill.[25] Moreover, “(o)ne who has made a vow to tzedakah is not permitted to retract it.”[26] The relevant legal theory is that when one makes a vow to “Heaven” – for example, a pledge to bring a sacrifice or to make a donation to the ancient Temple or to pay a certain sum to tzedakah – one effectively transfers to “Heaven” the legal title to that object or sum, just as surely as if one had transferred the physical possession of some object or sum to an earthly buyer.[27] On the other hand, one can go before a court (beit din) or before a scholar expert in the laws of vows and seek a release from the obligation through the process of hatarat nedarim, in which one testifies that he or she truly regrets the vow and would never have made it had he or she known “that thus-and-such would have happened.”[28] In principle, this remedy applies to tzedakah pledges as it does to all other vows. However, in an important responsum, R. David ibn Zimra (Radbaz, 16th-century Egypt and Eretz Yisrael) writes that “the scholar who annuls [a pledge to tzedakah] deserves excommunication (nidu’i)… because he has caused a loss to the poor.”[29]

5. The Duty to Support the Synagogue. “Any community consisting of at least ten Jews must provide a structure or space in which its members may gather for prayer at the appointed times. This structure or space is called a synagogue. The citizens may coerce (kofin) each other to build a synagogue and to acquire a sefer torah and the books of the Prophets and the Writings.” These words of Maimonides,[30] particularly the word kofin, the same term used to denote the power of the community to coerce individuals to donate tzedakah, suggest the high importance that our tradition accords to the synagogue and to our duty to support it. If, indeed, the synagogue is regarded as “the Temple in miniature” (mikdash me`at),[31] then the community is required to maintain its synagogues just as surely as the people of Israel were required to build the original sanctuary (mikdash; Exodus 25:8). This raises the possibility that support for building and maintaining synagogues assumes a higher priority than other obligations,[32] including tzedakah. One major authority, R. Yosef Kolon (15th-century Italy) explicitly holds that “the mitzvah to support the synagogue takes precedence over the mitzvah of tzedakah,”[33] and the Shulchan Arukh mentions his opinion.[34] On the other hand, the reasoning he uses to buttress his ruling may strike us as forced.[35] Moreover, a leading contemporary halakhist asserts that when Kolon says “the synagogue takes precedence” he is referring not to its building or physical structure but to the mitzvot that are central to the life of the synagogue (i.e., prayer and Torah study). It is absurd, this halakhist says, to imagine that Kolon would grant priority to the maintenance of “lavishly appointed facilities” (binyanei pe’er) and “luxuries” (motarot) over aid to the poor.[36] The scope of Kolon’s ruling therefore remains a matter of deep controversy in Jewish law, and it is difficult to derive from it or from our other sources a firm and fixed rule for ranking the priorities of tzedakah and the synagogue. Accordingly, the decision in any particular case rests with the judgment of the community and its leaders, who are called upon to weigh both priorities carefully before determining their answer.

In light of this discussion, let us turn now to the questions submitted to us.

Question 1. We are asked “How does our legal tradition balance (the) conflicting influences” of two general lines of policy: fiscal restraint and “a renewed commitment to the poor”? The word “balance” is key here. We do not presume, nor are we professionally qualified, to decide the better economic policy for governments to pursue at a time of deep recession. Economists, as is well known, are deeply divided on this question, with some calling for fiscal discipline and others advocating fiscal stimulus. What we as rabbis are called upon to decide is the course that best reflects our Judaic religious values. And those values teach us, as a community as well as individually, to do tzedakah, to undertake an activist and interventionist approach to social justice that stands in at least some tension with the doctrine of fiscal restraint. We know that some economists believe that a policy of tax-cutting and budget-balancing is the best way to aid the poor, since in their view such a policy will lead most quickly to an economic recovery that will be a boon to all. Whatever the truth of these controversial ideas as a matter of economic theory, they reflect an outlook that is the opposite of tzedakah, which requires us to provide direct aid in the form of cash and other essentials to the poor. This is not a matter of choice, to be left to our feelings of compassion; Jewish law defines tzedakah as a communal, institutional responsibility and provides that the community’s institutions may exercise coercive authority in order to collect tzedakah from those able to pay it. Nor is it a question of economic efficiency; the halakhic discussion of tzedakah defines it as an act of social justice, to be undertaken because it is right and not because it increases the sum total of national wealth.

Again, let us be clear: the goal of this responsum is not to make policy recommendations. We acknowledge that our texts do not explicitly require governments to adopt any one particular economic policy. We simply hold that significant reductions in social welfare spending are inherently suspect in the view of a tradition that teaches that tzedakah – assistance provided directly to the poor to feed them, clothe them, house them, and help them to find gainful employment – is a mitzvah, a positive religious and ethical duty. This suggests to us that, in general, the political efforts of our Jewish institutions should be directed toward supporting programs of social welfare spending rather than toward eliminating them. We recognize, of course, the value of fiscal restraint; our tradition, too, bids us to be careful not to spend tzedakah funds unwisely and unnecessarily.[37] Yet to the extent that we conclude that a reduction in assistance to the poor will harm them rather than help them, our tradition, which obligates the community to practice tzedakah, would urge us to seek a change in that policy.

Question 2. A synagogue exists in order to teach Jewish values and to exemplify them in the way it conducts its business. Tzedakah is one of these values, and the congregation must endeavor to fulfill the obligations of tzedakah in its actions, even (and perhaps especially) in times of economic crisis. At the same time, given that support for the synagogue is a mitzvah, a religious obligation in its own right, a congregation is entitled to raise funds, even during a recession, in order to insure its continued existence. It is no easy thing to locate the proper balance between these two legitimate and potentially conflicting ends. As we have seen, the question of priority – support for the synagogue versus aid to the poor – is a matter of no little controversy in Jewish law. Here, at any rate, is our effort to locate that balance, at least in broad outline.

a. There is no question that the synagogue may raise funds to support its central programmatic functions, such as worship and education. This must be taken into account as the synagogue considers how it may best fulfill the requirements of tzedakah in its budgetary policy. Thus, while a congregation may certainly try “to preserve employment of its custodial and secretarial staff” as a way of supporting the most economically vulnerable among its employees, it need not (and arguably should not) sacrifice its “programmatic needs” in order to do so. Our lower-paid staff should by all means figure prominently in our concern, but the fact remains that tefilah and talmud torah are the reasons that the synagogue exists in the first place; Jewish life can hardly prosper unless we support them. On the other hand, whatever “priority” the tradition may grant to the synagogue over tzedakah would seem not to include the raising of funds for building and expansion projects that are not immediately vital to the central programmatic goals of the congregation. Such projects should be delayed, if possible, until the economic crisis has passed, allowing congregations to direct their efforts toward the more pressing demands of tzedakah, such as the retention of staff.

b. While we are entitled to raise funds, we are forbidden to ask for donations from those who tend to give more than they should, whether out of an exaggerated sense of generosity or out of a desire to escape public humiliation.[38] That is to say, we can ask too much of individuals in the name of tzedakah, and this is something that we certainly ought to remember when many of our members are struggling financially.

c. A pledge to the synagogue, like a pledge to tzedakah, is defined by our tradition as a vow. In practical terms, this means that it is a promise that is taken with the highest degree of moral – and legal[39] – seriousness. Individuals should strive to meet their pledges to the synagogue, even during a recession. However, a serious decline in one’s economic fortunes is regarded as valid grounds for annulling a vow (hatarat nedarim),[40] and the one who does so is not subject to criticism on the grounds that he or she has caused “a loss to the poor.” Congregations should be ready to extend the terms of pledges so that those who are struggling financially need not feel an obligation to pay their pledges now.

Question 3. Tzedakah is, ultimately, a religious duty incumbent upon every individual, including the one who receives tzedakah. Accordingly, there is no right to say “no” to tzedakah, even during a recession. The gift should not place an unreasonable burden upon one’s finances; if the individual’s situation is especially critical, the gift can be a symbolic one. But the gift must be made, for we are a community defined by the performance of mitzvot, and none among us should be excluded from that community.

NOTES

1. The term “collective conscience” is that of the late Professor Jacob Katz, who argues powerfully against the “romantic conception” that Jewish law, interpreted and applied by rabbinical scholars, governed the political and economic life of the Jews in pre-Emancipation times. Although by and large the Jewish communities of the period did possess juridical autonomy, says Katz, this did not mean the public life of those communities was conducted in accordance with Rabbinic law. The rabbis rather accepted that the communities could arrive at whatever decisions their leaders thought practical and necessary, so long as those decisions did not involve obvious sins or injustice. See Jacob Katz, Halakhah vekabalah (Jerusalem: Magnes, 1984), 237-251. The phrase “collective conscience” is at 245.

2. This does not mean that the CCAR and its constituent committees are not entitled to recommend that governments adopt specific economic and social policies. We do this all the time, especially in our social action work, and we rightly regard it as an essential aspect of our rabbinical function. Our point is rather that the Jewish textual tradition, which is the literary basis of our activity on the Responsa Committee, does not necessarily favor one specific economic policy – say, a policy favoring massive economic stimulus by the government – over another. If we wish to advocate for a stimulus, in other words, we can do so on the basis of a conviction that it more effectively achieves the goal of social justice than a policy of budgetary restraint. The pro-and-con argument in that case is governed by pragmatic considerations of economic efficiency. We should not claim, however, that the Biblical and Rabbinic sources “require” such a policy or its opposite. Interpretation of those texts, even of the most creative variety, is unlikely to produce a satisfactory answer to the question.

3. Shulchan Arukh Yoreh De`ah 248:1.

4. Rambam, Sefer Hamitzvot, positive commandment no. 195, and Yad, Matanot Aniyim 7:1. This is repeated in Shulchan Arukh Yoreh De`ah 247:1.

5. This point is stated most famously in Rambam’s “eight degrees of tzedakah”: the one who gives tzedakah with a cheerful face, even though the amount is less than it ought to be, ranks higher on the scale that the one who gives be`etzev, with a countenance that displays sadness, anger, stinginess, etc. See Yad, Matanot Aniyim 10:13-14.

6. The source for this halakhah is B. Gitin 7b. But see below at note 23.

7. Yad, Matanot Aniyim 9:1. And see at 9:3: “I have never heard of a Jewish community that does not possess a public institution for the collection of tzedakah.”

8. See B. Bava Batra 8b and Yad, Matanot Aniyim 7:10: collectors are entitled to accept pledges (i.e., items pawned as security) in lieu of tzedakah “even on Friday.” The point, notes Rashi (Bava Batra 8b, s.v. afilu be`erev shabbat), is that on Friday an individual might reasonably claim that he is too busy with his own Sabbath preparations to negotiate his tzedakah donation. Thus, the collectors are empowered to accept a pledge “even” on that day, which underscores the importance of tzedakah as a Jewish religious value.

9. Yad, Matanot Aniyim 7:10; Shulchan Arukh Yoreh De`ah 248:1.

10. B. Bava Batra 8b: “Rava exercised legal coercion upon Rav Natan bar Ami, taking from him 400 zuzim for tzedakah.”

11. B. Chulin 110b. Among these commentators are Tosafot, Bava Batra 8b, s.v. akhpeh lerav natan.

12. These include (see Tosafot loc. cit.): a) the “coercion” of which the Talmud speaks is not a legal power but one of moral swuasion and condemnation; b) while the Torah does not authorize coercion in a case such as this, the community resolved among themselves to bestow that power upon its leaders; c) the mitzvah of tzedakah is not only a positive obligation but in fact involves the negative commandment of “do not harden your heart and shut your hand” (Deut. 15:7) – and the Torah does permit the court to use coercion to punish the violation of prohibitions (“thou-shalt-nots”).

13. Chidushei HaRitva, Ketubot 49b.

14. B. Bava Batra 9a; Yad, Matanot Aniyim 10:6; Shulchan Arukh Yoreh De`ah 249:5.

15. B. Ketubot 67b; Sifre to Deuteronomy 15:8 (piska 116); Yad, Matanot Aniyim 7:3; Shulchan Arukh Yoreh De`ah 250:1.

16. See Shulchan Arukh Yoreh De`ah 249:1: if one can afford it, one gives tzedakah “according to the needs of the poor”; if one cannot afford that amount, one gives a fixed portion of one’s income.

17. Isserles, Shulchan Arukh Yoreh De`ah 250:1.

18. Yad, Matanot Aniyim 10:7, the highest level (ma`alah) of Rambam’s eight levels of tzedakah.

19. The commentators are R. David ibn Zimra to Yad ad loc. See Sifra to Lev. 25:35 and the Gaon of Vilna, Bi’ur HaGra, Shulchan Arukh Yoreh De`ah 249, no. 8.

20. See Beit Yosef, Tur Yoreh De`ah 249 (in explaining Rambam’s “highest level” of tzedakah), as well as B. Ketubot 67b: if the poor person does not wish to accept a gift, then we call the tzedakah a “loan” (for which we might not ask repayment) in order to spare his pride.

21. “One who has enough food for two meals may not take from the tamchui (“charity-plate”); one who has enough food for fourteen meals may not take from the kupah (communal tzedakah fund); one who has two hundred zuz and does no business with them, or one who has fifty zuz and does do business with them may not take tzedakah at all”; B. Shabbat 118a and Ketubot 68a; Shulchan Arukh Yoreh De`ah 253:1. Several medieval authorities suggest that these ancient sums are no longer relevant and that nowadays one may accept tzedakah until he has a fund of money sufficient to do business and support himself and his family; among these are the Mordekhai, Bava Batra ch. 500. The Shulchan Arukh cites this opinion approvingly in Yreh De`ah 253:2.

22. One should not give more than one-fifth of his annual income to tzedakah (B. Ketubot 50a), lest one be forced to seek tzedakah from others (Rashi ad loc., s.v. hamevazbez). See Shulchan Arukh Yoreh De`ah 249:1.

23. Siftei Kohen, Yoreh De`ah 248, no. 1.

24. Resp. Rashba (R. Shelomo ben Adret, 13th-14th century Spain) 3:380; Shulchan Arukh Yoreh De`ah 250:5.

25. B. Rosh Hashanah 6a (based upon Deuteronomy 23:24); Yad, Matanot Aniyim 8:1; Shulchan Arukh Yoreh De`ah 257:3.

26. Shulchan Arukh Yoreh De`ah 258:6, ratifying the conclusions reached by a long line of authorities: R. Yitzchak Alfasi, Hilkhot HaRif, Bava Kama fol. 18b; Tosafot, Bava Kama 36b, s.v. yad; R. Asher b. Yechiel, Hilkhot HaRosh, Bava Kama 4:3; R. Shelomo b. Adret, Resp. Rashba 3:298; and Tur, Yoreh De`ah 258.

27. Amirato legevo`ah kemesirato lehedyot: M. Kidushin 1:6, Tosefta Kidushin (ed. Lieberman) 1:9; B. Kidushin 28b and parallels.

28. Rambam describes the process in Yad, Shevu`ot 6:1ff.

29. Resp. Radbaz 4:134. See our responsum no. 5769.2, “Annulling a Pledge to Tzedakah.”

30. Yad, Tefilah 11:1.

31. B. Megilah 29a, from a midrash on Ezekiel 11:16.

32. “Possibility” implies that such is not always the case. For example, the holiness of a beit midrash, a place for the study of Torah, outranks the holiness of a synagogue that is used primarily as a place for prayer; thus, we may turn a synagogue into a house of study, but we may not turn a house of study into a synagogue. See B. Megilah 26b; Yad, Tefilah 11:14; Shulchan Arukh Orach Chayim 153:1; and Mishnah Berurah 153, no. 1.

33. Resp. Maharik, shoresh 128.

34. Shulchan Arukh Yoreh De`ah 249:16 cites Kolon as yesh mi she’omer, “one authority holds that…”, casting some doubt as to whether R. Yosef Karo, the author of that great code, endorses Kolon’s ruling. However, in his Beit Yosef commentary to the Tur, Karo explains how Kolon derives his ruling from its Talmudic source (see following note) and raises no objection to that ruling.

35. Kolon bases himself upon Y. Peah 8:8 (21b). The passage is a difficult one, but most readers interpret it to suggest that support for the sick and for students of Torah takes precedence over support for the synagogue. Given that the passage does not include “the poor” in its list of ends that take precedence over support for the synagogue, Kolon perhaps understands it to exclude tzedakah from that list. Such, at least, is how R. Yosef Karo reads the responsum (Beit Yosef, Yoreh De`ah 249). The problem, of course, is that this is a classic argument from silence: the failure of the talmudic passage to say anything about “the poor” may be a coincidence and not evidence that the synagogue enjoys a higher priority than tzedakah. At any rate, R. Eliahu, the Gaon of Vilna, is openly skeptical about the proof (Bi’ur HaGra, Yoreh De`ah 249, no. 20).

36. R. Shmuel Halevy Wosner, Resp. Shevet Halevy 9:199. Wosner argues that Kolon distinguishes between ordinary donations to a tzedakah fund and the assistance given to poor persons who are actually in need: the latter is in fact a higher priority than supporting the synagogue, for to aid the poor is a mitzvah of the Torah (Deuteronomy 15:7-8). The logic of Wosner’s distinction between tzedakah and aid to the poor is difficult to fathom, but his position is clear.

37. See at note 21, above. See also B. Pesachim 112a and B. Bava Batra 110a: one should go to great lengths to avoid taking tzedakah (Shulchan Arukh Yoreh De`ah 255:1).

38. B. Bava Batra 8b; Shulchan Arukh Yoreh De`ah 248:7.

39. See our responsum 5764.1, “Collection of Debts to the Congregation” (http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=1&year=5764 ): a synagogue is entitled under Jewish law to sue in civil court for payment of pledges. This right, however, involves a serious threat to the standing of the synagogue as a religious institution; it should be invoked sparingly, if at all.

40. See Yad, Nedarim 13:25: it is a mitzvah to fulfill a vow to hekdesh (the Temple and, by extension, the synagogue) and not to try to gain release from it, unless one has fallen into financial difficulty.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5769.2

CCAR RESPONSA

5769.2

Annulling a Pledge to Tzedakah

She’elah

A member of the Jewish community (we’ll call him “Ploni”) made a pledge this year to the United Jewish Communities (“Federation”) communal campaign, as he customarily does. This year, however, the leaders of the UJC knowingly took actions that could have had a negative effect on Ploni’s workplace and livelihood. Ploni works for a Jewish organization in town, an organization over which the UJC has attempted to exert control. Relations between that organization, which has served the Jewish community for over forty years, and the UJC have sharply deteriorated. The UJC has acted in a vindictive way, speaking negatively about Ploni’s organization in the community and threatening to start a competing agency should the organization’s board not accept the UJC’s demands. While the UJC board has since backed away from that threat, the situation between the two parties remains tense, and actions taken by the UJC continue to suggest that they are operating in a competitive mode.

For these reasons, Ploni is not inclined to fulfill his monetary pledge this year to the UJC. He wants to know, according to Jewish law, if he is obligated to pay all, some, or none of his pledge, in light of the ongoing and unresolved difficulties with the UJC board, and the possible negative impact such actions can have on him his livelihood, and his family. (Rabbi Beth J. Chottiner, Wheeling, WV)

Teshuvah

The Responsa Committee is not a beit din, a court of Jewish law that adjudicates actual cases. Were we empowered to perform such a function, we would need to hear the evidence and claims of both sides to a particular dispute before rendering a decision. In this instance, as in most of the communal disputes over which we are occasionally called upon to express an opinion, we are presented with the arguments of only one side (that of “Ploni”) and have no access to those of the other (the UJC-Federation). We say this to make it clear that we are not deciding this dispute; we cannot say that the right lies with either Ploni or the UJC or that it is somehow split between them. Our task is to respond to the question as it has been framed for us. That is, if we presume Ploni’s version of events to be correct, would we regard him as obligated according to Jewish law and tradition to fulfill his pledge to the UJC campaign?

