Conversion

See Miqvah, origin
See Adopted children

CURR 96-100

LAYMEN CONDUCTING A CONVERSION

An Indian Gentile girl in Bombay desires to convert to Judaism. She has presented herself as a candidate for conversion to our Reform congregation in Bombay (a congregation of the Bene Israel) . The congregation has no rabbi at present and they have asked whether laymen are eligible to perform the ceremony of conversion.

THE Shulchcin Aruch in Yore Deah 268:3 says that a conversion must be conducted by a court of three “eligible to judge.” The question which concerns us is what is meant by this phrase. Of course, “eligible to judge” can mean simply that the judges are not relatives. See Perisha to the Tur who quotes the Mordecai as the source of this explanation. However, there is a much more fundamental question involved as to the nature of the court.

In Mishnaic and Talmudic times there were two classes of courts, those that dealt with religious and criminal matters and those that dealt with adjudicating civil disputes. The courts that dealt with religious and criminal matters were generally the fixed courts and were composed of men who were formally ordained (musmachim). Since ordination in the old classic sense could take place only in Palestine, then those who conducted such courts in Babylon had a somewhat different status, but one which amounted to the same thing. They were called “mumchim, ” literally “skilled men.” It meant, actually, official appointees of the Exilarch. “Musmachim” in Palestine and “mumchim” in Babylon could also judge civil matters; but civil matters could legally be judged by amateurs if the two parties in dispute selected them and were content with each other’s selection.

In post-Talmudic times official ordination (or in Babylon, official appointment) has ceased. Our present “semicha” is merely the use of an old name; it is actually only a license to teach, although it uses the formula “he may judge.” Modern rabbis considered that their right to judge in certain cases, which in the past required official judges, inheres in the fact that they are agents of the judges of the past. Now our question really amounts to this: Is conversion one of those religious functions which in the past would require official judges and therefore now require “ordained” rabbis who are deemed to be their direct agents, or is it rather akin in status to such civil matters which even in the past could be adjudicated by laymen?

The fullest discussion of the question of conversion is found in the Talmud in Yevamos 46 and 47. The Talmud concludes at the bottom of 46b that the incident described on that page proves that a court of three is required for conversion. Then it raises but rejects the supposition that the court must be composed of mumchim, learned officials. However, although mumchim were not required for conversion in those days, it nevertheless may be that nowadays scholars (talmiday chachomim) may nevertheless be re quired and that ordinary laymen are ineligible. There are certain functions which for various reasons came to be restricted to scholars (therefore generally rabbis), for example, matters of marriage or divorce, or matters of releasing vows, etc. Is conversion to be considered such a matter which today must be left to scholars (i.e., rabbis)?

The Talmud in Kiddushin 62a and 62b gives a discussion which begins with the question of heave offering, starting with the statement that a man may not give heave offering from fruit that is still unharvested for fruit that is already harvested. It then moves to a discussion of whether a man may say to a woman, “I hereby marry you, the marriage to take effect after I have become (or after you have become) a proselyte.” Then the discussion continues as follows: “But surely to become a proselyte is within his power to achieve” (and therefore the marriage proposal would be valid) and the Talmud answers, “No; it is not necessarily within his power to achieve because a proselyte needs three people because the word ‘mishpot’ is used with regard to it, as with civil cases which require three.” Then the Talmud says, “How does he know that he will be able to find three who will assemble to convert him?” Rashi simply explains this as saying he may not find three Israelites to gather to go through with the process.

It is clear from this discussion and Rashi’s commentary that any three Israelites are authorized to perform the conversion, and the Tosfos to the place addresses itself exactly to this question and comes to the same conclusion, and quotes Rabbi Nathaniel to the same effect, that conversion does not require trained and official personnel.

Benjamin Zeev (sixteenth century) in his Responsa I, 72, quotes the responsum of Isaac the son of Samuel to the effect that conversion is valid even if conducted by three hedyotos (i.e., three ordinary unlearned laymen). Benjamin Zeev concludes with the general statement that in matters of conversion, we ought to follow the line of leniency and therefore should, if necessary, allow three ordinary men to conduct the conversion, lest we “lock the doors in the face of converts.” The phrase is from Tosfos, Yebamos 47a. However, Zvi Hirsch Chayes of Zolkiev, who lived about a hundred years ago, says that it is preferable that the three men be scholars. See his Notes to the Talmud to Sabbath 46b (the Notes are to be found at the back of the large Vilna edition.)

