Responsa

NYP no. 5760.3

CCAR RESPONSA COMMITTEE
5760.3
A Defective “Holocaust” Torah Scroll


She’elah.

Our congregation possesses one of the Czech Torah scrolls that were taken by the Nazis and then rescued and cared for by London’s Westminster Synagogue Memorial Trust. There are over one thousand scrolls now on “permanent loan” to synagogues around the world. Ours comes from the town of Kolin, near Prague. Some synagogues have scrolls which are fragmentary or incomplete. Our scroll is a complete sefer torah, but sections of script have flaked away. A sofer stam (i.e., a scribe qualified to write Torah scrolls, t’filin, and m’zuzot) has told us that the parchment will not hold new ink. The scroll, since it cannot be repaired, is technically pasul, disqualified for public reading.

Our congregation has decided to use the scroll for Shabbat Torah readings, in places where the script is perfect or at least very clear. In addition, we have allowed many Benei Mitzvah to read their parashah from the scroll. This enables our youngsters to make a tactile connection between themselves and the vanished community of Kolin. We have taken synagogue and youth trips to Kolin and have prayed at its synagogue, which still stands. The scroll and its history have therefore become a significant part of our congregation’s life.

A question has been raised: is it proper for us to read from this scroll, inasmuch as it has been declared pasul? How shall we answer this question, in light of both our tradition and the value we have found as a congregation in the public reading of the scroll? (Rabbi Mark S. Shapiro, Glenview, Illinois)

 

Teshuvah.

This she’elah poses a conflict between two profoundly important Jewish religious values. On the one hand, the honor due to the sefer torah is a matter of great consequence in our tradition,[1] which as we shall see demands that the formal public reading of the Torah (k’ri’at hatorah) be performed from a sefer torah kasher, a scroll that meets the strict requirements of ritual fitness. On the other hand, the events of the Shoah have left a profound imprint upon the Jewish mind and heart, and the remembrance of that tragedy has taken on for us the character of a religious duty.[2] Many congregations have acquired Torah scrolls that were rescued from the Nazis, and by reading from these scrolls they demonstrate in a concrete and moving way the continuity of the Jewish people and faith. How do we accommodate these two religious values, both of which make powerful claims upon our attention?

The Reading of the Torah from a Ritually Unfit Scroll. In his great code of Jewish law, Maimonides (Rambam) offers a list of twenty defects that render the scroll pasul.[3] The fifteenth item reads: “if the form of one letter should be diminished to the point that it cannot be read at all or so that it resembles another letter, whether this occurred at the original writing or through a perforation, a tear, or fading (of the text).” The Czech Torah scroll described in our she’elah is clearly pasul according to this definition. The proper response would be to repair the scroll and to restore it to kashrut, a ritually acceptable condition.[4] Since this is not possible in our case, tradition prescribes that the scroll be buried or stored away in a genizah.[5] In any event, it may not be used to fulfill the required ritual reading (k’ri’at hatorah). As Maimonides writes, “Should any one of these defects be present, the scroll is reduced to the status of a chumash[6] that is used for the teaching of children; it is not to be read before the congregation.”[7] The reason for this prohibition, according to the Talmud, is that to perform the reading from a chumash–that is, from a scroll that is anything less than a complete sefer torah–is an affront to the dignity of the congregation.[8]

The issue, however, is not as cut-and-dried as it seems. The very same Maimonides is the author of a responsum that rules to the opposite effect.[9] His correspondents ask whether a community that does not possess a sefer torah may perform the public reading from chumashim “and recite the blessings before and after the reading, or should they abstain from reading the Torah altogether?” Similarly, may the blessings be recited over a sefer torah that is ritually defective? Rambam answers without hesitation: mutar l’varekh, it is permitted to recite the blessings over the reading from a sefer torah pasul. This is because we recite the blessings over the reading itself and not over the scroll; thus, “one may recite the blessings whether the reading is performed from a scroll that is kasher, from a scroll that is pasul, or even if one recites without reading from a text at all.”[10] Rambam offers two proofs for this theory. He first refers us to the beginning of the morning service (shacharit), where one recites the blessing asher bachar banu mikol ha`amim— the same blessing recited prior to the reading of the Torah–before reciting passages of Scripture and rabbinic literature.[11] The worshiper says this b’rakhah even though he does not recite the passages from a sefer torah. “Thus, the actual mitzvah is the pronunciation (hagayah) of the words of Torah, and the blessing pertains to that pronunciation.” Second, Rambam cites the talmudic passage, mentioned above, that forbids congregational reading from chumashim.[12] A chumash, he notes, is the supreme example of a defective Torah scroll;[13] still, it is not prohibited because it is defective but rather because to read from it is an affront to “the dignity of the congregation.” This suggests that a defective scroll is not disqualified per se for the congregational reading, but simply that it would be unseemly to use such a scroll for that purpose. The reading itself is therefore not invalid and to recite a blessing over such a scroll is not an instance of b’rakhah levatalah (a misplaced or unnecessary benediction).

This permissive ruling remains very much a minority view. Other leading authorities reject Rambam’s arguments outright.[14] First, they write, Rambam’s permit cuts against the grain of accepted talmudic and halakhic thought, which holds that a defective sefer torah is not to be used for public reading even if no other Torah scroll is available.[15] Second, the benedictions are in fact recited over the scroll and not (as Rambam suggests) over the reading itself. Otherwise, we would be able to fulfill the requirement of k’ri’at hatorah by reciting the Torah portion orally; yet the ancient rabbinic ordinance that established the practice[16] requires that the portion be read from a scroll and not from memory.[17] Third, while the Talmud’s language might support Rambam=s leniency with respect to a chumash–that is, one of the Torah’s five books written correctly on a separate scroll–the disqualification of a Torah scroll whose writing is defective or worn away appears to be absolute.[18]  Indeed, it is arguable that a scroll lacking even one letter is not considered a sefer torah at all,[19] so that the reading from it does not “count” toward the fulfillment of the mitzvah of k’ri’at hatorah. [20]

These are serious objections. Rambam’s ruling seems to contradict everything the tradition has to say on the use of ritually-unfit Torah scrolls. It most certainly contradicts the position of his own Mishneh Torah on the subject. It is therefore not surprising that some subsequent authorities sought to account for this problematic responsum by questioning its validity or authenticity.[21] Still, we think it possible to explain this teshuvah without excising it from the literature of Jewish law. Near the conclusion of the responsum, Rambam declares: “It is proper for every community to possess a Torah scroll that is kasher in all respects, and it is preferable (l’khatchilah)[22] to read from that scroll. If this is not possible, however, let them read in public even from a pasul scroll and recite the blessings, on the basis of the reasoning I have supplied.” In other words, Rambam holds that the preferable, optimal standard of observance demands a kasher scroll, and the ruling in the Mishneh Torah reflects that view.[23] The responsum, meanwhile, conveys Rambam=s understanding of the minimally-acceptable standard of observance: when the optimal standard cannot be met, the reading from a sefer torah pasul suffices to fulfill the mitzvah of k’ri’at hatorah.[24] A community that does not possess a sefer torah kasher may perform the reading from a pasul scroll, presumably so that (in the words of a later authority) “the practice of reading the Torah not be forgotten” there.[25]

The Issue From a Reform Jewish Perspective. We could make a good case to support this congregation’s desire to conduct its Shabbat Torah readings from the Czech scroll. We have seen that Jewish law does not clearly forbid the reading from a pasul scroll; the responsum of Maimonides may be a minority opinion, but it is not necessarily “wrong” on that account.[26] We Reform Jews, at any rate, certainly see nothing wrong with adopting a minority opinion as the basis of our own practice, particularly when that opinion expresses an uplifting and “liberally affirmative” interpretation of Jewish tradition.[27] In the present case, we might say that there is no reason to forbid the use of this scroll. To read from it most certainly does not offend the dignity of the congregation. On the contrary: reading from this sefer torah, which symbolizes the horrific events of the Shoah and our people’s determination to survive all attempts to destroy us, is a deeply meaningful religious experience. Thus, just as Rambam and others were concerned that the practice of Torah reading would not be “forgotten” in small communities, we are motivated to use this pasul scroll by our determination that the Shoah never be forgotten.

Yet this “good” case is insufficient, for it fails to consider the central role that the reading of the Torah plays in our practice. K’ri’at hatorah is more than simply one religious observance out of many. It is the re-enactment of the drama of Sinai, a re-affirmation of the covenant that binds God and Israel. We observe this mitzvah, as do all other Jews, by reading from a Torah scroll. By this we mean that we use a scroll, not a printed book,[28] a scroll, moreover, that is written and constructed according to the requirements set forth in Jewish law for a proper sefer torah. These requirements, it must be stressed, are not mere technicalities, nor are they standards of “Orthodox” practice that we Reform Jews are free to ignore. Rather, they are standards of Jewish practice, the rules that define what a sefer torah is, rules universally observed in all Jewish communities, including our Reform congregations. If Rambam permits the reading from a scroll that does not meet these requirements, he does so as a temporary measure; he is speaking, after all, to a community that has no kasher scroll available. To exalt this stopgap device to the status of a permanent and weekly observance is to say that it makes no difference to us that a Torah scroll is defective rather than kasher. It is to suggest that we are satisfied with an ersatz standard of Jewish practice, that appearances count more than reality, that we are perfectly content to read from a scroll that looks like–but is not–a real sefer torah.[29] This is not the sort of statement that any Jewish community, Reform or otherwise, ought to make;[30] we should consider it an affront to the dignity of our congregation. Let us keep in mind, too, that the Czech synagogue from which this sefer torah originates would never had read it publicly in its ritually unfit state. Like observant Jews everywhere, they would have done the proper thing: either to repair the scroll or to consign it lovingly to a genizah. It is not a little ironic that we should seek to perpetuate the memory of that community by means of an act that they themselves would have rejected as an affront to the dignity of their congregation.

It might be argued, of course, that our duty to remember the Shoah outweighs the need to adhere to the rules and regulations concerning the sefer torah. Yet the reading from this scroll is by no means the only way for us to remember the Shoah in our ritual observance. References to the victims and the events of the Nazi persecutions figure prominently in our liturgy, our liturgical calendar, and in our synagogue architecture and furnishings. We have frequent opportunity, in other words, to remember the Shoah, even if we do not read from this scroll. More than that: we must take great care how we remember the Shoah. In particular, we must not allow that memory to supersede our devotion to the laws, customs, and practices that comprise our Judaism. That the Nazis murdered millions of our brothers and sisters is a fact that has seared its way deeply into our collective consciousness, but it is no reason–indeed, it is precisely the wrong reason–to alter the contours and content of our religious practice. To change, detract from or abandon essential religious observances because of the Shoah, to read from a pasul Torah scroll–something we would otherwise not do–because the Nazis murdered the Jews who once possessed it, is to proclaim that the crimes of Hitler take precedence over the “voice of Sinai,” the proper conduct of Jewish religious life. This, too, is a statement we should not make. It is surely the wrong message to send to our young people on the day when, called to the Torah for the first time, they symbolically accept the responsibilities and commitments of Jewish adults.

We should insist, instead, that our regular weekly, Shabbat, and holiday Torah portions be read from a sefer torah kasher. This is the standard bequeathed to us from Jewish tradition. This was the standard observed by the Czech community from which the scroll in question originated. And it remains the standard which informs Reform Jewish life, the standard to which we educate our children and to which we ought to aspire.

The above does not mean that the congregation should never read from its Czech sefer torah. The point is that we should not allow the Shoah to cause us to detract from or alter the nature of our most important observances; the regular, statutory reading of the Torah, therefore, should not be accomplished from a scroll that is ritually unfit for that purpose merely because that scroll survived the Nazis. On the other hand, it is entirely permissible to add to the body of our observance in response to the Shoah. The institution of Yom Hashoah, a special day of memorial for the victims and the survivors of the death camps, is an obvious example of such a creative endeavor. We therefore may read from the pasul scroll after we have read the regular Torah portion for that day from a kasher scroll. This should be done in such a way as to distinguish it from the reading of the first scroll. The rabbi should announce that this is an additional reading, and the appropriate benedictions should not be recited over the pasul scroll. In this manner, the traditional objections to the reading from a pasul scroll are removed.[31] The congregation can observe the laws and customs that define the mitzvah of the reading of the Torah while at the same time honoring the memory of those who perished in the Shoah.

An overriding concern for all the members of this Committee is that the reading from the pasul scroll should be seen as an exceptional occurrence. The too-frequent use of this scroll would likely upset the careful balance we seek to draw between commemorating the Holocaust and focusing our people’s attention upon the enduring content of Jewish life. Most of us urge that the pasul “Holocaust” scroll be read  only on special occasions that have an obvious connection to the Shoah; the Shabbat closest to Yom Hashoah, Kristallnacht, and the “yahrzeit” (i.e., the date of the destruction) of the community from which the scroll originates are possible examples.[32] On those occasions, some of us feel that the pasul scroll may be used for the regular reading, with no distinctions; thus, the berakhot may be recited over it.[33] Others among us hold that even on these special occasions the pasul scroll should be used only for an “additional” reading (that is, not the statutory portion for the day) and that no berakhot should be recited over it.[34] All of us agree, however, that the pasul scroll should not be read every week.

Conclusion.  A congregation may read from a sefer torah pasul in remembrance of the Shoah. This should be done, however, only on appropriate special occasions, and then in such a way as to emphasize that the reading of the Torah ought to be accomplished from a scroll that is, in all respects, a proper sefer torah.

 

NOTES

  1. The rules concerning the honor due to the sefer torah are summarized in SA YD
  2. The chief expression of this duty is the observance of Yom Hashoah. “It is a mitzvah to remember the six million Jews who were murdered in the Sho-ah by attending special memorial services”; Gates of the Seasons, 102-103. See CCAR Yearbook 87 (1987), 87.
  3. Yad, Sefer Torah 10:1.
  4. K’tubot 19b; Yad, Sefer Torah 7:12; SA YD 279:1.
  5. M’gilah 26a; Yad, Sefer Torah 10:1; SA YD 282:10.
  6. “Chumash” here refers to one of the five books of the Pentateuch, written as a separate scroll; Gitin 60a, and Rashi s.v. bachumashin; Yad, Sefer Torah 7:14 and Kesef Mishneh ad loc.
  7. Yad, Sefer Torah 10:1.
  8. Gitin 60a: ein kor’in bachumashin beveit hakeneset mishum kevod tzibur.
  9. The responsum is found in the traditional collections of Rambam’s teshuvot (Pe’er Hador, 9, and Kovetz Tesuvot Harambam, no. 15) as well as in both of the two twentieth-century critical editions: Teshuvot Harambam, ed. A Freimann (Jerusalem: Mekitzei Nirdamim, 1934), no. 43; and Teshuvot Harambam, ed. Y. Blau, vol. 2 (Jerusalem: Mekitzei Nirdamim, 1960), no. 294.
  10. The blessings surrounding the Torah reading, Rambam writes, differ from those we recite over such mitzvot as sukah and lulav. In those instances, should the object itself be pasul we would not recite the appropriate b’rakhah, because “the mitzvah is the taking of a lulav or the dwelling in a sukah, and the blessing is recited over those objects. Should they be ritually unfit [that is, should they not meet the requirements for a valid lulav or sukah], one does not perform the mitzvah (when using them).” The blessing would therefore be an improper one, a b’rakhah l’vatalah. By contrast, the blessings surrounding the Torah reading are said over the reading and not over the Torah scroll itself.
  11. See SA OC 47:5, which lists the three berakhot recited during the beginning of the morning service (birkhot hashachar) over the study of Torah. Our own prayer book omits the third of these blessings, asher bachar banu; see Gates of Prayer, p. 52.
  12. Gitin 60a.
  13. Rambam’s reason for saying this is not altogether clear. Presumably, he means that a chumash, unlike other “defective” scrolls, does not even resemble a proper sefer torah.
  14. This is especially true of R. Shelomo b. Adret (Rashba; Barcelona, d. 1310), whose ruling is not found in the extant collection of his responsa but is cited at length in two early-14th century works–Orchot Chayim, Sefer Torah, no. 5 and Kol Bo, p. 13b-c–and referenced by the fifteenth-century R. Yosef Kolon (Resp. Maharik, no. 69) and R. Shelomo b. Shimeon Duran (Resp. Rashbash, no. 11) and the sixteenth-century R. Yosef Karo (Beit Yosef, OC 143).
  15. This, says Rashba (see note 14), is derived by the Talmud=s language concerning the defective scroll: ein korin bo, “it is not to be read (before the congregation)”; this, he argues, implies an absolute disqualification and not, as Rambam thinks, a provisional disqualification to be waived when no other scroll is available. See also Rashba 1:487. Moreover, the same language–ein korin bo or al yikra bo–is used in tractate Sof’rim with respect to a sefer pasul, and the disqualification there appears to be absolute. See, e.g., Sof’rim 3:7 and 9.
  16. Rabbinic tradition holds that the formal, public Torah reading was established by Moses and Ezra through a series of takanot, or legislative enactments. See Bava Kama 82a and Yad, T’filah 11:1.
  17. This argument is less than airtight. Maimonides could respond that, if the reading is supposed to be carried out from a scroll mishum k’vod tzibur, “due to the dignity of the congregation,” this does not imply that a reading done without the scroll is not valid b’di`avad, or “after the fact.” Yet Rashba makes the point that if the Rabbis ordain that blessings be recited over the performance of a mitzvah, they should be said only when that mitzvah is carried out in its intended form; thus, the berakhot should not be said over anything but a proper (kasher) Torah scroll.
  18. See Gitin 60a: while chumashim are not read in the synagogue because of “the dignity of the congregation” (implying that the congregation may waive its “dignity” and allow the reading to take place), a defective scroll is simply “not read” (ein korin bo), presumably even if the reading would not offend the congregation’s dignity.
  19. See Bava Batra 15a, on Deut. 31:26, and R. Yosef Karo, Kesef Mishneh to Yad, T’filin 1:2.
  20. Thus, according to “most” opinions (da`at rov haposkim; Mishnah Berurah 143, no. 13), when an error is discovered in a sefer torah during the congregational reading, the reading must be repeated from a kasher scroll from the beginning of that day’s appointed section. See R. Asher b. Yechiel, Resp. Harosh 3:8; and Migdal Oz to Yad, T’filin 1:2, in the name of R. Meir Abulafia, R. Avraham b. David of Posquierres, Ramban, and Rashba. This rule is not universally accepted; see below, note 26.
  21. Thus Rashba (cited at note 14) proposes that the responsum represents the opinion of Maimonides “in his youth,” while the Mishneh Torah expresses his more considered and mature viewpoint. Rashbash (cited at note 13) raises the possibility that Rambam is not the actual author of the responsum. He writes that, inasmuch as we cannot be certain that the teshuvah was in face written by Rambam (“is his signature upon it?”), it is wiser to follow the opinion of the Mishneh Torah, of which his authorship is not doubted.
  22. The word l’khatchilah, a technical term of Jewish law, signifies the optimal standard of observance, the practice that ought to be followed if one has a choice. Yet if an individual or community cannot adhere to that standard, they can still fulfill the requirements of the mitzvah provided that they have met the minimally-acceptable standard of observance (b’di`avad).
  23. That is, although a congregation’s “honor” dictates that it should not read from a ritually unfit Torah scroll, the reading therefrom is not invalid; otherwise, it would be unacceptable even b’di`avad, as a “minimally-acceptable” standard. The wording of Yad, Sefer Torah 10:1 suggests that Rambam, unlike Rashba, draws no distinction between the chumash and the defective scroll on this point; see at note 18.
  24. This line of thought is indicated by none other than Rashba in a responsum (1:805). The Talmud (BT Gitin 60a) declares that we do not read from chumashim on the grounds that to do so affronts the dignity of the congregation. This implies that, as a matter of technical law, it is permitted to perform the public reading from a chumash (min hadin mutar), though by all means a proper sefer torah ought to be used. See also R. Yoel Sirkes (17th-century Poland), HaBaCh Hachadashot, no. 42.
  25. See Magen Avraham to SA OC 143, no. 2, and see note 31, below.
  26. In addition, Rambam’s “rejected” teshuvah retains a great deal of influence over Jewish ritual practice. See SA OC 143:4 and YD 279:2: if an error is found in the text of a Sefer Torah during the reading, another scroll is brought from the ark and the reading continues from the place in the text where the error was found. In other words, that part of the reading already performed from the pasul scroll “counts” toward the fulfillment of the mitzvah. This ruling is, on the surface, a curious one: if a Torah scroll is ritually unfit, it stands to reason that none of its text can be utilized for the performance of the mitzvah. That, indeed, is the opinion of “most” authorities (see note 19). R. Yosef Karo, who notes that this custom originated with his colleague R. Ya`akov Berav of Safed, justifies it on the basis of Rambam’s teshuvah: “even though we do not follow Rambam’s ruling, we rely upon it after the fact in order to accept the reading” that was already performed from the Sefer Torah pasul; BY YD
  27. On the tendency of Reform responsa to seek the “liberally affirmative” answer, see R. Solomon B. Freehof, Reform Responsa (Cincinnati: Hebrew Union College Press, 1960), 23. For a more recent, systematic account of the principles of liberal halakhah, see R. Moshe Zemer, Evolving Halakhah (Woodstock, VT: Jewish Lights Publishing, 1999).
  28. This is not to say that we are forbidden to read the Torah portion from a printed chumash during our services. Sometimes, there is no alternative to doing so; see note 31, below. But the act of reading from a printed chumash, however valuable in and of itself, does not meet the definition of the act of k’ri’at hatorah. That mitzvah, a ritual observance that meets its own particular requirements, is accomplished only through the reading from a sefer torah.
  29. See at note 19, above.
  30. On the use of “substitutes” for ritual observance, see our responsum “Non-Traditional Sukkah,” Teshuvot for the Nineties, 5755.4, 91-96.
  31. It is not forbidden to read in public from a non-kasher Torah scroll; the point is that such a reading does not fulfill the mitzvah of k’ri’at hatorah. The blessings, which pertain to that mitzvah, are therefore inappropriate. It follows that to read from the scroll without pronouncing the blessings is permitted, so long as we do not think we are fulfilling the mitzvah See Isserles, OC 143:2 and Magen Avraham ad loc.: a community that does not possess a sefer torah kasher may read from a printed chumash provided that the blessings are not recited. And see P’ri M’gadim to OC 143, Eshel Avraham no. 2: “in a community too small to gather a minyan, perhaps it is proper to read from the sefer torah without the accompanying b’rakhot, so that the practice of k’ri’at hatorah not be forgotten.”
  32. There are others. Our colleague Rabbi David Lilienthal, of the Liberal Jewish congregation in Amsterdam, reports that his community reads from its own pasul “Shoah” Torah scroll on two occasions during the year: Shabbat Zakhor (Deut. 25:17-19, “Remember what Amalek did to you…”) and Shabbat Shuvah (Deut. 32, parashat Ha’azinu).
  33. Here following the theory of Rambam’s responsum: the reading from a sefer torah pasul does fulfill the mitzvah of k’ri’at hatorah, and the reading from it on these special occasions is not to be considered an affront to the congregation=s “honor.”
  34. On the grounds that even on these special occasions the congregation should respond to the Shoah by observing this mitzvah in the form that we generally think proper. The pasul scroll though used for the “additional” reading, will still leave a moving impression upon the congregation.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5760.4