1. Pledges to Tzedakah in Jewish Tradition. “Tzedakah,” writes Maimonides, “belongs to the category of vows. Therefore, one who says ‘I pledge a sela to tzedakah’ must give that sela to the poor immediately” unless he specified in his pledge that the gift would be made at a later time.[1] This rule, repeated in the Shulchan Arukh,[2] is based upon a Rabbinic interpretation of Deuteronomy 23:24.[3] Jewish tradition would regard a pledge of tzedakah, such as Ploni’s pledge to the local Federation campaign, as a binding obligation under Torah law. The relevant legal theory is that when one makes a vow to “Heaven” – for example, a pledge to bring a sacrifice or to make a donation to the ancient Temple or to pay a certain sum to tzedakah – one effectively transfers to “Heaven” the legal title to that object or sum, just as surely as if one had transferred the physical possession of some object or sum to an earthly buyer.[4] For this reason, “(o)ne who has made a vow to tzedakah is not permitted to retract it.”[5]

The word “retract” implies a unilateral decision: one cannot on one’s own renounce a pledge to tzedakah. On the other hand, one can annul the vow through the process of hatarat nedarim (“release of vows”), a legal ritual that takes place before an ordinary beit din of three judges or before a single scholar who is an expert in this field of law.[6] In its essence, the process requires that the individual express sincere regret over the vow, saying that “had I but known at the time that thus-and-such would have happened to me and that I would feel this way today, I never would have made this vow.”[7] This procedure suffices to release a vow made concerning any subject; a pledge to tzedakah would be no exception.[8] However, in an important responsum, R. David ibn Zimra (Radbaz, 16th-century Egypt and Eretz Yisrael) writes that while aa a matter of law a tzedakah vow can be annulled, “the scholar who annuls it deserves excommunication (nidu’i)… because he has caused a loss to the poor.”[9] This ruling, cited approvingly by a number of subsequent authorities,[10] affirms the existence of a powerful moral (if not strictly legal) obligation not to seek or to grant a release of a pledge made to tzedakah.

2. The Case Before Us. We, too, cite the decision of Radbaz with approval. Ploni has made a pledge – that is, a vow – to tzedakah, and he bears an obligation under Jewish law to pay it. He could, of course, seek a release of that vow, and assuming the accuracy of his description of the relations between his agency and the UJC, he could without much difficulty support the required claim that “had I but known that these things would happen, I never would have made this pledge.” At the same time, the moral obligation of which Radbaz speaks would argue powerfully in favor of his paying the pledge and not seeking to annul it.

Against this, Ploni could raise two pertinent arguments.

First, he could assert that his pledge to the UJC campaign does not take on the character of a vow, since the very concept of a vow is rather foreign to us. When we sign a pledge card or say “yes” to the UJC telephone solicitor, we do not generally imagine that we have made a ritually-binding obligation that the Torah requires us to fulfill. Instead, we think that we have made a simple statement of intent, an intent that we can change without transgressing against the details and technicalities of the traditional laws that govern vows (hilkhot nedarim). This argument, however, is insufficient. Whether or not one is thinking “vow” when one pledges to the campaign, that pledge is a promise, a self-imposed obligation to perform a mitzvah. And the concept of “promise” or “obligation” is not foreign to us at all. For example, this Committee has ruled that Jewish law empowers a congregation to bring suit in civil court against a member who is delinquent in paying his or her financial obligations – i.e., pledges – to the synagogue. Although we cautioned that a congregation should think long and hard before resorting to this difficult remedy, the remedy itself is approved by our tradition.[11] This simply underscores the binding nature of the promises we make, particularly promises of financial support to communal institutions. In short, we may not be thinking “vow,” but a vow is what we are making.

Second, Ploni might offer to take the money he would have donated to the UJC campaign and give it directly to the Federation’s constituent agencies or other charitable organizations. In this way, the objection of Radbaz that one who annuls a pledge to tzedakah “has caused a loss to the poor” would not apply to him. Yet there are problems with this course as well. As Radbaz notes in his teshuvah, when one has vowed tzedakah to a particular individual, that person has legal title to it; the one who has made the vow cannot thereupon transfer the tzedakah to another recipient.[12] In this case the UJC, as the agent for its constituent agencies and the clients and causes they serve, has “title” to Ploni’s pledge, a title that translates into a reasonable expectation that he will keep his promise. The pledge, upon which the Federation relies as it considers its allocations for the coming year, thus becomes a moral (as well as legal) obligation. The UJC may well have dealt unjustly with Ploni and his agency; if so, all appropriate remedies should be sought and employed. But that fact – again, assuming that it is true – does not justify his retracting a pledge that was intended, after all, to perform a mitzvah: to assist the Federation in helping the poor and in supporting Jewish life.

Conclusion. Jewish law allows an individual to annul a vow to tzedakah, but it regards such an annulment as a transgression against one’s moral obligation to aid the needy. We think that this teaching applies quite well to our case. Ploni, should he choose to do so, may refrain from pledging to next year’s UJC campaign, so long as he donates directly to tzedakah agencies the sum he would otherwise have pledged. We hope, of course, that he does not choose to do so, that the disputes between his agency and the UJC can be resolved by that time. As for this year’s campaign, meanwhile, he should fulfill his promise.

NOTES

1. Yad, Matanot Aniyim 8:1.

2. Shulchan Arukh Yoreh De`ah 257:3. Isserles, ad loc., notes that pledges made to a public campaign are generally not due to be paid “immediately.”

3. B. Rosh Hashanah 6a. The verse clearly establishes the obligation to fulfill one’s vows; the Rabbis include tzedakah among these vows on the basis of befikha, the final and seemingly superfluous word of the verse. See Kesef Mishneh to Yad, Matanot Aniyim 8:1.

4. Amirato legevo`ah kemesirato lehedyot: M. Kidushin 1:6, Tosefta Kidushin (ed. Lieberman) 1:9; B. Kidushin 28b and parallels.

5. Shulchan Arukh Yoreh De`ah 258:6, ratifying the conclusions of a long line of authorities: R. Yitzchak Alfasi, Hilkhot HaRif, Bava Kama fol. 18b; Tosafot, Bava Kama 36b, s.v. yad; R. Asher b. Yechiel, Hilkhot HaRosh, Bava Kama 4:3; R. Shelomo b. Adret, Resp. Rashba 3:298; and Tur, Yoreh De`ah 258.

6. Rambam describes the procedure in Yad, Shevu`ot 6:1ff. In 6:2, he informs us that the procedure “has no legal root (`ikar) in the written Torah; rather, our teacher Moses learned it through oral tradition.” In Yad, Nedarim 4:5 he notes that the procedure is identical with respect to vows (nedarim) and oaths (shevu`ot).

7. See M. Nedarim 9:1-2: the members of the court may even suggest to the individual various pretexts upon which he might appeal for the annulment of his vow.

8. R. Meir Azariah of Fano (d. 1620), in his Responsa, no. 62, summarizes the discussion in the sources. One can have a vow to tzedakah annulled, although the grounds are somewhat more stringent than those required for other vows, given that one should not be seen as attempting to avoid the fulfillment of a mitzvah.

9. Resp. Radbaz 4:134.

10. R. Shalom M. Schwadron (19th-20th century Poland), Resp. Maharsham 3:119; R. Halfon Moshe Hakohen (20th-century Tunisia), Resp. Sho’el Venish’al 1, Yoreh De`ah no. 166; R. Ovadyah Hadayah (20th-century Israel), Resp. Yaskil Avdi 2, Yoreh De`ah no. 11); and R. Rachamim Hakohen (20th-century Israel), Resp. Simchat Kohen, Yoreh De`ah no. 109. A number of these authorities do hold that one may ask for release from a vow to tzedakah under certain circumstances: for example, when one’s financial situation has deteriorated, or when the organization to which one made the original pledge has dissolved. Such circumstances do not apply in the case before us.

11. Responsa Committee, no. 5764.1, “Collection of Debts to the Congregation,” http://data.ccarnet.org/cgi-bin/respdisp.pl?file=1&year=5764 .

12. See note 9, above: amirato lo kemesirato, “the pledge to this person is tantamount to transferring ownership to him.”

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5769.1

CCAR RESPONSA

5769.1

Congregational Fund-raising on Shabbat

She’elah

We are a small cash-strapped congregation with about 148 families. A project that has brought in the bulk of our fund-raising money over the last three years has been our participation in the local Hot Air Balloon festival. The festival starts Friday night and continues through to Sunday evening. We have manned some of the “beer booths,” with a percentage of the proceeds going to our synagogue. Most of the volunteers are temple members and some are friends of members.

Needless to say, this has had a mixed reception. Some congregants want it to continue because it brings us much of the money needed to operate and others are mortified that we are fund-raising on Shabbat. The Religious Practices Committee, of which I am chair, has read responsa on fund-raising on the Sabbath and know where the Reform Movement stands on the issue, but none of the responsa match our situation exactly, since in none of the examples did the synagogue in question rely on the money collected to “stay in business,”so to speak. Does the fact that this fund-raiser helps us pay our operating expenses play into whether or not we participate? (Elizabeth Tracey, Hunterdon County, NJ)

Teshuvah

As our she’elah indicates, this Committee has previously addressed the issue of congregational fund-raising on Shabbat. In doing so, we have had to confront the more general issue of shemirat shabbat, the observance of the Sabbath, specifically the traditional prohibitions that restrict various activities on that day. Here, in a responsum published over ten years ago, is how we expressed our conception of that challenge:

The observance of Shabbat is a complex and challenging issue for Reform Jews. On the one hand, we dispense in our practice with many of the traditional prohibitions associated with the day. Put differently, we tend to be more comfortable with zakhor, the various rituals which enable us to “remember” the Sabbath, than with shamor, the requirement that we refrain from a multitude of activities as the proper means to “observe” the Sabbath. On the other hand, it is inaccurate to say that we Reform Jews have no concept of Shabbat observance. The seventh day is for us, as it is for other Jews, shabbat kodesh, a sacred time, possessing a character which differentiates it from other days. An inescapable component of this sanctity is the recognition that certain activities ought not to be performed on Shabbat, for to indulge in them would violate the essence and spirit of the holy day as we perceive these to be. Our list of “forbidden activities” may differ from and be markedly smaller than that maintained by the traditional halakhah, but the spirit behind these prohibitions demonstrates that we regard the issue of Shabbat observance with the utmost seriousness.[1]

That some of our sho’elet’s congregants are “mortified” at the prospect that their congregation would engage in fund-raising on Shabbat is an example of this seriousness. It demonstrates that, alongside our readiness to innovate and to redesign the structure of shemirat shabbat, the concept remains central to our understanding of the nature of the Jewish Sabbath. There is no “Shabbat,” in other words, without shemirat shabbat, the abstention from “work” (however that is to be defined) and from other specific activities deemed contrary to the spirit of that holy day. In particular, we have accepted the traditional Rabbinic-halakhic prohibition against conducting business and commercial activity on the Sabbath. As our teacher Rabbi Solomon B. Freehof wrote in 1962:[2]

According to the Jewish tradition, of course, for any Jew to have a store open on Shabbas is a sin. For a congregation to have it with the knowledge of everybody is a violation of the Sabbath befarhessya, in public, and to do that in behalf of a congregation is also very ugly (mishum miyuss). I am sure that very few congregations would permit themselves this public violation of the Sabbath, but remember, my statement is not official because it is hard for us to find a clear halachic foundation for Sabbath violation. I am telling you merely my feeling as an experienced rabbi of a large, historic congregation. It is my conviction that it should not be done; that it is especially improper for a synagogue to do it; and worse that it is done in public.

Rabbi Freehof expresses this conviction even in the absence of a clear theoretical (or, as he terms it, “halachic”) foundation for defining Shabbat violation (chilul shabbat) in Reform Judaism. During the past several decades, the Responsa Committee has sought to move toward the development of just such a foundation. We have based ourselves upon two fundamental premises. The first is that, since our Reform religious practice is deeply rooted in the halakhic tradition, we are guided by a distinct bias in favor of that tradition. As we have put it, “traditional observances ought to enjoy a considerable presumptive weight in our thinking. As liberal Jews who seek affirm our connection to our people in all lands and all ages, we should maintain the traditional practice in the absence of a compelling reason to abandon or alter it.”[3] The second premise is the renewed emphasis that our Conference and movement have recently placed upon the recovery and strengthening of Shabbat observance.[4] As part of this emphasis, the Conference advocates that we refrain on that day from work and from “all public activity which violates or gives the appearance of violating the sanctity of Shabbat.”[5] Thus, in a series of decisions we have concluded that Shabbat must be viewed not as simply a day on which we assemble for public worship but rather as a mitzvah in its own right, one that makes its own legitimate demands upon our attention. Those demands, moreover, will not infrequently outweigh the conflicting demands of other mitzvot,[6] including such worthy causes as tzedakah and social action projects that involve activities inconsistent with the nature of Shabbat.[7]

The prohibition against conducting business activity flows from this understanding of Shabbat “as a mitzvah in its own right.” Although buying and selling (mekach umimkar) is not numbered among the thirty-nine categories of labor that our sources define as “work,”[8] it has always been prohibited on Shabbat. Our tradition regards the seeking of profit and the striving after gain, even in the service of a worthy cause, as incompatible with the nature of a day that is meant to be devoted to prayer and Torah study, menuchah (rest) and spiritual renewal.[9] As our colleague and teacher, Rabbi Arnold Jacob Wolf, put it: “The ‘work’ that is prohibited by Jewish law on the Sabbath is not measured in the expenditure of energy. It takes real effort to pray, to study, to walk to synagogue. They are ‘rest’ but not restful. Forbidden ‘work’ is acquisition, aggrandizement, altering the world. On Shabbat we are obliged to be, to reflect, to love and make love, to eat, to enjoy” (emphasis added).[10] This is the Shabbat that our Reform Judaism teaches us to strive for and to bring into our lives.[11]

This teaching encompasses work on behalf of the synagogue. Therefore, as we have written in a previous teshuvah, “(w)e strongly discourage the scheduling of congregational meetings and synagogue fund-raising projects on that day, even though it is a mitzvah to support the community.”[12] Our she’elah, though it clearly supports this understanding of Shabbat, asks whether we would argue against congregational fund-raising on that day even when a “cash-strapped” synagogue needs those funds “to stay in business.” We sympathize. Most of us serve or have served as congregational rabbis. All of us are active participants in congregational life. We know (all too) well how difficult it can be to meet the demands of even a modest operating budget, especially in times of economic recession.[13] Yet we find it just as difficult to take literally the claim that this congregation cannot “stay in business” without manning the beer booths at the festival on Friday night and Saturday. We cannot imagine that the synagogue and its leadership can find no other sufficient fund-raising opportunities – that do not involve the violation of the sanctity of Shabbat- to replace the Hot Air Balloon Festival. And even were this claim literally true, we would still agree with those congregants who oppose this project. The very task of a synagogue is to teach the fundamental values of our faith and our tradition. And as we know, the best way to teach such values is to live them. That, after all, is why we are “in business” in the first place.

The congregation should not participate in this fund-raising project on Shabbat.

NOTES

 

  • Responsa Committee, no. 5756.4, “Presenting a Check for Tzedakah at Shabbat Services” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=4&year=5756). On the identification of zakhor (that is, the reference to Shabbat in the Exodus version of the Ten Commandments, Ex. 20:7) with the positive mitzvot of the day and of shamor (see the parallel in Deut. 5:11) with the prohibitory regulations, see Rashi to B. Berakhot 20b, s.v. kidush hayom mitzvat aseh, etc) and beshemirah.
  • Letter of R. Solomon Freehof to R. Martin Silverman, Monroe, LA, 12 October 1962. American Jewish Archives, AJA MS-435: Solomon B. Freehof Papers 2/6. We are indebted to our colleague Rabbi Joan S. Friedman, a corresponding member of the Committee, for this reference. She is the author of Solomon B. Freehof, the “Reform Responsa,” and the Shaping of American Reform Judaism (Ph.D. dissertation, Columbia University, 2003).
  • Responsa Committee, no. 5756.4 (see note 1). Note 20 of that responsum cites other teshuvot in which this principle is developed. In addition, see Responsa Committee, no. 5757.7, “The Synagogue Thrift Shop and Shabbat” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=7&year=5757 ),which describes this approach as a “preferential option” for traditional patterns of observance.
  • This is expressed in a number of publications, including: Tadrikh leshabbat/A Shabbat Manual (New York: CCAR, 1972); Peter S. Knobel, ed., Sha`arei Mo`ed/Gates of the Seasons (New York: CCAR, 1983; and Mark Dov Shapiro, ed., Sha`arei Shabbat/Gates of Shabbat (New York: CCAR, 1991).
  • Gates of the Seasons (see preceding note), paragraphs A-4, A-5, and A-8, pp. 22-24.
  • Thus, we maintain the traditional prohibitions against scheduling weddings and delayed circumcisions on Shabbat; American Reform Responsa (ARR), no. 136, AMarriage on Shabbat or Yom Tov@ (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=136&year=arr ) and Teshuvot for the Nineties (TFN), no. 5755.12, ADelayed Berit Milah on Shabbat@ (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=12&year=5755).
  • Contemporary American Reform Responsa, no. 176, APoverty Project and Shabbat” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=176&year=carr), TFN, no. 5753.22, “Communal Work on Shabbat” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=22&year=5753), and Responsa Committee, no. 5756.4 (note 1, above).
  • M. Shabbat 7:2.
  • For sources and discussion, see Responsa Committee, no. 5756.4 (note 1, above), section 1, ACommercial Activity (Sale and Gift) on Shabbat@ and the accompanying notes.
  • Cited in Gates of Shabbat (note 4, above), pp. 55-56.
  • See the sermon delivered by Rabbi Eric H. Yoffie at the Biennial of the Union for Reform Judaism, December 15, 2007 (http://urj.org/Articles/index.cfm?id=17449 ).
  • Responsa Committee, no. 5756.4 (note 1, above), Responsa Committee, no. 5757.7 (note 3, above), New American Reform Responsa (NARR), no. 60, “Fund Raising on Shabbat” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=60&year=narr ).
  • For the record, we write this teshuvah at the beginning of the civil year 2009, a time of severe recession that many experts are calling an “economic meltdown.” The monetary difficulties we normally confront are therefore dramatically increased.

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5768.5

CCAR RESPONSA

5768.5

On Changing One’s Jewish Name

She’elah

In our congregation, each child receives at the time of consecration a certificate with his or her Hebrew name. It is our practice to include only the names of Jewish parents as part of the child’s Hebrew name. We have a situation in which the mother of a child was Jewish at the time of the child’s birth but has since converted out of Judaism. Do we include her name on the certificate? The father and the mother’s parents, who are Jewish, are dedicated to raising the child as a Jew and, in fact, travel a significant distance each week so that the child can receive a religious education. The parents are divorced, and the father has primary custody of the child. (Rabbi Bryna Milkow, Indianapolis, IN)

Teshuvah

Your question raises two issues that are closely related but that deserve separate treatment: the religious nature and significance of one’s Jewish name, and the reasons for which it might be proper to change that name once it has been bestowed upon a person.