Benjamin Zeev’s general principle that in matters of conversion we should be lenient rather than too strict is revealed in the summary of the law as found in the Shulchan Aruch, Yore Deah 268. There we are told that while a court of three is required, nevertheless if a person is converted before two, the conversion is valid as a fait accompli (B’di-eved), although not as a preferred procedure. So, too, while the whole conversion process must be consciously directed with full understanding of the implications, nevertheless a formal bathing for some other purpose than conversion can be considered valid for conversion as a fait accompli. All these opinions are based upon earlier legal decisions. Besides the clear evidence of the preference for leniency in this matter, the Shulchan Aruch also reveals the uncertainty as to the types of judges required. Whereas in 268:3 it merely says “three men who are eligible to judge,” i.e., not relatives, nevertheless when the words of admonition are repeated after the ritual bath (in 268:1) Isserles adds to the statement that it must be scholars who give him the final instruction. However, the Shulchan Aruch in 268:12 sums it up by saying that if he were circumcised and bathed in the presence of three hedyotos (i.e., three average men) he is fully a ger.

Ben Zion Uziel, the late Chief Sephardic Rabbi, in his very last book of Responsa Mishpote Uziel, Even Hoezer 13, p. 54, Jerusalem, 1964 says: “It is the Halacha, as we learn from the words of the Rambam, that the reception of proselytes does not require a Bes Din of skilled men, but even with three ordinary men (hedyotos) it is quite sufficient.”

In brief, the general mood of leniency has led the majority of the authorities cited and the Shulchan Aruch itself to conclude that any three laymen can legally conduct the conversion. However, since the people are of the Bene Israel, this woman and her husband (after she has been converted and married) may move to Israel, and since the Orthodox rabbinate in Israel generally refuses to accept conversion by a Reform rabbi on the ground that the requisite bathing has not been performed, it would be advisable to have three men send in a woman with her to the mikveh to have her fulfill this ritual requirement.

MRR 154-158

THE INCOMPLETE CONVERSION

QUESTION:

A young lady who is studying in preparation for conversion to Judaism must leave the city to join her husband-to-be at an army camp. The rabbi decided that even though the course of instruction has not yet been completed, he would convert her immediately and marry her Jewishly, provided she will accept the responsibility of completing her training under the guidance of the rabbi of the city where the army camp is located. Does this decision comport with the spirit of Jewish law? (From Rabbi Allen H. Podet, Seattle, Washington.)

ANSWER:

ALTHOUGH the Shulchan Aruch (Yore Deah 268) gives complete and detailed description of the method of converting a Gentile to Judaism, nevertheless it is evident that there is considerable doubt as to whether conversion necessarily requires the completion of the en tire process described. If it does not necessarily require the entire process, then at which point in the incompleted process may the candidate be considered to be a proselyte?

It is noteworthy that even at the early stage of the development of the law there was some dispute on basic parts of the process. The law is that a candidate for con-version has to be circumcised and take the ritual bath and bring a sacrifice to the Temple. The latter requirement is still mentioned by Maimonides (Yad, Issure Biah 13:5) who considers that the proselyte still owes the sacrifice, to be given when the Temple is rebuilt. But as for the other two elements, there is a dispute in Yevamot 46a between Rabbi Elazar and Rabbi Joshua. Rabbi Elazar says that if circumcised but not ritually bathed, he is a complete proselyte. Rabbi Joshua says that if bathed but not circumcised, he is nevertheless a full proselyte.

Of course the final decision is (46b) that he must be both circumcised and bathed; and a woman proselyte, of course, must have the ritual bath. As the law is now in the Shulchan Aruch, the proselyte is first closely questioned in order to determine his sincerity. He is asked why he is willing to accept the persecutions, etc., to which Jews are subjected. Then he is told of the reward and punishment for some of the commandments, and then he is circumcised and, when healed, taken to the ritual bath.