CCAR RESPONSA

5760.4

Gentiles and Jewish Mourning Rites

She’elah
The non-Jewish parent of a non-Jewish member of our synagogue has died. The non-Jewish member wishes to observe shiv`ah and have a service each night at home. Is there any reason why he should not do so? Should we use the “Service for a House of Mourning” provided in Gates of Prayer, or is there something more appropriate? Is it permissible to recite El Malei Rachamim? (Joel Morgovsky, Chair of the Ritual Committee, Monmouth Reform Temple, Tinton Falls, NJ)

Teshuvah
This she’elah asks that we consider the question of boundaries in our religious communities: the boundaries that distinguish between Jews and Gentiles and the boundaries that delineate our religious and communal responsibilities toward the non-Jews in our midst. These lines of definition are difficult to draw to the satisfaction of all, and since every congregation must confront this issue, it is not surprising that different versions of such boundaries exist within our movement. Our Committee is similarly divided as to the best response to the case before us. We are in full agreement, however, that boundaries must be set and that they must reflect a process of careful and thorough Judaic thinking.

The first boundary to be considered is the one that determines membership in our synagogues. We proceed from the presumption that formal membership in our congregations is reserved for persons of the Jewish faith.[1] Again, while each congregation makes its own decisions in these matters, the essential purpose of synagogues is “to promote the enduring and fundamental principles of Judaism and to ensure the continuity of the Jewish people.”[2] It is therefore inappropriate for those who are not Jewish to enjoy formal membership in a Jewish congregation.[3] While our she’elah speaks of a “non-Jewish member” of the congregation, this person is more accurately understood as the spouse of a Jewish member. The non-Jewish spouse of a member should not hold office in the congregation or in any of its auxiliary organizations, nor should he or she vote at congregational or committee meetings. On the other hand, the spouse may attend religious, social, and educational activities and share in the fellowship of the congregation.[4]

This brings us to our second boundary, that which distinguishes Jew from non-Jew. As we have noted, the Gentile spouses in our midst are welcome to take part in the activities we offer, and we most certainly encourage them to attend and to worship at our religious services. It is therefore not surprising that those who do so may find much meaning in our religious life, to the point that they wish to adopt some Jewish observances as their own. The problem with this, to put it plainly, is that these observances are not theirs; they are ours. We do not look upon Jewish rituals and ceremonies simply as instruments for the attainment of spirituality, satisfaction, and comfort. They are rather the means through which we Jews define ourselves as a religious community, rehearse our sacred history, and express our distinct identity. Their meaning for us is primarily a Jewish meaning. It is by keeping these observances (and, at times, by introducing change and innovation into them), that we fully participate in the tradition that we have inherited from Jews in ages past, that binds us to all Jews today and that we seek to pass on to future Jewish generations. It is for this reason that, though the non-Jews in our midst may attend and worship at our religious services, there are clear limits as to their participation in our synagogue’s ritual life. Our rituals, again, are expressions of our Jewish identity, an identity that the non-Jews in our midst, so long as they do not choose to become Jewish, do not share. It is inappropriate for them to participate in our religious life as though they are Jews when in fact they are not Jews.[5]

Our she’elah is a clear and difficult test of these boundaries. This non-Jew, grieving at the death of his parent, has discovered a source of comfort in the observance of dinei avelut, traditional Jewish mourning rituals. He wants to “sit shiv`ah” and asks that we organize for him a service or “minyan” in his home each night of that seven-day mourning period so that he might say Kaddish.[6] We would certainly do so for a Jewish congregant; is it appropriate for us to do so for him? There are some strong arguments that would cause us to say “yes.” This non-Jew violates no ritual prohibition by observing Jewish mourning rites. He is already welcome at our synagogue services, where he may say Kaddish along with the congregation. Moreover, though he may not be a formal member of the synagogue, he is a member of our congregational family. He has shared our “fellowship”; he is in a very real sense one of us. It is our human and pastoral inclination to minister to him in his time of sadness. If the customs of Jewish mourning bring him strength and solace, why would we wish to deny these to him? On the other hand, we cannot forget that dinei avelut are indeed the customs of Jewish mourning, practices that enable Jews to express grief in a way that links them to the life and heritage of our people. For us to arrange a “minyan” for this individual is a well-intentioned act of kindness, but it also confuses the boundary between Jew and non-Jew; it blurs the distinction (central to our existence as a religious community) between being Jewish and doing Jewish.

In considering our question, therefore, we are pulled in different directions by the persuasive power of two sets of concerns, each of which makes legitimate demands upon us. How do we balance these concerns and establish the boundaries appropriate to this case?

  • One member of our Committee recommends that no service be held at the home of this non-Jewish mourner. He should be invited to attend any regularly scheduled synagogue service and to say Kaddish there. El Malei Rachamim may also be recited, but again, only at a synagogue service and not at a “shiv`ah minyan” specially arranged for him. The strength of this approach lies in its insistence on the standards of Jewish propriety: a “shiv`ah minyan” is a Jewish mourning custom, a means of expression rightfully reserved for Jews. Most of us reject this suggestion, however, on the grounds that it pays insufficient attention to the personal, emotional needs of one who is, after all, part of the congregational family. He finds meaning and comfort in the rites of Jewish mourning; we want to find an appropriate way for him to participate in those rites.
  • What is the “appropriate” way for this individual to observe Jewish mourning rites? Some of us would permit the community to arrange a regular “shiv`ah minyan” for him at his home. The liturgy for this service would be the same as used for all such services, whether the Gates of Prayer‘s “Service for a House of Mourning,” as mentioned by our sho’el, or the regular weekday services.[7] Kaddish and El Malei Rachamim may be recited. There is no ritual or halakhic objection to this procedure, so long as the service is led and conducted by Jews-and not by the Gentile mourner–and the Kaddish is recited by a Jew or by the entire company, as is the custom in most Reform communities. In the absence of such objections, some of us see no reason to exclude this member of our family from an observance that will bring him strength and solace.
  • Finally, some of us feel that the “service” at this individual’s home should not be the regular liturgy or the “service for a house of mourning.” Instead, the service might consist of special readings, perhaps including the study of text, followed by Kaddish and El Malei Rachamim. To do otherwise, in this view, would give the impression that this person is participating in our religious life as though he is a Jew. Those of us who take this position believe that the boundary between Jews and non-Jews-a boundary without which we do not exist as a distinct religious community-would be more clearly marked in this way. And all of us, no matter which proposal we favor, believe as one that this boundary must be honored.

 

CCAR Responsa Committee. Mark Washofsky, chair; Walter Jacob; Yoel Kahn; Debra Landsberg; David Lilienthal; Bernard Mehlman; Rachel Mikva; W. Gunther Plaut; Leonard S. Troupp; Moshe Zemer.

 

NOTES

 

  • See Suggested Constitution and By-Laws for Congregations Affiliated with the Union of American Hebrew Congregations, adopted by the Joint Commission on Synagogue Administration of the Union of American Hebrew Congregations and the Central Conference of American Rabbis, April, 1984, Article V, Section 1.

 

  • Suggested Constitution, Preamble.
  • See R. Solomon B. Freehof, Recent Reform Responsa, no. 12, at p. 65: “Jewish congregations consist of Jews by birth or conversion. All who wish to come into Judaism are welcome. No sincere applicant for conversion will be rejected. But we cannot allow the transformation of a Jewish congregation so that it ceases to be the family

NYP no. 5760.5

CCAR RESPONSA

5760.5

Conversion When The Spouse Remains a Gentile

She’elah
A woman has asked a congregational rabbi to sponsor and guide her through the conversion process. After a thorough initial interview, the rabbi discovers that her husband, a Roman Catholic, has no intention of converting to Judaism along with her. Although the rabbi judges her character and motives to be sincere in every way, he cannot agree to be her sponsor because her conversion will result in an interfaith marriage. If she were single or married to a Jew, there would be no question of her qualifications as a potential Jew by choice. Should this woman’s love of Judaism and her sincere desire to convert be impacted by the religious identity of her partner? If an interfaith marriage is the result of this conversion, is the sponsoring rabbi held responsible? (Kathy Kahn, UAHC Commission on Outreach)

Teshuvah
Should we accept for conversion a married person whose Gentile spouse does not share the desire to become a Jew? Orthodox rabbis would likely respond in the negative. The conversion of one spouse would create a mixed marriage, which is prohibited under Jewish law.[1] Orthodox halakhists would interpret the potential convert’s desire to remain in what would become a mixed marriage as a lack of commitment on his or her part to “accept the mitzvot” and to live a fully Jewish life; such a lack of commitment is a serious impediment to the acceptance of a conversion and to its subsequent validity.[2] Even those authorities who are generally lenient with regard to accepting proselytes would presumably reject this conversion.[3]

Should we Reform rabbis respond in the same way? On the one hand, we certainly view the phenomenon of mixed marriage as a matter of deep concern, in that it calls into question the Jewishness of home and family life and the very survival of the Jewish people. We teach that “it is a mitzvah for a Jew to marry a Jew so that the sacred heritage of Judaism may be transmitted most effectively from generation to generation.”[4] Our Conference has formally declared “its opposition to participation by its members in any ceremony which solemnizes a mixed marriage.”[5] Even though many of our members will, under certain circumstances, officiate at ceremonies of mixed marriage,[6] they do so not to lend Jewish religious sanction to those unions but rather in the hope that their act might increase the possibility that the couple will create a Jewish life for themselves and for their children. Even though we do our utmost to reach out to religiously-mixed couples and their families and even though we want them to feel fully at home in our synagogues, we do not see mixed marriage as a proper religious choice for a Jew. Given this stance, it might be argued that we should deny this woman the opportunity to convert to Judaism, on the grounds that converting her would create a mixed marriage in this case and give the impression that we condone mixed marriage in general.

Yet there is another side to this argument. In presiding over this conversion, the rabbi and the beit din do not “create” a mixed marriage. The couple are already married to each other in the eyes of the state, and the conversion does nothing to affect that status in either Jewish or civil law. The ritual of conversion (giyur) is emphatically not a wedding or some other “ceremony which solemnizes a mixed marriage.” Nor does the conversion signal that we somehow “condone” mixed marriage. Although a mixed marriage will be the result of the conversion, it is not its intended result, the goal or purposeful outcome of the action of the beit din. The giyur centers not upon the couple–indeed, the husband is not a participant in the ceremony– but upon the individual who chooses Judaism. It concerns itself with her, with the motivations that have led her to Judaism and with her readiness to enter the covenant of God and Israel. Far from condoning mixed marriage, the conversion does not address that subject at all; it does not alter in the least our teaching that “it is a mitzvah for a Jew to marry a Jew.”

The new Jew-by-choice, it is true, will be living in a situation in which she does not fulfill the mitzvah of Jewish marriage. This fact, however, is not a sufficient cause to deny her request to become a Jew. We do not demand of a ger or giyoret that he or she observe “all” the mitzvot (however we understand that term) as a condition for conversion. For that matter, it is far from certain that even the traditional halakhah makes that demand.[7] This person, to be sure, has come to Judaism at a time and from a place in her life that present special challenges to her as she undertakes to “find satisfaction and joy in the fulfillment of Your sacred mitzvot.”[8] Yet each of us, it must be said, travels a unique path to Jewish commitment. All of us struggle to overcome the obstacles that stand in our way to a more complete Jewish life. None of us is perfect (however we understand that term) in his or her Jewish observance, and we do not require perfection from this proselyte. All we ask of her–and this is no little thing–is that she make a sincere and informed decision to adopt the Jewish faith as her exclusive religious expression and that she identify her fate and destiny with that of the people of Israel.[9] Who are we, who do not know this person, to say that she has not made such a commitment? Who are we to say that she is not one of those who, according to our agadic tradition, has come to discover that she, too, stood at Sinai and entered the covenant?[10]

How do we determine whether this person is in fact fully and sincerely prepared to accept the faith of Israel and to join the Jewish people? That decision, our sources teach, is left to the judgment of the local rabbi.[11] Our point is simply that, given that her motives are “sincere in every way,” the fact that this woman’s husband will remain a Gentile does not constitute in and of itself a reason for us to turn her away. The rabbi, we think, is entitled to accept her as a Jew-by-choice.

At the same time, however, it should be abundantly clear that the rabbi is not required to accept her. We say this because, though her marriage does not automatically disqualify her from conversion, it most certainly signals the rabbi to proceed with caution. Again, we emphasize that we do not know this person and that we have no reason to doubt the sincerity of her decision. Yet we cannot overlook the fact that a conversion in a case such as this creates a mixed-religion household, and this raises serious questions as to the capacity of even the most devoted proselyte to construct a Jewish life. Our ceremony for giyur requires that the Jew-by-choice answer “yes” to the following, among other questions: “Do you promise to establish a Jewish home?” and “If you should be blessed with children, do you promise to raise them as Jews?”[12] Even with the best of intentions, a proselyte whose spouse remains a Gentile will face enormous difficulties in achieving these goals. For example, does the spouse identify strongly with his or her own religion? A household in which some other religion is practiced on an equal basis with Judaism cannot be called a “Jewish” home in any plausible sense of that term. If children are born to the couple after one of them converts, does the Gentile spouse support him or her in raising those children exclusively as Jews? Children raised in more than one religious identity do not qualify for Jewish status under the CCAR’s Resolution on Patrilineal Descent.[13] All of this testifies to the fact that Judaism is not simply a matter of personal spirituality, restricted to the worship service. Judaism is a complete and all-encompassing religious way of life; it must be practiced in the home as well as in the synagogue, in the family as well as in the heart. No matter how sincere a potential convert’s personal commitment to the Jewish faith, he or she is not yet ready to become a Jew unless that commitment is realized in the arena of home and family life. It is up to the rabbi to determine that such is the case.

Finally, we must raise the issue of the stability of the marriage and the family relationship. A decision to choose Judaism is a life-transforming event, a matter of ultimate seriousness. From this point forward, the Jew-by-choice is committed to new patterns of worship, of ritual behavior, and of personal consciousness. “The proselyte,” we are taught, “is like a new-born child”[14]; making a significant break with all that is past, he or she from now on seeks religious fulfillment as a member of the community of Israel. What does this transformation do to the spouse who does not join in it? How will it alter the common fabric of the marriage? Does it reflect a separation between the couple, a coming apart? As a matter of pastoral responsibility, the rabbi must inquire as to the psychological sources of this decision and as to its effects upon the marriage and the household.

Conclusion. A person who wishes to become a Jew should not be rejected merely because his or her spouse will remain a Gentile. In dealing with conversion, our primary responsibility is toward the individual proselyte. If the rabbi determines, through careful examination, that the decision to convert is “sincere in every way,” then he or she may be accepted as a Jew-by-choice. On the other hand, the spouse’s decision not to become a Jew may be an indication of serious obstacles to the proselyte’s creation of a Jewish life and of problems in the marriage. The rabbi must be satisfied that these difficulties are not serious before proceeding with giyur. In any event, both the rabbi and the prospective proselyte are well advised to proceed slowly, deliberately, and with all caution. No arbitrary time limit can or should be set. Let them rather take all the time they need to determine whether this decision is the right one, both for the Jew-by-choice and for the Jewish people.