1. The Jewish Name. We use this designation rather than “Hebrew name” because the issue is not simply one of language. One’s Jewish name, as we have written previously, “is a covenantal name, a declaration that the one who bears it is a member of the community that stood at Sinai to receive the Torah. In this covenantal name, the names of one’s parents do not testify simply to one’s biological lineage. Rather, they register the fact that it was through these parents that this person was brought into the berit (covenant) between God and Israel.”[1] It is therefore inappropriate to include the name of a Gentile parent as part of a child’s “Hebrew” name, since that parent is not a member of the covenantal community.[2] The child in this case presumably received his or her Jewish name at the ceremony of berit milah or of naming, and that name included the names of both parents – e.g., “ben/bat Ya`akov veRachel” – reflecting the fact that this child is a member of the Jewish people by virtue of the lineage of the father and the mother. Now, however, “Rachel” has begun to practice another religion; she has, that is, become an apostate. May we remove her name from that of her child, even though the child received his or her Jewishness at least in part through the mother?[3]

2. When May One Change A Jewish Name? In a previous teshuvah, this Committee considered a request to include the name of a step-parent, along with those of the two biological parents, in a person’s Jewish name.[4] On the basis of the reasoning set forth in the previous paragraph, we recommended that the request, which involved changing the name that the child received at birth, not be granted. In the course of our discussion, we noted that “our tradition permits one to change his or her Jewish name under certain conditions. For example, the halakhah provides that while an individual is called to the Torah by his Jewish name, he may omit his father’s name (perhaps substituting the name of his paternal grandfather in its place) should the father be an apostate, that is, a convert to another religion. Your biological father, however, has not done anything so grievous. He has not abandoned you or forsaken his duty as a father; indeed, you acknowledge that he has been ‘a regular part of (your) life.’ Even were we to agree, therefore, that at times one’s Jewish name might be altered, this is not one of those times.” We listed some sources for this halakhah in a footnote.[5] We want to discuss them here in some detail, since they suggest a possible response for this and similar cases.

The mother in this instance is an apostate (mumeret/ mumar or meshumedet/meshumad), a Jew who has adopted another religion. The dominant view in the halakhah is that an apostate never ceases (at least technically) to be a Jew, a member of the covenant community. On the other hand, precisely because he or she has chosen to abandon Judaism, the tradition prescribes a number of penalties for the apostate.[6] For example, “(apostates) are not permitted to lead communal worship, to address the congregation, to be counted in the minyan, or to receive synagogue honors such as an aliyah to the Torah.”[7] The omission of the name of an apostate parent from one’s own Jewish name follows closely along these lines. In the Shulchan Arukh,[8] R. Moshe Isserles writes: “One whose father is an apostate is called to the Torah by the name of his father’s father. He is not called by his own name alone, in order to spare him public humiliation.” For example, if Yitzchak has become an apostate, his son Ya`akov is called to the Torah by the name “Ya`akov ben Avraham,” Avraham being Yitzchak’s father. He is not called by the name “Ya`akov” alone, “in order to spare him embarrassment.” Isserles follows the decision of his Ashkenazic predecessor, R. Yisrael Isserlein, the author of the responsa collection Terumat Hadeshen.[9] We find similar reasoning in a responsum of R. David ibn Zimra (16th-century Egypt/Eretz Yisrael), who accepts as valid a get (bill of divorce) in which the husband’s name does not include the name of his father. The omission does not disqualify the get, he declares, because (among other reasons) the father was an apostate, and it is “inappropriate” (ein ra’ui) to mention that fact in an official document.[10] On the other hand, R. Meir Katznellenbogen, a contemporary of Isserles, appears to dissent from this thinking, arguing that the son of an apostate ought to be called to the Torah by the name of his father rather than the name of his grandfather. Yet his ruling, as he notes, deals with adults, individuals who have customarily been called to the Torah by their father’s name. To change their name now would call attention to their family scandal and cause them public shame. He explicitly distinguishes his case from that of a minor who has never been publicly called to the Torah by the name of his (apostate) father and would not be ashamed were the grandfather’s name substituted in its place.[11] To summarize: one is permitted and even encouraged to omit an apostate parent’s name from one’s own Jewish name, unless the very act of changing the name would be the occasion of shame and embarrassment.

Your congregation’s policy strikes us as a reasonable expression of the values that emerge from the halakhic discussion. It is quite arguably “inappropriate” (ein ra’ui) to include in a child’s Jewish – covenantal – name the name of a parent who has decided to abandon the covenant. Changing the child’s name at this early age, moreover, is unlikely to cause the sort of humiliation from which our tradition seeks to spare the individual.

There is, of course, one person who may feel humiliation as a result of this change of name, and that is the child’s mother. For this reason, the rabbi should explain to her that this is not meant as a punitive act and certainly not as an effort to remove her from her child’s life but as a simple acknowledgment that, by her own decision, she no longer considers herself part of the covenant community that has committed itself to “teach these words diligently unto your children” (Deuteronomy 6:7). Although we regret the choice she has made and although we stand ready to welcome her back into the community of Israel should she wish to return, we accept her decision as rational. By that same token, she should accept the consequences her decision rationally entails for her child’s religious upbringing.

Our discussion is relevant as well to the cases which we mention in our earlier teshuvah.[12] Should a parent abandon or abuse a child, the child may be entitled to omit that parent’s name from his or her own Jewish name. Many would consider it inappropriate to include the name of such a parent in the name of the child being called to the Torah. In addition, as we have seen from our examination of the sources, the issue of shame and embarrassment is of central importance in this subject. If the mention of a parent’s name will lead unavoidably to great personal humiliation for the child, then we think our tradition would support the decision to omit that parent’s name from his or her own..

Conclusion. We say all this with a caveat that should be obvious, namely that decisions such as these carry enormous psychological ramifications. The rabbis who deal with these cases will certainly want to counsel with all those involved, both the children and (if possible) the parent(s), to make sure that they understand the potential consequences of those decisions as best they can. The rabbis should remind them that, although one may be entitled to change one’s Jewish name for reasons such as these, that course of action is not obligatory. It is no little or inconsequential step to omit the name of a parent from one’s own Jewish name. The decision to do so should be carefully thought through before it is carried out.

NOTES

1. CCAR Responsa Committee, no. 5760.6, “A Convert’s Hebrew Name,” http://data.ccarnet.org/cgi-bin/respdisp.pl?file=6&year=5760 .

2. CCAR Responsa Committee, no. 5762.2, “A ‘Hebrew Name’ for a Non-Jewish Parent,” http://data.ccarnet.org/cgi-bin/respdisp.pl?file=2&year=5762 .

3. This is not the place for an extended discussion of the CCAR’s position on “patrilineal descent,” enunciated in a resolution of the Conference in 1983 (http://data.ccarnet.org/cgi-bin/resodisp.pl?file=mm&year=1983). The term is something of a misnomer, since the point of the resolution is that a child can enjoy a presumption of Jewish status when either biological parent is a Jew, provided that the parent expresses the intention to raise that child as a Jew through the performance of “appropriate and timely public and formal acts of identification with the Jewish faith and people.” For commentary, see Rabbi’s Manual (New York: CCAR, 1988), pp. 225-227, and Teshuvot for the Nineties, no. 5755.17, pp. 251-258, “The Dual Religion Family and Patrilineal Descent” ( http://data.ccarnet.org/cgi-bin/respdisp.pl?file=17&year=5755 ). Our point is simply that, even with this resolution, biology or lineage continues to determine Jewish status in the North American Reform Jewish community. The biological child of two Jewish parents is considered a Jew even in the absence of “appropriate and timely… acts of identification,” and the biological child of one Jewish parent may claim Jewish status, according to the terms set forth by the resolution, without the necessity for conversion. By contrast, the biological child of two non-Jews must undergo the process of giyur (conversion) in order to enter the Jewish community, even if the parents “raised” him or her as a Jew.

4. CCAR Responsa Committee, no. 5765.8, “Including the Name of a Stepfather in One’s Jewish Name,” http://data.ccarnet.org/cgi-bin/respdisp.pl?file=8&year=5765.

5. Ibid., note 11.

6. See R. Solomon B. Freehof, Modern Reform Responsa, no. 30, pp. 169-175; “Status of a ‘Completed Jew’ in the Jewish Community,” Contemporary American Reform Responsa, no. 68, (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=68&year=carr); and “Apostate in the Synagogue,” Teshuvot for the Nineties, no. 5753.13, pp. 81-85 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=13&year=5753).

7. Responsa Committee, “Donations to Synagogue by Messianic Jews,” no. 5761.2 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=2&year=5761).

8. Shulchan Arukh Orach Chayim 139:3.

9. Resp. Terumat Hadeshen, no. 21. Isserles (the “Rema”) lived in 16th-century Poland, where the teachings of the 15th-century German scholars were given great precedential weight.

10. Resp. Radbaz 1:376.

11. Resp. Maharam Padua, no. 87. He asserts that the author of the Terumat Hadeshen (see note 9) would have accepted this distinction as well. And see Mishnah Berurah to Orach Chayim 139, no. 9: when the adult in question moves to another city, he should omit his apostate father’s name from his own. The change would not attract attention, and no embarrassment would result.

12. See note 4.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5768.4

CCAR RESPONSA

5768.4

Caesarian and Circumcision

She’elah

A member of our synagogue gave birth to a boy by Caesarian section (C-section) on Shabbat. The boy’s parents attempted to arrange a berit milah on the eighth day of the child’s life, also a Shabbat, but an Orthodox mohel told them C-section baby is not circumcised on a Shabbat or a festival. What is the basis in traditional Jewish law for this position? Should a Reform mohel observe the prohibition against performing the milah on the eighth day of the child’s life if that day coincides with Shabbat or a yom tov? (Rabbi Michael Dolgin, Toronto, ON)

Teshuvah.

This she’elah involves a technical point of Jewish ritual law. Yet like many such seemingly “minor” issues, it raises some interesting questions as to how we are to read and to make sense of our traditional sources when these are equivocal. And it raises similar questions concerning the way we interpret our own Reform Jewish sources when these, too, lead to differing conclusions.

1. The Traditional Prohibition. The Orthodox mohel is correct in his understanding of the halakhah, if by that term we mean “the law as stated in the major codes.”[1] While all agree that the infant boy is circumcised on the eighth day of his life, even if that day should occur on a Shabbat or a festival,[2] both Maimonides[3] and the Shulchan Arukh[4] rule that the child delivered through Caesarian section (yotzei dofen) is not to be circumcised on those days. Yet the matter is rather more complicated. The Talmudic source of this rule is B. Shabbat 135a-b, where Rav Assi draws a midrashic link between Leviticus 12:3 (the child is circumcised on the eighth day) and Leviticus 12:1, which speaks of tumat leidah, the ritual defilement that accompanies birth. From that link, he learns that the child is circumcised on the eighth day only when the mother contracts this defilement. Since the woman who delivers by means of C-section does not contract tumat leidah (M. Nidah 8:1), her baby is circumcised at birth.[5] The Talmud objects to Rav Assi’s conclusion by citing an Amoraic dispute in which both authorities are said to agree that the C-section baby is indeed circumcised on his eighth day but disagree as to whether that circumcision should take place on a Shabbat. The Talmud further cites a dispute among the earlier Tanaim as to whether, in fact, the issue of tumat leidah has anything to do with whether the child is to be circumcised on the eighth day.[6] The passage does not explicitly resolve these disagreements, and the post-Talmudic authorities are not surprisingly divided as to the proper decision. Some rule according to Rav Assi: the C-section baby is not to be circumcised on the eighth day, and his milah therefore does not override Shabbat.[7] Others say that the halakhah definitely does not follow Rav Assi, so that the milah for this baby must occur on the eighth day even should that fall on a Shabbat or a festival.[8] And others, including Maimonides and the Shulchan Arukh, unable to decide between the above alternatives, take what we would call the “cautious approach” and rule stringently on both matters:[9] the C-section baby should be circumcised on the eighth day (in case the law in fact requires this) but not on Shabbat or festivals (in case the law in fact forbids this).[10] This stance has become the predominant traditional practice and, in turn, explains what the Orthodox mohel told the parents to whom our sho’el refers.

We suggested above that the Talmudic source of this halakhah is equivocal. This is because it does not clearly indicate the correct rule and has led to conflicting legal interpretations over the centuries. The “cautious approach” of the major codifiers is therefore a reasonable one. When the arguments on both sides of a dispute are so closely balanced that it is impossible to decide with confidence between them, it makes sense to steer a middle course and to affirm the central concerns of both points of view. Halakhic authorities often resort to this device.[11] We, however, are not convinced that the cautious approach was necessary in this case, because it appears to us, as it appears to several rishonim,[12] that the dispute is not so equally balanced. A careful reading of the Talmudic passage indicates that a majority of the Sages named therein reject the connection that Rav Assi makes between tumat leidah and the date of circumcision. In our view, therefore, the better reading of that passage is that the halakhah definitely does not follow Rav Assi:[13] the C-section baby ought to be circumcised on the eighth day, even on Shabbat and festivals.

2. The Reform Halakhic Tradition. The situation in Reform practice is also equivocal, because the two Reform responsa that address this issue arrive at conflicting decisions. Rabbi Solomon B. Freehof rejects the traditional prohibition and rules that we circumcise the C-section baby on Shabbat or a festival.[14] Rabbi Walter Jacob, meanwhile, writes that “we must respectfully disagree” with Rabbi Freehof’s decision[15] and that we should postpone the milah of such a child to the next day.[16] Given that we must choose between these two positions, let us examine the arguments that each of them presents.

Rabbi Freehof criticizes the traditional prohibition on the grounds that the ruling “overextends the statement in the Mishnah (Shabbat 19:3) which speaks only of the androgynous and does not at all mention the Caesarian child.” This is true, but the Mishnah’s silence concerning the C-section baby does not mean that Jewish law ignores the subject. This particular rule, as we have seen, is based not on the Mishnah but on a series of Amoraic and Tanaitic statements brought forth in the Talmud (B. Shabbat 135a-b). All subsequent authorities base their rulings on this Talmudic source, and they do not cite the Mishnah’s silence as an argument either pro or con. As Rabbi Freehof does not discuss the Talmudic source, his responsum offers no substantive argument against the prohibition as registered by Maimonides and the Shulchan Arukh.

Rabbi Jacob upholds the prohibition because “there is neither a Reform ideological reason for a change nor any other reason.” He thereby invokes a general principle of Reform halakhic decision making (pesak): the “default” position of our responsa should be to affirm the traditional practice unless there is sufficient cause based in Reform doctrine that would lead us to depart from that standard. This principle is a powerful one. The affirmation of traditional practice, particularly because that standard helps to unite us with the rest of the Jewish community, has often informed our thinking.[17] Yet in this instance we can identify at least two good “Reform ideological reasons” that do argue for a departure from the traditional practice.

a. Talmudic halakhah treats the C-section baby as an exceptional case because, in the view of the Sages, such a child was “delivered” but not “born” in the usual sense of that term.[18] But this notion is foreign to our contemporary way of thinking. Caesarian section, once considered extremely dangerous and hence very rarely performed, has become much safer and more commonplace; in 2002, nearly 26% of all births in the United States were C-sections.[19] In the conceptual world in which we Reform Jews live and function it no longer makes sense to draw legal and ritual distinctions between babies delivered in the “natural” way and those brought forth from the womb via C-section. To put it another way, the means by which this child has entered the world is much less important to us than the fact that he has entered it.

b. To enforce the traditional prohibition may distract our people’s attention from the religious significance of the mitzvah of berit milah. That mitzvah is performed, in the absence of medical complications,[20] on the eighth day of a Jewish boy’s life, even if that day is a Shabbat or a festival. The timing is an essential element of the mitzvah; we have consistently held that circumcision must take place on the eighth day and be neither advanced nor postponed out of reasons of convenience.[21] To delay the milah from Shabbat until Sunday in this case, on grounds that will strike many as a technicality devoid of substance and relevance, may well persuade members of our community that it is permissible to postpone milah for other, unacceptable reasons (i.e., for the sake of convenience) that they will nonetheless take more seriously.

3. Conclusion. We hold that the Jewish child delivered by Caesarian section should be circumcised on his eighth day, even if the eighth day is a Shabbat or a festival. We do so because the traditional rule that prohibits such circumcisions is grounded upon a weak and contested reading of the halakhic sources; because the prohibition is no longer coherent with our understanding of childbirth; and because the maintenance of the prohibition conflicts with our insistence upon the eighth day as the proper time for the mitzvah of berit milah.

It is important to note, however, that all C-sections are not the same. Sometimes the procedure is performed, as it was always performed in the past, as an emergency measure, to deliver a child when a problem developed with a vaginal birth. Today, however, it is often the case that physicians will routinely schedule C-sections for women whom they know or fear will have difficulty giving birth vaginally. For purposes of berit milah, we consider an emergency C-section no different than a regular birth. A baby born as the result of an unscheduled C-section should be circumcised on the eighth day even if that day is Shabbat or a festival. However, a scheduled C-section is a different matter, since parents in that case have the option to choose a day that would avoid scheduling a berit milah on Shabbat or a festival. In those cases, the berit milah should be performed after Shabbat or the festival, in keeping with traditional practice.

NOTES

1. This note is not the place for an extended discussion of the nature of halakhah. It bears emphasis, however, that our entire Reform responsa enterprise is based upon the assertion that “the” halakhah is not to be identified with any particular, formal statement of it, whether that statement is a paragraph in the Shulchan Arukh or whether it reflects the consensus opinion among the contemporary Orthodox rabbinate. In fact, we would argue that the entirety of the Jewish legal tradition is based upon this assertion. Halakhah is the ongoing conversation and argument over the meaning of the texts of that tradition and their application to our lives. To identify any “code” or banc of poskim as the final arbiters of the law is to cut short this argument and to deny us the opportunity to read and to understand the sources as best we can, according to our own lights.

2. See Leviticus 12:3 (“On the eighth day the flesh of his foreskin shall be circumcised”) and B. Shabbat 132a (“‘On the eighth day’ – even if it is a Shabbat”). Yad, Milah 1:9; Shulchan Arukh Orach Chayim 331:1ff and Yoreh De`ah 266:2.

3. Yad, Milah 1:11.

4. Shulchan Arukh Orach Chayim 331:5 and Yoreh De`ah 266:10.

5. See Rashi ad loc., s.v. kol she’ein imo temei’ah leidah.

6. If the answer to this question is “no,” which is the view attributed to the anonymous (majority) position in the baraita (against that of R. Chama), then the C-section baby would obviously be circumcised as all other babies: on the eighth day, including Shabbat.

7. Among these: R. Yonah Gerondi, cited in Chidushei HaRashba, Shabbat 135b and in R. Nissim Gerondi’s commentary to Alfasi, Shabbat 135b; Chidushei HaRitva, Shabbat 135b.

8. See Nachmanides, Chidushei HaRamban, Shabbat 135b, who takes this position in theory (although retreats from it in practice). He is perhaps the anonymous authority to whom this position is attributed in R. Nissim, Rashba, and Ritva (see preceding note). See as well Sefer HaHashlamah (Provence, early 13th century), Shabbat 135b.