Now we should try to determine the degree of im portance of these elements in the process: a) the questioning as to sincerity, b) the instruction in the commandments, c) the double ritual requirements. As for the second (the instruction in the commandments) the law is careful to say: You do not do more than mention “some” (miktsat) of the commandments. You do not tell him too many (en marbin alav). In other words, it is clear that the instruction in the law is the least important of the three elements, perhaps because the law is so complex that you could not instruct him sufficiently anyhow. Furthermore, even the instruction mentioned is not actually instruction. The laws are cited to show what punishment there is for their violation. The candidate is told that while he is a Gentile, he will not be punished for violation of these laws, but when he becomes a Jew, he will be punished. So why is he willing to take this new burden on himself? Therefore it is evident that even this partial instruction in the law is not so much instruction, but belongs under the first element mentioned, namely, the testing of his sincerity.

Even the earnest testing of sincerity was subject to some mitigation. Doubt as to sincerity was based upon the desire to improve one’s status or increase one’s safety or to marry a Jew. It is because of the first two doubts that the Talmud deprecates the converts who flocked to Judaism in the time of David and Queen Esther. And it is because of the latter doubt, the desire to marry a Jew, that many Orthodox rabbis hesitate to perform conversions today. Yet this doubt as to motive of the candidate occurred in the case of Hillel and in the case of Rabbi Chiah (Shabat 31a and Menachot 44a). In one case the proselyte wanted to become high priest some day and in the other, the proselyte wanted to marry a Jew. Yet in both cases the candidates were accepted, and the explanation is given (see Tosfot to Yevamot 24b, s.v. “Lo”) that they were accepted because these two scholars were confident of their judgment that these two proselytes would be sincere proselytes despite their present motives. In fact, Joseph Caro, in his Bet Yosef to the Tur (Yoreh Deah 268) uses a guiding phrase: “It all depends upon the judgment of the court ” (hakol left re’ut bet din) . So the Shulchan Aruch itself (268:12) says that if a man has been circumcised and bathed, then he is a full proselyte, even though there is ground to believe that he converts for the sake of marriage.

We may conclude that in Orthodox law the order of importance is, first, the ritual circumcision and bathing; second, the question of sincerity; and third, and least important, instruction.

With us in the Reform movement, we have made a clear-cut change. We have declared that the ritual (circumcision and ritual bath) will not be binding upon us. We have made the question of sincerity important, but have declared (see Conference Report on “Mixed Marriage and Inter-Marriage,” page 8) that the desire of the couple to marry is not to be considered proof of the insincerity of the conversion, but perhaps the very reverse. We have placed our main emphasis on the instruction.

Now the same question comes to us which confronted Orthodox law: How much or how little of the process is indispensable? Or whether, under special circum-stances, the candidate can be converted before the usual course is finished, on condition that the course be continued after marriage, either with this rabbi or with another. The answer must be given in light of Joseph Caro’s summation: “It depends upon the judgment of the Bet Din.” If the rabbi believes that this is a sincere person who will maintain the affiliation with Judaism and that her willingness to continue instruction even after the mariage is a further evidence of her sincerity, then he may certainly shorten the period of instruction, especially when this is done temporarily.

But there is need for caution. Inasmuch as it is the instruction which has become the most important element for us, we must guard it carefully and not let it become a mere formality, lest it come down eventually to a few words of instruction in one interview and the candidate then be considered to be converted. If the shortening of the course is done in exceptional cases only and there is good reason for it, and if thereby the general practice of the instruction of proselytes is not by this one case weakened, then there is no reason why the rabbi may not use his judgment in the matter.

CORR 269-276

QUESTIONS FROM ISRAEL ON PROSELYTISM

Mr. Asher Maoz

6, Ahuzat Bait Street, 6th floor Tel Aviv, Israel

Dear Mr. Maoz:

I shall be glad to answer your letter of July 29, but it is not possible to give a simple and direct answer to each of your questions in the order you presented them. The reason this is difficult is that some of the questions require an explanation of the basic philosophy of the Reform movement and it would be misleading simply to say “yes” or “no.” This situation applies especially to Question 1, to what extent does proselytism by a Reform rabbi meet the requirements of the Halacha as to: a) Circumcision (Brith-Mila) ; b) Baptism (Tevila); c) Acceptance of the commandments ( KabalatOl Mitzvoth). If I answered simply that we do not a) or do b) or c), I would fail to explain the reason for our basic attitude in such matters.