 

 

NOTES

 

  • The prohibition is derived from Deuteronomy 21:13; see BT Kidushin 68b. Another possible source is Deuteronomy 7:3, which ostensibly forbids marriage only with members of the seven Canaanite nations. Maimonides, however, reads the prohibition as covering all Gentiles; see Yad, Isurey Bi’ah 12:1.
  • On the requirement that the ger/giyoret accept the mitzvot (kabalat hamitzvot) see BT Yevamot 47a-b; Yad, Isurei Bi’ah 13:4 (where he speaks of accepting the yoke of the Torah; Shulchan Arukh YD 268:3. That this acceptance must be complete, without any reservations whatsoever, is indicated in BT Bekhorot 30b: a Gentile who comes to accept the Torah except for one precept is not accepted for conversion. Although this statement is not codified in either the Mishneh Torah or the Shulchan Arukh, it does reflect the thrust of contemporary Orthodox halakhic opinion, which suggests that the proselyte’s failure to observe all the commandments is retroactive evidence that the conversion was null and void ab initio. See, for example, R. Avraham Yitzchak Hakohen Kook, Resp. Da`at Kohen, nos. 154-155, and R. Yitzchak Halevy Herzog, Resp. Heikhal Yitzxhak EHE 1:1, nos. 19-21. Yet not all Orthodox halakhists take this position; see at n. 7, below.
  • A case in point is R. Benzion Ouziel, Resp. Mishpetei Ouziel EHE 18. In this teshuvah, he demonstrates his generally lenient approach by accepting conversion for the sake of marriage, even though this is generally considered an improper motivation for conversion, on the grounds that this step is necessary to combat the plague of mixed marriage that afflicts the Jewish community. In the same responsum, however, he addresses a second question: is it permissible to convert a Gentile woman who is already married to a kohen? Here his answer is no: since a kohen is prohibited to marry a proselyte (giyoret), to convert this woman would mean that he would transgress that prohibition. R. Ouziel says this, even though the kohen is already violating the prohibition against intermarriage. Based on his reasoning, it seems clear that he would also rule strictly in our case, in which a conversion would lead to a transgression (intermarriage) in a place where, at the moment, no transgression exists.

 

  • Gates of Mitzvah (New York: CCAR, 1979), 36. And on page 37: Judaism resists mixed marriage because it weakens the fabric of family relationship and the survival potential of the Jewish community, and because it makes it more difficult to establish the mikdash me-at that should be the goal of every Jewish marriage.
  • See Central Conference of American Rabbis Yearbook 83 (1973), 97, for the text of the resolution. An expansive argument on behalf of the resolution is found in American Reform Responsa, no. 149.
  • As indicated in the second paragraph of the resolution cited in note 5.
  • See note 2. Although the preponderance of contemporary Orthodox opinion requires that the proselyte accept “all” the mitzvot–which is tantamount in their eyes to a requirement that he or she become an Orthodox Jew–some authorities hold otherwise. Some understand the requirement of kabalat hamitzvot as the ger/giyoret’s self-imposed obligation to undergo circumcision and/or immersion before a beit din (Chidushei Haramban, Yevamot 46b; R. Meir Posner, Resp. Beit Meir, no. 12). Others see it as a general commitment “to forsake his people and its gods, to take refuge beneath the wings of the Shechinah, to accept the religion of Israel and to enter the Jewish community” (R. Shelomo Lifschitz [18th-19th cent. Poland], Resp. Chemdat Shelomo, YD 29, nos. 22-23). R. Benzion Ouziel sees kabalat hamitzvot primarily as the proselyte’s acceptance of the obligation to keep the mitzvot; this acceptance is valid even if we know in advance that he or she will not observe them (Resp. Mishpetei Ouziel II, YD 1:58). In other words, the giyur “takes” even though the proselyte does not live a thoroughly “Orthodox” life style following the conversion. On all this in detail, see Zvi Zohar and Avraham Sagi, Giyur uzehut yehudit (Jerusalem: Mosad Bialik, 1997), 171ff.

 

  • Rabbi’s Manual (New York: CCAR, 1988), 200, from the “Giyur Service in the Synagogue.”
  • See BT Yevamot 47a, the ger’s declaration of his readiness to accept the vicissitudes of Jewish existence; and see Rashi ad loc., s.v. ve’eini kehda’i.
  • The teaching that all future converts were virtually present at Sinai, a midrash on Deut. 29:14, is found in BT Shabbat 146a.
  • In matters of conversion, “everything is left to the judgment of the court”; R. Yosef Karo, Beit Yosef YD 268, based upon Tosafot Yevamot 24b, s.v. lo.

 

 

  • Rabbi’s Manual, 201.
  • The text of the resolution itself (see Rabbi’s Manual, 226) speaks of the performance of “timely public and formal acts of identification with the Jewish faith and people”; these are “mitzvot leading toward a positive and exclusive Jewish identity” (emphasis added). See also Teshuvot for the Nineties, 5755.17, 251-258; Questions and Reform Jewish Answers, no. 109; and Contemporary American Reform Responsa, no. 61.

 

  • BT Yevamot 22a and parallels.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5760.6

CCAR RESPONSA

5760.6

A Convert’s Hebrew Name

She’elah

A Jew-by-choice in my community does not wish to accept the customary Hebrew name bat Avraham avinu ve-Sarah imeinu. She objects to this name for two reasons. First, since the name advertises her status as a convert, she finds it to be embarrassing and thus a possible violation of the rule that one is not to remind a ger/giyoret of his/her past. Second, this name ignores the identity of her actual parents, who though they do not join her in conversion nonetheless have raised her and loved her from birth. She wants her Hebrew name to include the names of her parents. Is this permissible? If so, should we find Hebrew equivalents for her parents’ names? (Rabbi Gerald Raiskin, Burlingame, CA)

Teshuvah

The Convert’s Name in Jewish Tradition. By long-standing practice, we refer to the Jew-by-choice as “the son/daughter of Abraham our father” (ben/bat Avraham avinu).[1] R. Yosef Karo, who mentions this practice in his Shulchan Arukh,[2] identifies as its source a responsum of R. Asher b. Yechiel (13th/14th-century Germany and Spain).[3] R. Asher tells us that the ger (convert) is called “the son of Abraham” because Abraham is called “the father of many nations” (Gen. 17:4-5). This suggests a Talmudic debate concerning the mitzvah of bikurim, or “first fruits.” The Torah instructs that an offering of the “first fruits” of the harvest be brought to Jerusalem, to the priest in authority in those days, and that the person who brings the offering recite a “confession” (vidu’i), a litany expressing our gratitude for having been brought forth from Egypt and for having inherited a “land flowing with milk and honey” (Deut. 26:1-11). The question: does a convert recite this confession when he brings his bikurim to the Temple? The Mishnah answers “no”: the ger may not recite the vidu’i because, as his ancestors were not Jewish and did not inherit the land of Israel, he cannot truthfully give thanks for “the land that God swore to our ancestors to give to us (Deut. 26:3).”[4] The Talmud Yerushalmi, however, cites the conflicting view of Rabbi Yehudah: the ger does recite the confession, because Abraham, “the father of many nations,” is the spiritual ancestor of converts as well as of born Jews.[5]

How does the halakhic tradition decide between these conflicting interpretations? Some authorities follow the Mishnah and even extend its rule, declaring that a convert cannot lead either the birkat hamazon (grace after meals) or the synagogue service (i.e., he cannot serve as sheliach tzibur) because those liturgies, too, contain words that seem to exclude the ger.[6] Yet over time, the Yerushalmi’s more inclusive view came to predominate.[7] A proselyte may therefore lead the worship service and recite any portion of the liturgy that speaks of “our ancestors,” because those are his or her ancestors as well.[8]

This insight has never been communicated so clearly and forcefully as by Maimonides, in a teshuvah to a Jew-by-choice named Ovadyah:[9]

You ask whether you may recite privately and publicly the words “our God and the God of our ancestors,” “who has sanctified us by the mitzvot and commanded us,” “who has chosen us,” “who performed miracles for our ancestors” and similar statements in the liturgy. You may recite them all; you are not to change any of the wording; you are to recite the blessings and prayers according to the same formulae used by born Jews… The essential point is that our father Abraham taught Judaism, the faith in the one God, and the rejection of idolatry to all the people, bringing many under the wings of the Divine Presence… Therefore, whosoever converts to Judaism, from now until the end of time…is a disciple of our father Abraham…the father of every proselyte… There is no difference between us and you in any of these matters.

The ger, in other words, is called ben Avraham avinu in order to proclaim that he is one of us and part of our family, to affirm that the Jew-by-choice and the Jew-by-birth enjoy the same religious status in the eyes of God and of the Jewish people.[10]

The Convert’s Name: A Source of Embarrassment? According to our tradition, therefore, the name ben/bat Avraham ve-Sarah is a powerful symbol of inclusion, of the proselyte’s full and equal membership in the covenant of Israel. How disappointing, then, that for the person mentioned in our she’elah the name has become a cause of discomfort. Does the embarrassment she feels warrant the changing of her name? It is true that the Torah warns us not to oppress the ger (Lev. 19:33) and that the tradition understands this oppression as ona’at devarim, verbal embarrassment: that is, we must not scorn the proselyte by mentioning his or her Gentile origins.[11] Yet this prohibition has always referred to the gratuitous insult, the conscious, intentional attempt to shame.[12] It has never been understood as an argument for changing the proselyte’s traditional name, nor could it be, since to ascribe a person’s spiritual lineage to Abraham and Sarah is among the highest compliments we can pay him or her. We are indeed forbidden to embarrass the Jew-by-choice, but to call him or her “the child of Abraham and Sarah,” however, is most definitely not a matter of embarrassment or shame.

One could respond, of course, that shame is in the eye of the beholder, that this Jew-by-choice would feel a sense of embarrassment when her Jewish name is read in synagogue, and that she is therefore entitled to alter that name. Yet such a course, we think, is precisely the wrong solution for her problem. While we do not question the sincerity of her feelings, we suspect that her embarrassment has less to do with her Jewish name than with some unresolved doubts she may still harbor over her decision to convert and its effect upon the members of her family. If so, then our response should be a pastoral one. Her rabbi should work with her to help resolve the tensions associated with that choice. Alternately, her embarrassment may be rooted in external factors; perhaps the community has not been as welcoming and as accepting of her as it could and should be. If so, the proper response is again a pastoral one. The rabbi should work with the community to explore why this is happening and to remind them of our duty to love the Jew-by-choice as one of our own.[13] Altering the name, by contrast, does nothing to help her confront these issues. It merely allows her to hide the fact of her conversion, an act that contributes in no way to her healthy adjustment to her Jewish status. It is an act, moreover, that has the most negative connotations for us as Jews and particularly as Reform Jews, members of a movement that is committed to outreach and to the full inclusion of the Jew-by-choice in our community. We do not believe that conversion is something to hide, a source of embarrassment. We believe, rather, as tradition teaches us, that the name ben/bat Avraham avinu ve-Sarah imeinu is a badge of honor and respect, bestowed with love and admiration, that ought to be worn with satisfaction and pride.

The Jew-By-Choice and Her Parents. May the Jew-by-choice replace Avraham and Sarah with the names of his or her actual parents, even though they remain non-Jews? It is true that the proselyte is obligated to render honor to his or her parents as an expression of love and of gratitude for all they have done to raise, care for, and educate their child.[14] Yet this duty does not touch upon the question of name. The “Hebrew name” by which one is called in synagogue is more appropriately called a Jewish name.[15] It 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. The parents of this Jew-by-choice surely gave her love and care and taught her many of the values by which she lives. But they did not teach her Torah; they did not bring her into the covenant. As an adult,[16] this is a decision she made on her own, and for that reason her covenantal parents, the ones from whom she legitimately claims her Jewish descent, are Abraham and Sarah, who we are told brought many seekers like her under the wings of God’s presence.[17]

Conclusion. When a person chooses to become a Jew, he or she receives the name ben/bat Avraham avinu ve-Sarah imeinu, signifying the he or she is one of us and at one with us, a full partner in the community of Israel and its covenant with God. It is an important statement of our religious belief, of our understanding of the meaning of conversion and of the Jewish experience. It is a mark of respect and honor. It is not a cause for embarrassment, nor is it a sign that the proselyte has broken ties with his or her Gentile family. Any and all difficulties that the Jew-by-choice encounters upon joining our people should be faced squarely and seriously, but it would be a serious mistake to try to address those problems through altering his or her Jewish name.

 

NOTES

[1] The addition of “and Sarah our mother”-ve-Sarah imeinu-is an innovation of recent decades. Nonetheless, support for this innovation may be found in Tosafot, Chagigah 9b, s.v. bar: Bar He He was, according to some opinions, a convert, “that is, the son of Abraham and Sarah, for whom the Hebrew letter heh was appended to his name.”

[2] Shulchan Arukh EHE 129:20. The issue there is the correct name for a ger in his bill of divorce (get).

[3] Resp. Harosh 15:4. Karo provides this identification in his longer work, the Beit Yosef to Tur EHE 129 (in the section Hilkhot Gitin, fol. 29b, near the end of the first column).

[4] M. Bikurim 1:4 and Bartenura ad loc. See also Sifrei to Deuteronomy, ch. 299.

[5] PT Bikurim 1:4 (64a), and see Bartenura to M. Bikurim 1:4. Compare as well Maimonides, Commentary to M. Bikurim 1:4: Abraham taught faith in God to the world and is thus the father of all.

[6] The second blessing of birkat hamazon contains the words “You have bequeathed to our ancestors a good land…”, and the first benediction of the tefilah, the central prayer of the worship service, reads “our God and God of our ancestors.” The authorities include Rabbeinu Tam (Tosafot Bava Batra 81a, s.v. lema`utei), the Or Zaru`a, Hilkhot Tefilah, ch. 107, and the rabbis of medieval Würzburg, Germany, who prevented converts from serving as worship leaders (Mordekhai, Megilah, ch. 786).

[7] Yad, Bikurim 4:3. The Yerushalmi itself goes out of its way to reject the position enunciated in the Mishnah, citing a teaching by R. Yehoshua b. Levi that the halakhah follows Rabbi Yehudah and a ruling to that effect by R. Abahu in an actual case (involving prayer, it would seem, since bikurim were no longer offered at that time).

[8] See Shulchan Arukh OC 53:19: the view that the ger may not serve as sheliach tzibur has been “rejected.” Among those who take this position are R. Yitzchak of Dampierre (Tosafot, Bava Batra 81a, s.v. lema`utei); Nachmanides (Chidushei Haramban to Bava Batra 81a); R. Shelomo b. Adret (Chidushei Harashba to Bava Batra 81a); R. YomTov ibn Ishbili, (Chidushei Haritva, Makot 19a); R. Nissim Gerondi (Chidushei Haran, Bava Batra 81a).

[9] Resp. Harambam, ed. Blau, no. 293 (no. 42 in the Friedman edition). In this responsum, Rambam repeats the decision reported in his Commentary to M. Bikurim 1:4: the halakhah does not follow the Mishnah but rather the ruling of the Talmud Yerushalmi.

[10] See R. Benzion Meir Hai Ouziel, Resp. Mishpetei Ouziel II, Yore De`ah, no. 59: the name ben Avraham avinu functions to establish the halakhic ruling (lehorot) that the proselyte is entitled “to lead the prayer service and the birkat hamazon, to say ‘our God and God of our ancestors’ and ‘we thank you O God for having bequeathed a good land to our ancestors.’”

[11] BT Bava Metzi`a 58b-59a; Yad, Mekhirah 14:12-13; Shulchan Arukh CM 228:1-4.

[12] Examples (see the sources cited in the preceding note): “see how one who once ate impure things seeks to fill his mouth with words of Torah!”; “remember the deeds (i.e., the idolatry) of your ancestors.

[13] Deut. 10:19; Yad, De`ot 6:4.

[14] See BT Yevamot 22a: although considered in principle a “newborn child,” a ger must not ignore those moral duties which he or she observed as a non-Jew, “lest it be said that (the ger) has descended from a higher degree of holiness to a lower one”; Yad, Mamrim 5:11; Shulchan Arukh YD 241:9. On the nature of the mitzvah to honor one’s parents as an expression of gratitude for their having raised and cared for the child, see Teshuvot for the Nineties, no. 5753.12 (pp. 201-207), “Kaddish for Adoptive and Biological Parents.”

[15] See, for example, the service for berit milah and the covenant service for a daughter in the CCAR Rabbi’s Manual (1988), pp. 12 and 21 respectively: the child’s name is bestowed by the formula veyikarei shemo/a beyisrael, “his/her name in Israel shall be…”. See as well at p. 208, the service for conversion: “and from this time forth you shall be known in the Jewish community as ____ Ben/Bat Avraham veSara.”

[16] This is an important distinction: if a minor child converts along with the parent(s), the child may be called the son or daughter of the parent(s), since it is the latter who actually teach Torah to the child. See the responsum of R. Ouziel cited in note 10, and R. Gedalyah Felder, Sefer Nachalat Tzvi (Toronto, 1978), I, 124-125. This is not the case in our she’elah, which deals with an adult proselyte who did not learn Judaism from her parents.

[17] See Bereshit Rabah 39:14 and Rashi to Gen. 12:5), on “all the souls they had gotten in Haran”: to bring people to Judaism is equivalent to creating them, to giving them life.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5760.8

CCAR RESPONSA

5760.8

Withholding Paternity Information from a Father

She’elah
A single Jewish woman is pregnant by a Gentile man she has known for a short time. The pregnancy was unplanned, but she is happy about it and plans to raise the child. However, she does not wish to tell the child’s father. They remain friendly, but she does not want to share custody. They are not currently involves in a relationship; in fact, the man is now in a relationship with another woman, which may result in marriage. She plans to tell the child about his/her father only when the child is old enough to ask directly. She wonders, however, if withholding this information is a Jewishly proper thing to do. (Rabbi Faedra L. Weiss, Indianapolis, IN)

Teshuvah
We assume that this woman will consult an attorney to determine her duty under the law to share this information with her child’s father. The rules governing parental obligations fall under the category of dina demalkhuta dina, the principle by which Jewish law accepts as valid and binding the legitimate acts of the civil government.[1] While the law of the state will ultimately dispose of this matter, the task before us is to consider how Jewish law and tradition would speak to it. On that score, we believe the answer is unequivocal: this woman has a moral obligation to inform the father of her child of the fact of his paternity.

We base our answer upon the following considerations.

1. Judaism teaches us that it is forbidden to deceive other people, even when the deception arguably would not result in palpable harm to them.[2] True, the tradition recognizes that there are times when an overriding value, such as peace within a marriage or a family, justifies a certain measure of deceptive behavior.[3] Yet those instances are rare; surely the general standard of conduct as taught by Jewish tradition is that honesty and truthfulness ought to guide our actions. One who wishes to act deceptively must satisfy a high burden of proof that this case is serious enough to warrant a departure from that standard.

2. We do not think that our case justifies such a departure. Indeed, it seems that the only value served by withholding information from the father is the mother’s desire not to share custody of the child with him. Yet under Jewish law she is not entitled to do this. The Mishnah speaks of mitzvot haben `al ha’av, obligations that the father owes to his son.[4] The Talmud[5] lists these as follows: the requirement to have his son circumcised;[6] to perform the mitzvah of pidyon haben;[7] to teach him Torah;[8] to find him a wife; and to teach him a trade. These texts refer in part to religious obligations that apply only within a Jewish context, and they reflect distinctions in gender roles that no longer make sense to us as Reform Jews. It is our practice to read such texts in an egalitarian way and in a way that does not make invidious distinctions between Jews and non-Jews in determining ethical duties, responsibilities that we as human beings bear toward other human beings. When we read the texts in this manner, they teach us that a parent is obligated to provide for his or her child’s basic needs, to help educate that child so that he or she may become a responsible member of human society. This duty is expressed as well in the halakhah‘s rules concerning the custody of children. In a situation where the minor child does not live together with both parents, each parent owes certain personal and financial obligations toward him or her.[9] These obligations are ultimately adjudicated by the beit din, the Jewish court, in accordance with the best interests of the child, yet it must be kept in mind that both parents figure into the court’s deliberations.[10] In other words, the father as well as the mother owes duties of care and support to this child, and it would be wrong to deny him the opportunity to meet those duties and thereby to fulfill his obligations as a parent.