9. This is how R. Nissim (note 6, above) and R. Yosef Karo (Kesef Mishneh, Milah 1:3 and Beit Yosef, Orach Chayim 331 and Yoreh De`ah 266) account for Rambam’s ruling (see note 2, above) as well as the silence of R. Yitzchak Alfasi on this issue in his Halakhot to Shabbat 135. See also R. Asher b. Yechiel, Hilkhot HaRosh, Shabbat 19:6; R. Menchem HaMe’iri, Beit Habechirah, Shabbat 135b; and R. Zerachyah Halevi, Sefer Hama’or to Alfasi, Shabbat 135b.

10. Yad, Milah 1:7; Shulchan Arukh Yoreh De`ah 262:3.

11. Another example of this approach is the compromise over hatafat dam berit, the taking of a drop of blood from a proselyte who was circumcised prior to deciding upon conversion to Judaism. Some authorities say that this ritual is a requirement for conversion, while others say that there is no requirement that we take a drop of blood from a previously-circumcised proselyte. Therefore, we do take the drop of blood, “just in case” the halakhah requires this of a Jew by choice, but we do not recite a berakhah over this procedure, “just in case” it is not required (which would render the blessing a berakhah levatalah). See Shulchan Arukh Yoreh De`ah 268:1 and Siftei Kohen ad loc., n. 1.

12. Nachmanides, Rashba, and R. Nissim (notes 6 and 7, above), among others, make this point.

13. This reflects the general rule that “we incline after the majority” in deciding disputes among Talmudic authorities: M. Eduyot 1:5; B. Berakhot 9a and numerous other places (“yachid verabim halakhah kerabim”); B. Bava Metzi`a 59b (“acharei rabim lehatot” in a dispute over legal interpretation). We should not imagine that this “general” rule is an ireoclad one; “majority rule” does not always decide matters in the Talmud. However, the fact that Rav Assi’s is a minority opinion does serve to weaken its claim to being the “correct” interpretation of the halakhah.

14. Today’s Reform Responsa (TRR), no. 35, pp. 92-94.

15. This reminds us that Jewish law, as a general rule, does not recognize a doctrine of binding precedent (takdim mechayev, in the language of contemporary Israeli jurisprudence). The decisions of past authorities can and do serve as sources of guidance (takdim mancheh) for the present-day posek, and most halakhists show deference to such decisions, particularly if they represent a historical consensus in the scholarship. However, the individual judge is entitled to rule as she or he sees fit on the basis of his or her best interpretation of the sources. See (at length) Mark Washofsky, “Taking Precedent Seriously: On Halakhah as a Rhetorical Practice,” in Walter Jacob and Moshe Zemer, eds., Re-Examining Reform Halakhah (New York: Berghahn Books, 2002), 1-70.

16. Questions and Reform Jewish Answers (NARR), no. 95 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=95&year=narr).

17. For a description of how this principle works in the activity of the Responsa Committee, see the Preface by Rabbi W. Gunther Plaut to Teshuvot for the Nineties (TFN) (New York: CCAR, 1997), p. x: “Our procedure [in writing responsa] was marked by two considerations. First we asked: ‘How might Tradition answer this question?’ Then, after exploring this aspect, we asked: ‘Are there reasons why, as Reform Jews, we cannot agree? If so, can our disagreement be grounded in identifiable Reform policy?’ In this way we placed Reform responsa into the continuum of halakhic literature.” For an example of this principle at work, see our responsum “A Non-Traditional Sukkah,” TFN, no. 5755.4, pp. 91-96 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=4&year=5755).

18. The sources say this explicitly; see M. Nidah 8:1. Indeed, the connection that Rav Assi draws between circumcision on the eighth day and tumat leidah is understandable only if we think that the C-section baby was not “born” in the first place. An example of how the halakhah registers this distinction is that the yotzei dofen, because he was not technically “born” to his father, is not regarded as the firstborn son (bekhor) for purposes of inheritance; see B. Bekhorot 47b on Deuteronomy 21:15 (veyaldu lo); Yad, Nachalot 2:11 and Shulchan Arukh Choshen Mishpat 277:7 (lefi shelo nolad). All of this reminds us, of course, of William Shakespeare, Macbeth, Act V, Scene VIII, lines 12-16.

19. The figure is provided by the US National Institutes of Health, http://www.nlm.nih.gov/medlineplus/ency/article/002911.htm (Accessed May 30, 2008).

20. See Shulchan Arukh Yoreh De`ah 262:2 along with Siftei Kohen ad loc.

21. American Reform Responsa (ARR), nos. 55-56, (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=55&year=arr and http://data.ccarnet.org/cgi-bin/respdisp.pl?file=56&year=arr).

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5768.1

CCAR RESPONSA

5768.1

Two Questions Concerning Medical Treatment for End-of-Life Patients

She’elah

1. A woman in our congregation died after a nine-month battle with lung cancer. When she was diagnosed, her oncologist told her it was incurable, but that with treatment, there might be hope for remission. Later that physician revealed that without treatment, she probably would have lived for about six months. According to statistical probability published by nationally recognized cancer organizations, life expectancy for her condition is about nine months. The patient received four variations of chemotherapy, plus radiation, all of which proved to be consistently ineffective. These procedures never resulted in shrinking the size of her tumors nor putting her into remission. The treatment was also very costly, though fortunately most of these expenses were covered by Medicare, supplemented by private medical insurance. Furthermore, it produced the usual side effects, e.g., nausea, memory confusion, hair loss, fatigue, great pain, loss of strength, difficulty in breathing, etc., which compromised the quality of her life. From the perspective of Jewish tradition, was she morally obligated to pursue treatment which gave her an additional three months of life, but involved enormous cost and physical and mental distress? Does the notion of not performing heroic measures when the situation is hopeless apply only to a goses/goseset or can it be applied at an earlier stage when a patient is declared incurable but not yet dying? (Rabbi Samuel Stahl, San Antonio, TX)

2. The 80-year-old mother of one of my congregants is choosing to starve herself to death. She says that her quality of life is no longer what she wants it to be – she is in a wheelchair but otherwise is in relatively good health for someone her age – and she simply does not want to live anymore. Should my congregant allow her mother starve herself to death, or should she intervene, for example, by ordering forced nutrition and hydration? (Rabbi George Gittelman, Santa Rosa, CA)

Teshuvah.

We have combined these two very different cases into the structure of one responsum, because both of them raise the question of our Jewish ethical obligations toward medical treatment of terminally-ill patients. That question, simply put, is one of cessation: under what circumstances, if any, is it permissible to discontinue medical treatment, or to refrain from initiating such treatment, for a person suffering from a terminal illness? We have addressed this subject on a number of occasions, most recently in our 1994 responsum “Treatment of the Terminally Ill.”[1] The reader can turn to that responsum for an extended discussion of our position and of the traditional source materials upon which it rests. Here, we shall summarize that position, so that we can use it to help clarify the issues raised in each of our two cases.

Our 1994 teshuvah begins with a consideration of euthanasia and assisted suicide (often referred to as “physician-assisted suicide”) as responses to terminal illness. We reject both of those courses of action on Jewish as well as general moral grounds: to hasten the death of a person, even of a dying person and even out of compassionate motivations, is tantamount to bloodshed. While Jewish tradition permits us, indeed requires us to administer palliative care and pain control therapy to manage and to relieve the discomfort that the patient suffers,[2] it does not regard euthanasia or suicide as legitimate functions of medical practice. On the other hand, Jewish tradition has long distinguished between “hastening death” (which is forbidden) and “removing an impediment to death” (which is permitted). Medieval halakhic sources permit the removal of any factor that is deemed to cause an unnecessary delay in the death of the goses (or goseset), one whose death is imminent.[3] While those sources mention delaying factors not regarded as medical treatments, it seems plausible to extend this permit to the cessation of actual medical therapies that, at this very end stage of the patient’s life, no longer offer a reasonable prospect of “healing” but can serve only to maintain the patient in this moribund state. The difficulty with this line of thinking is that it does not address the situation of a patient who, though diagnosed as “terminally ill” by the consensus of medical opinion, has not yet reached the stage of gesisah, the very last hours or minutes of life.

Our responsum therefore suggests another conceptual framework for thinking about the treatment of the terminally ill.[4] We begin with the definition of the mitzvah of refu’ah, the duty to heal (i.e., to practice medicine) as understood by Jewish tradition. That duty holds only when it is possible to accomplish it, that is, when the measures to be applied to the patient serve some accepted therapeutic purpose.[5] It follows that if the drugs, surgeries, and other procedures do not serve such a purpose – if they lack what our responsum calls “therapeutic effectiveness” – they are not (or are no longer) regarded as “medicine,” as measures defined as obligatory under our duty to heal. Those procedures, to be sure, are not forbidden; the patient and the patient’s family may wish to accept them on the slim chance that they will do some good. But they are not obligatory because they are not “medicine.” The patient is entitled to refuse them or to discontinue them once they are deemed to have lost their therapeutic effectiveness.

We note in that responsum that the standard of “therapeutic effectiveness” is by no means simple to apply to specific cases, since “(t)erms such as ‘therapeutic’ and ‘successful treatment’ are inherently vague and impossible to define with precision. In many situations it will be problematic if not impossible to determine when or even if the prescribed regime of therapy has lost its medical value.” Some decisions concerning the non-application or discontinuation of treatment will indeed be difficult to make. On the other hand, “(t)he standard of therapeutic effectiveness, as a tool by which to make judgments concerning medical treatment, allows us to draw some conclusions with moral confidence.”

With the above in mind, let us consider our two she’elot.

1. The case of the lung cancer patient. This question raises for us the issue of how we apply the standard of “therapeutic effectiveness” (and its opposite, “therapeutic futility”) to a specific instance. The oncologist informed the patient that with the proposed treatment “there might be hope for remission” and that without it her life expectancy would be six months. Remission certainly falls under the definition of an “accepted medical purpose” in the treatment of cancer, and to the extent that there is a reasonable prospect that the treatment will lead to remission, we would judge the treatment to be medically effective. But did such a “reasonable prospect” exist? Judging from the information provided by the sho’el, the most that this patient could have reasonably hoped for from the treatment was a life expectancy of nine months. Hence the question: “was she morally obligated to pursue treatment which gave her an additional three months of life?” Our answer would be “no.” An additional three months of life, filled with the pain and discomfort of chemotherapy and radiation regimens, do not meet the standard of “an accepted medical purpose.” On the contrary: measures that would lead to this result are best understood as prolonging the suffering of a dying person, a result that would surely qualify as therapeutic futility. In our 1994 responsum, we wrote the following concerning the sort of “heroic measures” described in this case:

Medical science has made immeasurable advances during recent times, and we are thankful for that fact. Doctors today are able to prevent and to cure disease, to offer hope to the sick and disabled to an extent that past generations could scarcely imagine. Yet there comes a point in time when all the technologies, the chemicals, the surgeries, and the machines which comprise the lifesaving arsenal of modern medicine become counterproductive, a point when all that medical science can effectively do for a patient is to indefinitely delay his inevitable death. This is not pikuach nefesh; this is not medicine; this is not what physicians, as agents of healing, are supposed to do. There is neither meaning nor purpose in maintaining these treatments… They are not refu’ah; no commandments are fulfilled thereby. Yes, life is a precious thing, and every moment of it should be regarded as God’s gift. But we are not required under any reading of the tradition that makes sense to us to buy additional moments of life by undertaking useless and pointless medical treatment.

The patient would certainly have been entitled to accept the proposed treatment on the slight possibility that it might have led to the cancer’s remission. Similarly, should a patient see an additional three months of life as a positive good, as an opportunity for purposeful living, there is no reason why he or she should not choose to accept the treatment regimen. Our point here is to address the question of moral obligation as posed by our sho’el. One is obligated to accept treatment that offers a reasonable prospect of therapeutic effectiveness, the attainment of an accepted medical purpose. The purchase of an additional three months of life in a pain-filled and dying condition does not, in our judgment, meet that standard. If such was the best that this patient could reasonably have hoped for, she was not morally obligated to accept the treatment.

2. The Case of the Eighty-Year-Old Mother. This case demands that we consider the very definition of a “terminal illness,” the medical situation that raises the possibility of the withdrawal or cessation of medical treatment. This patient’s condition should not be defined as such; she is not “terminally ill.” Her confinement to a wheelchair does not pose a mortal threat to her. Although she is dissatisfied with her “quality of life,” she is said to be otherwise in good health. The choice to end her life would be defined as suicide and not the discontinuation of futile medical treatment. The fact that a person does not wish to live with a certain permanent disability does not render that disability a “terminal illness,” and it most certainly does not justify the self-destructive measures that this person contemplates. The proper recourse would seem to be counseling, psychological and pastoral intervention, rather than acceding to her expressed desire to starve herself to death.

On the other hand, while it is clear to us that this person is morally obligated to accept food and water, the question of forcing her to do so is not as easy to decide. As we note in a recent teshuvah,[6] even though an individual is required by Jewish tradition to accept proven medical therapy, the administration of that therapy against the patient’s will may involve a degree of force and violence that would cause harm to the patient and rob the treatment of some or much of its therapeutic value. The same would be true of nutrition and hydration, whether or not we define these in the same category as “medical therapy.”[7] Clearly, force feeding is an absolutely last resort, and the patient’s daughter and physicians must weigh the conflicting factors most carefully before authorizing such an extreme step.

NOTES

1. Teshuvot for the Nineties (TFN), no. 5754.14, pp. 337-363, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=14&year=5754 .

2. The halakhic tradition defines the treatment of pain as an appropriate medical objective; R. Ya`akov Emden (18th-century Germany), Mor Uketzi`ah, ch. 328. The 20th-century Israeli halakhist R. Eliezer Yehudah Waldenberg holds that the treatment of pain is an appropriate medical objective even if it is “risky” (that is, if it involves danger to the patient’s life). Thus, for example, physicians may administer massive doses of pain medication, so long as the intent of the procedure is not to cause the patient’s death but to relive his or her suffering. (Resp. Tzitz Eliezer 13:87). See our responsum no. 5754.14 (note 1, above), at note 19, and R. Solomon B. Freehof in American Reform Responsa, no. 76, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=76&year=arr .

3. See Shulchan Arukh, Yoreh De`ah 339:2, which suggests that three days is the maximum limit of life expectancy for one who enters a state of gesisah.

4. TFN, no. 5754.14 (note 1, above), at section III.

5. The traditional term for such a therapy is refu’ah bedukah or vada’it, a “proven” or “certain” remedy, a course of treatment generally indicated by these symptoms and that offers a reasonable prospect of therapeutic success. See responsum no. 5754.14 (note 1, above), at notes 37-40.

6. CCAR Responsum 5766.3, “Hunger Strike: On the Force Feeding of Prisoners”, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=3&year=5766 , at notes 34-36.

7. For discussion, see TFN, no. 5754.14 (note 1, above), section V, “On Artificial Nutrition and Hydration.”

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5767.3

CCAR RESPONSA

5767.3

A Question of Disinterment

She’elah

A congregant has approached me with the following question. There is a new veterans cemetery opening in Palm Beach, Florida. Her husband is buried in a Jewish cemetery further south (almost 3 hours). The area around that Jewish cemetery, moreover, has changed and is “not safe.” The Veterans Administration (VA) will cover the costs of disinterment and reburial in the veterans’ cemetery closer to the woman and her children. There is not a specific Jewish area, but the grave would have a Jewish marker. The VA would also cover the cost of her eventual burial and the plot next to her husband. Is moving from a specifically Jewish cemetery where no one is able to visit to another cemetery that does not have a specific Jewish area permissible in the view of the Reform approaches to halakhah? (Rabbi Michael Birnholz, Vero Beach, FL)

Teshuvah

The fundamental issue underlying our she’elah is that of disinterment: under what circumstances is it permitted to remove a body from its place of burial? As we shall see, halakhic literature has much to say about this question, and our own responsa have addressed it in some detail. As we shall also see, these writings do not lead us to a sure and certain conclusion. This uncertainty results, in part, from the always-present difficulty of applying a general principle to a specific and necessarily unique set of circumstances.[1] It occurs in this case, as well, for the reverse reason: a particular solution to this specific case may have unintended ramifications were we to apply it in general, that is, to other cases that may resemble this one.

1. Disinterment: The Prohibition and Its Exceptions. The prohibition against removing a corpse from its grave is found in the Shulchan Arukh,[2] which draws the ruling from a number of Talmudic[3] and earlier halakhic sources.[4] Various reasons are cited for this prohibition, among them that disinterment “is painful for the dead, because it arouses in them the fear of the Day of Judgment.”[5] Other authorities provide what is to our way of thinking a  more persuasive explanation, namely that the opening of the grave and the removal of the remains is an act of nivul hamet, contemptible treatment of the corpse.[6] It follows that we might waive this prohibition under certain circumstances, when the disinterment is considered honorable (rather than contemptible) treatment of the corpse or when we can presume that the deceased would have wanted to be moved to another burial place. And, indeed, the tradition permits disinterment, for example, to move the deceased to his or her family plot,[7] for reburial in the land of Israel,[8]  if the deceased had left instructions that he be buried elsewhere, or if the burial had taken place under the advance stipulation that the body be moved to another location.[9] Similarly, the body may be exhumed when there is a concern that the grave “cannot be properly protected” from vandalism or from natural erosion; “it is a mitzvah” to bury the corpse in another grave to spare it distress (tsa`ar) and disgraceful treatment (bizayon).[10]

Based upon the above, it would be possible to construct a good argument for permitting disinterment in this case. The ultimate intention is the creation of a family burial place, and we have seen that the tradition permits disinterment when the object is reburial in a family plot. The nearness of the new cemetery means that the deceased’s wife and daughters will visit his grave more frequently, and this is surely an act of kevod hamet, rendering honor to the dead, as well as nichum avelim, a source of comfort to the mourners. It is also quite conceivable that the husband would have agreed to the plan of disinterment, and this might have the force of an advance stipulation such as that described above. Finally, that the cemetery where the husband currently lies buried is “not safe” is further reason, according to our tradition, to consider disinterment.

2. Objections to the Disinterment. On the other hand, this argument is not without its difficulties. Let us consider some of them here.