The attitude of Reform Judaism on ceremonial commandments is that they are secondary to the moral and doctrinal commandments. So our emphasis in proselytism is as follows: We do not require as absolute prerequisites either circumcision or Tevila, but lay great emphasis on the instructions. This should not surprise you, for it is possible according to the Halacha to conceive of a conversion without circumcision or the Mikvah, because this was the very subject of the debate in the Talmud (Yevamoth 46a) where some of the authorities believe that a proselyte is a full proselyte even without circumcision or Mikvah.

But the debate in the Talmud is not the real reason for our practice. It is our general philosophy that the ethical and philosophical meaning of Judaism is more essential than the ceremonial. Therefore we may correctly say that less emphasis is placed upon circumcision and Mikvah and more on the instruction. That is to say, it is not the mood of Reform to abolish the first two rituals. Some rabbis require it, some do not. In some countries the Reform movement requires it and in some countries it does not. In ceremonial matters we avoid strictness; but on the third element, namely, the instruction, we put our great emphasis. In this regard, if I may say so, our method of accepting proselytes is superior to that of Orthodoxy. In Orthodoxy instruction is comparatively minor, although it is indeed required. With us it is major. Most large congregations have a class of proselytes whose instruction will last a half year or even a whole year; and as you may well imagine, while we teach the various home ceremonies which the candidate will observe (such as Friday night lighting of the candles, etc.) our main emphasis in this long instruction is on Jewish history, Jewish teachings, Jewish ethics. Forgive this long answer. A short answer would have been no answer at all.

Now with regard to your other questions, some I will answer simply “yes” or “no,” but with others I will give you a specific case in which your question came up and how it was answered.

2. Proselytism for material purposes, etc.: We examine the candidate carefully to make sure that there are serious and worthy motives leading to the desire to become Jewish. However the difference between us and Orthodoxy is this: Theoretically, but not actually, in Orthodoxy if a person comes to be converted for the purpose of marrying a Jew, this is deemed unworthy, but with us, we consider that the desire to establish a home of unified spiritual mood is a worthy motive. We do not consider that if a candidate desires to be married to a Jew that this is unworthy at all. I am enclosing the relevant section, which I will mark “A” from the report of the Central Conference of American Rabbis on “Mixed Marriage and Intermarriage,” CCAR Yearbook LVII, 1947. This also answers Question 3.

4. Attitude towards a proselyte and a Cohen: Reform Judaism has abolished all differences in religious standing between Cohanim, Leviim and other Jews. We are all deemed equal. Therefore Question 4 has no meaning for us.

5. A proselyte continuing with his non-Jewish spouse: We would consider this wrong for the reason indicated in a responsum which I wrote a few years ago, which was published in the CCAR Journal and is found in Current Reform Responsa, p. 215 (see appendix B) .

6. Could a minor proselyte without his parents? No; we would not break up a family. With the consent of his parents, certainly. This is already mentioned in the Talmud in Ketuboth 11 a.

7. As to the status of a minor who did not proselytize while his parent did, we have made a new provision for children whose parents have become Jewish. The change is in accordance with our general principle: Since the ceremonials of circumcision and Mikvah are not as important to us as the instruction, we have decided that if such parents wish their child to be Jewish and enter him into our school, when he graduates (or is confirmed, usually around the age of fourteen) this is deemed with us to be full and official conversion of the child (see appendix C) .

8. To answer this question I must first answer 13e: Is there supreme Halachic authority in Reform Judaism? No; the Central Conference of American Rabbis and our other organizations, such as the Union of American Hebrew Congregations, etc., are voluntary organizations for consultation and mutual guidance. We have at the Conference a Responsa Committee of which I have the honor to be Chairman. My decisions in answer to questions are made according to what seems to me a balance between the attitude of the Halacha and the needs of modern times. The decisions are meant for guidance and not for governance. We respect the Halacha as an expression of Jewish spiritual thought and feeling for two thousand years, and we follow it whenever we deem it possible to do so.

Now, therefore, the question of No. 8: The Conference is opposed to the marriage of a Jew with an unconverted non-Jew. Nevertheless there are a few rabbis who do officiate at such marriages. They are a small minority. Even this few do not officiate indiscriminately, but only under special circumstances as, for example, if the couple are both old people or if they had been married already in the civil courts and the husband is going overseas to serve in the Armed Forces, etc. So your question deals only with a few special cases and we have not yet come to a conclusion as to what the status of such children should be.

9. Should the laws of proselytism be changed according to the principle of Hora’at Sha’ah? We think so. That is really the mood of Reform Judaism, but the motive for change must be a serious one.