What if the child’s father does not wish to share custody of or provide financial support for his child? He may renounce his obligations through the process of adoption, by which all parental duties are transferred to the adoptive parent or parents.[11] This renunciation, however, must be intentional. A father who does not know of the birth of his child cannot be said to have renounced his obligations toward that child. To put this another way: the mother is not entitled to be a “gate-keeper,” the sole arbiter who will determine whether the biological father can be a true father to the child he has helped to create.

3. The Mishnah also speaks of mitzvot ha’av `al haben, obligations owed by a child to his or her parents.[12] These obligations are summarized under the heading of the mitzvot concerning the honor and reverence that one must show toward one’s parents.[13] Obviously, a child cannot fulfill these mitzvot unless he or she knows the identity of the parent; it is therefore wrong to withhold that information from the child. In our case, the mother “plans to tell the child about his/her father only when the child is old enough to ask directly.” This approach places the mother’s needs before the child’s and creates an atmosphere of secrecy and shame for the child which is not the child’s responsibility. To withhold the father’s identity until the child is ready to verbalize a request for it is to withhold information that is vital to the child’s self-understanding. Each of us creates a narrative for ourselves, a story that expresses in the most personal sort of way our conception of our origin and place in the world. We begin this journey of self-explanation at a most early age. Children learn at a very young age that everyone is “supposed” to have a father and a mother. While there are many legitimate different family constellations, it is critical that the mother acknowledge and talk about this child’s situation, so that its particular situation will be a natural part of his/her own self-understanding and personal narrative. To do otherwise requires the child to invent or imagine a story, and the child will get a message that there is a secret around his or her origins. We think, therefore, that it is essential for the mother to communicate this information to her child as soon as possible.

4. The mother may, of course, argue that withholding information from the father serves her child’s best interests. We think, however, that in most cases the opposite is true. It is better for the child’s long-term emotional health when he or she has the opportunity to know both parents. We suspect, moreover, that the mother’s desire to withhold this information from the father has less to do with her child’s best interests than with her own unresolved issues concerning her relationship with him. As our prophets teach us (Jeremiah 31:28-29 and Ezekiel 18:2ff.), it is wrong to make children suffer for the sins of their parents.

 

 

 

 

NOTES

 

  • For a discussion of this principle, see our responsum 5757.1. We argue that the validity of dina demalkhuta rests upon the fact that those who dwell in the “kingdom,” by virtue of their residence there, imply their willingness to accept the kingdom’s laws. This is especially true for those of us who are citizens of democratic political systems, who enjoy political rights and equality with all other citizens. Since the citizens of such a state make its laws, they accept in advance the validity of all legislation that falls into the purview of the state’s legitimate legislative power. While some laws, such as those that unfairly discriminate among citizens or that impede the free exercise of their civil and political rights, would not be accepted as “legitimate” under this doctrine, regulations concerning the legal obligations between parents and children are widely accepted as a valid exercise of the community’s power and jurisdiction.
  • The concept is geneivat da`at, literally the “theft of the mind.” See BT Chulin 94a; Yad, De`ot 2:6 and Mekhirah 18:1ff; and SA CM 228:6.
  • For example, in Genesis 18:13 God intentionally misquotes to Abraham Sarah’s remark in verse 12, in order to spare him embarrassment and to preserve peace between husband and wife. See BT Bava Metzi`a 87a and the final chapter of tractate Derekh Eretz Zuta. Nachmanides to Gen. 18:13 offers a less daring evaluation of God’s report, although he acknowledges that God’s statement does not reveal the whole truth.
  • M. Kiddushin 1:7. 
  • BT Kiddushin 29a.
  •  
  • Yad, Milah 1:1; SA YD 260:1.
  •  
  • Yad, Bikurim 11:1; SA YD 305:1.
  •  
  • Yad, Talmud Torah 1:1; SA YD 245:1.
  • See BT Ketubot 65b; Yad, Ishut 12:14, and SA EHE 71:1. The father is obligated under Torah law to provide maintenance for his children until they reach the age of six, even if their mother has the means to support them. From that point on, the obligation is continued under rabbinic law, as an aspect of the general requirement to give tzedakah: the beit din can coerce the father to provide maintenance, just as it is empowered to coerce an individual to pay tzedakah according to his or her means.
  • See SA EHE 82:7.Custody of the child usually resides with the mother. The father, however, may demand custody of his son when the boy reaches the age of six; this derives from the father’s duty to teach Torah to his son (see at note 8). On the other hand, the beit din can decide that the child’s welfare demands an alteration of any of these arrangements (Isserles ad loc.). This “best interests of the child” rule is rooted in a responsum by R. Shmuel di Medina (16th-cent. Salonika; Resp. Maharashdam, EHE, no. 123).
  • On adoption, see Teshuvot for the Nineties (TFN), no. 5753.12, pp. 201-207.
  •  
  • M. Kiddushin 1:7.
  •  
  • BT Kiddushin 29a; Exodus 20:12 and Deut. 5:16; Leviticus 19:3. On the extent and the limitations of the mitzvah to render honor and reverence, see our responsum on adoption, TFN 5753.12, pp. 201-207.
  • If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5760.9

CCAR RESPONSA COMMITTEE

5760.9

An Adopted Asian Child

She’elah.

I’ve been approached by a couple who are unable to have another child (they have one already) and are interested to adopt. They are exploring the possibilities of adoption in several countries including Thailand and China. If they were to be successful in adopting a child from one of these countries, they are seeking to know whether progressive Judaism has a view on the rights of the child to be raised with knowledge of their birth (native) culture, including religious traditions. Apparently, there is considerable discussion of this topic nowadays among those officials responsible for adopted children and their welfare. More generally, how does Judaism view the welfare of adopted children in this regard: their right “by birth” to learn about their native culture, weighed against the adoptive parents’ responsibility to raise their children with a sound Jewish education and sense of identity? (Rabbi Fred Morgan, Melbourne, Australia)

Teshuvah.

Our responsum is based upon two earlier teshuvot: no. 5753.12, “Kaddish for Adoptive and Biological Parents,”1] and no. 5760.8, “Withholding Paternity Information.” The former deals with the nature of the parent-child relationship in adoptive families; the latter discusses the responsibility shared by all parents to act in accordance with the best interests of their children.

The term “best interests of the child” does not, of course, originate in Jewish literature. We borrow it from the language of other legal traditions. Yet it is a principle deeply rooted in Jewish law, which posits that along with the child’s filial duty to honor and revere the parent (Exodus 20:12; Deuteronomy 5:16; Leviticus 19:3) come a set of obligations owed by parent to child.[2] To insure that these obligations are met, Talmudic law prescribes a number of general rules concerning parental care and custody of children.[3] These rules, however, can be altered or ignored by the rabbinical court (beit din) when it determines that the good of the child demands other arrangements.[4] “The best interests of the child,” in other words, serves as a guiding Jewish principle in matters relating to child-rearing and family relationships, and we think it applies quite directly to our case. Whether adopted children enjoy a Aright >by birth’” to learn about their native culture, it is certainly arguable that such knowledge will be beneficial or even essential to their psychological welfare. Those who study the growth and development of adopted children report that race and culture play significant roles in identity formation among adoptees whose racial and cultural heritage differs from that of their adoptive parents.[5] While we are in no position to evaluate the scientific literature in this field, much of the data seems to argue that it is important for parents to take active steps to assist their transracial and transcultural adopted children in building a positive appreciation for their ethnic origins.[6] If Judaism teaches us to work toward the “best interests of the child,” it stands to reason that our tradition would encourage adoptive parents to help their children learn about their native culture.

Our responsum 5753.12 declares that, according to the best reading of Jewish tradition, adoption creates a real family and a real parent-child relationship.[7] When Jewish parents build their family through adoption, therefore, it is a Jewish family they are building, a family in which the parents teach Torah and bequeath their Jewish heritage and identity to their children. Jewish identity, as we have written on numerous occasions, is religiously exclusive. There is no such thing as a “half-Jew,” a person who is simultaneously Jewish and a communicant of another religion; one is either a Jew or a non-Jew.[8] This affirmation is basic to our understanding of Jewish identity and of the task assigned by tradition to all Jewish families, however those families are created. Its implication for our she’elah is clear: Jewish parents who seek to teach their adopted child about the child’s native culture must do so in a way that does not compromise the child’s perception of Judaism as his or her exclusive religious identity. To put this in the language of the preceding paragraph, the “best interests” of a Jewish child require that he or she be raised as a Jew.

How do parents negotiate these conflicting demands? The idea that Judaism is the child’s exclusive religious identity implies, at the very least, that the child should not take part in any of the overtly religious ceremonies and rituals of his or her native culture.[9] This standard, we acknowledge, is somewhat vague, perhaps unavoidably so. Religious elements are woven tightly into the fabric of everyday life in many cultures, so that it is may be impossible to distinguish with absolute clarity their “religious” from their “non-religious” aspects. Indeed, Jewish culture is a prime example of this phenomenon. Still, we can say that “overtly religious” ceremonies include worship services or rituals in which deities other than the God of Israel are invoked, as well as rituals that express theological commitments incompatible with Judaism. The child may learn about these aspects of the native culture but should not participate in them.[10] In addition, the Jewish commitments of the Jewish household take precedence over conflicting claims. For example, the family’s observance of Shabbat or holidays should not be altered to accommodate events relating to the child’s native culture. Similarly, if the family observes kashrut, they are under no obligation to allow their child to eat non-kosher foods associated with his or her native culture. Following these guidelines, we think, will allow the child to develop a deep and keep appreciation of the native culture while establishing a firm and sure identity as a member of the Jewish people.

NOTES

 

  1. Teshuvot for the Nineties (TFN), 201-207. As with all our responsa, this one is available online at ccarnet.org/resp.
  2. These are the mitzvot haben `al ha=av; see Kiddushin 1:7 and BT Kidushin 29a.
  3. For example, a child should live with his or her mother (in the event the parents do not live together) until the age of six. Upon reaching that age, boys generally live with their fathers, since it is the father=s duty to teach Torah to his son, while girls remain with their mother, who bears the responsibility of training her daughter in the ways of Jewish womanhood. See BT Ketubot 65b, 102b and 103a; Yad, Ishut 21:17-18; Shulchan Arukh EHE 82:7.
  4. Isserles, EHE 82:7; R. David ibn Zimra (16th-century Egypt), Responsa 1:123; R. Shmuel di Medina (16th-cent. Salonika; Maharashdam, EHE, no. 123). This rule guides the jurisprudence of the Israeli rabbinical courts on matters of child custody; see Piskey Din Rabaniyim 1, p. 61 and p. 157.
  5. Madelyn Fruendlich, Adoption and Ethics, Volume One: The Role of Race, Culture, and National Origin in Adoption (Washington, DC: The Child Welfare League of America, 2000), p. 123. Fruendlich offers a useful, wide-ranging survey of the research in the field.
  6. The following statement by D.S. Kim is representative: AIt is necessary for the child to be aware of personal heritage to develop his full potential or to define his place in society. Therefore, while avoiding ethnocentricity or reverse racism, foreign children can and should be instilled with a positive ethnic identity”; “Issues in Transracial and Transcultural Adoption,” Social Casework 5 (1978), 477-486, at 485. See also R. Rios-Kohn, “Intercountry Adoption: An International Perspective on the Practice and Standards,” Adoption Quarterly 1:4 (1998), 3-32, at 4: adoptive families ought to pay “due regard…to the child=s ethnic, religious, cultural, and linguistic background.”
  7. See TFN, p. 206, at the end of the responsum’s text: “children are obligated to show their adoptive parents all the deference and honor expected of Jewish children, for indeed, these have become their parents in every respect.”
  8. See TFN, no. 5754.3, pp. 263-264; New American Reform Responsa (NARR), no. 88, pp. 138-139, and no. 109, pp. 173-174; Contemporary American Reform Responsa (CARR), no. 61, pp. 98-99. That Judaism must be a child’s exclusive religious identity lies at the heart of the CCAR’s resolution on patrilineal descent: a child brought up in a mixed-married household must be raised exclusively as a Jew in order to qualify as a Jew under the terms of the resolution. See TFN, no. 5755.17, pp. 251-258.
  9. See also CARR, no. 51, pp. 97-88.
  10. To use an example from a Western setting, a Jew seeking to learn about the culture of Italy would do well to witness church masses, since Roman Catholicism is such a significant element in the life and traditions of the Italian people. The Jew, however, would not worship at the mass or engage in any of the ritual behaviors particular to Catholic worship.

NYP no. 5759.10

CCAR RESPONSA

5759.10

Compulsory Immunization

She’elah
Our congregation has a policy that children who have not received the standard immunizations will not be admitted into our religious school. Recently, this policy has been challenged by several member families, who object to some of these immunizations as excessively risky and who have therefore not immunized their children. Attempts to reach a compromise have failed, and these families have now left the congregation. Is our immunization policy correct and justifiable according to Jewish tradition? (Professor Marc Bernstein, Ann Arbor, MI)

Teshuvah
1. The Mitzvah of Medicine. Any discussion of our she=elah must begin with this fundamental fact: Jewish tradition regards the practice of medicine as a mitzvah, a religious obligation.[1] It is an aspect of pikuach nefesh, the preservation of human life,[2] a mitzvah that takes precedence over virtually every other requirement of the Torah.[3] Even the rules of Shabbat and Yom Kippur are superseded in order to save life, and medicine falls under this instruction. Should an Aexpert@ or Acompetent physician@ (rofe uman or rofe baki) prescribe a remedy for a patient with a serious illness, the patient must accept the remedy even if its preparation and application would normally violate the prohibitions of those holy days.[4] One who refuses this treatment on the grounds that he or she prefers to observe the laws of Shabbat Ais a pious fool (chasid shoteh). This is not an act of piety but of suicide. He is compelled to do what the physicians prescribe.@[5]Although our tradition speaks of a variety of acts that might be undertaken by and on behalf of the sick, such as teshuvah (repentance), tefilah (prayer), and tzedakah (giving to the poor),[6] we are nonetheless required to follow the law of nature and to call the physician when we fall ill.[7] Whoever refuses medical treatment in favor of the other, non-natural responses, is guilty of the sin of arrogance, of assuming that one deserves to be healed by way of a miracle.[8]

It follows from all this that we are obliged to accept appropriate medical treatment and to provide it to our children, for their health and well-being is our responsibility. The key word here is Aappropriate@: we are not required to accept medical treatment that serves no legitimate therapeutic purpose. If a course of medical treatment is not therapeuticBthat is, if it does not contribute to the successful treatment of diseaseBit does not qualify as Ahealing@ (refu=ah) as Jewish tradition understands that term. It ceases to partake of the mitzvah of pikuach nefesh, and hence it ceases to be obligatory. The precise definition of terms such as Atherapeutic@ and Asuccessful treatment,@ as we have written elsewhere,[9] is difficult to establish with precision. Still, our tradition does distinguish between therapies regarded as Aproven@ (refu=ah vada=it or refu=ah bedukah), which offer a reasonably certain prospect of successful treatment, and those that are experimental or untested, which offer but an uncertain therapeutic benefit. We are required, the authorities tell us, to accept Aproven@remedies; they are pikuach nefesh, and we have no right to refuse them. On the other hand, we are not required to accept medical treatments that are Aunproven,@ of dubious therapeutic value.[10]

This distinction is of critical importance to the case before us. The parents in question claim that the immunizations required by their congregation pose excessive risks to the health and safety of the children who receive them. If this claim is correct, then Jewish tradition may well support the refusal of these parents to immunize their children, for Aexcessively risky@ treatments might not be regarded as legitimate medicine. Indeed, a therapy that poses an unacceptable danger to life can hardly be said to fulfill the mitzvah of pikuach nefesh.[11]

The questions we must answer are these. Do immunizations qualify as refu=ah bedukah, as proven remedies? Do they offer a reasonably certain prospect of successful treatment, in this case, the prevention of dangerous diseases, or are their therapeutic benefits dubious at best? Granted that no medical therapy can be entirely free of risk, do vaccines pose a level of danger that outweighs their benefits? And even if we regard vaccines as a clear and positive good, is it the proper concern of a synagogue (or any public body for that matter) to require that children be immunized?

2. Immunization as Refu=ah. AImmunization@ is the process of artificially inducing immunity or providing protection from disease. There are two forms of immunization: Aactive immunization,@ by which the body is stimulated to produce antibody and other immune responses through the administration of a vaccine or toxoid; and Apassive immunization,@ the provision of temporary immunity through the administration of preformed antibodies derived from humans or animals.[12]

Not so long ago, infectious disease was counted as the most serious threat to human life. Its effect upon children was devastating: of every 1000 children born in 1900, 160 died of an infectious disease before the age of five.[13] Today, by contrast, Aparents in the developing world no longer fear these diseases.@[14] This welcome change, surely one of the great success stories of the twentieth century, is largely due to vaccines, which Aare among the most effective means of preventing disease, disability, and death.@[15] The ultimate goal of immunization is the eradication of disease, and the model for this eradication is the experience with smallpox. This once deadly killer was eliminated from the world in 1980 through a combination of a worldwide campaign of immunization, surveillance, and adequate public health control measures.[16] This experience has been repeated time and again. Prior to the development of the Salk vaccine in 1955, paralytic poliomyelitis claimed up to 18,000 victims in the United States during epidemic years; today, this number is down to five to fifteen cases per year, primarily among those who for some reason have not been immunized. Diphtheria was once a common respiratory illness, with a 5% to 10% fatality rate; today, fewer than 100 cases are reported in the United States each year. Before the 1960s, well over 500,000 cases of measles occurred each year in the United States, and one out of every fifteen children who contracted the disease during the large epidemics died from it. Today, the incidence of measles has been reduced by 99%.[17] Worldwide, it is estimated that at current levels of immunization, 3.2 million deaths from measles and 450,000 cases of paralytic polio are prevented each year and that another 1.2 million measles deaths and 12,000 cases of paralytic polio might be prevented if full immunization is achieved.[18] During a rubella epidemic in 1964-1965, 20,000 infants born to mothers infected during pregnancy suffered from blindness, heart disease, and mental retardation. AToday, thanks to nearly universal use of an effective vaccine, the rubella virus poses virtually no threat to the children of expectant mothers.@[19] In addition, immunization has brought with it an enormous economic benefit, for it is far more efficient to prevent a disease than to treat it. Recent studies in the United States suggest that each of the traditional vaccines is cost saving in terms of direct medical costs alone and that an integrated immunization program saves $7 to $9 for each $1 spent.[20] It is true, of course, that immunization is not the only factor to be credited in the successful battle against these diseases. Other measures, such as improved nutrition and sanitation, play an important role as well. Yet in the absence of effective vaccines these other measures would not have produced the impressive life-saving results that we have witnessed in our time. Thus, in addition to all other disease-fighting tools, Aevery health authority with responsibility for child health must have a well-organized program of immunization as locally appropriate.@[21] These programs are often made compulsory for the residents of the particular community. In the United States, the schedule of immunization for children is determined by the Advisory Committee on Immunization Practices of the U.S. Public Health Service and the Committee on Infectious Diseases of the American Academy of Pediatrics.[22] All states require immunization of children at the time of entry into licensed child care and entry into school. In addition, many states have regulations requiring immunization of older children in upper grades as well as those entering college.[23]