 

  • The “family plot” contention is somewhat forced. For one thing, the term is our translation of the Hebrew kever avot, which identifies the “family” resting place with the burial site of one’s parents and ancestors. Some authorities, accordingly, would limit the permit for disinterment to such instances and would not extend it to cover burial next to a spouse. We, along with other authorities, are comfortable with a more expansive definition of “family.”[11] Nonetheless, we would note that when Jewish tradition speaks of disinterment and reburial in kever avot, it has in mind an already existing burial site.[12] In our case, the wife does not seek to rebury her husband in such an existing site (say, next to his parents) but rather to create a new “family plot.” In so doing, she would uproot the existing family burial site, namely at the cemetery where her husband currently rests. None of the authorities who allow disinterment for purposes of reburial in kever avotrefer to a situation such as this. They would likely urge the opposite course: the wife should wish to be buried next to her husband, at the existing “family plot,” rather than to disturb his corpse for burial in a place where, as yet, no family members have been laid to rest.
  • The argument that the husband’s cemetery is in an area that is “not safe” is a serious one, but it is difficult to measure. R. Moshe Feinstein permits the removal of all the bodies buried in a cemetery that is located in an unsafe neighborhood and where it is impossible to protect it against vandalism,[13] and our teacher R. Solomon B. Freehof concurs that disinterment is “the optimal solution” in such a situation.[14] But just how “unsafe” is the cemetery where this woman’s husband lies buried? The members of this Committee cannot make that determination. We would suggest, moreover, that the claim that the cemetery is located in an “unsafe” area raises issues of special sensitivity. That claim, to our sorrow, is sometimes used as a code-phrase to express a sentiment that we may be unwilling to utter openly, one that might call into question our Reform Jewish commitment to social justice.[15] We have no reason to believe that the congregant who brings this she’elahis motivated by such a sentiment. Still, it is up to her rabbi to judge whether and to what extent her concern over the security of the current cemetery is warranted by the facts.
  • Removing the deceased to a cemetery “closer to the woman and her children” will enable them to visit his grave more often. That is surely a good thing, but we think it is insufficient grounds to permit disinterment. Our society (we speak here principally of the United States) has for some time been an increasingly transient one. Many of us live far away from what was once our family home, and we tend not infrequently to move from place to place for purposes of education, employment, professional advancement, and retirement. In our travels we have generally not thought to uproot our dead and to bring them along with us. We have preferred, in devotion to our Jewish tradition, to leave them undisturbed in their final resting places and to visit them whenever we can. This approach certainly places a burden of inconvenience upon us, but we have thought that it better comports with the specific Jewish way of rendering honor to the deceased (kevod hamet).[16] Again, we have no reason to believe that the congregant in this case is motivated primarily by considerations of personal convenience. Yet should we issue an affirmative answer to her request, that answer would rightly be cited as a precedent by others in similar circumstances who might in fact seek to disinter and to move their dead largely out of such reasons. That is a line we can ill afford to cross.
  • Finally, we would discourage the removal of the dead from a Jewish cemetery to a non-Jewish cemetery. Although Jewish law imposes no formal (.e., Toraitic or Rabbinic) requirement that the dead be buried in a “Jewish cemetery,” Jewish communities have by long-standing custom acquired land for the purpose of establishing their own burial places.[17] It is there that we ought to lay our dead to rest. We have, indeed, no objection to the burial of our dead in national military cemeteries that are not associated with any particular religion, since those burial grounds are considered the property of all the country’s citizens. Yet from this absence of an “objection” we have never deduced that it is permissible to disinter a Jew from a Jewish cemetery for reburial in such a cemetery, and we have in fact decided otherwise.[18] This, too, is a weighty consideration against approval of the widow’s request in our case.

 

3. Conclusion. Jewish tradition does not unequivocally prohibit this wife’s request for the removal of her husband’s remains to the veterans’ cemetery closer to her home. As we have said, one could construct a good argument from the sources in support of an affirmative response. But the objections that we have cited are serious enough to give us pause, particularly because a “yes” answer to this she’elah might lead to undesirable ramifications in future cases. Given our general opposition to disinterment, we would urge the rabbi to discourage the widow and her family from taking this step. He should support their request only if he is convinced that the arguments brought in support of it – especially the concern over the lack of safety at the existing cemetery– are truly substantive and persuasive.

NOTES

1.         This point parallels the famous insight of U.S. Supreme Court Justice Oliver Wendell Holmes, Jr., who wrote: “General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise” (Lochner v. New York, 198 U.S. 45, 76). In Jewish law, too, the correct application of the rules is frequently not determinable by way of logical syllogism. It requires, instead, an act of judgment by the interpreter(s). Judgment, by its nature, is controversial in a way that logic and mathematics are not. It is established by argument, not demonstrated by proof, and in any given case a different judgment might arguably be a better one. Yet no sort of legal or religious interpretation can occur without judgment and argument. It is for this reason that rabbis write responsa to argue for their conclusions and that their readers are invited to join in discussion and debate over them.

2.         Yoreh De`ah 363:1.

3.         Y. Mo`ed Katan 2:4 (81b); Semachot (Evel Rabati) 13:7.

4.         Sefer HaRa’avyah III, Mo`ed Katan, ch. 832; Nachmanides, Torat Ha’adam, inyan hakevurah (ed. Chavel, 119); Or Zaru`a 1, Responsa, no. 755, and 2:419-420; Sefer HaKolbo, ch. 60; Tur, Yoreh De`ah 363.

5.         Sefer HaKolbo, ch.114, citing Job 3:13 and I Samuel 28:15 as prooftexts; R. Yehoshua Falk Katz, Perishah to Tur, Yoreh De`ah 363, no. 1; Turei Zahav and Siftei Kohen to Shulchan Arukh Yoreh De`ah 363:1.

6.         R. Ya`akov Reischer (18th-cent. Germany) refers to nivul as the “principle reason” for the prohibition and plays down the theme of fear of Judgment Day; Resp. Shevut Ya`akov 2:103. See also R. Zvi Ashkenazi (d. 1718; Germany/Poland), Resp. Hakham Zvi, no. 50.

7.         Shulchan Arukh Yoreh De`ah 363:1: “it is pleasing to a person that he be buried next to his ancestors.” Siftei Kohen ad loc.: burial with one’s ancestors “is an honor to the deceased.”

8.         Shulchan Arukh Yoreh De`ah 363:1. The reasons (ad loc.): burial in Eretz Yisrael affects atonement (kaparah) for one’s sins (Siftei Kohen), and we can presume that the deceased would have wanted his final resting place to be in the land of Israel (R. Eliyahu, Gaon of Vilna, Bi’ur HaGra).

9.         Shulchan Arukh ad loc. The theory here is that if the deceased is buried in a place not of his or her own choosing, he or she has not truly “acquired ownership” of that grave; Resp. Chatam Sofer 6:37 and Resp. Maharam Schick, Yoreh De`ah 354.

10.       Or Zaru`a 2:420; Shulchan Arukh Yoreh De`ah 363:1.

11.       R. Moshe Feinstein, Resp. Igerot Moshe, Yoreh De`ah 1:236, allows disinterment in this sort of case only for the burial of a child next to a parent. On the other hand, he cites the differing view of R. Meir Simchah of Dvinsk, Or Sameach to Mishneh Torah, Avel 14:15. See as well the discussion in R. Yekutiel Greenwald, Kol Bo `al Aveilut, 233-234

12.       See Turei Zahav, Yoreh De`ah 363, no. 2; Resp. Knesset Yechezkel (R. Yechezkel Katznellenbogen, 18th century Germany), no. 43. The Chatam Sofer (6:37) sided with those who permitted the exhumation and reburial of R. Mordekhai Benet in “the burial place of his ancestors (avotav) and his relatives (mishpachto).”

13.       Resp. Igerot Moshe, Yoreh De`ah 1:246.

14.       American Reform Responsa (ARR), no. 115 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=115&year=arr ).

15.       For example, the Feinstein responsum cited in note 13 refers explicitly to a Jewish cemetery located in a “black neighborhood” (shekhunah kushit) where the residents “treat the place contemptibly, throwing all sorts of trash into it. The cemetery cannot be protected, because each time the fence is repaired they break through it again. The expense incurred, moreover, is greater than the community can bear.” This may have been an objective and accurate description of the security situation at the graveyard (the she’elah came from New Orleans in late 1951). Yet it makes for uncomfortable reading, especially in that it assigns the responsibility for the damage not to unspecified vandals but to the fact that the cemetery lies in what is now a “black neighborhood.”

16.       One can argue, of course, that it is possible to show honor for the dead in ways other than those specified by Jewish tradition. We would agree, but as we have written elsewhere, “(it) is true that concepts such as “honor” and “disgrace” do not admit of objective definition. All this means, however, is that such terms can only be defined from within a particular social context; to reach these definitions, we must choose to work within a particular culture’s set of values and affirmations”; Responsa Committee, no. 5766.2, “When A Parent Requests Cremation.” The particular culture within which we choose to work is the religious tradition of the Jewish people, a choice that accounts for many of the conclusions that we reach in our work.

17.       See, in general, Contemporary American Reform Responsa (CARR), no. 105 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=105&year=carr ). R. Yitzchak Elchanan Spektor (18th century, Lithuania) argued that this custom stems from the concern that, should we not own the cemetery, we may one day be forced by its owners to remove our dead from there (Resp. Ein Yitzchak, Yoreh De`ah, no. 34).

18.       Responsa Committee, no. 57565, “Disinterment from a Jewish to a Nondenominational Cemetery” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=5&year=5756 ).

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5767.2

CCAR RESPONSA COMMITTEE
5767.2
Adoption, Conversion, and “Patrilineal” Descent

 

She’elah.

Two lesbian women are expecting a baby conceived through sperm donation. One of these women is Jewish and affiliates with the Reform movement, but the other is not, and it is she who will be the birth mother. The sperm donor is not Jewish. The two women partners will be the child’s parents, and they plan to raise their child in a Jewish home. Will their baby have to undergo a formal conversion (i.e., be immersed in a mikveh) to confer Jewish status according to Reform movement principles? Will the Jewishness of the non-carrying parent-partner play a role in conferring Jewish status to the child, as it could in a situation of patrilineal descent where the parents are heterosexuals? (Rabbi Andrew Vogel, Brookline, MA)

 

Teshuvah.

We should state at the outset of our teshuvah that this couple’s sexual orientation is not germane to the issues at hand. Our sho’el’s questions would apply as well to the case of a heterosexual couple. In either case the child, as the offspring of two Gentile biological parents, would be a Gentile at birth and would subsequently be adopted by the mother’s Jewish partner. The critical factor here is that of adoption: how does a Gentile child acquire a Jewish identity when adopted by a Jewish parent or parents? Is a formal conversion (giyur) necessary?

  1. Adoption and “Patrilineal” Descent. Our sho’el asks whether this child might qualify as a Jew under the CCAR’s doctrine of “patrilineal”descent. That doctrine, more properly called “the doctrine concerning the status of offspring of mixed marriage,”[1] is set forth in a resolution enacted by the CCAR in 1983:[2]

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.

Some might argue that this doctrine applies to our case because adoption creates a legitimate family relationship; one’s adoptive parents are in every respect one’s real parents.[3] This child, who acquires a Jewish parent by way of adoption, should therefore be treated in every way as though she or he were the biological offspring of that parent. This Committee, however, has understood the doctrine to apply exclusively to biological offspring.[4] That is because the 1983 resolution comes to adjust – but not to abolish – the traditional “biological” definition of Jewishness, i.e., descent from a Jewish mother.[5] The new definition, though it differs from the traditional one in some important respects, reaffirms the central importance of biological descent for the determination of Jewishness. Thus, we continue to recognize the biological offspring of two Jewish parents as a Jew, even in the absence of “appropriate and timely” acts of Jewish identification, and we continue to recognize the biological offspring of two Gentile parents as a Gentile who would require conversion in order to become a Jew. Similarly, the child of one Jewish parent enjoys a “presumption of Jewish descent” solely because he or she is the biological offspring of that parent, and upon the performance of those “appropriate and timely” acts he or she is considered to have been Jewish from birth.[6] The child, that is, has never been a Gentile, and no conversion is necessary to alter his or her status.

The child in our she’elah will be born to two Gentile parents and, as a Gentile from birth, will not begin life under the presumption of Jewish status. Our 1983 resolution on “patrilineal” descent does not apply to such a child, and it would seem that we would require conversion in this case.

  1. Conversion in Cases of Adoption. Yet that conclusion is not at all obvious. A number of statements issued over the years by the CCAR and by this Committee declare that a Gentile child adopted by a Jewish family requires no formal giyur. In 1947, the Conference enacted the proposal of its special Committee on Mixed Marriage and Intermarriage that adopted children should not be required “to undergo a special ceremony of conversion but should receive instruction as regular students in the school. The ceremony of Confirmation at the end of the school course shall be considered in lieu of a conversion ceremony.”[7] The 1961 edition of our Rabbi’s Manual states that “a child adopted by a Jewish family is recognized as a Jewish child.”[8] And a 1989 teshuvah of this Committee holds: “Among us as Reform Jews, if no formal conversion took place during infancy then the act of raising the child as a Jew is tantamount to such conversion and nothing else needs to be done.”[9]

On the other hand, the Conference and this Committee have also issued statements that suggest the opposite position, namely that an adopted child requires conversion. A 1978 responsum writes that the adopted child’s naming ceremony, performed in the synagogue once the adoption process is completed, “would be considered sufficient ritual conversion” in most Reform synagogues[10]; that is to say, a ritual conversion is necessary, and the ceremony of naming would be a suitable rite for that purpose. In 1984 this Committee reiterated that the adopted child should be named in the synagogue, “with a berit [i.e., circumcision] for a male, and if the family desires, tevilah, [ritual immersion].” The above are defined as “ritual acts” that constitute “the conversion conducted at the time of infancy.”[11] Gates of Mitzvah (1979), the CCAR’s guide to the Jewish life cycle, tells us that “an adopted child should be named in the synagogue and entered into the berit as soon as the initial legal procedures for adoption have been completed.” If the child is not an infant, “the rabbis should be consulted as to the procedure for formal entry into the Jewish community.”[12] Here, too, a ritual of entry into the Jewish community – i.e., a conversion – follows the adoption. Our current Rabbi’s Manual (1988) recommends that all legal adoption procedures be completed “before finalizing any change of [the child’s] religious status,”[13] indicating once more that the legal adoption and the establishment of the child’s Jewishness are two separate processes. Finally, this Committee explicitly urged conversion for adopted children in a 1999 teshuvah.[14]

 

  1. Two Understandings of Conversion. This, to put it mildly, is a confusing situation. The Conference is on record in support of two contradictory policies on whether an adopted child requires a formal conversion to Judaism. This confusion, we believe, results from the conflict between two different understandings of the nature of conversion and the acquisition of Jewish status. These understandings have appeared in our published literature and have pulled us in different directions on our subject.

The first understanding holds that conversion is primarily a spiritual rather than a legal phenomenon. This conception, which arose fairly early in the history of the American Reform movement, led the Conference in 1893 to abolish the halakhic requirement that the proselyte (ger or giyoret) undergo the traditional rites of milah (male circumcision) and tevilah (ritual immersion).[15] In place of those rites, it was suggested that the prospective Jew-by-choice make a verbal declaration before the rabbi of “his or her intention and firm resolve” to worship the One God exclusively, to follow God’s laws, and “to adhere in life and death, actively and faithfully, to the sacred cause and mission of Israel, as marked out in Holy Writ.”[16] That this became the long-standing policy of the Conference is attested by the 1961 Rabbi’s Manual, which makes no mention of milah and tevilah in its “Conversion Service.” Rather, it asks the ger/giyoret to declare that he or she seeks admittance into “the Jewish faith” as an act of free will, that he or she renounces all previous religious affiliations, that he or she will establish a Jewish home, raise Jewish children and the like.[17] The ceremony of giyur, in other words, testifies not so much to a change in the proselyte’s legal status as to the transformation in his or her religious consciousness and/or belief system. This definition of conversion obviously cannot apply to children. As the Committee on Mixed Marriage noted in 1947,[18] “A young child can hardly be examined as to motives, nor can it be well instructed in the principles of Judaism.”[19] Thus, if we no longer require the traditional rites, “how are we able to convert young children or even infants?” The committee answered that, for infants, “the declaration of the parents to raise them as Jews shall be deemed as sufficient for conversion. This could apply, for example, to adopted children.” Those statements of the Conference that do not require formal conversion for adopted children follow the line of thinking about conversion and the acquisition of Jewish status.

The second understanding is reflected in the pronounced recent trend within the CCAR to restore the initiatory rites for conversion. This trend, noted in a number of our responsa,[20] is part of the larger tendency in contemporary Reform practice to recover many ritual observances set aside by previous generations of Reform Jews.[21] It is also evidence of a different way of thinking about giyur. Conversion in this view is no longer exclusively a matter of personal religious transformation but, as well, the ritual process that signifies one’s entry into the Jewish people, an act of identification with the history and traditions of Israel. It follows that a Gentile who enters the covenant ought to do so through the formal procedures that have historically accompanied that transition, the same ritual process that, according to our tradition, our ancestors undertook prior to their entry into the covenant at Sinai.[22] Thus, in 1979 the Gates of Mitzvah could assert that “we recognize today that there are social, psychological, and religious values associated with the traditional initiatory rites, and therefore recommend that the rabbi acquaint prospective converts with the halachic background and rationale for berit mila, hatafat dam berit, and tevila and offer them the opportunity to observe these rites.”[23] Citing this rationale, the 1988 CCAR Rabbi’s Manual makes provision for milah and tevilah in its “conversion service.”[24] In 2001 the Conference reaffirmed this position: “Rabbis should educate gerim concerning appropriate traditional rituals for the ceremonies of giyur… and should use them as appropriate.”[25] This stance suggests that we are today less likely to draw sharp distinctions between the formal/ritual and the spiritual/intellectual aspects of giyur; both are essential parts of the concept as a whole. And if that is the case, the question posed by the 1947 committee –  “how are we able to convert young children or even infants?” – loses much of its force, inasmuch as children, like adults,  can enter the covenant through milah and tevilah. Our 1988 Rabbi’s Manual, which speaks of the conversion of children as a real and meaningful[26] reflects this second way of thinking about giyur.

  1. Our Position. Faced with these profound differences in Reform practice and doctrine, this Committee has no easy task in arriving at some sort of resolution. Both of these views are well-supported in the history of our movement, and we therefore cannot suggest that either of them is “incorrect.” Nonetheless, we find the second understanding the more persuasive of the two and accordingly reaffirm the decision in our 1999 responsum: Gentile children adopted by Jewish parents should be converted to Judaism. We do so for the following reasons.
  2. Recent Reform practice favors this second understanding of conversion. Although the 1893 resolution, which abolished the requirement of the traditional rites, remains on the books, the Conference has during the last thirty years moved decisively away from the principles that lay at the foundation of that resolution. We have reclaimed the traditional conversion rites for Reform Jewish observance, and we have recommended their use to our colleagues. In so doing we have declared those rites meaningful as formal ritual acts that bind us to the historical experience of the Jewish people.
  3. Consequently, the rationale behind the 1947 report of the Committee on Mixed Marriage, which held that adopted children need not undergo conversion, no longer defines our attitudes on these questions. Our positive re-evaluation of the initiatory rites indicates that conversion is for us a formal act of entry into the Jewish community as well as a transformation of an individual’s religious consciousness. The conversion of children therefore serves as a ritual sign that testifies to their entry into the covenant and to their parents’ commitment to raise them as Jews.
  4. As we argued in our1999 responsum, to say that adopted children need not be converted comes perilously close to saying that the very fact of their adoption grants them their Jewish identity. While adoption does create a family, it is an act of the state, the civil legal administration, an institution that, with all our respect for dina d’malkhuta,[27] does not possess the authority to confer Jewishness or to decide “who is a Jew.”
  5. Even those CCAR statements that dispense with the requirement of conversion for adopted children contemplate ritual substitutes that, for all practical purposes, are conversion. The 1947 Committee on Mixed Marriage report, for example, proposes that Confirmation “be considered in lieu of a conversion ceremony”; in other words, a Jewish ritual act is needed to stand in place of the traditional conversion ceremony. Our 1989 responsum reads “if no formal conversion took place during infancy” – which implies that conversion would be the preferred (lekhatchilah) option – “then the act of raising the child as a Jew is tantamount to such conversion.” That is to say, the child’s Jewish upbringing, which manifestly would include ritual acts like a naming ceremony, Bar/Bat Mitzvah, and Confirmation, is the formal equivalent of giyur. Even our 1961 Rabbi’s Manual, which declared simply that “a child adopted by a Jewish family is recognized as a Jewish child,” follows that statement with these words: “It is proper that such a child be named in the synagogue.”[28] All of these statements concur that the state, through the legal process of adoption, does not have the authority to determine the Jewishness of the child. All of them contemplate some formal Jewish ritual act or set of acts that will testify to the transformation of his/her religious identity. Such a formal act or set of acts is the very definition of giyur. While some of our colleagues may not wish to apply that label to these acts, from a functional standpoint that is what they are and the purpose they serve.
  6. Conclusion. The baby who is the subject of our she’elah should be formally converted to Judaism. We say this because: 1) our 1983 resolution on “patrilineal” descent applies only to children of one biological Jewish parent, 2) adoption in and of itself is insufficient to bestow Jewish identity upon a Gentile child; and 3) a formal Jewish process is therefore required to signify his/her transition to Jewish status. Our tradition calls that process giyur, and so should we.