10. Could a non-Jew become a Jew other than by proselytization? No.

11. Differences in Israel and abroad: My personal judgment is that proselytization should be made easier in Israel because the whole environment is Jewish and it is almost inevitable that a home in which one member is a convert will be a truly Jewish home.

12. Is Judaism a nationality or a religion or both? The question would make more sense in eastern Europe than in the western democratic countries. In eastern Europe as, for example, in Soviet Russia, historic groups are considered separate nationalities. In western democratic nations each person is an individual. A nation is composed of individuals of equal status. There is no separate grouping of nationalities.

Nevertheless our sense of historic unity and our brotherly bond with the state of Israel is deep and real. The best description of Judaism according to the feeling of most Reform Jews is that we are a religion and a family with all the intimate relationships which the word “family” implies. This is in accordance with the spirit of Jewish law. A convert is converted not merely to a religion, but to a real kinship. He or she may now marry a Jew and is always part of the Jewish family. In fact, the historic phrase that a convert is like a new-born child is an exact expression of somebody being reborn (Yevamoth 22a).

13a, b, b-1: In actual practice only a rabbi officiates, but according to Jewish law, if necessary a non-rabbi can conduct a conversion. I am appending a responsum that I gave on this question to the congregation in Bombay.

13c. The authority or Semicha of a Reform Rabbi: Orthodox rabbis have no legal authority either. The true Semicha ceased in the third century. What is called Semicha today in Orthodox life is really Hatarat Hora’ah, the right to teach. In other words, it is exactly equal in status to a graduation diploma. The Reform rabbi has the same rights as an Orthodox rabbi, the right conferred upon him by his education and his acceptance by a congregation. No rabbi in the world has any greater authority.

This should answer 13d, since there is no actual legal authority anywhere in the rabbinate, Orthodox, Conservative or Reform. I would answer “yes” to d, but an Orthodox rabbi does not recognize the status of any other type of rabbi. 13e is already answered.

14. The relation of a proselyte to his former neighborhood and family: Technically speaking, they do not exist for him; but as the Talmud says, he would then justly complain that he has left a nobler sanctity for a lower one ( Yevamoth 22a). Hence in many ways traditional law recognizes the relationship that remains between the proselyte and his family. Practically the problem comes up in questions of whether proselytes should say Kaddish for their Gentile fathers. This has been answered affirmatively in Jewish law. I enclose an answer I have given to this question (appendix E) .

15a. I do not know of this occurring often, but it did occur at least once, and I am enclosing a responsum on the question. A proselyte attains an indelible allegiance to Judaism and can never throw it off again.

I do not know any statistics regarding 15b or c and 16. My own experience has been that in many cases, proselyte women especially become more earnestly Jewish than many of their Jewish-born friends.

17. Is conversion Reshut or Mitzvah? This is an open question in Jewish law, and as far as we are concerned in the Reform movement it is still debated among us. For example, the Union of American Hebrew Congregations a few years ago passed a resolution that we should go out and seek converts. In other words, it is a Mitzvah. The Central Conference of American Rabbis has not yet passed on this matter. As I say, it is still an open question.

Please let me know when you have received these answers and if there are other matters that you want me to discuss, do not hesitate to ask me.

CORR 136-140

A DUBIOUS CONVERSION

QUESTION:

A woman came to me a year ago seeking instruction in Judaism with a view to being converted. I gave her the usual instruction. She is now ready for conversion. Her five-year-old son by her previous marriage is registered in our Religious School. It turns out she has been going with a Jewish man and wants to marry him.

However, her previous marriage is not legally dissolved. Four years ago, she sued her husband for divorce. During the course of litigation, he was stopped by a police officer for a traffic violation and pulled out a gun and shot the police officer. The officer survived, but her husband was apprehended and sentenced to 20 years in the Elgin, Illinois State Prison. Once in prison, his attorneys argued that as a prisoner he was unable to defend himself in court, that his civil liberties and constitutional rights were being violated, and the Courts subsequently refused to grant a divorce. Meanwhile, this woman is living with the man she has been going with because she seems to have no prospects of securing an early divorce.

Does Jewish Law cover any controversy such as I have described? What would this woman’s status be? I would be interested in any advice and information you might have to offer. (Asked by Rabbi Richard C. Hertz, Detroit, Michigan.)