The parents of whom our she=elah speaks fear that some or all of the vaccines administered on the required immunization schedule pose unacceptable risks to their children. These risks are not imaginary ones. The Committee on Infectious Diseases of the American Academy of Pediatrics states openly that Aalthough modern immunizing agents are generally considered safe and effective, they are neither completely safe nor completely effective. Some vaccines may have an untoward reaction, and some will not be protected.@[24] It is hardly a surprise that vaccines may cause Auntoward reactions.@ Medical therapies, many of which carry the potential for harmful side-effects, are inherently risky; as our own tradition so starkly puts it, Athat which heals one patient may kill another.@[25] Yet this unhappy reality does not mean that we should refuse to go to the doctor or that the practice of medicine is not a mitzvah. Rather, we measure the risks against the benefits offered by the therapy in question. When we do this with respect to vaccines, we find that the risks they pose are far outweighed by the prospect of infection, morbidity and mortality from the diseases they are intended to prevent.[26] For example, each year in the United States, eight to ten people will develop paralytic polio as a result of immunization with the oral polio vaccine (OPV) or through contact with a person who has received that vaccine.[27] This number is tiny compared to the many thousands of cases of polio which occurred each year prior to the development of the first successful vaccine. Another instructive case is that of the whole-cell pertussis vaccine, the subject of great controversy during the late 1970s and early 1980s. Due to claims that some children had been injured by the vaccine,[28] many parents in Japan, Sweden, and the United Kingdom chose not to immunize their children against the disease. The result was a return of pertussis in those countries to epidemic proportions.[29] The risks of the pertussis vaccine are real enough: grave complications (encephalopathy and permanent neurological damage) occur in 1 out of 100,000 and 1 out of 300,000 cases, respectively. Still, the risk of death or encephalopathy from pertussis infection in an unimmunized child is much higher. Projections from the recent epidemics indicate that the risk of pertussis-related death is 10 times greater in an unimmunized population than in an immunized population of children.[30]

The risks associated with immunization are of vital concern to the medical profession and the scientific community, which have developed various means to monitor the safety of vaccines. The American Academy of Pediatrics issues recommendations that attempt to minimize risk by providing specific advice on dose, route, and timing of the vaccine and by delineating circumstances that warrant precaution in, and abstaining from, administering the vaccine.[31] In the United States, the Food and Drug Administration and the Centers for Disease Control and Prevention manage a program called the Vaccine Adverse Event Reporting System (VAERS), which like similar programs in other countries maintains surveillance over vaccine safety.[32] Improved and safer versions of the vaccines are constantly tested and made available. These surveillance and testing measures are not perfect; they do not reduce the risk factor of the vaccines to zero. Yet with all that, Athe overwhelming view of the medical/public health community is that the risks of vaccine reactions, both the common mild reactions and the rare, more serious reactions, are very much outweighed by the public health benefit conferred by current vaccination practices and policies.@[33]

All of this leads to the conclusion that immunization qualifies as refu=ah bedukah or vada=it, a medical therapy of proven effect. As such, Jewish tradition would define immunization as part of the mitzvah of healing and recognize it as a required measure, since we are not entitled to endanger ourselves or the children for whom we are responsible by refusing proven medical treatment. Immunization, moreover, is a matter of social ethics and responsibility as well. Scientists recognize that protection of individuals from serious diseases depends not only on their own immunization but on the immunization of others in the community. Vaccines are not one-hundred percent effective; even in a fully immunized population, the vaccine will not succeed in conferring immunity upon every single person. Our chance of contracting disease is lower, therefore, if those around us remain healthyBthat is, if they are immunizedBthan if they carry the disease. The concept here is Acommunity immunity@ or Aherd immunity,@ the level of immunity achieved when there is a sufficient level of vaccine protection in the population to prevent the spread of the disease to those who remain biologically susceptible. AWith herd immunity, the likelihood of two susceptible individuals being within the range for transmission is very, very small.@[34] Immunization, therefore, is not a purely private matter but one of social ethics: our decision to vaccinate or not to vaccinate directly affects the lives and health of our neighbors.[35]

For these reasons, we would endorse programs of compulsory immunization in our communities, with exemptions granted to those individuals whose medical conditions place them at particular risk of injury or untoward side effects.[36] Aside from those individual cases, there are no valid Jewish religious grounds to support the refusal to immunize as a general principle.

3. A Note on Scientific Evidence. The preceding section draws heavily upon expressions of scientific opinion, particularly those of researchers associated with the universities, professional societies, governmental agencies and other institutions that comprise the mainstream of the scientific community. As noted above, it is Athe overwhelming view@ of this community that immunizations are both safe and effective. This view has been challenged, however, by critics whose arguments have provoked a controversy that rages in print, on Internet sites, and before government bodies.[37] The critics charge that many of the vaccines currently in use are ineffective or dangerous to the lives and health of children. These criticisms, in turn, are rebutted by the representatives of Athe overwhelming view@ who insist that vaccines prevent disease and that the risks they pose are either non-existent or minimal.[38]

As rabbis, we are not competent to render judgments in scientific controversies. Still, we do not hesitate to adopt Athe overwhelming view@ as our standard of guidance in this and all other issues where science is the determining factor.[39] True, the scientific consensus is not infallible; history teaches us that the Apredominant viewpoint@ among scientists has often been wrong. The conclusions we reach in this responsum would therefore change were we to be convinced that the scientific information on which they are based is faulty. Yet we rely upon Athe overwhelming view@ of scientists, not because scientists are immune to error, but because today=s science is a discipline defined by a rigorous methodology that leads to the recognition and correction of mistakes. The findings of any researcher are tested and retested carefully; they are subject to close scrutiny and peer review. Questions concerning the safety of any vaccine are vigorously examined by the medical community, and these examinations can and do lead to changes in the recommended schedules of vaccines.[40] It is precisely because scientists acknowledge that they can be wrong and precisely because the medical community trains such a watchful eye upon the issue of vaccine safety that Athe overwhelming viewpoint,@ the consensus opinion among practitioners, is worthy of our confidence.

4. May a Congregation Require Immunization as a Requirement for Religious School Admission? Jewish tradition recognizes the right of the community to make legislative enactments made by a community for the maintenance of its vital institutions and the governance of its public affairs. These enactments are called takanot hakahal (Acommunal ordinances@), a concept we have cited as the basis for our own community=s power to determine its destiny and to adopt rules that bind its members.[41] In terms of substance, moreover, the community may adopt any rule it sees fit, even if the rule is not supported by formal Talmudic halakhah, so long as it does not constitute an egregious violation of conscience or a clear religious prohibition.[42] This congregation is therefore entitled to require that its students be immunized against disease prior to their admission to religious school. Such a rule violates no prohibition of Jewish law or tradition. On the contrary: inasmuch as this rule would reinforce a policy of immunization that medical opinion accepts as a vital measure in the battle against life-threatening disease, it reflects our understanding of medicine as a mitzvah and our ethical responsibility to those who live alongside us.

Conclusions.

1. Immunization is in the category of refu=ah bedukah or refu=ah vada=it, Aproven@ medicine, and as such is part and parcel of the traditional obligation to practice and to avail ourselves of medical treatment.

2. Because it can create the conditions that lead to Aherd immunity@ or Acommunity immunity,@ compulsory immunization is a vital aspect of the medical policy of society. So long as exemptions to vaccination requirements are granted to those individuals to whom the vaccines pose a particular medical risk, neither Jewish tradition nor our own Reform understanding of that tradition would object to compulsory immunization against disease.

3. A congregation is entitled, should it so choose, to adopt a rule that requires immunization of students before their admission to religious school.

 

 

NOTES

 

 

  • SA Yore De`ah 336:1, drawn from Tur, Yore De`ah 336. The wording of that passage indicates how this concept developed over the centuries. The Torah itself never states explicitly that medicine (refu=ah) is a mitzvah. The Sages, for their part, were decidedly ambivalent as to the value of medical practice, with some even condemning it as evidence of lack of faith in the power of God to heal the sick; see the discussion in Teshuvot for the Nineties (TFN), no. 5754.18 (373-375). Rabbinic halakhah did recognize that the physician was permitted to practice medicine (BT Bava Kama 85a, based upon a midrash of Ex. 21:19); thus, the Shulchan Arukh begins by declaring that Athe Torah grants the physician the permit (reshut) to practice medicine.@ The passage adds immediately, however, that this permit is in fact Aa mitzvah, in the category of pikuach nefesh.@ See note 2.
  • It was Nachmanides (Ramban) who developed this connection in his Torat Ha=adam, Chavel ed. (Jerusalem, 1964), 41-42. He notes that the prohibitions connected with Shabbat and Yom Kippur are set aside when their observance would endanger human life and that we rely upon the diagnosis of a physician to determine that a situation of danger exists. The Tur and the Shulchan Arukh (see note 1) adopt this theory to justify the assertion that medicine is an integral element of the mitzvah of pikuach nefesh.
  • On pikuach nefesh see BT Yoma 85b and Sanhedrin 74a (and parallels); BT Yoma 82a (Anothing stands in the way of pikuach nefesh except for [the prohibitions of] idolatry, adultery and incest, and murder [which may not be violated even in order to save one=s life]@); Yad, Yesodei Hatorah 5:1ff.; SA Yore De`ah 157.
  • For the details of the halakhah, see Yad, Shabbat 2 and SA Orach Chayim 328 and 618.

 

  • Resp. R. David ibn Zimra 1:1139.
  • See especially BT Shabbat 32a and Bava Batra 116a (on Proverbs 16:14).
  • See Nachmanides to Lev. 26:11. Although Ramban seems to give only a grudging assent to medical practice in that passage (one that is very much at odds with the halakhic formulation in Torat Ha=adam; see note 2), he does conclude that while in an ideal world we might be able to rely upon prayer and repentance as remedies to disease, in this world we are forbidden to rely upon miracles. See Turei Zahav, YD 336, no. 1.
  • R. Chaim Yosef David Azulai, Birkei Yosef, YD 336, no. 2, cited by R. Shelomo Ganzfried, Kitzur Shulchan Arukh, 192:3.
  • For a more complete discussion, see our responsum TFN, no. 5754.14, AOn the Treatment of the Terminally Ill,@ part III, at 346ff.

 

  • The classic statement of this distinction is R. Ya`akov Emden, Mor Uketzi`ah 328.
  • Much here depends upon the medical condition of the patient. A treatment that is Aexcessively risky@ for one patient might well be in orderBthat is, therapeutically appropriate–for another patient who would likely or surely die without it. See Moshe Raziel, AKefi=at choleh lekabel tipul refu=i,@ Techumin 2 (1981), at 335-336.
  • Stephen C. Hadler (Director, National Immunization Program, Epidemiology and Surveillance Division, Centers for Disease Control and Prevention) and Walter A. Orenstein (Director, National Immunization Program, Centers for Disease Control and Prevention), AActive Immunization,@ in S. Lang, L. Pickering, and C. Prober, eds., Principles and Practice of Pediatric Infectious Diseases (New York: Churchill Livingstone, 1997), 49.
  • R.H. Waldman and R.M. Kluge, eds., Textbook of Infectious Diseases (New York: Medical Examination Publishing Co., 1984), 4.
  • Susan S. Ellenberg, Ph. D. (Director, Division of Biostatistics and Epidemiology, Center for Biologics Evaluation and Research, US Food and Drug Administration) and Robert T. Chen, MD (Chief, Vaccine Safety and Development Activity, Epidemiology and Surveillance Division, National Immunization Program, Centers for Disease Control and Prevention), AThe Complicated Task of Monitoring Vaccine Safety,@ Public Health Reports 112:1 (1997), 11.
  • Hadler and Orenstein, 49.
  • Committee on Infectious Diseases, American Academy of Pediatrics. 1994 Red Book: Report of the Committee on Infectious Diseases (Elk Grove Village, IL: American Academy of Pediatrics, 1994), 7. The smallpox vaccine, developed in England by Edward Jenner in 1796, was the first successful immunization measure.
  • The figures for polio, diphtheria and measles are taken from John H. Dorsett (Professor of Pediatrics, The Pennsylvania State University College of Medicine), AImmunizations,@ in R.A. Hoekelman et al., eds., Primary Pediatric Care, Third Edition (St. Louis: Mosby, 1997), 182-194.
  • R. Kim-Farley and the World Health Organization Expanded Program on Immunization Team, AGlobal Immunization,@ Annual Review of Public Health 13 (1992), 223-238.
  • David Satcher, M.D., Ph.D., Surgeon General of the United States, Statement Before the U.S. House of Representatives Committee on Government Reform, August 3, 1999.
  • Hadler and Orenstein, 49. And see Satcher: every $1 spent on measles-mumps-rubella vaccine (MMR) results in $13 total savings.
  • Eva Alberman (Emeritus Professor of Clinical Epidemiology, University of London) and Peter O.D. Pharoah (Professor of Public Health, Department of Public Health, University of Liverpool), AChildren,@in R. Detels, W.W. Holland, J. McEwen, and G.S. Omenn, eds., Oxford Textbook of Public Health (New York: Oxford U. Press, 1997), 1379-1396. See also Roger Detels (Professor of Epidemiology, School of Public Health, University of California at Los Angeles) and Lester Breslow (Professor of Public Health, School of Public Health, University of California at Los Angeles), ACurrent Scope and Concerns in Public Health,@ in Detels et al., 3ff: before 1981, with the spread of AIDS, it appeared that pandemics of infectious disease other than influenza had been eliminated as a major problem in developing countries. This was due to provision of safe drinking water, better handling of sewage, effective vaccine campaigns, improved personal hygiene, and improved nutrition, especially among children.
  • Hadler and Orenstein, 52.

 

  • 1994 Red Book, 623.

 

  • Ibid., 29. See also Dorsett, 184: Ano vaccine is perfectly safe and always effective@ (italics in original).
  • Nachmanides, Torah Ha=adam, inyan hasakanah (Chavel ed., 43).
  • Dorsett, 187.

 

  • D.R. Prevots, R.W. Sutter, P.M. Stickel et al., ACompleteness for Reporting Paralytic Poliomyelitis, United States, 1980-1991,@ Archives of Pediatric Adolescent Medicine 148 (1994), 479-485.
  • See H. Coulter and B. Fisher, DPT: A Shot in the Dark (New York: Warner Books, 1985).
  • M. Kimura and H. Kuno-Sakai, ADevelopments in Pertussis Immunization in Japan,@ Lancet 336 (1990), 30-32; D. Miller et al., APertussis Immunization and Serious Acute Neurological Illnesses in Children,@ British Medical Journal 307 (1993), 1171-1176; I. Krantz, J. Taranger, and B. Trollfors, AEstimating Incidence of Whooping Cough Over Time: A Cross-Sectional Recall Study of Four Swedish Birth Cohorts,@ International Journal of Epidemiology 18 (1989), 959-963.
  • Dorsett, 187.
  • The protocols are summarized in 1994 Red Book, 35-39.
  • The system is described in Ellenberg and Chen (note 14).
  • Ellenberg and Chen, 19.
  • Phyllis Freeman, JD (Professor and Chair of the Law Center, MacCormick Institute, University of Massachusetts), AThe Biology of Vaccines and Community Decisions to Vaccinate,@ Public Health Reports 112:1 (1997), 21.
  • In its publication, Six Common Misconceptions about Vaccination (Atlanta, 1999), the Centers for Disease Control and Prevention expresses the concept as follows: AA successful vaccination program, like a successful society, depends on the cooperation of every individual to ensure the good of all. We would think it irresponsible of a driver to ignore all traffic regulations on the presumption that other drivers will watch out for him or her. In the same way we shouldn’t rely on people around us to stop the spread of disease; we, too, must do what we can.@
  • See 1994 Red Book at note 30.
  • See, e.g., Coulter and Fisher at note 25. For a sharp critique of the Aanti-immunization@ movement see A. Allen, AInjection Rejection,@ The New Republic, March 23, 1998, 20-23. The proliferation of anti-immunization Internet sites has spawned a number of other sites in response; these are simply too numerous to detail. See the AInformed Parents= Vaccination Webpage@ (www.unc.edu/~aphillip/www/vaccine/informed.html), administered by Alan Phillips of the Citizens for Health Care, Durham, NC. Mr. Phillips describes himself as an Ainformed parent; a technical writer; a freelance writer on alternative health issues; an internationally known singer-songwriter/composer; and founding director of a small international nonprofit corporation.@ A representative Apro-vaccination@ page is www.vaccinesafety.edu, the Institute for Vaccine Safety at The Johns Hopkins University. For Agovernment bodies,@ see the testimony of Dr. David Satcher (note 19).
  • Thus, Dr. Neal Halsey, Director of the Institute for Vaccine Safety at The Johns Hopkins University, speaks of Amisperceptions@ regarding causality: that is, many in the public believe that a number of vaccines are causally related to specific diseases, even though no evidence exists to prove such an association (N. Halsey, AEnsuring the Safety of immunizations,@ Programs and Abstracts from the 39th Interscience Conference on Antimicrobial Agents and Chemotherapy. (San Francisco: September 26-29, 1999; Abstract 486). See, in general, the text at notes 12-23.
  • Reform Judaism, in particular, has taken a positive stance towards modern science as a guide to making religious decisions in matters that can legitimately be defined as Ascientific.@See our responsum no. 5757.2: Agiven our positive attitude as liberal Jews toward modernity in general, it is surely appropriate to rely upon the findings of modern science, rather than upon tenuous analogies from traditional sources, in order to render what we must consider to be scientific judgments.@
  • See the text at notes 31 and 32, and Satcher (note 18). See also Morbidity and Mortality Weekly Report (published by the Centers for Disease Control and Prevention) 48:27 (July 16, 1999), 590: the Advisory Committee on Immunization Practices (ACIP) now recommends that the oral polio vaccine (OPV) be replaced by inactivated poliovirus vaccine (IPV). OPV has tended to cause Avaccine-associated paralytic polio@ (VAPP) in one case out of every 2.4 million distributed doses of the vaccine. While this level of risk was regarded as justified, given the life-saving effects of OPV, it has been decided that given the success of worldwide polio eradication efforts, the safer vaccine ought to be administered.
  • See our responsum 5758.2, AA Reform Rabbi=s Obligations Toward the UAHC,@ section 2, for sources and discussion.
  • R. Chaim Yair Bachrach, Resp. Chavat Yair, no. 57. For analysis, see Jacob Katz, Halakhah vekabalah (Jerusalem: Magnes, 1984), 244-246.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5759.8

CCAR RESPONSA COMMITTEE 

5759.8

A Blind Person as a Witness

She’elah.

From a traditional and from a Reform perspective, may a blind person serve as a witness at a wedding? (Rabbi Joseph Forman, Elkins Park, PA)

 

Teshuvah.

We say “yes” to this question, though traditional halakhah would likely answer it in the negative. Maimonides includes the blind among the ten persons disqualified from serving as witnesses before a court.[1] The exclusion, he tells us, is Toraitic, derived by way of a midrash on Leviticus 5:1. The verse speaks of a public adjuration (kol alah) imposing a requirement to testify upon “one who has either seen or learned of the matter.” Since blind persons have not “seen” the matter, they are exempted from the responsibility of giving testimony upon it.[2] The ceremony of betrothal (kiddushin), if it is to be valid according to Jewish law, must occur in the presence of two witnesses[3] who see the transfer of the ring from groom to bride.[4] These witnesses must meet the standards of eligibility demanded of all witnesses; should either or both of them be among the ten “disqualified witnesses” (pesulei edut) mentioned above, it is as though no testimony exists and the wedding is invalid.[5]

Our contrary viewpoint is based upon the following three arguments. First, it is quite possible that the halakhah recognizes the validity of a marriage even when the wedding ceremony is conducted in the presence of ineligible witnesses. Second, despite the description of the law in the preceding paragraph, a case can yet be made that blind persons are not to be disqualified from serving as witnesses to a wedding. And third, as Reform Jews we endorse the general tendency of Jewish law to include the blind in religious life to the greatest extent possible.