The structure of that process is a separate question. The CCAR has never repealed its 1893 abolishing the requirement of the initiatory rites; therefore, rabbis who create conversion rituals that do not include these rites can do so within the scope of the Conference’s stated policy. Yet as we have noted, that policy has been significantly revised over the last several decades, both in terms of the practice of our colleagues who now insist upon these rites and in the official pronouncements by the Conference and its constituent bodies supporting their use. We would term this new, revised policy one of “preferred option”: although milah and tevilah are not absolutely required for conversion, our colleagues ought to use them, for adults as well as for children, unless the exigencies of a particular case dictate otherwise. This Committee has previously declared its support for this “preferred option,” and we reaffirm that stance here by quoting our earlier statement:[29]

In general, the tendency of this Committee is to urge in the strongest terms that all proselytes undergo the traditional rites for entry into the covenant. We do so, not because we suppose that Orthodox Jews will recognize the validity of our conversions, but because we regard these practices as a positive Jewish standard that applies to us as it does to all other Jews. This testifies to our conviction that when we accept a ger or giyoret into our midst, we convert him or her to Judaism. Although we presume that our proselytes will remain firm in their commitment to a Reform approach to our faith and tradition, we do not require that they do so; we do not make their conversion contingent upon their staying within our fold. We are not in the business of creating a separate sect, cut off from the rest of our Jewish family. Rather, when we accept a proselyte, we admit this person into am yisrael, the Jewish community as a whole, a living and historical enterprise of which we are an organic part. We therefore believe that it is appropriate and preferable to mark the moment of conversion not simply with liturgy of our own creation but precisely with those rituals that are and have been for centuries employed by the Jewish community as a whole.

 

NOTES

  1. The policy applies equally to the offspring of all mixed marriages, i.e., where one parent (either the father or the mother) is Jewish.
  2. CCAR Yearbook 94 (1984), 174-179; Ma`agalei Tzedek: Rabbi’s Manual (New York: Central Conference of American Rabbis, 1988), 226; Contemporary American Reform Responsa (CARR) no. 38 ().
  3. On this point, see Teshuvot for the Nineties (TFN), no. 5753.12, pp. 201-207 (https://www.ccarnet.org/ccar-responsa/tfn-no-5753-12-201-207/).
  4. See New American Reform Responsa (NARR), no. 125 ().
  5. That is, the biological offspring of a Jewish woman is a Jew, regardless of the Jewishness of its father, while the biological offspring of a non-Jewish woman is a Gentile even if its father is Jewish. See the final clause of M. Kidushin 3:12: “if a woman is legally incapable of contracting valid kidushin (Jewish marriage) with this man (i.e., the father of her offspring) or with any other man, the offspring follows her status. And who is this? This is the offspring of a Gentile woman or a Gentile maidservant.” Maimonides codifies this as follows: “This is the rule: the biological offspring (kol haba) of a Gentile slave or a Gentile or a Gentile maidservant or a Gentile woman follows the mother’s status; the status of the father is irrelevant” (Yad, Isurei Bi’ah 15:4).
  6. If the child is Jewish from birth, why do we require the performance of “appropriate and timely public and formal acts of identification” in order to establish his/her Jewish status? See CARR no. 38 (note 2, above): the Conference recognized that Jewish identification, in an era when mixed marriage has become a widespread phenomenon, may have more to do with one’s education and upbringing than with the mere fact of one’s “belonging” to the Jewish community. For this reason, we introduced a stringency into the traditional halakhic definition of Jewish status, in that our position requires that the Jewishness of the child of one Jewish parent – even if that parent is the mother – be “established” (i.e., confirmed) by the performance of those “appropriate and timely” acts.
  7. CCAR Yearbook 57 (1947), at 170-171. The committee was chaired by our teacher Rabbi Solomon B. Freehof.
  8. Rabbi’s Manual, Revised Edition (New York: Central Conference of American Rabbis, 1961), 111.
  9. “Jewishness of an Adopted Child”, NARR, no. 118 (https://www.ccarnet.org/ccar-responsa/narr-185-187/).
  10. American Reform Responsa (ARR), no. 63 ().
  11. CARR, no. 37 ().
  12. Gates of Mitzvah (New York: Central Conference of American Rabbis, 1979), D-2 and D-3, p. 18.
  13. Ma`agalei Tzedek (note 2, above), 224.
  14. CCAR Responsum 5759.1, “Conversion for Adopted Children” (https://www.ccarnet.org/ccar-responsa/nyp-no-5759-1/).
  15. CCAR Yearbook 3 (1893), 69ff; ARR, no. 68 (). The resolution follows a long and detailed report by a committee, chaired by Rabbi Isaac Mayer Wise, that claims to prove that the requirements of milah and tevilah for conversion were matters of minhag, customary practice, and were never truly demanded by Biblical or Rabbinic law. Our Committee has subsequently shown this report to be based upon faulty scholarship and dubious reasoning; see our responsum no. 5756.13 (). Nonetheless, the resolution abolishing the initiatory rites remains on the books as the official policy of the CCAR, though this policy has been reinterpreted and modified through the years; see below in the text.
  16. ARR, no. 68 (see preceding note), end.
  17. Rabbi’s Manual (see note 8, above, 17-22).
  18. See note 7, above.
  19. We should note that the halakhic tradition encounters much the same problem with the notion of giyur katan, the conversion of a child, who by definition lacks the legal capacity to make a responsible decision to accept the Torah and “the yoke of the mitzvot.” The solution that Jewish law offers to this difficulty is what we might call “provisional conversion.” A Gentile child can be converted to Judaism on the strength of the presumption that he or she would consent to receive this “benefit” were he or she old enough legally to give or withhold consent. Nonetheless, upon reaching the age of legal majority the child does have the power to renounce this presumption, to refuse the conversion; in such a case, the giyur is annulled retroactively. See B. Ketubot 11a.
  20. ARR, no. 69 (); CARR, no. 44 (), no. 45 (), no. 47 (dealing with infant conversion), and 49 (conversion of a child; TFN, no. 5752.2 (hatafat dam berit for a child);  CCAR Responsum 5756.6 () and 5756.13 (conversion of a child).
  21. Much has been written about this tendency, which some call the “return to tradition” in Reform Judaism, and we cannot do full justice here to the religious, cultural, and sociological aspects of this complex phenomenon. We would simply note that many ritual observances that were once criticized as either irrelevant or counterproductive to the goal of “modern spiritual elevation” (Pittsburgh Platform, 1885; see https://www.ccarnet.org/rabbinic-voice/platforms/article-declaration-principles/) are now regarded as appropriate expressions of our unique Jewish religious consciousness. For a fuller discussion, see our responsum no. 5759.7, “The Second Festival Day and Reform Judaism” (https://www.ccarnet.org/ccar-responsa/nyp-no-5759-7/) at notes 6-10.
  22. B. Keritot 9a and Yevamot 46a-b; Yad, Isurei Bi’ah 13:1-4: the Israelites entered the covenant through milah and tevilah.
  23. Gates of Mitzvah (note 12, above), 146.
  24. Ma`agalei Tzedek (note 2, above), 210-214, 232.
  25. Central Conference of American Rabbis, Divrei Giyur: Guidelines for Rabbis Working with Prospective Converts, 2001 (on file with CCAR), section 8b.
  26. See the responsa so indicated in note 20, above. See also Ma`agalei Tzedek (note 2, above), 233-234, on “Conversion of a Child.”
  27. On this subject see our responsum no. 5757.1 (https://www.ccarnet.org/ccar-responsa/nyp-no-5757-1/), section 1.
  28. See note 8, above.
  29. CCAR Responsum 5756.13 (note 20, above), section III.

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5767.1

CCAR RESPONSA

5767.1

Berakhah and Gender

She’elah

A member of the congregation would like an aliyah to the Torah but objects to the use of masculine God language in the traditional berakhah (blessing or benediction). She wishes to use an alternative berakhah which is gender feminine (something along the lines of “Berukhah At Yah.”). The custom of our congregation has been to use the traditional Hebrew for the Torah blessings.  Is the Torah blessing a private blessing or a blessing made on behalf of those gathered?  If it is private, it would seem meritorious to permit the blessing as a way of encouraging the mitzvah of reading Torah and as a way of honoring the various conceptions of God held by members of the community.  Should a member called to the Torah be permitted to use the blessing of his or her choice? (Rabbi David Thomas, Sudbury, MA)

Teshuvah

1. Introduction. At first glance, the answer to this she’elah might seem clear and obvious. The reading of the Torah is indeed a public act, the fulfillment of a communal obligation.[1] Thus, it is formally called keri’at hatorah berabim, “the public reading of the Torah” and traditionally must take place in the presence of a “public,” that is, a minyan.[2] The person who receives the aliyah (the oleh/ah) enables the community to fulfill its obligation to hear the Torah reading. Thus, when he or she recites the customary berakhot the congregation must respond “amen,” since the Torah reading is a communal, rather than an individual mitzvah.[3] On this basis, the individual is not entitled to depart from the communal minhag (custom). Acting as the representative for the congregation when called to the Torah, he or she must recite the berakhot in accordance with the congregation’s pattern of observance.

In another sense, though, the answer is not obvious at all. A congregation is empowered to alter its minhag, and implicit in this she’elah is the request that the congregation formally permit this individual to recite alternative berakhhot when she is called to the Torah. Should the congregation grant her that permission? There are good arguments on both sides of the issue.

On the one hand, the congregant might cite the long record of liturgical innovation in Reform Judaism. We Reform Jews have always been ready to amend our inherited liturgical forms in favor of new structures of prayer that reflect our contemporary religious values.[4] One of these values is our commitment to gender equality, our insistence that women be included with men as equal partners in all aspects of communal life.[5] This congregant objects to the male-gender form of the traditional berakhah, perhaps because its presentation of God as a commanding Lord and King “has reinforced forms of patriarchal power and male privilege in the world.”[6] We do not wish our liturgy to convey such a message, and we would therefore find this to be a strong Reform Jewish argument in her behalf.

On the other hand, that very same history indicates that, alongside our record of innovation, we Reform Jews have also maintained much of traditional Jewish liturgical practice. For example, it is the minhag of this congregation, and of every Reform congregation with which we are familiar, to begin and to conclude each aliyah (section of the Torah reading) with the customary berakhot. In doing so, the congregation has accepted upon itself the discipline of a particular liturgical form. That is to say, a berakhah is not simply a “blessing,” a lyrical utterance of praise. It is a formal ritual act, and like all such acts it is defined by the halakhah, traditional Jewish law. It is the halakhah that tells us what a berakhah is, how it should be formulated, and the circumstances under which it may be recited. These details cannot be dismissed as mere “Orthodox” minutiae. Given that we Reform Jews have adopted the traditional Jewish practice to recite berakhot at appropriate ritual moments, the rules that govern that practice are not “Orthodox” rules but Jewish rules; they are our rules as well.[7] This does not mean, of course, that we are constrained to interpret the halakhah as do other Jews.[8] It does mean, however, that the form of a berakhah is acceptable only when it meets the specifications that the halakhah – as we understand it – demands of that ritual act.

In addressing this she’elah, therefore, we want to focus upon two lines of inquiry. First, we will ask whether the halakhah, the rules and principles that define the structure of Jewish liturgy, can accommodate the sort of innovation that this congregant seeks. And second, we want to consider the question in light of our movement’s history of liturgical innovation and, as well, its continuing attachment to Jewish tradition.

2. Halakhic Considerations. Our halakhic discussion begins with this Talmudic passage:[9]

Rav says: A benediction that does not include the mention God’s name (hazkarat hashem) is not a valid benediction. R. Yochanan says: A benediction that does not include the mention of God’s sovereignty over the world (malkhut) is not a valid benediction. Abaye says: Rav’s position is the correct one, for it is supported by a baraita:[10] “‘I have neither transgressed nor neglected any of Your commandments’ (Deut. 26:13). ‘I have neither transgressed’ means that I have not failed to recite the proper berakhah,[11] while ‘nor neglected’ means that I have not forgotten to include the mention of God’s name in the benediction.” And this baraita says nothing about “sovereignty.” How would R. Yochanan respond? He would read the baraita thus: “nor neglected” means “I have not forgotten to mention God’s name and God’s sovereignty in the benediction.”

The authorities hold that the law follows R. Yochanan’s position:[12] a valid benediction must include shem umalkhut, the mention of God’s name and of God’s sovereignty over the world.[13] According to universal custom, “God’s name” is the Tetragrammaton, the ineffable four-letter yod-heh-vav-heh,[14] which in its pronunciation Adonai signifies “Lord” or “Master.” “Sovereignty over the world” refers to the words melekh ha`olam (literally “king of the universe).”[15] There are some exceptions to this rule, the most obvious of which is the tefilah, where none of the berakhot mention God’s sovereignty (malkhut).[16] Halakhists account for these exceptions in various ways. For example, the berakhot that conclude each paragraph of the tefilah (chatimot) do not require malkhut because they are part of a series (seder) of benedictions, and each benediction in such a series “relies” upon the mention of God’s sovereignty in the first berakhah.[17] As for the first benediction of the tefilah (the Avot), which also omits the word melekh, the phrases “the God of Abraham” (elohei Avraham) or “the great, mighty, and awesome God” (ha’el hagdol hagibor vehanora) in that benediction serve as substitute expressions of God’s sovereign power in the world.[18]

Given that there are exceptions to the rule of shem umalkhut, we should ask if other deviations from the traditional version might meet halakhic standards? The answer, apparently, is “yes.” For one thing, the halakhah accepts as valid a blessing recited in translation.[19] From this fact, the estimable 20th-century authority R. Yisrael Meir Kagan (author of the Mishnah Berurah) learns[20] that a benediction recited in Hebrew can be valid even if it does not include the Tetragrammaton, so long as it substitutes in its place any of God’s proper names – i.e., the azkarot, the names of God that, when written in Hebrew, must never be erased.[21] His point is that if a translation of God’s name may substitute for the Tetragrammaton, then surely any of these Hebrew azkarot must be just as acceptable.[22]

Jewish law, therefore, suggests two ways of meeting this congregant’s request. She could, first of all, say the benediction in gender-neutral English: “Praised are You, Eternal our God, Sovereign of the Universe…”.[23] Should she prefer to recite it in Hebrew, she might replace the name Adonai (to which she objects because it connotes “Lord”) with one of the other azkarot, such as Elohim (“God”). “Yah,”a shortened form of yod-heh-vav-heh, is not listed among those azkarot and would not, therefore, be halakhicly acceptable as a name of God in a berakhah. For “sovereignty” she might replace melekh with the expression elohei Avraham veSarah, which as we have seen functions as the symbolic equivalent of malkhut in the first benediction of the tefilah.[24] The rest of the berakhah formula could be feminized (Berukhah at, asher bachrah banu, etc.). This language, of course, would not agree grammatically with the azkarot, which are all masculine in form (for that matter, so is the name “Yah”).[25] Yet if we conceive of God as being above and beyond all considerations of gender, we can with integrity decide that God might accurately be addressed by way of masculine or feminine nouns, verbs, and adjectives.[26]

3. Tradition, the Hebrew Liturgy, and Reform Judaism. We have discovered that a benediction structured along the lines suggested in our she’elah might meet the minimal[27] requirements for a berakhah under Jewish law. Yet we should not confuse “minimal” with optimal; the fact that a particular act might be valid under the rules does not, in and of itself, mean that it is a good thing and that we should adopt it. In this particular case, in fact, we believe the opposite conclusion is warranted. The synagogue should insist upon the traditional version of the berakhah in its congregational worship services.

We base this statement, first and foremost, upon our reverence for Jewish tradition. It is true, as we have said, that Reform Judaism is accepting of liturgical innovation, particularly innovation that reflects our commitment to gender equality. Yet along with this we have noted that “we Reform Jews have also maintained much of traditional Jewish liturgical practice.” This includes, in particular, the accepted minhag among our congregations to recite the traditional berakhah formula during the Torah ritual and, indeed, throughout their public worship. Let us understand clearly what that minhag represents. When we maintain traditional forms of observance, we do so intentionally, not out of simple habit or inertia but as a conscious act of Jewish identification. By adopting such observances, we make the explicit statement that our Reform Jewish religious life is an identifiably Jewish one. With all our embrace of ritual creativity, our practice is not exclusively our own invention, a collection of behaviors meaningful onlywithin the context of the North American Reform synagogue. Our forms of practice are “Jewish” to the extent that they affirm our roots in the Jewish past and our ongoing connection with the religious life of Jews throughout the world. In defining Reform Judaism to ourselves and to others, therefore, it is not sufficient to point to our love of “innovation.” We must also emphasize the opposite side of the coin: our recognition that “Judaism is the historical religious experience of the Jewish people”[28] and our desire to give voice to our faith through ritual forms that evoke our sense of that experience.

The history of our religious practice, including our liturgical practice, is therefore in large part the record of our efforts to draw a proper balance between these goals, to reach a satisfying accommodation between our dedication to Jewish tradition and to our liberal ethical and cultural values. In our prayerbooks, we now compose both the translations and the stand-alone sections in gender-neutral English.[29] We have also introduced changes into some of the Hebrew texts, such as the names of the Matriarchs in the first benediction of the tefilah.[30] Yet we have not seen fit to redraft the entirety of our Hebrew liturgy to remove any and all references to God in the masculine gender. Thus, even in that introductory berakhah of the tefilah we continue to address God in the second person masculine singular (Barukh atah) and to describe God in the third person masculine singular (hagadol hagibor vehanora). In the Shema Yisrael, we continue to declare God to be “One” in the masculine form of that word – echad – rather than in the feminine achat. To repeat: our preservation of the traditional liturgical forms should not be interpreted as accidental or as evidence of negligence on our part. Rather, these texts as they are, taken from the Bible, the Rabbinic literature, and the sidur, are the very substance of Jewish prayer. Through centuries of use they have come to play a central and indispensable role in our religious lives. We have therefore preferred to leave largely intact the language of the prophets, the poets, the psalmists, and the sages who wrote them.

We do not believe that our decision to retain much of the traditional Hebrew liturgy, even when it is expressed in masculine language, compromises our commitment to gender equality. We say this for two reasons. The first has to do with the nature of Hebrew grammar: the so-called “masculine” formulation is in fact an inclusive one, since Hebrew uses the masculine to describe persons or things of unspecified gender or groups of mixed gender. The second has to do with our own liberal Jewish outlook, which determines how we think about and talk about the words we pray. We hold that God is above and beyond all considerations of gender, and no traditional liturgical text or formula, no matter how “masculine” its literal formulation, should call that commitment into question.