ANSWER:

THE SITUATION which is here described is certainly a miserable one. As you properly indicate, it is very hard to know how to act here in harmony with the spirit of the Jewish legal tradition. The Christian woman whom you are converting has been “living” with a Jewish man. She is not divorced from her Christian husband because he is in the penitentiary for what virtually amounts to a life term. She has failed, so far, to get a divorce from him because his lawyers insist that being in the penitentiary, he cannot adequately defend himself. We may therefore assume that she is not likely to get a divorce from him in the near future.

The question therefore amounts to this: Is there in Jewish law a possibility of our considering her virtually divorced or free, since it is impossible for her actually to get a divorce? If that is possible (to consider or declare her free) then should you continue the process of converting her and then marry her Jewishly to the man she has been “living” with?

There is a whole mess of complications involved here. First, what is the status of a non-Jewish marriage as a legal institution in Jewish law? Are we concerned with those relationships? The concern of Jewish law with a non-Jewish marriage begins when a married non-Jew is converted to Judaism. What is the status of her Gentile marriage, now that she has become a Jewess? Basically a convert is deemed to be “a newborn child” (Yebamos 97b) and therefore her previous relationships do not exist. This would surely apply to her marriage relationships, since it applies even to her blood relationships. Theoretically these pre-Jewish relationships no longer exist for her and she would be permitted to marry a blood kin (of course, only if he converted and he, too, therefore would be “a newborn child”). However, this theoretical doctrine of the non-existence of a convert’s previous relationships is not a practical fact in Jewish law because, as the Talmud says, (Yebamos 22a) if we permitted a convert to ignore these previous relationships, then the convert could say, “I left a religion of greater sanctity for one of lesser sanctity.” Therefore we respect the validity of her non-Jewish marriage; she is a married woman.

It might also be mentioned that if this were a marriage between two Jews, i.e., a Jewish convict and his wife, there would be no way of voiding the marriage. If it were she who was confined (for example, in an insane asylum) there is in Jewish law a cumbersome method (consent of a hundred rabbis from three provinces) for assigning a divorce to her and thus freeing him to remarry. If the situation is in reverse and he is confined in an institution, there is no way of freeing her without his initiative. But as you know, traditional Jewish law is masculine oriented. As I have said, this is a Gentile marriage and, as far as Jewish practical law is concerned, Judaism respects its validity.

That being the case, according to traditional law the Jewish man may never marry her. In fact, even if she were never married to the convict and was an unmarried woman but lived with this Jewish man, he would not be permitted to marry her (Mishnah, Yebamos II, 8, and Shulchan Aruch, Even Hoezer 11: 5) . In other words, a man who lives with a woman in adultery may not be permitted to marry her even when she becomes free to marry him. However, if he does marry her, there are many opinions in the law that he may keep her as his wife. At all events, even if she will be finally divorced from her convict husband, it is at least dubious in Jewish law whether he should marry her. But if you were lenient and did marry her to him, they could remain married.

However, all this is still a theoretical question. According to the laws of the state of Michigan, this woman is a married woman, and if you officiated at a marriage, you would be compounding the crime of bigamy; so the question here cannot possibly be whether when her conversion is completed you should marry them. The laws of Michigan prevent that. Your question therefore actually must be: Shall you continue the process of converting her?

As to that question, the following must be said. Most of our conversions in the Reform movement (and, in fact, most conversions today in all branches of Judaism) are for the purpose of marriage. This very intention of marriage actually makes the conversion dubious in the eyes of Jewish law. A conversion, to be valid, must be purely for the sake of the conversion and not for any type of personal benefit. That is why we in the Reform movement had declared in “The Report of Mixed Marriage and Intermarriage” that hereafter we fully accept a conversion made for the purpose of marriage. However, according to traditional Jewish law, conversion for such a purpose has dubious standing.

Therefore we must come to the following conclusion: Since you cannot by Michigan law officiate at the marriage of this couple, and since even by Jewish law such a marriage is dubious, as has been mentioned above, then you are in fact converting this woman without the clear prospect of marriage. Therefore the conversion is traditionally, perhaps, more acceptable than many another conversion. We must, however, consider the fact that she is an unworthy woman, since “Children of Noah” are in duty bound to follow the laws of morality. On the other hand, since it is not alleged that she wantonly “lives” with other men too, she may be deemed to be a pilegesh, and therefore not actually sinful.