  1. Valid Testimony Without Qualified Witnesses. Our first point is the subject of a responsum by R. Moshe Sofer (“Chatam Sofer,” d. 1839).[6] The case concerns a wedding at which the officiating rabbi (the mesader kiddushin) designated himself and the local synagogue sextant (shamash) as the witnesses to the ceremony. Some weeks later, the rabbi discovered that the shamash was a relative of the bride and hence disqualified to serve as a witness concerning her.[7] Should he require that a second wedding ceremony be held in the presence of two qualified witnesses, or is it sufficient that the first ceremony was conducted in the presence of a large assembly of people (including a number of rabbis) who, though they did not witness the actual exchange of the ring (the ma`aseh kiddushin), could at least testify that a wedding ceremony did take place? Sofer responded that the wedding ceremony was valid on the basis of the concept anan sahadei (“we are all witnesses”).[8] Since the couple entered the chupah in the presence of numerous qualified witnesses–among whom were the rabbi and other individuals knowledgeable of the law–with the obvious intention to marry, and since the couple left the chupah under the unchallenged presumption (chazakah) that they were married, “then surely ‘we are all witnesses’ to the fact that a valid act of kiddushin took place, including the transfer of the ring and the proper verbal formula, following the instructions of the officiating rabbi who is knowledgeable of the laws concerning marriage.” The fact that one of the designated witnesses under the chupah turned out to be ineligible does not invalidate this testimony, based upon the common knowledge of the wider community.[9] Similarly, R. Yosef Eliyahu Henkin, one of the outstanding twentieth-century poskim in the United States, ruled that if no witnesses are present at the wedding, the marriage of two Jews is still valid according to halakhah by virtue of the fact that they live together in public as husband and wife. Thus, “common knowledge” is sufficient testimony that a wedding has taken place and that a marriage exists.[10]

    “Common knowledge” also suffices to establish a valid marriage in cases where the witnesses do not actually see a vital aspect of the transaction. For example, it is a custom in some circles for the bride’s face to be veiled during the wedding ceremony. The question is raised: since the witnesses in such a case do not actually see her face, how can they identify her as the bride, the one who accepted the kiddushin from the groom? Is a second act of kiddushin required to validate the marriage? Some say “yes,” that the marriage cannot be declared valid when the witnesses did not actually see the bride’s face.[11] Most authorities, however, side with the author of the commentary Avnei Milu’im,[12] who holds that such testimony is valid.[13] He writes: “we require the testimony of witnesses to a wedding only in order to make the fact of the marriage public knowledge, so that neither party can deny the wedding took place.” Since the identity of the wife will become public knowledge as soon as the wedding is ended, it is as though the witnesses had seen her at the actual moment of kiddushin. The presumption (chazakah) that the wife was in fact the one standing under the chupah substitutes for actual eyewitness testimony.[14]

    Thus, while testimony (edut) is an absolute requirement for determining the legal validity of a wedding, this testimony may be established by “common knowledge” as well as by the presence at the wedding of two “kosher” witnesses. The authors of these rulings do not, of course, mean to say that it is perfectly permissible to invite disqualified witnesses to perform that function at a wedding. These cases involve situations that are bedi`avad, “after the fact.” In principle (lekhatchilah), these authorities would demand that the officiating rabbi make sure in advance of the wedding that the witnesses are qualified under halakhah to give testimony. Yet so long as it is “common knowledge” that the couple have married, we need not demand the testimony of two qualified witnesses in order to declare their marriage valid.

  1. The Blind As Qualified Witnesses. Although, as we have seen, Maimonides rules that the blind are disqualified as witnesses on the basis of Torah law, the Talmud offers an alternative theory as to their disqualification. We find this in BT Gitin 23a, which discusses the Mishnah’s ruling that a blind person is not permitted to act as the agent for transporting a bill of divorce (get) from the husband to the wife.[15] The Talmud inquires as to the reason for this disqualification. Rav Sheshet responds: “because a blind person cannot tell from whom he receives the get and to whom he gives it.” His colleague, Rav Yosef, rejects this argument: “if so, then why is a blind man permitted to live with his wife? Surely this is because he recognizes her voice; in the case of a get as well, a blind person might be able to identify the sender and receiver by their voices (and thus be eligible to transport the document).” Rather, concludes Rav Yosef, this mishnah deals with a get sent to the land of Israel from the Diaspora; in such a case the agent must be able to testify that “this document was written and signed in my presence.”[16] That is, the blind person is disqualified simply because this particular agency requires that the agent actually see the persons who commission the get. The implication is that a blind person might well be accepted as a witness to matters upon which he can speak reliably and that do not require eyewitness knowledge. This conclusion, writes R. Barukh Halevy Epstein (d. 1942), runs directly counter to that of Maimonides. According to the latter, the Torah disqualifies the blind from serving as witnesses simply because they cannot see; a blind person may therefore never testify, even to matters that do not require eyesight. By contrast, should we follow the approach taken in Gitin 23a, we might conclude that “there is a logical basis (sevara) to say that a blind person may testify” on matters that can be established by means other than eyesight.[17]

    We agree with this logic. Since it is not absolutely certain that Maimonides is correct–that the Torah disqualifies the blind from testifying on all matters–there does not seem to be any good reason to deny them the right and the duty to serve as witnesses in matters that do not require eyewitness testimony. A wedding partakes of this latter category. Although a blind person cannot see the wedding transaction, so long as he or she recognizes the couple by their voices, can follow the exchange of rings by touching their hands during the moment of kiddushin, and can hear them recite the formulae of marriage (harei at/ah mekudeshet/mekudash etc.), he or she can reliably testify that a wedding has indeed taken place.

  2. Inclusion of the Blind in Jewish Religious Life. We should remember as well that Jewish law does not as a general rule seek to exclude or exempt the blind from the circumference of religious obligation. Despite the view of an early rabbinical authority to the contrary,[18] the accepted halakhah requires the obligated to fulfill the mitzvot, exempting them only from those duties and experiences that require eyesight.[19] Concerning those exemptions, moreover, the tradition has demonstrated that it is capable of change, bringing the blind into the orbit of an observance from which they were originally excluded. The question whether a blind person may be “called up” (given an aliyah) to the public reading of the Torah is a case in point. Originally, those who were called up to the Torah were the ones who actually performed the reading.[20] Since the text must be read directly from the scroll and not from memory, the person called to the Torah (the oleh) must possess the ability to read it, even if he assigns that task to a designated reader (chazan or ba`al keri’ah).[21] For this reason, a number of leading authorities prohibit a blind person from being called to the Torah.[22] Yet others dissent from this ruling on the grounds that, since the ba`al keri’ah is in fact the one who performs the reading, we do not insist that the oleh be capable of reading on his own. It is enough that he (and now she) recite the benedictions and stand by the ba`al keri’ah.[23] The blind may therefore be “called up” to the Torah, and such has long been the accepted practice.[24]

    The example of the public reading offers a particularly helpful analogy to our case. At a time in history when the Torah was read by those “called up” to the scroll, those who could not physically read from the scroll were quite appropriately excluded from this observance. Over the years, the nature of this ritual changed: those “called up” to the scroll were no longer expected to perform the reading themselves. Accordingly, the exclusion no longer made sense, and the blind were allowed to participate. In a similar way, our understanding of the nature of “wedding testimony” (edut kiddushin) has also changed. Given that the halakhah is prepared to accept “common knowledge” as sufficient testimony that a wedding has taken place, and given that “there is a logical basis” upon which to conclude that the blind may offer testimony on matters that do not strictly speaking require eyesight, a good argument can be made that it no longer makes sense to exclude blind persons from this aspect of Jewish ritual life.

    As Reform Jews, we regard it a positive duty to include the blind and all others who are physically disabled in the activities of our congregations and communities. We base this affirmation, in part, upon the traditional insight that to exclude the blind from the mitzvot is to exclude them from Jewish experience altogether.[25] Our movement’s historic commitment to the cause of social justice transforms this insight into a call to action: it is our obligation to do whatever we can to remove barriers that prevent the disabled from participating as fully as possible in Jewish life.[26] In this case, since Jewish text and tradition can be understood so as to permit the blind to serve as witnesses to a wedding, we must adopt that understanding as our own. So long as a blind person, through the use of the senses of hearing and touch, can identify the bride and the groom and can testify that the act of kiddushin has taken place, we must permit them the opportunity to do so.

 

NOTES

  1. Yad, Edut 9:1. The full list: women, slaves, children, the insane, the deaf-mute, the blind, the wicked, the despised (bezuyin, “uncouth” or “shameless”; see Yad, Edut 11:5), relatives, and those who are implicated in their own testimony.
  2. Yad, Edut 9:12. The midrash is found in Tosefta Shevu`ot 3:6
  3. BT Kiddushin 65b; Yad, Ishut 4:6; SA EHE 42:2.
  4. Isserles, EHE 42:2.
  5. Yad, Ishut 4:6; SA EHE 42:5. The validity of the wedding depends upon the nature of the witness’s disqualification. If the witness is disqualified by Torah law (mide’oraita), the wedding is certainly invalid; if the disqualification is based upon rabbinic ordinance (miderabanan), the halakhah may require a divorce before permitting the parties to remarry. See Magid Mishneh to Yad ad loc.
  6. Resp. Chatam Sofer, EHE 100.
  7. The disqualification of witnesses is derived from the verse Deut. 24:16. See M. Sanhedrin 3:1 and 4; BT Sanhedrin 27b; and Yad Edut 13:1.
  8. See BT Bava Metzi`a 3a and 4a. This principle is invoked in cases where the court will rely upon estimate (umdana), legal presumption (chazakah), or custom (minhag) to establish facts, so that no direct or eyewitness testimony (edut berurah) is required.
  9. Sofer deduces his conclusion from the commentary of R. Nissim Gerondi to the Halakhot of Alfasi, Gitin, fol. 47b-48a. There are two types of witnesses to the procedure of divorce: the eidei mesirah, those who witness the transmission of the get from husband to wife, and the eidei chatimah, the witnesses to the writing of the get who sign their name thereto. The halakhah follows Rabbi Elazar, who holds that the get becomes valid because of the eidei mesirah and that the witnesses to the writing of the get are necessary only as a precaution, in the event that the eidei mesirah should be unavailable to testify that the get was properly handed to the wife (M. Gitin 4:3 and 9:4; BT Gitin 36a; Yad, Gerushin 1:15). R. Nissim suggests, however, that even Rabbi Elazar would accept the validity of the get based upon the signatures alone. This is not because those signatures themselves validate the get; only the witnesses to its transmission accomplish that. Rather, the signatures allow us to conclude that this get was properly filled out before a qualified beit din, so that (in Sofer’s words) “we all know that the document passed from the husband to the wife. Even if witnesses did not see this transmission, we are all witnesses to the transmission.” In other words, though there is no actual testimony to the act of transmission–and it is upon that act that the get’s validity depends–our common knowledge allows us to presume with confidence that a proper transmission took place. Sofer applies this logic to the case of witnesses to the wedding.
  10. Henkin makes this point in the following works: Teshuvot Ibra, no. 76; Lev Ibra, pp. 14-15; and Perushei Ibra, ch. 2.
  11. See especially the R. Moshe Trani (16th century), Resp. Mabit 1:226: since at the time of the wedding there was no firm knowledge of the identity of the one who accepted the kiddushin, the discovery of her identity at a later point does not retroactively validate the marriage. We require knowledge at the time of the wedding itself.
  12. Avnei Milu’im 31, no. 4.
  13. See Otzar Haposkim, EHE 42:4, no. 22, for an exhaustive list of these authorities.
  14. And see R. Eliezer Waldenberg, Resp. Tzitz Eliezer 11:82, at p. 216.
  15. M. Gitin 2:5. The technical term for such as agent is shaliach leholakhah.
  16. M. Gitin 1:1.
  17. Torah Temimah to Lev. 5:1, no. 18.
  18. BT Bava Kama 87a.
  19. Thus, the blind are included in the practice of tzitzit, even though they cannot see the fringes on the four corners of their garments (SA OC 17:1); the blind may lead the tefilah (SA OC 53:14) as well as the Shema for the congregation (SA OC 69:12). On the other hand, the blind do not recite the blessing “who has created the lights of the fire” at havdalah, since one must be able to make use of the light before reciting this benediction (SA OC 298:13; yet they are permitted to recite the other benedictions of the havdalah service; see Mishnah Berurah ad loc.). A blind person may not serve as a shochet under ordinary circumstances (SA Yore De`ah 1:9). Finally, a blind person is not permitted to read from the Torah as part of a public service (SA OC 53:14), since one must be able to read the words of Torah from the actual text. On this, however, see below.
  20. On the history of this practice, see Ismar Elbogen, Jewish Liturgy: A Comprehensive History (Philadelphia-New York: Jewish Publication Society/Jewish Theological Seminary, 1993), 140-141.
  21. “Words of Torah that are written down may not be recited from memory”; BT Gitin 60a. Thus, “it is forbidden to read aloud from the Torah even one word not directly from the text;” Yad, Tefilah 11:8.
  22. SA Orach Chayim 53:14 and 139:3; Tur and Beit Yosef, Orach Chayim 141. Similarly, an illiterate person should not be called to the Torah, since he cannot read from the text. He is not permitted, therefore, to recite a blessing over the chazan’s recitation of the Torah unless he himself can discern the letters and read them along with the chazan. See R. Asher b. Yechiel, Resp. Harosh 3:12, and R. Yitzchak b. Sheshet Perfet, Resp. Rivash, no. 204.
  23. R. Ya`akov Molin (15th-century Germany), Sefer Maharil, Hil. Keri’at Hatorah, no. 3; Isserles, SA OC 139:3; R. Binyamin Selonik (16th-century Poland), Resp. Masat Binyamin, no. 62; R. Mordekhai Yaffe (16th-century Poland), Levush, OC 141:3; Magen Avraham, OC 139, no. 4; Turey Zahav, OC 141, no. 3.
  24. Mishnah Berurah, OC 139, no. 13; Arukh Hashulchan, OC 139, par. 3.
  25. See Tosafot, Bava Kama 87a, s.v. vekhen haya R. Yehudah potero mikol hamitzvot: “if you exempt the blind from the requirement to observe all the commandments, even if this requirement is rabbinically-imposed, you make him as though he is a Gentile, who does not walk in the path of Judaism at all.”
  26. This Committee has written that the inclusion of the disabled in our synagogues and other Jewish institutions is itself a mitzvah, an obligation that demands concrete action on our part. See Teshuvot for the Nineties, no. 5752.5.

NYP no. 5759.7

CCAR RESPONSA

5759.7

The Second Festival Day and Reform Judaism

She’elah
Our Reform congregation normally schedules confirmation services on Shavuot, which this year (1999/5759) falls on Thursday night and Friday. Our Confirmation class prefers to have their service on Friday night so more of their friends, family and other Religious School kids can attend. Although Friday night is no longer Shavuot according to our Reform calendar, it is the second day of the festival which is traditionally observed in the Diaspora (yom tov sheni shel galuyot). Is it acceptable for us to “stretch” the festival to accommodate their request, observing Shavuot for a second day so as to observe confirmation along with the holiday? (Rabbi Lance J. Sussman, Binghamton, NY)

Teshuvah
It is at first glance ironic that a Reform congregation should seek to restore a practice that our history has so clearly renounced. Reform Judaism–“since its very inception”[1]-has done away with the observance of yom tov sheni, the second festival day. The Breslau rabbinical conference of 1846 resolved that “second-day festivals and the eighth day of the Pesach festival, respectively, as well as the ninth day of the Feast of Tabernacles, have no more validity for our time.” While the conference urged consideration for the feelings of those Jews still attached to the observance of yom tov sheni, it insisted that communities were well within their rights to abrogate it, going so far as to conclude that “the prohibition of leavened bread on the last day of the Passover festival shall not be obligatory for the individual.”[2] By 1963, it could be stated that virtually without exception “Reform Congregations observe Pesach for seven days, Shabuot one day, Sukkot (including Shemini Atseret) eight days, and Rosh Hashanah one day,” so that “the Reform movement reverted to the Biblical observance of the length of the festivals, even with regard to Rosh Hashanah.” [3]

Then again, perhaps this request is not all that ironic. In recent decades, many of us have reclaimed ritual observances abandoned by previous generations of Reform Jews, from the generous use of Hebrew in the liturgy,[4] to the wearing of kipah,[5] talit and tefilin,[6] to the dietary laws (kashrut),[7] to the ceremonies surrounding marriage[8] and conversion.[9] These examples-and more could be cited-testify that our approach to traditional ritual practice differs significantly from that of our predecessors. This difference stems, no doubt, from the divergent religious agenda that we have set for ourselves. If our predecessors regarded their acculturation into the surrounding society as a predominant objective, we who benefit from the social and political gains that they achieved are more concerned with taking active measures to preserve our distinctive Jewishness. Thus, where they may have viewed many ritual observances as barriers to social integration and as obstructions to “modern spiritual elevation,”[10]

we may find them an appropriate and desirable expression of our Jewish consciousness. When a particular observance strikes us as moving and meaningful, even though our founders may have explicitly excised it from their communal practice, we have no qualms about restoring it to our own. This is true with the observances we have named; why should it not be true with yom tov sheni?

Accordingly, we cannot say that a Reform congregation is forbidden to observe the second festival day. The mere fact that our Reform ancestors abrogated a ritual practice is not in and of itself sufficient cause to prevent us from recovering that practice. On the other hand, the mere fact that a congregation wishes to restore it may not be a good enough reason to justify its abandonment of a teaching that has for so long characterized our movement. For though we are drawn to the traditions of our people, the tradition of our own Reform Jewish community also makes a powerful call upon us. We, the Reform Jews of today, are members of a religious experience that transcends the boundaries of individual congregations. To identify ourselves as Reform Jews is to acknowledge our participation in the historical religious enterprise that our predecessors founded. We look upon them, in a sense that is deeply significant, as our rabbis. Their conception of Jewish life has done much to shape our own; accordingly, their teachings demand our attention and our prayerful respect. That respect, we think, forbids us from discarding the instruction of our teachers in the absence of good and sufficient cause. In this case, the question of yom tov sheni, this means we ought to ask ourselves the following questions. What were the reasons for which our predecessors eliminated the observance of the second festival day? Do those reasons still strike us as powerful and persuasive, or have they lost their cogency in the context of our own Reform Jewish religious experience? And what sort of argument would count as adequate justification to depart from the widespread and long-standing minhag of our movement?