And therein lies our difficulty with this congregant’s request. If the concern is that our liturgy be gender-neutral and inclusive, then the formula Berukhah at fails, since it is unequivocally feminine and cannot be construed as neutral. To allow its recitation would be to say, in effect, that there is only gender and no neutrality: God is either “male” or “female,” and we must choose between those two alternatives. This would necessarily imply that the traditional berakhah is a “masculine” and not a neutral one. It would send the unmistakable message that those who say Barukh atah Adonai – that is, the overwhelming majority of our people –  are promoting a masculine conception of God. We do not believe this. We believe that when we recite the traditional liturgy, we are identifying our own prayer with that of our people in ages past, who authored these words and bequeathed them to us. We do not believe that we are reinforcing “forms of patriarchal power and male privilege in the world.” Our Reform Jewish teaching, preaching, and record of liturgical creativity contradict that message; they establish beyond a doubt our movement’s devotion to the concept and practice of gender neutrality. We should avoid taking actions that suggest otherwise.

4. Conclusion. The form of berakhah that this congregant wishes to recite meets the minimum standards that Jewish law sets for a benediction, provided that the rules governing the mention of God’s name and of God’s sovereignty are properly observed. For this reason, she may certainly use it in private worship or as part of ritual observances in her home. The synagogue service, however, as a communal, public setting, is another matter. For the reasons we have outlined – our devotion to the linguistic tradition of traditional Jewish prayer and our commitment to gender neutrality in our liturgy – we would discourage the congregation from permitting the use of this alternative berakhah form in its public worship.[31]

NOTES

1.         The tradition ascribes the institution of the public Torah reading to enactments (takanot) of Moses and Ezra; see B. Bava Kama 82a and Yad, Tefilah 12:1.

2.         M. Megilah 4:3; Yad, Tefilah 12:3; Shulchan Arukh Orach Chayim 143:1.

3.         B. Sotah 39b; Yad, Tefilah 12:6; Shulchan Arukh Orach Chayim 143:5 and Mishnah Berurah ad loc., no. 17.

4.         For example, Reform prayerbooks have excised traditional liturgical passages that petition God for the rebuilding of the Temple, the re-institution of sacrificial worship, the resurrection of the dead, the advent of a personal Messiah, and the like. On the history and development of Reform Jewish liturgy, see Jakob J. Petuchowski, Prayerbook Reform in Europe: The Liturgy of European Liberal and Reform Judaism (New York: World Union for Progressive Judaism, 1968); Eric L. Friedland, “Were Our Mouths Filled With Song”: Studies in Liberal Jewish Liturgy (Cincinnati: HUC Press, 1997); and the two volumes of Gates of Understanding edited by Lawrence A. Hoffman (New York: CCAR, 1977, and New York: CCAR, 1984).

5.         Our prayerbooks, for example, now commonly use gender-neutral English, and we have also altered the traditional Hebrew text in various places to reflect this commitment. The most notable example of such a change is the insertion of the names of the Matriarchs (imahot) in the first benediction of the tefilah or amidah. For an argument that this innovation accords with traditional liturgical halakhah, see our responsum “Matriarchs in the Tefilah,” Responsa Committee no. 5763.6 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=6&year=5763 ).

6.         Marcia Falk, The Book of Blessings (New York: HarperCollins, 1996), xvii (explaining her view that the traditional Adonai Eloheinu, melekh ha`olam “is an example of dead metaphor”).

7.         For a more extended version of this argument, see our responsa “A Non-Traditional Sukkah,” Teshuvot for the Nineties, no. 5755.4, pp. 91-96 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=4&year=57550 ) and “A Defective ‘Holocaust’ Torah Scroll,” Responsa Committee no. 5760.3 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=3&year=5760) .

8.         On the contrary: all Jewish communities interpret the halakhah from the standpoint of their own particular social and theological perspective. This is precisely what the Responsa Committee – and indeed the entire Reform halakhic process – has done throughout its history. When we interpret the traditional Jewish legal sources, we do so consciously and explicitly from the perspective of contemporary Reform Jews. Our point here is that all Jews must interpret the sources from their own perspective, for the activity of interpretation must begin from the standpoint of the particular community of interpretation. On this view Orthodoxy is but one of several possible vantage points from which to read and understand the sources. We therefore should not fall into the common misperception of identifying the Orthodox interpretation of the halakhah as the halakhah.

9.         B. Berakhot 40b.

10.       That is, a text dating from the period of the Tanaim, roughly the first two centuries of the Common Era. Rav, R. Yochanan, and Abaye are Amoraim, the name given to the rabbinic scholars during the period of the Talmud (ca. 200-500 C.E.). If a Tanaitic source can be cited in support of the viewpoint of an Amora, then that counts as a strong proof on behalf of that viewpoint.

11.       The benediction over the separation of tithes from one’s agricultural produce.

12.       On the grounds that the Talmud has successfully defended that position from the critique offered by Abaye. See as well Y. Berakhot 9:1 (12d), where Rav is quoted as requiring malkhut in the formula for the benediction. Tosafot (Berakhot 54a, s.v. haro’eh), in turn, cites this passage from the Yerushalmi in support of its ruling that “all these berakhot (i.e., the ones mentioned in M. Berakhot 9:1) must include the mention of God’s name and of God’s sovereignty.” See also Sefer Ha’eshkol, Hilkhot Birkhot Hashachar, 5a.

13.       The Geonic compilation Halakhot Gedolot (ed. Hildesheimer, v. 1, 82) explains that the Talmud’s defense of R. Yochanan’s position is an indication that it decides in accordance with his view. See also Alfasi to Berakhot 40b; Yad, Berakhot 1:5; Tosafot, Berakhot 40b, s.v. amar; Nachmanides, Torat Ha’adam, Inyan Harefu’ah, Chavel ed., p. 4; Shibolei Haleket, Seder Berakhot, ch. 165; Hilkhot Harosh, Berakhot 6:23; Sefer Kolbo, ch. 25; Shulchan Arukh Orach Chayim 214.

14.       “Universal,” at least, since Tanaitic times. See Tosefta Berakhot 6:20 (ed. Lieberman; 6:26 in the traditional printed editions) and Saul Lieberman, Tosefta Kifshutah ad loc.: some sects shied away from reciting the Tetragrammaton in the berakhah, and their practice was branded “heretical” by the Rabbis.

15.       On the early history and development of the berakhah as a liturgical form see Yosef Heinemann, Hatefilah betekufat hatanaim veha’amoraim (Jerusalem: Magnes, 1978), 52-66. At 61-62, he suggests that while Barukh atah Adonai is quite ancient (the formula is already present in the Qumran texts), melekh ha`olam comes later (hence the disagreement between the third-century Amoraim Rav and R. Yochanan in B. Berakhot 40b; see at n. 9, above). The decision to mention God’s sovereignty in the berakhah (and, for that matter, to recite malhuyot verses in the tefilah on Rosh Hashanah (M. Rosh Hashanah 4:5) may therefore have been an act of protest against the deification of the emperor in Roman cultic practice.

16.       Historians have their own explanations for this fact. Heinemann (see note 15), for example, notes that the tefilah is a creation of the Tanaim and therefore predates the Amoraic dispute over whether malkhut must be included in the berakhah.

17.       Yad, Berakhot 1:5. The technical term for these benedictions is berakhah hasemukhah lechavertah, literally “a benediction that relies/rests upon the one preceding it.” The benedictions recited over keri’at hatorah are good examples of this rule, as are the benedictions that precede and follow the recitation of Shema and the kiddush blessing. Each berakhah begins with the full formula, a phrase that mentions both God’s name and God’s sovereignty, and concludes with a shorter phrase that mentions God’s name but not God’s sovereignty. The Sefer Harokeach (ch. 363), a 13th-century Ashkenazic compilation, suggests a reason for this distinction: in the beginning blessings we follow the opinion of R. Yochanan (B. Berakhot 40b), who requires malkhut, and in the concluding benedictions we follow the opinion of Rav, who does not.

18.       Tosafot, Berakhot 40b, s.v. amar; Hilkhot Harosh, Berakhot 6:23; R. Yosef Karo, Beit Yosef, Orach Chayim 214.

19.       See B. Berakhot 40b, several lines above the passage quoted at note 9. Rav accepts as valid a blessing recited in Aramaic, even though it does not mention the Tetragrammaton, because it does refer to God as Rachamana, “the Merciful One.” The Talmud derives the rule that a berakhah may be recited in any language from M. Sotah 7:1. Rambam (Yad, Berakhot 1:6) codifies this as follows: “all the berakhot may be recited in any language… (provided that the translated berakhah) includes a proper name of God (azkarah) and the mention of God’s sovereignty and that it maintains the substance of the original berakhah.”

20.       Mishnah Berurah 214, no. 4.

21.       Rambam (Yad, Yesodei Hatorah 6:2) identifies these as: Adonai (written either as the Tetragrammaton or as it is pronounced – alef – dalet – nun – yod); el; elo’ah; elohim; elohai; shadai; and tzeva’ot. The provision that these names never be erased applies only when they are written in Hebrew. On this, see our responsum no. 5762.1, “Proper Disposal of Religious Texts” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=1&year=5762 ).

22.       Mishnah Berurah 214, in Sha`ar Hatziyun, no. 3. The argument is a classic kal vachomer, an a forteriori inference.

23.       “Eternal,” used here as a substitute for Adonai, appears in some English translations of Jewish prayer texts. It is a suggested rendering of the written form of the Tetragrammaton, which may be related to the Hebrew root heh-vav-heh, “to be.” The translation “the Lord,” by contrast, renders the meaning of the Tetragrammaton in its spoken form, Adonai.

24.       See above at note 5: it has long been our Reform practice to add the names of the Matriarchs to those of the Patriarchs in this berakhah. Alternatively, she could convert the expression to its feminine form: malkat ha`olam, “Sovereign of (literally, ‘Queen of’) the Universe.” The difficulty here, as one member of our Committee notes, is that in normal usage a queen is “sovereign” only in the absence of a legitimate king. Thus, the word malkah or “queen” does not express the concept of “sovereignty” in a sense as complete as that of melekh or “king.”

25.       See, for example, Exodus 15:2, Psalms 118:18 and 135:4, where the name Yah is used with masculine verbs and adjectives.

26.       A partial analogy to this is the fact the names Elohim and Eloheinu are plural in form, even though since Biblical times they have been read as singular nouns when referring to the God of Israel (see, most obviously, Genesis 1:1, where Elohim is paired with bara, a singular verb). Since we have long accepted that the God of Israel is One, such grammatical curiosities do not trouble us. The same might apply here, when we recognize gender as being irrelevant to our conception of God.

27.       We use the word “minimal” because the author of the Mishnah Berurah, whom we follow here, undoubtedly did not intend his ruling as a “permit”of such berakhot in practice. He is speaking to a situation of bedi`avad (“after the fact”), in which a person has already recited such a benediction. This is evident from the wording in Mishnah Berurah 214, no. 4: one who mentions an azkarah other than the Tetragrammaton has fulfilled his obligation (yatzah). His point is that should one recite this “deviant” benediction one need not repeat it in its “correct” form inasmuch as it meets the minimum liturgical requirements. It is not, however, in principle “permitted” to construct the berakhah in that manner. Were that the case, Kagan would have used a word that definitely signifies permission (such as mutar, “it is permitted”).

28.       See the CCAR’s Columbus Platform of 1937 http://www.ccarnet.org/Articles/index.cfm?id=40&pge_prg_id=3032&pge_id=1656,), section A. 1, “The Nature of Judaism.”

29.       When translating the traditional Hebrew, this is generally accomplished through the use of the gender-neutral second person. Thus, “Praised are You, O God” avoids the masculine language of Barukh atah Adonai. Our prayerbooks will frequently translate a Hebrew third-person usage (“He”) into the English second person (“You”). A good example is Hu Eloheinu ein od in the Aleinu, which often appears in our liturgy as “You are our God, there is none else.”

30.       See above, note 5.

31.       A postscript: given that, as we have noted, one may recite a benediction in gender-neutral English and meet the halakhic requirements for a valid berakhah, one member of our Committee suggests that the congregation permit an individual called to the Torah to say the benediction in English. The majority do not join in this recommendation, on the grounds that we wish to encourage Hebrew literacy among our congregants and the use of Hebrew in our worship services.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5766.3

CCAR RESPONSA

5766.3

Hunger Strike: On the Force Feeding of Prisoners

She’elah
What would be the Jewish view of force feeding (strapping somebody to a chair and putting a tube down their nose in as painless a fashion as possible) a mentally stable prisoner who desires to starve himself to death to make a political statement? (Rabbi Joel Schwartzman, Morrison, CO)

Teshuvah

This question arises with respect to the treatment of detainees imprisoned at the U.S. naval base at Guantanamo Bay, Cuba. These detainees were captured during military operations beginning in 2001 against the Al Qaeda terrorist organization and the Taliban government of Afghanistan. During the summer and fall of 2005, they staged a hunger strike to protest their detention and treatment. In February, 2006, various news organizations reported that prison officials were force feeding the detainees, in a manner similar to that described by our sho’el, as a means of breaking the strike. Military officials justified these harsh measures as necessary to save the lives of the hunger strikers. The prisoners themselves have charged that both the restraint and the insertion of the feeding tubes were accomplished through excessive violence.[1]

We compose this responsum in the summer of 2006, a time when the “war on terror” and the invasions of Afghanistan and Iraq are subjects of intense political controversy. We seek, however, to set the politics aside and to view this she’elah, as we do all others, as a Jewish one, involving the interpretation and application of values central to our religious tradition. With respect to this question, those values point us in different and conflicting directions. This is not an easy question for us; the “Jewish view,” as our sho’el puts it, is far from obvious. We will therefore set forth as thoroughly as we can the arguments both for and against force feeding, in the hope that our answer will encompass the valid points raised by both sides and do justice to the genuine complexity of the case.

Arguments In Favor of Force Feeding. Jewish tradition teaches that pikuach nefesh, the preservation of human life, is a mitzvah, a religious duty, and that it transcends and supersedes virtually all others.[2]  The Rabbis derive this from Leviticus 18:5: “You shall keep My statutes and My laws, which a person shall perform and live by them.” They interpret the words “and live by them” to mean: “and not die by them.”[3] Thus, “one is to perform the mitzvot in such a way that one’s life is not subjected to danger.”[4] The supreme value that Judaism places upon the safeguarding of life expresses itself in three related rules. First, we are forbidden to cause physical harm (chavalah) to ourselves[5] or to place ourselves in any unnecessary danger.[6] Second, the practice of medicine is itself a form of pikuach nefesh and therefore supersedes other conflicting religious obligations,[7] even such serious ones as the prohibitions surrounding Shabbat and Yom Kippur.[8] And third, we are forbidden “to stand idly by the blood” of another (Leviticus 19:16): that is, we bear a positive obligation to rescue the lives of those who are in danger.[9]

These teachings raise a sharp critique of the tactics of the hunger strikers. If there is a single, uncontested feature of the “Jewish view” of this question, it is that human life is sacred and that it must be treated with the utmost reverence. Yes, there are times when our tradition would permit and even demand that one die rather than violate a mitzvah, but the circumstances in which this demand applies are strictly limited.[10] In other words, one is not entitled to choose martyrdom in order “to make a political statement.”[11] All of this would lead to the conclusion that the prisoners are forbidden to endanger their lives by engaging in a hunger strike and that the prison officials, who are ultimately responsible for the health and safety of those in their custody, are justified in taking strong action if necessary to bring the strike to an end. That such action may involve force and violence is regrettable, but the blame for this unhappy result lies with the prisoners themselves. By refusing nourishment, it is they who are endangering their lives. The prison officials, by contrast, are simply following the dictates of Jewish law, which enjoins us to fulfill the obligation of pikuach nefesh quickly and diligently: “whosoever delays in the performance of this mitzvah is guilty of bloodshed.”[12]

Arguments Against Force Feeding. On the other hand, a case can be made that Jewish tradition does not warrant the force feeding of prisoners who have undertaken a hunger strike. That case rests upon the following three points.

1. This is a political, not a medical question. Answers are frequently dictated by the way in which we frame the questions. If we define this question primarily as a medical one, we will tend to ask it as follows: “under Jewish law, is a patient entitled to refuse life-sustaining medical treatment?” The answer, clearly, is “no”: under the rule of pikuach nefesh, a patient is morally obligated to accept a remedy that consensus medical opinion regards as refu’ah bedukah or refu’ah vada’it, one that offers a reasonably certain prospect of a successful therapeutic outcome.[13] If hunger is a disease, then food is a “sure remedy” for it. Yet we would note that the prisoners themselves do not see this as a medical question. They have chosen the hunger strike as a tactic to protest against the conditions of their captivity. Their goal is to bring pressure upon their jailors, not necessarily to kill themselves or to cause themselves irreparable physical harm. Indeed, the prison officials at Guantanamo concur in this assessment.[14] If so, then the forceful insertion of nasogastric tubes is arguably a political rather than a medical intervention, designed not to save lives but “to break the hunger strikes because they were having a disruptive effect and causing stress for the medical staff.” If the strike and the attendant force feeding both serve political goals, then the rules and principles that apply to a medical context may not be appropriate here.[15] In this connection, we would note that the prohibition against inflicting physical damage upon oneself, to which we refer above, is limited to cases in which the injury is done “in a contemptible manner” or for no good purpose.[16] Obviously, those who undertake a hunger strike in protest against prison conditions would say that the harm they inflict upon themselves does not fall into that category. We would add that a number of Orthodox rabbis participated in hunger strikes during the 1990s in protest of the Oslo peace accords between Israel and the Palestine Liberation Organization. Although the strikes were controversial, the fact that they took place suggests that they were able to distinguish, on Jewish grounds, between an action designed to endanger one’s life and health (forbidden) and an action intended to “make a political statement” (permitted).[17]

2. Force feeding is widely regarded as torture. This policy is set forth by the World Medical Association (WMA) in its “Declaration of Tokyo” concerning “torture and other cruel, inhuman or degrading treatment or punishment in relation to detention and imprisonment”:[18]

Where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially. The decision as to the capacity of the prisoner to form such a judgment should be confirmed by at least one other independent physician. The consequences of the refusal of nourishment shall be explained by the physician to the prisoner.