Perhaps you should proceed with the conversion and see what the future will bring. The husband may die or he may finally consent to divorce her. When that happens, you will have to decide whether the traditional dubiety about such a marriage (of a couple which has lived together) is a dubiety which you feel bound to honor or not. But that is for the future. For the present, the conversion may well continue.

RRT 80-83

PRESERVING A TORAH FRAGMENT

QUESTION:

Congregation Habonim of New York has a membership composed chiefly of refugees from Germany. The congregation had built a memorial to the Six Million composed of stones from the debris of wrecked synagogues in Germany. Now the congregation is in possession of a fragment of a Sefer Torah which consists of one roller (etz chayim) surrounded by about an inch of parchment. Can this fragment be preserved in a receptacle built into the vestry wall near the memorial of the Six Million? If so, must it be horizontal or vertical? (Question asked by Rabbi Bernhard N. Cohn, New York.)

ANSWER:

IF THIS WERE a complete Torah, then even if it were, for the present, unfit for public reading (posul) and needed correction, the proper place for it (if it was not buried in the cemetery) would be in the Ark, and certainly not in a museum case. The reason for this is as follows: In the presence of the Torah, people must comport themselves with dignity, even if the Torah is kept in a room of a private house (see Berachos 25b and Yore Deah 282:8). If there is a museum case in a vestibule where people go to and fro, it would be impossible to expect them to maintain a respectful demeanor at all times. Therefore it is better that the Torah be kept in the Ark if it is, as I say, largely an intact Torah. See the responsum on this question in Contemporary Reform Responsa, pp. 110 ff. Furthermore, as to whether a posul Torah should be placed in the Ark (instead of being buried), see Contemporary Reform Responsa, pp. 114 ff. (especially p. 116).

However, we are not dealing here with a Torah that is posul but largely intact. We are dealing with a fragment. But how large a fragment? It is not quite clear to me how much of the Sefer Torah is included in this remnant. The inquiry says that it “consists of one etz chayim surrounded by about an inch of parchment.” Does that mean that around the etz chayim there are enough turns of parchment to make a cylinder with the thickness of one inch? If so, this remnant is of considerable size. Nevertheless, considering the thickness of a complete Sefer Torah, a cylinder of one inch is very much less than one-fifth of the total girth and, therefore, must be much less than one complete book of the Five Books. But let us assume that it is a complete Genesis. If on the left-hand roller, it would be the complete Deuteronomy. Yet even if there is a complete book, this one book has not enough sanctity for it to be read in the synagogue. The Shulchan Aruch, Orah Hayyim 143:2, says that even a complete book (of the five) may not be read in the synagogue. Only all five books sewn together may be read. Therefore, even if it is a complete Genesis or Deuteronomy, which is improbable, there would be considerable freedom in the handling of this fragment. But in all likelihood we are speaking here of a small fragment around one of the rollers. So it is primarily the roller that is seen. The roller itself has the status of only “auxiliary holiness” (tashmishey kedusha; see Mogen Avraham, par. 14 to Orah Hayyim 153). An etz chayim may, for example, be cut up or it can be made into another synagogue object (see Current Reform Responsa, pp. 36 ff.). Since, therefore, we are dealing with an etz chayim and not more than a fragment of scroll, this may be put into a case, especially if the case is embedded in the wall near the memorial for the Six Million, where whoever visits the place will certainly conduct himself with dignified demeanor.

Now as to the question of whether it would be proper for this fragment to be placed vertically or horizontally in the case: There is an interesting analogy relevant to this question with regard to a smaller scroll, namely, the mezuzah. Rashi says, in his commentary to Talmud Menachos 33 a, that the mezuzah should be placed in a vertical position on the doorpost. However, the great fourteenth-century German authority, Maharil of Mainz, reports that Rashi’s grandson, Rabbenu Tarn, says that the mezuzah should be affixed horizontally. Then Maharil says that we ought not to contravene either of these great authorities. Therefore we should put the mezuzah diagonally (as we do today) in order to defer as much as we can to the opinion of both Rashi and Rabbenu Tarn (see Minhage Maharil, the section on “Mezuzah,” near the end of the section). At all events, if the mezuzah were affixed in a horizontal position, it would have the justification of one great authority at least, Rabbenu Tarn. But besides the analogy with the mezuzah, we have more direct evidence as to the placing of the Torah. The Talmud, in Megillah 27a, discussing the relative sanctity of the Torah, the Prophets, and the Hagiographa, gives the general principle that the scroll of lesser sanctity (say the Hagiographa) may not lie on top of the scroll of greater sanctity (say the Prophets or the Torah). The Talmud continues by saying that one Torah may lie on the top of another. This indicates, of course, that the Torah can be kept horizontal. As a matter of fact, although today it is our prevalent custom to keep the Torahs standing vertically in the Ark, there were times when the Torah was kept in a series of pigeon-holes lying horizontally (see the end of the article by Ludwig Blau in the Jewish Encyclopedia, “Scrolls of the Law”).