1. The Second Festival Day in Jewish Tradition. The term yom tov, or “festival day,” is roughly the rabbinic equivalent of the biblical mikra kodesh, “holy convocation” (Exodus 12:16, Leviticus 23, Numbers 28-29) or atzeret (“solemn gathering”; Lev. 23:36, Deut. 16:8).[11] It is a day on which special “additional” (musaf) sacrifices are brought in the Temple and on which many types of labor[12] are prohibited.[13] And, especially pertinent to our she’elah, it is a day, a single twenty-four hour period. The Torah instructs us to declare “holy convocations” on the first day and seventh day of Pesach (or Matzot; see Lev. 23:6ff ), the first day and eighth day of Sukkot,[14] the day of Shavuot, the “first day of the seventh month,” which we know as Rosh Hashanah, and the day of Yom Kippur, each occurring on a specified date. Rabbinic tradition holds that the power to make this declaration rested squarely in the hands of the Sanhedrin or supreme rabbinical court (beit din hagadol) in Jerusalem.[15] Moreover, since “these are… the holy convocations that you shall declare at their appointed season” (Leviticus 23:4), we learn that the festivals do not occur unless and until the beit din says so.[16] The court would accept the testimony of eyewitnesses that the new moon had appeared and would then communicate to the people that Rosh Chodesh (the new month) had occurred.[17] This communication, we are told, took the form of a kind of telegraph system: agents of the beit din on the Mount of Olives would wave torches to and fro until other representatives, stationed at Sartaba, would see them and wave their own torches in the sight of those stationed on the next hill. The chain would continue until the entire Diaspora (i.e., the Jews of Babylonia) were rather quickly informed of the new month. During the months of Tishri and Nisan, they could count fifteen days beginning with Rosh Chodesh and thereby determine the proper dates for the festivals of Sukkot and Pesach. This system broke down due to mischief caused by the Samaritans, who began to wave torches on hilltops on the thirtieth day of the month. Since the new lunar month could conceivably begin either thirty or thirty-one days following the previous Rosh Chodesh, this interference could mislead those on the next hilltops into thinking that the new month had begun a day earlier than the beit din had in fact declared it. To remedy this situation, the beit din decided to send official messengers to inform the outlying communities of the new month.[18] Since many Diaspora communities lay beyond a two-week journey from Jerusalem, the residents of those communities could not be certain, prior to the onset of the festivals, whether Rosh Chodesh had been declared on the thirtieth or the thirty-first day of the previous month. They therefore began to observe two days of yom tov (i.e., fifteen days from both of the days when Rosh Chodesh might have been declared) as a result of this doubt.[19]

The custom developed, therefore, that the Jews of the land of Israel would observe a yom tov for the biblically-sanctioned one day while those living in the Diaspora would keep a second day.[20] This was true even for Shavuot: even though the date of that festival is determined by counting forty-nine days from the second day of Pesach and does not depend upon the determination of Rosh Chodesh, the rabbis ordained that it be observed for two days in order to make it similar to the other festivals.[21] An exception to this rule is Rosh Hashanah, which is also observed for two days in the land of Israel. Rosh Hashanah is itself the new moon, so that “even in Jerusalem itself, where the Sanhedrin assembled, the residents frequently observed two days, for if the witnesses (to the new moon) did not arrive on the thirtieth of Elul, both that day and the next would be observed as holy days,”[22] since either of them might be the new moon of Tishri.

This narrative suggests that the second festival day originated as a popular response of the Diaspora communities to a situation of doubt, of uncertainty as to the correct day of Rosh Chodesh and therefore the correct dates of the festivals. If so, it would follow that yom tov sheni is not a matter of law but rather one of convenience: that is, should the doubt over the calendar be eliminated, there would be no objection were Diaspora Jews to return to the biblical standard of one day for each yom tov. As the Talmud itself puts it: “today, wherever the messengers are able to arrive (within fifteen days) they observe one festival day; and were the Samaritans to cease their mischief, everyone would observe one day.” Moreover, now that the Sanhedrin has disappeared and the calendar is determined by mathematical calculation, there is no longer any doubt as to the day of Rosh Chodesh or the date of the festivals; “why then do we still observe two festival days?” [23]Indeed, our reliance upon that system of calculation helps explain why we do not add an extra day to the fast of Yom Kippur, despite our “uncertainty” as to its correct date. [24] Yet we continue to observe the second festival day, the Talmud asserts, for two reasons. First, it is possible that yom tov sheni came about not as a popular response to poor communications from Jerusalem but as a takanah, an ordinance imposed by the Sanhedrin upon the residents of the Diaspora.[25] And second, even if yom tov sheni originated as a popular custom, the Rabbis issued a separate takanah that requires us to maintain that practice: “take care to maintain the custom of your ancestors, lest the government someday forbid you from studying Torah and you forget how to determine the calendar and come to observe the festival on the wrong date.”[26]

2. The Second Festival Day in Our Time. Does the ordinance which established the second day of yom tov as an obligation hold for us today? The answer would seem to be “no,” since the justification the Talmud cites for the decree (“lest…you forget how to determine the calendar”) is irrelevant in our time. The formulae for fixing the calendar, though once the exclusive possession of religious authorities, are now open to all, Jews and non-Jews alike. As such, this knowledge is no longer the sort of “Torah”–a particularly Jewish sacred literary tradition–that a hostile regime would forbid us from learning.[27] And Maimonides completely ignores the “lest…you forget” theory in his Mishneh Torah. This does not mean, however, that yom tov sheni has become optional. As Rambam writes: “nowadays…when we all rely upon mathematical calculation to determine the calendar, it would be logical for all Jews, including those in the farthest reaches of the Diaspora, to observe but one day of yom tov… but the sages have ordained ‘take care to maintain the custom of your ancestors.'”[28] The second festival day, in other words, is obligatory not because of the fear of persecution and the prohibition of Torah study but simply because the Rabbis established it as a takanah. And this takanah remains in force even though its original justification has disappeared. Rambam writes that, when a beit din issues a takanah or a gezerah that is adopted by all Israel, no subsequent court can overturn it, “even when the reason for which the enactment was adopted no longer exists,” unless that subsequent court is “superior” to the original tribunal. And since a beit din cannot be “superior” unless it happens to be the Sanhedrin of seventy-one judges, it is clearly impossible in our own day to annul the earlier decree.[29] If Maimonides is correct, then the ancient rabbinic decree can never be set aside. Diaspora communities are bound to observe the second festival day, even though the original justification for that decree no longer applies.

Yet it is not altogether certain that Maimonides is correct, for the halakhah on this matter is the subject of much dispute. R. Avraham b. David (Rabad), the Rambam’s contemporary and halakhic critic, rejects the latter’s ruling outright. Relying upon a case from the days of Rabban Yochanan ben Zakai,[30] he argues that a later court may annul a takanah when the original justification for that enactment has disappeared, even though the later court is not “superior” to its predecessor.[31] Other examples, too, could be cited where talmudic sages, though not “superior” in authority to earlier courts, nonetheless annulled or sought to annul existing takanot and gezerot.[32] The Tosafists go even farther: they declare that when the concern that gave rise to the takanah disappears, the takanah is annulled of itself and no official court action is required.[33] R. David ibn Zimra (Radbaz; 16th-17th century Egypt), a commentator to Maimonides, may have been led by these rulings to soften the position taken in the Mishneh Torah. He writes in Rambam’s name that the original takanah remains valid in the absence of its original justification only if the sages adopted that decree without stating an explicit reason for it. “But if they stipulated that their enactment was the result of some particular factor, then when that factor disappears the enactment disappears with it.”[34] Like many complex issues of Jewish law, it is difficult to say with confidence just which point of view is the “correct” one. What is clear, however, is that the ruling of Maimonides is far from the exclusive and uncontested formulation of the halakhah regarding rabbinic enactments. In addition, it can be–and has been[35] –argued that Rambam’s opponents offer the better and more plausible interpretation of the Talmudic sources on this issue. We agree. We would add that their opinion is also more persuasive as a matter of common sense. If the Rabbis explicitly adopted their ordinance for a particular reason, to address a specific problem, it strains credulity to assert that they meant that takanah to endure for all time, regardless of changing circumstances, even in the absence of the reasons for which they enacted it. It is far more reasonable to understand them as saying that the takanah does not outlive its rationale, that it endures only so long as necessary to resolve the difficulty that led to its creation.

We Reform Jews respect the customs of our ancestors; we do not dismiss them with scorn or disdain or for no good reason. But when those customs no longer serve the purposes for which they were adopted, it makes no sense to insist they be maintained merely because they are ancestral customs. This is especially true when maintaining them becomes counter-productive, when powerful considerations that reflect our deeply-held religious values argue against their strict preservation. As our predecessors noted at the Breslau conference, the economic and other hardships imposed by the second festival day had already led the vast majority of our people to abandon its observance, and a community’s inability to abide by a rabbinic enactment is itself a valid argument in halakhah for annulling the enactment.[36] On the other hand, they suggested, the elimination of yom tov sheni would strengthen our religious life by allowing us to concentrate our efforts upon a more intense and meaningful observance of the first day.[37]

For these reasons: 1) since the observance of the second festival day is no longer necessary as a response to calendrical doubt; 2) since we are not bound to maintain ancestral customs once the justification for their creation has disappeared; and 3) since the interests of Jewish religious life would be better served by eliminating yom tov sheni than by maintaining it, we have therefore returned to the standard, as prescribed by the Torah, that each yom tov be observed for one day. This means that, for us, the “second days” of Rosh Hashanah, Shemini Atzeret, and Shavuot and the “eighth” day of Pesach are ordinary days (yom chol), while the “second” days of Sukkot and Pesach are the intermediate days of those festivals (chol hamo`ed). None of these days is a festival, and we do not treat them as such.

3. Restoring The Second Festival Day in the Reform Context. Our Reform movement made a principled decision to nullify the ancient rabbinic takanah establishing the second festival day. Do these principles continue to speak to us? The growing number of Reform congregations which already observe the second day of yom tov, particularly the second day of Rosh Hashanah, [38] answer this question in the negative. They reason, contrary to the argument just cited, that the recovery of yom tov sheni might improve rather than weaken the quality of our communal religious life. How might this happen? There is, first of all, the consideration of Jewish unity. We see ourselves as part of a larger Jewish community. By restoring the traditional Diaspora festival calendar, we can identify with this broader Jewish experience by uniting our sacred calendar with those of our Jewish neighbors. Secondly, by instituting a second festival day we can accommodate the growing percentage of our membership who come to us from Conservative- or Orthodox-Jewish backgrounds and who are familiar with that observance. And then there are what we might call “spiritual” motivations: a second day of yom tov allows us to provide additional and perhaps creative worship services that speak to the religious needs of a number of our people. Whether we accept these arguments or not, we must concede that they are serious and appropriate reasons that may lead a Reform congregation to observe the second festival day.

Yet for all that, these considerations by themselves are insufficient. For when we declare a second day of yom tov, we are not simply making a statement of identity, planning a creative worship experience, or arranging an experiment in spirituality. We are declaring a festival. When we say that a day is a yom tov, we mark it as holy; we transform it from ordinary time into sacred time; we make kodesh out of chol. We arrogate to ourselves the power of the ancient Sanhedrin to announce to the Jewish world-indeed, even to God[39]-that such-and-such a date shall be a festival. And when we declare a yom tov sheni, that is, a festival day on a date that according to the Torah is not a festival at all, we create an actual festival day with all its relevant duties and restrictions. On yom tov sheni, as on the first festival day, we recite the festival liturgy. We say kiddush over wine, praising the God “who sanctifies Israel and the festivals.” The mitzvot which pertain to that particular yom tov are just as appropriate, and obligatory under tradition, on yom tov sheni. And just as we abstain from work on a festival, we are to refrain from those labors on the second festival day. In short, yom tov sheni is the ritual equivalent in virtually all respects of the first day of the festival.[40] We are entitled to restore the observance of yom tov sheni and/or the second day of Rosh Hashanah, just as we are entitled to restore any number of ritual practices discarded by our predecessors. But if and when we do so, let us not forget that it is a festival that we are creating. If we do not treat the second day of yom tov as the ritual equivalent of the first, then we do not in fact perceive it as a true festival day. And if that is the case, it is dishonest for us to call it a festival.

We do not think that the congregation which poses our she’elah truly regards the “second day” of Shavuot as a yom tov. Their request is prompted, not by the desire to observe yom tov sheni as a permanent religious institution to be equated with yom tov itself, but by the desire to “stretch” the holiday to Friday night for the benefit of this year’s Confirmation class. They do not indicate any readiness to “stretch” the other festivals to a second day, to hold festival services and to close their offices on those days, or to do so again for Shavuot when that holiday does not fall on a Friday. They are not, therefore, departing from our movement’s teaching on the dating of the festivals. They do not accept yom tov sheni as a true festival, a holy day, the equivalent of the first day of yom tov. They rather wish to move Shavuot to a day that as far as we–and they–are concerned is not Shavuot at all. To call that day “Shavuot,” even out of the well-meaning intention to make the Confirmation service more meaningful for its participants and their families, is thoroughly inappropriate for a Reform congregation that does not observe yom tov sheni.

It is also unnecessary. The congregation need not “stretch” Shavuot to accommodate the Confirmation class, since it is perfectly acceptable to hold the ceremony on the Shabbat nearest Shavuot.[41] Similarly, the text of the Confirmation service can reflect the theme of Shavuot, “the season of the giving of the Torah” (zeman matan toratenu), without the need to recite the actual festival liturgy. Moreover, the congregation may read the festival Torah portion, the Sinai revelation (Exodus 19-20), on that day. As Rabbi Solomon B. Freehof has suggested, when the final day of a festival (i.e., the eighth day of Pesach or the second day of Shavuot) falls on a Shabbat, our Reform congregations may “simply reread on that Sabbath the special reading of the holiday that we read the day before.”[42] Although current Reform practice does not follow Rabbi Freehof’s suggestion,[43] his teshuvah offers an alternative that this congregation might consider.

Conclusion. In Reform Jewish tradition, yom tov is observed for one day, not two. This congregation gives every indication that it accepts and practices that standard. The congregation may therefore draw upon the symbolism and the message of Shavuot to lend liturgical power to a Confirmation service held on the day after the festival. The service, however, should not imply that the day is in fact Shavuot.

 

NOTES

 