The American Medical Association, a member organization of the WMA, has reaffirmed its endorsement of this clause of the Tokyo policy.[19] In March, 2006, the British medical journal The Lancet published a letter of protest, signed by over 250 distinguished physicians from the United States and Europe, against the force feeding at Guantanamo. The letter, which calls upon the U.S. government “to ensure that detainees are assessed by independent physicians and that techniques such as forcefeeding and restraint chairs are abandoned forthwith in accordance with internationally agreed standards,”[20] has garnered the support of well-known human rights organizations.[21] We take these statements with the utmost seriousness. As Jews, we are heirs to a tradition that commands us to pursue justice (Deuteronomy 16:20) and to a Torah “whose ways are pleasantness” and “whose paths are peace” (Proverbs 3:17).[22] How then can we support a tactic that much of the world’s enlightened medical-ethical opinion has castigated as a form of torture? To do so is arguably to perpetrate a chilul hashem, a profanation of God’s name, an offense we commit whenever we behave in a manner inconsistent with the high standards that the world expects of a people that lives in covenant with God.[23]

Before we reach that conclusion, however, let us consider that the Tokyo Declaration’s opposition to force feeding is based upon two principles that enjoy a dominant – some would say a “canonical”[24] – standing in contemporary secular bioethics. The first of these is patient autonomy, which holds that a medical procedure is ethical to the extent that a competent patient makes his or her own decision regarding that procedure in an autonomous manner, free of coercion. The second is informed consent: the patient agrees to a suggested treatment only when he or she has been supplied with all material information that a reasonable medical layperson would consider significant with regard to that decision.[25] Applied to our case, these principles suggest that when a prisoner makes a rational, informed decision that he does not wish to be fed, we are not permitted to feed him against his expressed will, even though the decision may result in his death.[26] Yet as we have seen, the classical Judaic approach to questions of life and death is founded not upon the affirmation of individual autonomy but upon the commitment to the sanctity of life and the duty to heal. In the traditional Jewish view, the patient has no right to make a decision, however “informed,” for suicide, and the physician, who like every person bears a positive duty to save life, has no right to sit passively and watch the patient die.[27] The Jewish physician can therefore make a powerful argument that, when confronted by a situation such as the one described in our she’elah, his or her ethical responsibility is to save the patient’s life rather than to respect the patient’s autonomy.[28]

We do not believe that the contemporary Western model of bioethics is any more exalted, noble, or humane than the Judaic approach. In saying this, we do not mean to disparage modernity or its contributions to moral thought. We mean rather that as heirs to both the classical Jewish tradition and the culture of modernity, we would not wish to live in a society that rejects either source of ethical value. Thus, while we acknowledge that the modern affirmation of the dignity of the individual human being serves in our world as a bulwark against tyranny and oppression, particularly of the sort rooted in religious extremism, we reject the notion that “modern, progressive, and Western” culture enjoys a monopoly upon moral truth. On the contrary: we believe that contemporary secular civilization can learn a great deal from the Jewish tradition, especially in the realm of bioethics, where the Judaic approach can yield answers that might well be morally superior to those produced by secular thought.[29] As citizens of Western society and participants in its culture, we cannot ignore the fact that the predominant medical-ethical opinion in our society and culture defines the force feeding of patients as an immoral act. But as Jews, we cannot apply the label “torture” to a procedure designed to save the life of prisoners in our custody, even if they seem bound and determined upon suicide.

 

3. Force feeding transgresses against Jewish ethical principles. Yet even if we view this as a medical rather than a political question, the fact that a patient is obligated to accept life-sustaining treatment does not necessarily mean that we may force it upon her against her will. Here it is essential to consider just what force feeding entails. As one Guantanamo detainee has described the procedure:[30]

The head is immobilized by a strap so it can’t be moved, their hands are cuffed to the chair and the legs are shackled. They ask, “Are you going to eat or not?” and if not, they insert the tube. People have been urinating and defecating on themselves in these feedings and vomiting and bleeding. They ask to be allowed to go to the bathroom, but they will not let them go. They have sometimes put diapers on them.

Another charges that “a lieutenant came to his isolation cell and told him that if he did not agree to eat solid food, he would be strapped into the chair and force-fed. After he refused to comply, he said, soldiers picked him up by the throat, threw him to the floor and strapped him to the restraint chair.”[31] The nasogastric tubes, inserted forcibly against the prisoners’ wishes, have been said to cause “unbearable pain.”[32] We have no way, of course, to verify these statements, and we also know that the force feeding has been defended by officials of the U.S. Defense Department as “compassionate” and “humane.”[33] Still, it is possible that these descriptions are accurate, and it is quite plausible that harsh, violent measures would be required to compel nutrients upon a prisoner who is determined to refuse them. And it is questionable whether Jewish tradition obligates us to resort to such violence even when the treatment is necessary to save a patient’s life. R. Moshe Feinstein, for example, has ruled that medical treatment, though compulsory under Jewish law, “must be administered in such a way that it does not frighten the patient. For fear, even though it be irrational, may itself cause him harm or even kill him… It is therefore preferable that the physicians not administer treatment against the patient’s will… and the physicians must consider this matter very carefully.”[34] We would phrase this point somewhat differently: medical treatment can be considered obligatory only when it is medicine, that is, when it partakes of the mitzvah of healing (refu’ah). To the extent that a medical procedure causes significant harm to a patient, it may be said to lose its therapeutic value and therefore its standing as “medicine” that the patient would be obligated to accept.[35] We are, of course, in no position to draw a proper balance in this case between the “harm” caused to the detainee by the violent force feeding and its obvious benefit of saving his life, provided that he was intent upon suicide in the first place. Nonetheless, the concern over the negative effects of these measures must give us pause before we assert that we are morally bound to administer them by force.

In addition, even if force feeding could be said to have no objective and observable “negative effects,” we would still have reason to oppose it. Violence against a patient, even when exercised by medical professionals convinced they are acting in the patient’s best interests, is still violence.[36]  It is the sort of treatment that offends against our most basic conceptions of kevod haberiyot, the essential dignity that all of us, including prisoners, possess as human beings created in the image of God.[37] Force is sometimes necessary in our dealings with others, but it should never be resorted to lightly. And when we do choose that path, we had best make sure that our actions are truly the only available means by which to achieve a vital purpose.

Toward a Conclusion. What is the “Jewish view” of force feeding? As we have indicated, we think that there can be no simple, one-sided answer to this question. We have encountered powerful Judaic arguments both for and against the practice, arguments based upon Jewish legal and moral values that demand our respect and assent. Accordingly, our response acknowledges the wisdom of all these arguments in an effort to arrive at what we think is the most persuasive interpretation of the teachings of our tradition.

We begin from the obvious starting point: pikuach nefesh, the duty to preserve human life and to rescue those in danger, is the overriding Jewish moral concern. In any sort of “Jewish view,” the obligation to save the life of a patient must take precedence over the desire to respect the patient’s autonomously chosen decision to die. This is especially true given that a decision to embark upon a hunger strike must raise concerns as to the patient’s ability to arrive at a truly rational choice based upon “informed consent.”[38]

At the same time, force feeding by its nature is a violent, even brutal tactic that “shocks the conscience”[39] and robs the prisoner of his fundamental human dignity. Although force feeding can under extreme circumstances be justified on medical grounds, we think that prison authorities can abuse it all too easily for non-medical purposes, as a tool for punishment or discipline. When they do so, we fully agree with those who condemn the measure as a form of torture. It is to be avoided in all cases except when it is obviously necessary to save the life of the hunger striker.

How do we draw a proper balance between these conflicting values and concerns? We find helpful guidance, surprisingly perhaps, in the regulations regarding hunger strikes adopted by the U.S. Federal Bureau of Prisons.[40] These provide that a prisoner who embarks on a hunger strike is at first permitted to maintain that action. He is placed under careful medical supervision, and food is brought to his cell three times a day. Prison officials will make efforts to persuade him to abandon the strike, but they will not force him to do so until “a physician determines that the inmate’s life or health will be threatened if treatment is not initiated immediately.” The prisoner may be fed involuntarily only “if the physician is convinced to a reasonable medical certainty that there is an immediate threat to the inmate’s life, or permanent damage to the inmate’s health.”[41] The words “immediate” and “permanent” are crucial here. They declare that the only acceptable grounds for force feeding are medical and that those grounds must be sufficiently urgent to remove virtually all doubt that the feeding is medically necessary. These regulations, if adhered to in the case of the Guantanamo detainees, would prevent the misuse of force feeding for other purposes, such as for maintaining prison discipline or for relieving “stress” upon the prison staff.[42]

One final note. The Bureau’s rules also provide that when nasogastric tubes are inserted by force, “these events should be videotaped.”[43] We cannot overemphasize the importance of this point for our teshuvah. The force feeding of prisoners must be carefully supervised, for only in that way can we hope to prevent excessive violence and other mistreatment. This supervision therefore should be performed by outside observers who do not represent the prison system or the military. Although this might interfere with the secrecy which currently surrounds the activities at the Guantanamo prison camp, we think it is the best way for the U.S. military to demonstrate its commitment to “humane” and “compassionate” treatment of the detainees in the face of severe international criticism. In so doing, they would fulfill the spirit of the Mishnah’s dictum that it is essential to display our innocence in the sight of people as well as in the sight of God.[44] It would also meet the high standard set by the United States Declaration of Independence, which proclaims the American people’s “decent respect to the opinions of mankind.”

NOTES

1.         This description is culled from the following news sources: “Force-Feeding at Guantanamo Is Now Acknowledged”, New York Times, February 22, 2006 (http://www.nytimes.com/2006/02/22/international/middleeast/22gitmo.html?ex=1298264400&en=7ea399aeaba6605e&ei=5090&partner=rssuserland&emc=rss); “Doctors Attack US Over Guantanamo,” British Broadcasting Corporation, March 10, 2006 (http://news.bbc.co.uk/1/hi/world/americas/4790742.stm);  “Guantanamo Force Feeding Tactics Are Called Torture,” Washington Post, March 1, 2006 (http://www.washingtonpost.com/wp-dyn/content/article/2006/02/28/AR2006022801344.html) .

2.         The classical formulation of this rule is the phrase ya`avor ve’al yehareg, “one should transgress the commandment rather than be killed,” in the event that a persecutor demands that a Jew either violate the mitzvah or forfeit his life. See B. Sanhedrin 74a and Avodah Zarah 27b; Yad, Yesodei Hatorah 5:1ff; Shulchan Arukh Yore De`ah 157:1. On the exceptions to this rule see note 10, below.

3.         B. Yoma 85b, Sanhedrin 74a, and Avodah Zarah 27b; Sifra to Lev. 18:5.

4.         Rashi, B. Yoma 85b, s.v. deshmu’el leit leh pirkha.

5.         B. Bava Kama 90b; Yad, Chovel Umazik 5:1. But see below in the text.

6.         Derived from Deuteronomy 4:9. Yad, Rotzeach 11:4; Shulchan Arukh Choshen Mishpat 427:8-10. On this basis, a number of contemporary Orthodox authorities have begun to prohibit smoking. See the discussion in Teshuvot for the Nineties (TFN), no. 5753.23, pp. 331-335 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=23&year=5753) .

7.         M. Yoma 8:5; Nachmanides, Torat Ha’adam, ed. Chavel (Jerusalem: Mosad Harav Kook, 1964), 41-42; Tur and Shulchan Arukh Yore De`ah 336:1.

8.         Thus, a person who rejects the instruction of a competent physician (rofe baki) on the grounds that the instruction involves prohibited labor on Shabbat is “a pious fool (chasid shoteh). This is not an act of piety but of suicide. One is required to do what the physicians prescribe”; R. David ibn Zimra (Egypt, 16th-17th centuries), Resp. Radbaz 1:1139.

9.         B. Sanhredrin 73a: “From where do we learn that one who sees his fellow drowning in the river, attacked by a wild beast, or threatened by robbers is obliged to save him? From the verse ‘do not stand idly by the blood of your fellow.’” Rambam (Yad, Rotzeach 1:14) codifies the rule as follows: “One who is able to save his fellow (from danger) and does not do so has transgressed against the mitzvah of Leviticus 19:16.” See also Shulchan Arukh Choshen Mishpat 426.

10.       See the sources enumerated in note 2, above. Jewish tradition requires martyrdom in three specific cases; to put this differently, there are three mitzvot which one must never violate, even at the cost of one’s life. These are idolatry, the sexual transgressions enumerated in Leviticus 18, and murder. These are formulated in the sources as “exceptions” to the rule of pikuach nefesh established by the interpretation of Leviticus 18:5. Each exception is itself derived by way of midrash (textual interpretation) or sevara (logical inference); see B. Sanhedrin 74a.

11.       See Yad, Yesodei Hatorah 5:4: “If the case is one in which the Torah says ‘transgress the commandment and save your life,’ the one who chooses to die rather than transgress is culpable for his own death”; i.e., he has committed suicide. But see below in the text.

 

12.       Shulchan Arukh Yore De`ah 336:1.

13.       See TFN, no. 5754.14, pp. 337ff (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=14&year=5754), at notes 38-40.

14.       According to Maj. Gen. Jay W. Hood, commander of the prison camp at the Guantanamo naval base, the hunger strikers are not suicidal but are simply protesting their confinement. “In none of these [cases] have I ever gotten the impression that these guys want to die.” See Susan Okie, M.D., “Glimpses of Guantanamo: Medical Ethics and the War on Terror,” New England Journal of Medicine 353:24 (Dec. 15, 2005), 2529-2534.

15.       “Force-Feeding at Guantanamo Is Now Acknowledged”, note 1, above. The quotation is attributed to two “Defense Department officials.” See also “Guantanamo Medics Accused of Abusive Force-feeding,” Boston Globe, Oct. 15, 2005 (http://www.boston.com/news/nation/articles/2005/10/15/guantanamo_medics_accused_of_abusive_force_feeding), quoting Dr. Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania: “Medicine is supposed to remain neutral. When you start to become complicit in efforts to break resistance using medical expertise that should be there simply to protect the health of people, you’re headed down the wrong track.”

16.       Yad, Chovel Umazik 5:1: the phrase is derekh nitzayon (or, in some readings, bizayon). See TFN, no. 5752.7, “Cosmetic Surgery” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=7&year=5752).

17.       See R. Menachem Feliks, “Ve’af `al pi khen: shevitat ra`av,” Techumin 16 (1996/5756), 291-295. Feliks contends that the halakhah permits an individual to undertake a voluntary fast (ta`anit yachid) in order to protest against policies of the Israeli government that, in the individual’s opinion, endanger the Jewish people and state. He would not apply his argument, obviously,  to the Muslim detainees at Guantanamo. From a liberal perspective, though, the notion that one may declare a fast in service to a “higher purpose” is a principle that should not be restricted to Jews.

18.       The World Medical Association Declaration of Tokyo (1975, 2005, and 2006), paragraph 6 (http://www.wma.net/e/policy/c18.htm ).

19.       “AMA Reiterates Opposition to Feeding Individuals Against Their Will,” statement by Duane Cady, M.D. , chair, American Medical Association (http://www.ama-assn.org/ama/pub/category/16086.html ).

20.       David J. Nichol et al., “Forcefeeding and restraint of Guantanamo Bay hunger strikers,” The Lancet 367:9513 (March 11, 2006; http://www.thelancet.com/journals/lancet/article/PIIS0140673606683268/fulltext).

21.       Among these are Physicians for Human Rights   (http://www.phrusa.org/research/torture/news_2006-03-10.html) and Amnesty International (http://www.amnesty.org.uk/news_details.asp?NewsID=16898 ).

22.       Halakhic authorities sometimes cite this verse as a guide for the interpretation of the Torah’s laws according to its ultimate intent. Thus, Maimonides rules (Yad, Chanukah 4:14) that, in the event one has only enough oil either for household illumination or for the Chanukah lamp, one should use it for household illumination, “for the sake of domestic peace” (mishum shalom beito). He adds: “Great is peace, for the entire Torah was given to bring peace to the world, as it is said, “whose ways are pleasantness, etc.”

23.       For sources and discussion on chilul hashem, see our responsum no. 5764.1,  http://data.ccarnet.org/cgi-bin/respdisp.pl?file=1&year=5764 , at notes 11-15.

24.       The term is used by R. Hamel, “The Reign of Autonomy: Is The End In Sight?” Second Opinion, January, 1995, 75-79.

25.       These definitions reflect the formulation of American law, represented especially by the leading case Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). The classic formulation is perhaps that of Judge Benjamin N. Cardozo in Schloendorff v. Society of N.Y. Hospital, 105 N.E. 92 (N.Y. 1914): “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.” See, in general, Ruth R. Faden, Tom L. Beauchamp, in collaboration with Nancy M.P. King, A History and Theory of Informed Consent (New York : Oxford University Press, 1986).

26.       See the statement from the WMA’s Tokyo Declaration at note 18, above. It is, however, not certain that the Guantanamo detainees are able to make an “informed” decision under the conditions of their incarceration. See Okie, note 14, above, at 2530-2531.

27.       In this, Jewish tradition would dissent from the decision of the British authorities who allowed hunger striking members of the Irish Republican Army to starve themselves to death while in prison in 1981. See Okie, note 14, above, 2530.

28.       For an example of such a powerful argument, see Shimeon Glick, M.D., “Unlimited Human Autonomy: A Cultural Bias?” New England Journal of Medicine 356 (March 27, 1997), 954-956  (http://content.nejm.org/cgi/content/full/336/13/954?ijkey=85e85facc59a79e4f0fc74e07b6ad449df1b0ce5&keytype2=tf_ipsecsha ).

29.       For an example, see our responsum no. 5763.2, “Live Liver Transplantation” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=2&year=5763 ), section 4 and following.

30.       “Force-Feeding at Guantanamo Is Now Acknowledged,” note 1, above.

31.       Ibid.

32.       “Guantanamo Force Feeding Tactics Are Called Torture,” note 1, above.

33.       “Force-Feeding at Guantanamo is Now Acknowledged” and “Doctors Attack US Over Guantanamo,” note 1, above.

34.       Resp. Igerot Moshe, Choshen Mishpat 2:73, part 5.

35.       For a detailed analysis of this point, see TFN, no. 5754.14. “On the Treatment of the Terminally Ill,” 337-363, at section III (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=14&year=5754 ).

36.       Some of these objections, it might be argued, can be removed simply by sedating the prisoners prior to force feeding. While it is true that, as a matter of degree, sedation would reduce the amount of violence employed in force feeding, it would still in its essence, as a forcible transgression of the patient’s will, constitute an act of violence against him. As such, the Judaic principles cited in this paragraph would continue to apply. Needless to say, moreover, the procedure would still be defined as “torture” under the Tokyo Declaration (note 18, above).

37.       Although it may sound like a lofty ethical principle with little substantive content, kevod haberiyot functions as a real consideration in halakhah. In its general formulation, the rule is that considerations of “human dignity” may be great enough to supersede a conflicting Rabbinic ordinance (B. Berakhot 19b; Yad, Shabbat 26:23 and Kilayim 10:29). In this case, of course, the conflicting ordinance is pikuach nefesh, which originates in the Torah (de’oraita), and one might argue that the saving of life surely overrides considerations of kevod haberiyot. But one leading posek suggests that “dignity” (kavod) may in some cases override pikuach nefesh. See R. Shelomo Kluger (19th-cent. Galicia), Chokhmat Shelomo to Shulchan Arukh Choshen Mishpat 426, no. 1.

38.       See note 26, above, as well as Glick (note 28, above), 955: “One might perhaps see forcing people to undergo lifesaving therapy as an action that does respect their autonomy and for which they may ultimately be grateful; their judgment may be temporarily compromised by irrationality, although they remain within the bounds of legally defined competence.”

39.       This phrase is particularly appropriate here, in that it is the definition of “torture” adopted by the U. S. Supreme Court in a case involving the seizure of evidence from a suspect by means of induced vomiting. The Court held that “(t)he proceedings by which the conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience… They are methods too close to the rack and the screw to permit of constitutional differentiation.” Rochin v. California, 345 U.S. 165 (1952), at 172.

40.       U.S. Department of Justice, Federal Bureau of Prisons, Program Statement, no. P5562.05, July 29, 2005, available at http://bop.gov//policy/progstat/5562_005.pdf .

41.       Program Statement, p. 6.

42.       See above at note 15. The goal of prison population control can be met in other ways. For example, the Statement provides that when a prisoner undertakes a hunger strike, he or she may be isolated in “a medically appropriate locked room” (p. 3). The formal justification for this rule is medical: isolation allows for close monitoring of the prisoner’s physical condition. But it also addresses the concerns surrounding discipline (i.e.,preventing the hunger strike from causing disturbances among the inmate population), thereby avoiding the resort to force feeding as a means of breaking the strike.

43.       Program Statement, p. 7.

44.       M. Shekalim 3:2, based upon Numbers 32:22.

If needed, please consult Abbreviations used in CCAR Responsa.

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