  1. Alexander Guttmann, “The Jewish Calendar,” in Peter S. Knobel, ed., Gates of the Seasons: A Guide to the Jewish Year (New York: Central Conference of American Rabbis, 1983), 10.
  2. The sources are gathered by W. Gunther Plaut in The Rise of Reform Judaism: A Sourcebook of its European Origins (New York: World Union for Progressive Judaism, 1963), 195-199, from Protokolle der dritten Versammlung deutscher Rabbiner, Breslau, 1846, 208ff.
  3. R. Solomon B. Freehof, Reform Jewish Practice and Its Rabbinic Background (Cincinnati: Hebrew Union College Press, 1963), 1:16, 19.
  4. Michael Meyer, Response to Modernity: A History of the Reform Movement in Judaism (New York: Oxford U. Press, 1988), 373.
  5. See the discussion by Lawrence A. Hoffman in Gates of Understanding 2: Appreciating the Days of Awe (New York: Central Conference of American Rabbis, 1984), 56-62.
  6. See the meditations and blessings “For those who wear the Tallit” and “For those who wear Tefillin” in Gates of Prayer, 48-49.
  7. Compare the fourth principle of the Pittsburgh Platform (Meyer, 388) with the language of Gates of Mitzvah, ed. Simeon J. Maslin (New York: Central Conference of American Rabbis, 1979), 40 (E-6) and 130-133.
  8. For the way things were, see Freehof, Reform Jewish Practice 1:89 (the chupah is omitted from many Reform weddings), 96 (the kiddushin and nisu’in blessings are combined and only one glass of wine is used), and 98 (“the breaking of the glass is entirely omitted from Reform marriage ceremonies”). For the differences today, see Rabbi’s Manual (New York: Central Conference of American Rabbis, 1988), 50-59 and 239.
  9. In 1893, the CCAR adopted a resolution which formally did away with the requirement for circumcision (milah) and ritual immersion (tevilah) in the conversion process; see American Reform Responsa (ARR), no. 68. Compare, however, Rabbi’s Manual, 210-215, which makes provisions for milah and tevilah, and 232, which offers an explanation for the use of the traditional rituals in Reform Judaism. See also Teshuvot for the Nineties (TFN), no. 5752.1, at 244-246, and the sources it cites, as well as our responsa no. 5756.6 (on the use of the mikveh for conversion) and 5756.13 (which provides a detailed critique of the scholarship employed in justification of the 1893 resolution).
  10. See the fourth principle of the Pittsburgh Platform (Meyer, 388). This follows upon the third principle, which rejects the binding character of the Torah’s ceremonial legislation; “to-day we accept as binding only the moral laws.”
  11. We say “roughly” because the term mikra kodesh is applied to Shabbat in Lev. 23:3, as is the term mo`ed, “appointed season.” The Sifra (perishta 9:1, cited by Rashi to the verse) notes this apparent discrepancy, asking: “what has Shabbat to do with the ‘appointed seasons’?” It answers that this comparison is brought as a means of strengthening the observance of the festivals: “when one desecrates a festival, it is as though he has desecrated the Sabbath.” The term is also applied to Yom Kippur (Lev. 23:27), even though the rules for abstaining from work on that day are equivalent to those for Shabbat and more stringent than those for the yamim tovim.
  12. The term is melekhet avodah, translated variously as “servile work” or “working at one’s occupation.” Maimonides (Yad, Yom Tov 1:4) gives the traditional halakhic understanding of the term: melekhet avodah includes all the labors prohibited on Shabbat (melakhah; cf. M. Shabbat 7:2) with the exception of transferring fire (as opposed to kindling, which remains forbidden), carrying objects in the public thoroughfare and from one “domain” to another, and the activities involved in the preparation of food (to be consumed on the holiday itself; 1:9).
  13. Both conditions are necessary in order for a day to be regarded as a yom tov; thus, Rosh Chodesh, on which additional sacrifices (musafin) were offered, is not a yom tov because labor is not biblically prohibited on that day. Similarly, the intermediate festival days of Sukkot and Pesach (chol hamo`ed) are not considered yamim tovim, even though they were the occasion for musaf sacrifices in the Temple. Although “unnecessary” sorts of work are prohibited on those days, one is traditionally permitted to undertake labor in order to avoid a substantial monetary loss, so long as the effort involved is not deemed “excessive.” See Yad, Yom Tov 7:1ff.
  14. So Rambam (Yad, Yom Tov 1:1), after Lev. 23:36, even though Shemini Atzeret is regarded as a festival in its own right.
  15. See Exodus 12:2, “this month (hachodesh hazeh) shall be for you (lakhem) the beginning of the months.” The Rabbis understand this to mean that God points out the form of the new moon (the demonstrative hazeh, or “this”) to Moses and Aaron (BT Menachot 29a), instructing them that the task of declaring the new month and setting the calendar shall be the exclusive responsibility of the beit din (lakhem, “for you,” i.e., the determination of the new moon shall be for you, Moses and Aaron and all your judicial successors, to accomplish; BT Rosh Hashanah 22a).
  16. M. Rosh Hashanah 2:8. See also Devarim Rabah, parashah 2, no. 14: when the angels gather to ask God when Rosh Hashanah will occur, God tells them to consult the earthly beit din, which has the authority, under Lev. 23:4, to determine the dates of the festivals.
  17. Since Exodus 12:2 is understood to require that the new moon be physically seen and identified. In the absence of such testimony on the thirtieth day of the month, the first of the two days on which the new moon might appear, the court would declare the new month on the following day; see M. Rosh Hashanah 2:7.
  18. See M. Rosh Hashanah 1:3: messengers were sent out following the new moons of Nisan, Av, Elul, Tishri, Kislev, and Adar, in order that the communities may know of the upcoming holidays and fasts. During the days of the Temple, messengers were also dispatched in Iyar, to inform the communities of Pesach Katan (Sheni; 15 Iyar).
  19. BT Beitzah 4b and Rashi ad loc., s.v. shel galuyot.
  20. Yad, Kiddush Hachodesh 5:5-6, and Yom Tov 1:21.
  21. See Chidushey HaRitva, Rosh Hashanah 18a.
  22. Yad, Kiddush Hachodesh 5:8, based upon BT Beitzah 4b-5a and the ruling of Alfasi, fol. 3a. On the other hand, the talmudic discussion there suggests the possibility that Jerusalem and the land of Israel may have reverted to a one-day observance of Rosh Hashanah following the destruction of the Temple and the disappearance of the old eyewitness-based calculation of the new moon. There is evidence that this was indeed the case. See R. Zerachyah Halevy’s comment, in Sefer Hama’or Hakatan, to Alfasi, ad loc.: the requirement to observe two days of Rosh Hashanah in the land of Israel applied only during the time when the calendar was fixed by eyewitness testimony. Thereafter, “all the land of Israel took on the status of the Great Court” in this regard and observed one day. This situation held until “sages of Provence arrived and established there the custom of observing two days, according to the ruling of Alfasi.” R. Zerachya’s description of the practice in Eretz Yisrael is confirmed by paetanic, geonic, and later halakhic sources; for discussion of these see Charles L. Arian and Clifford E. Librach, “The ‘Second Day’ of Rosh haShana: History, Law and Practice,” Journal of Reform Judaism 32:3 (1985), 70-83, and Yosef Tabory, Mo`adey yisrael betekufat hamishnah vehatalmud (Jerusalem: Magnes, 1995), 231-232. Rabbi Solomon Freehof (Modern Reform Responsa, no. 51) concludes that Rosh Hashanah was observed for only one day in the land of Israel until the eleventh century. Yet there is also evidence for the opposite custom, namely that two days of Rosh Hashanah were observed in some places in Eretz Yisrael during the immediate post-talmudic period, possibly as a result of Babylonian influence; see the remarks of Ezra Fleischer in Tarbitz 53 (1984), 293-295.
  23. BT Beitzah 4b.
  24. See Magen Avraham, OC 624, end: since we know how to determine the month by means of mathematical calculation, and since our ancestors themselves did not institute a second day of Yom Kippur, why should we do it? According to Isserles, OC 624:5, the physical danger involved in a two-day fast is the reason we fast for only one day. On the other hand, we do have reports of at least some talmudic sages who fasted for two days; see BT Rosh Hashanah 21a. See Questions and Reform Jewish Answers, no. 66.
  25. See Rashi, BT Beitzah 4b, s.v. veleima kasavar rav asi. According to a geonic tradition, the institution of yom tov sheni was an ordinance of the prophets; “thus did Ezekiel; thus did Daniel.” See Otzar Hageonim, Yom Tov, 3-9.
  26. BT Beitzah 4b, according to Rashi, s.v. degazrey. The Yershalmi version is found in PT Eruvin 3:9 (21c), end, the statement of R. Yose; see Peney Moshe and Korban Ha`edah ad loc.
  27. See the argument of S. Herxheimer, Protokolle, 211.
  28. Yad, Kiddush Hachodesh 5:5. See also Yom Tov 1:21.
  29. Yad, Mamrim 2:2.
  30. Hasagat HaRabad, Mamrim 2:2. The case is that of neta reva`i, the produce of the fourth year of fruit-bearing trees, which is sanctified to God (Lev. 19:24). The Rabbis likened this to the “second tithe” (ma`aser sheni; Deut. 14:22ff), which was to be transported to Jerusalem and consumed there or, alternately, redeemed for money to be spent in Jerusalem (BT Kiddushin 54b; PT Ma`aser Sheni 5:2). An old takanah prohibited landowners living in close proximity to Jerusalem from redeeming their fruit. Instead, they were to carry the produce itself to Jerusalem, in order to adorn the city with the produce of the land (M. Ma`aser Sheni 5:2 and Bartenura ad loc.). Rabban Yochanan ben Zakai annulled this takanah, on the sensible ground that, following the destruction of the Temple, there was no longer any city to adorn (BT Beitzah 5a-b; Rashi 5b, s.v. ta`ama).
  31. R. Yosef Karo (Kesef Mishneh to Mamrim 2:2) responds that perhaps Rabban Yochanan was actually “superior” to his predecessors and therefore had the legal power to depart from their takanah. This is an interesting departure from the general theory that the earlier authorities (rishonim) always enjoy greater stature than the later authorities (acharonim), and it is little wonder that Rambam’s other commentators (see Radbaz and Lechem Mishneh ad loc.) do not adopt it. But suppose that Karo has a point: could it not be that other generations than that of R. Yochanan ben Zakai are to be regarded as enjoying equal or superior stature to that of their predecessors?
  32. See R. Eliezer Berkovits, Halakhah: kochah vetafkidah (Jerusalem: Mosad Harav Kook, 1981), 173, and Herxheimer, 212.
  33. Tosafot, Beitzah 6a, s.v. ha’idana; Hil. HaRosh, Beitzah 1:5.
  34. Commentary of R. David ibn Zimra (Radbaz), Mamrim 2:2. The difference is that in some cases, we may be aware of the reason for the takanah even if the sources do not state it explicitly. In those cases, one may conclude that the takanah was meant to last even in the absence of that reason. When, however, the rabbis declare that “we are doing this on account of X,” they are telling us that their ordinance lasts only so long as X does. Note, too, that Radbaz does not contend that the later court “annuls” (mevatel) the words of its predecessor; rather, the earlier takanah loses its own force (nitbatlah), regardless of the lesser authority of the later court as compared to the earlier one. On all this, see Berkovits, 171-174.
  35. Berkovits, 175.
  36. “A decree is not imposed upon the community unless the majority of the community is able to abide by it”; BT Avodah Zarah 36a and parallels. And see Yad, Mamrim 2:7: a gezerah that was mistakenly thought to have been accepted by “all Israel” can be annulled by a subsequent court. The problem here, of course, is that the decree establishing yom tov sheni was in fact accepted by all Israel for hundreds of years prior to the nineteenth century. We would respond that the economic and social conditions of Western society following the Emancipation were of a fundamentally different nature than those facing the Jews prior to that era. As such, the Jews of modernity could not have been included in the original gezerah, and their inability to abide by it must be taken as a serious challenge to its applicability in their communities.
  37. See Herxheimer in Protokolle, 214-215.
  38. See Daniel Freelander, Robin Hirsch, and Sanford Seltzer, Emerging Worship and Music Trends in UAHC Congregations (New York: UAHC, 1994), 1: 206 Reform congregations, or 38 percent of those responding to a survey on ritual practice, noted that they observed two days of Rosh Hashanah. Anecdotal evidence suggests to us that the figure is higher today.
  39. See note 16.
  40. “All that is forbidden on the first day of yom tov is similarly forbidden on the second… There is no distinction between the first and second days of yom tov, except for burying the dead and painting the eye (for medical purposes)”; SA OC 496:1-2, and see OC 526 for the rules concerning preparations for burial on the festival.
  41. Gates of the Seasons, 133, n. 174.
  42. Current Reform Responsa, no. 10.
  43. See Gates of Understanding (New York: CCAR, 1977), 271.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5759.4

CCAR RESPONSA

5759.4

Tattooing, Body-Piercing, and Jewish Tradition

She’elah
A congregant plans reconstructive breast surgery following a radical mastectomy. Her surgeon will tattoo an areola on the reconstructed breast. She wishes to know whether this would violate the traditional Jewish prohibition against tattooing. Is there a distinction to be drawn when the tattooing does not occur as a result of a medical procedure? What should be our response to the phenomenon of tattooing and body-piercing for the sake of adornment or self-expression? (Rabbi Bonnie Steinberg, Great Neck, NY)

Teshuvah
Jewish tradition would permit this surgical procedure. There are, however, two reasons why one might think-erroneously-that it would not.

The first of these is the Torah’s prohibition against tattooing (ketovet ka`aka), the making of incisions in our skin.[1] The prohibition, however, is understood as a preventive measure designed to separate Israel from pagan ritual,[2] so that the making of incisions for other, legitimate purposes is exempted from its terms. Thus, the Talmud[3] and the codes[4] permit the placing of hot ashes upon a wound, even though the ashes might leave a permanent tatoo-like impression upon the skin. Such was accepted medical treatment, and so long as the impression is made for purposes of healing, “it is clear that it is not meant as an idolatrous practice.”[5] In the present case, the tatoo is an element of reconstructive surgery in the wake of a mastectomy. As this is a legitimate medical procedure, there is no reason to prohibit the tatoo as an instance of ketovet ka`aka, a forbidden incision in the skin.

The second reason is that we might consider this procedure an example of cosmetic surgery, of which this Committee has taken a dim view.[6] Our doubts concerning cosmetic surgery are based upon the halakhic prohibition of chavalah, the causing of injury to one’s body in the absence of sufficient reason.[7] Although it is difficult to define this standard with precision,[8] it has seemed to us that the invasive procedures involved with cosmetic surgery are justifiable only when they are part of a regimen of medicine, when they contribute to what we can plausibly regard as “healing.” Unless it can be justified as vital to an individual’s psychological and emotional well-being, surgery designed merely to enhance a person’s appearance runs counter to the message of Judaism, which “admonishes us to look below the surface, to concentrate upon the development of deeper and more lasting measurements of self-worth and satisfaction.”[9] Yet here, too, we would find no basis upon which to counsel against the procedure described in our she’elah.[10] This tatoo, because it is an element of reconstructive surgery, is a medical rather than a purely cosmetic procedure, and is therefore permissible under Jewish tradition.[11]

This suggests the difficulty that confronts us as we approach the second part of this she’elah. What do we say concerning tattooing and body-piercing, particularly their more extreme forms, when these are not done as part of a medical procedure? We cannot reject them merely because they serve no medical purpose. It is an accepted custom in our culture to pierce one’s ears for purposes of adornment and beautification, and our Committee has written that such is permissible according to Jewish tradition.[12] If so, then what is the essential difference between ear-piercing and the objectionable sorts of tattooing and body-piercing? If these practices differ only as a matter of degree, on what principled basis do we permit the one and forbid the other? And if we do declare the latter to be “forbidden,” can we be confident that our religious language is anything more than a smokescreen behind which one generation or group within a society seeks to impose its own standards of beauty, decorum, and taste upon those who do not share them?

These are indeed serious criticisms. But we must weigh them carefully against the demand of Jewish tradition, an obligation we take with the utmost seriousness, that we treat our bodies with reverence. Torah prohibits us from engaging in chavalah, from subjecting our bodies to needless physical damage, because to do so is to violate the dignity and sanctity that we, created in the divine image, have been endowed.[13] It teaches us that we do not own our bodies; rather, God has entrusted them to us for safekeeping, and we are responsible to God for what we do with them during our lifetime.[14] It is our duty to honor our bodies, to keep them healthy, safe and whole to the best of our ability. When we practice tattooing, body-piercing, or any other act of permanent physical alteration, we do not honor our bodies. Instead, we engage in an act of hubris and manipulation that most surely runs counter to the letter and spirit of our tradition. True, actions otherwise forbidden as chavalah are permitted for medical purposes, but from this it does not follow that they are permitted for any and all purposes. On the contrary: the fact that our sages have to cite arguments to justify chavalah in the name of healing suggests that they do not extend that permit to acts of disfigurement undertaken for the sake of adornment or self-expression.[15]

Similarly, the fact that ear-piercing has gained acceptance as a cosmetic practice in our society simply means that some acts that might in theory be defined as chavalah are not so regarded by most of us. It does not mean that we must accept any and all sorts of bodily alteration as legitimate. We realize how difficult it is to distinguish in this case between the permissible and the impermissible. To so requires that we make value judgments that are inescapably contestable. But Judaism, like religion in general, is all about the making of value judgments; our task as Jews and as students of Torah is thus to arrive at those value judgments that reflect our most coherent understanding of Judaism’s message.[16] And that message teaches us that there is a difference, a vital one, between cosmetics and disfigurement. The physical alteration of the human form, whether through cosmetic surgery, tattooing or the piercing of its organs, is an act of degradation rather than adornment, of disrespect rather than honor. To cut into our flesh for the sake of “enhancing” our appearance[17] is to display arrogance and contempt toward the One who created the human form, “to say to the Artisan: ‘how ugly is this vessel that You have made!'”[18]

Those Jews who engage in extensive cosmetic surgery, tattooing and body piercing will likely reject the above description. They will say that these practices do not constitute chavalah, “needless physical damage,” but instead reflect a desire to adorn the body, not to destroy it. They will remind us that body-piercing as a means of personal adornment is mentioned in the Bible.[19] They will argue that styles of cosmetics, like styles of fashion, are relative to the culture in which we live, that they constitute important means of self-expression for those who adopt them, and that while others may not like them, they are in no position to criticize those who do. Yet to us, this disagreement is not fundamentally one of style and taste; it is about core Jewish values, the beliefs and affirmations upon which we construct our religious lives. Our response is therefore not a condemnation of modes of adornment we do not like but an invitation to those who adopt them to join us in thinking about this question in an essentially Jewish way. As Jews, that is to say, we should not look upon this issue as a debate over cosmetic style. We ought rather to approach it as we approach all questions of human existence: from the perspective of a people that seeks to live a life of holiness (kedushah) in response to its covenant with God. That perspective requires that we consider how our every action, the private as well as the public, contributes toward the sanctification of the world and of our own lives. The way we treat our bodies, including the manner in which we “adorn” them, is a statement of our attitude toward our relationship with God and our duties under the covenant.

Let us consider, therefore, what sort of statement we make about ourselves and our bodies when we inject pigment into our skin, when we pierce our flesh with needles, wire, studs and spikes. Let us ask ourselves whether this is truly the way that we Jews, commanded to pursue and to practice holiness, should aspire to “beautify” and “adorn” ourselves. Let us reflect with the utmost seriousness upon the values we proclaim when we engage in such practices. When we think about them in this Jewish manner, we begin to realize that surely we can aspire to something better. As Jews, considering this question from the vantage point of our tradition, we ought to perceive the extensive physical alteration of the human body, when undertaken without medical justification, as chavalah, an act of destruction undertaken for no good and worthwhile purpose, an act that symbolizes the sorts of violence that we work to banish from the world in which we raise our children.

We acknowledge that all such conclusions are subjective and laced with ambiguity. It is virtually impossible to draw in advance a sharp line that will determine whether any particular case of physical alteration is to be accepted as adornment or rejected as chavalah. We do not attempt here to present a catalogue of specific forbidden and permitted “cosmetic” procedures. We do suggest, however, that in general, tattooing and body-piercing conflict with our most carefully-considered understanding of our Jewish tradition.

Conclusion. Tattooing is certainly permissible as an element of reconstructive surgery. Yet Judaism requires that our bodies be treated with honor and respect. Therefore, while we recognize the importance of personal adornment, as Jews we must pursue it in the light of the historical Jewish emphasis on the integrity and holiness of the human form. Tattooing and body-piercing, when not part of a legitimate medical procedure, are most difficult to reconcile with that emphasis. They are chavalah, pointless destruction of the human form; we do not and cannot regard them as “adornments.” Unless and until we are otherwise persuaded, we should continue to teach that Judaism forbids these practices as the negation of holiness, the pointless and unacceptable disfigurement of the human body.

 

 

NOTES

 

  • Lev. 19:28. The rabbinical sources define this act as tattooing: an individual violates the prohibition only when he has both made an incision and filled the incision with ink or pigment. M. Makot 3:6, and Bartenura ad loc., following Rashi’s explanation of the Mishnah in BT Makot 21a. See also Yad, Avodat Kokhavim 12:11.
  • “Thus was the practice among the Gentiles, that they would inscribe themselves to idolatry, as though they were slaves to the service of false gods”; Yad, Avodat Kokhavim 12:11. See Sefer Hachinukh, no.253: “the purpose of this mitzvah is to keep all aspects of idolatrous worship far from our bodies.” And see Tur YD 180: “Ketovet ka`aka is a practice associated with idolatry.”

 

  • BT Makot 21a, the ruling of Rav Ashi; see Tosafot, s.v. rav.

 

  • Hil. Harosh, Makot 3:6; Nimukey Yosef to Alfasi at Makot 21a; Shulchan Arukh YD 180:3.

 

  • Siftey Kohen, YD 180, no. 6; see also Turey Zahav, YD 180, no. 1. Both these commentators explain the permit according to the language of Rav Ashi (note 3, above).

 

  • Teshuvot for the Nineties (TFN), no. 5752.7.

 

  • M. Bava Kama 8:6; Yad, Chovel 5:1; SA CM 420:31.
  • Maimonides, for example, defines chavalah as exempts an act of self-damage that is undertaken for harmful or contemptible ends (Yad, Chovel 5:1). It follows that should a person supply a plausible reason for cosmetic surgery (such as making oneself more attractive and therefore more marriageable; see R. Moshe Feinstein, Resp. Igerot Moshe CM 2:66), the procedure is justifiable even though it involves damage to one’s existing physical form.

 

  • TFN, no. 5752.7, at p. 131. As we note there, the argument based on “psychological and emotional well-being” must be made in each individual case; “in general, however, we think this argument is too frequently raised and too easily exaggerated.” See also R. Eliezer Yehudah Waldenberg, Resp. Tzitz Eliezer 11:41.

 

  • TFN, no. 5757.2; CARR, no. 15.
  • Unlike the mastectomy itself, reconstructive surgery is not directed against a threat to human life. Still, we regard it as a medical procedure because we understand “medicine” as the full array of technologies that physicians and other professionals customarily undertake in response to a condition of disease. In a similar way, we think of reproductive technologies as legitimate medicine, even though infertility per se does not threaten the life or health of the woman, because we can readily and plausibly define infertility as a disease, a condition for which medicine is an appropriate remedy; see our responsum 5757.2 at note 7. On the other hand, we believe that our community draws a significant distinction between cosmetic surgery aimed at the mere improving of appearance and reconstructive surgery designed to restore that which has been ravaged by disease. The former does not count as “medicine”; the latter does, and for this reason we have no qualms against the procedure on Judaic grounds.

 

  • CARR, no. 76.
  • Maimonides (Yad, Chovel 5:1) refers us to Deut. 25:3, which warns us not to exceed the lawful number of stripes when meting out corporal punishment to the wrongdoer. “If this is the case with the sinner, then how much more does it apply to one who is righteous” and does not deserve the beating; see BT Sanhedrin 85a and Rashi to the verse. Rambam posits that what applies to one’s fellow human being quite logically applies to oneself as well.
  • See the commentary of R. David ibn Zimra to Yad, Sanhedrin 18:6: a person’s life (nefesh) is not his or her property; it belongs to God. This explains why a person’s confession to a capital crime is not admitted into evidence in Jewish law, “since one cannot testify to that which does not lie within one’s control.”
  • See R. Eliezer Waldenberg, Resp. Tzitz Eliezer, 11:41, end. Note as well the dispute between R. Yosef Karo and R. Yoel Sirkes in the Beit Yosef and Bayit Chadash, respectively, to Tur YD 180, over whether it is permitted to make incisions in the skin as an act of sorrow. That an act might not technically violate a biblical prohibition and thereby escape the prescribed punishment does not mean that one is “permitted” to perform that act.
  • See TFN, no. 5752.7, p. 130.
  • We should not have to rehearse the distinction here between tattooing and body piercing, of which Judaism disapproves, and the practice of ritual circumcision, which it commands. Yet because some who read this responsum might imagine that they can draw a credible analogy between the two, we shall note the following. Berit milah is a religious rite of powerful significance that has served for thousands of years as a physical expression of the covenant between Israel and its God. No plausible link can be made between berit milah and the tatooing and body piercing that disfigure the human form in the name of “beauty” or “self-expression.” On the continuing–and deepening–religious significance of berit milah in the today’s Reform Judaism, see Lewis M. Barth, ed., Berit Milah in the Reform Context (New York: Berit Milah Board of Reform Judaism, 1990).

 

  • BT Ta`anit 20b.
  • See, for example, Gen. 24:47 and Ezekiel 16:12.

If needed, please consult Abbreviations used in CCAR Responsa.

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