To sum up: If this were an intact Sefer Torah or a complete one of the Five Books, then if not buried (as it may be), it should be kept in the Ark, not in a museum case in the vestry where people walk to and fro. But since this is a smaller fragment, and the most conspicuous part of it is an etz chayim, which is in itself of secondary holiness, it may certainly be kept in an exhibition case, especially if the case is near the memorial, where the demeanor will always be dignified. As for the position of the Torah fragment, there is no real choice as between horizontal or vertical except perhaps that our modern custom is to have it vertical. But if for some artistic reason it is preferred to place the Torah fragment in a horizontal position, there is no Halachic objection to so doing.

NRR 75-78

AN INCOMPLETE CONVERSION

QUESTION:

A Gentile girl married a Jewish man. Immediately after the marriage, she began the process of conversion before a Reform rabbi. She took the course of instruction in a proselyte class conducted by the rabbi. However, she did not participate in the final ceremony of conversion because she became pregnant. After two children were born to her, she returned to participate in the final ceremony of conversion, and she and her family have been living a Jewish life. But since her children were born before the final ceremony of conversion, she is now greatly concerned whether her children are Jewish or not. What is the status of her children? (Asked by L.S.F.)

ANSWER:

IF THE PROCESS of conversion had been carried out

according to Orthodox law, it would seem evident that the children are not Jewish by birth since their mother was not

completely converted when she gave birth to them. How-ever, in Orthodox law, there is a strong tendency to protect the Jewish status of children. Thus, if a man comes and says that he had been converted in some other city, he is not believed until he brings proof. His conversion is in

doubt, but he is not permitted to cast doubt on the Jewishness of his children (Yore Deah 268:11). Also, while the ceremonies of circumcision for a man and the mikvah for a woman and a man are, of course, essential in the Orthodox procedure, nevertheless, there is considerable indication that these final ceremonies are not the most important. There are two elements in the conversion process which are the most heavily stressed, one, the understanding and the acceptance of the commandments, and two, retrospectively, the life which has been led by the proselyte after the conversion or the claimed conversion.

The special stress placed on learning and accepting the commandments can be seen from the fact that the ceremo-nial bathing may be considered valid if it is not done in the presence of three, but the study and the acceptance of the commandments must be in the presence of three (prefera-bly learned) men. Special stress is put not only upon the commandments, but also upon the Jewishness of the life led by the convert or by one who claims he is a convert. If a Gentile claims to have been converted in some other city, he must bring proof of the fact, but if he is seen to be living a Jewish life, observing the commandments, he is to be considered a true proselyte {Yore Deah 268:10). So, too, in the case of a minor who is converted—he may repudiate the conversion when he grows up, but if he has been living a Jewish life, that fact is decisive and his conversion is permanent. As for the importance of the conversion mikvah, even that is diminished by the following: If a man or a woman takes a ritual bath for some other purpose than conversion, this bath may be accepted as valid for conver-sion, although that was not the original intention (Yore Deah 268:3).

Yet, although the greater emphasis in the entire conversion process is on the spiritual and ethical elements, it would, of course, be incorrect to say that the purely ceremonial procedures, being secondary, may be set aside. Even though Rabbi Eliezer doubts the necessity of the ritual bath and says that a man is a full proselyte if he does not take the ritual bath but is circumcised, and even though Rabbi Joshua deprecates the necessity of circumcision and says that a man is a full proselyte if he is bathed but not circumcised (Yevamos 46a), actually both ceremonies are required. Therefore in the case of this woman, even though she took the instruction and even though she kept a Jewish home, she would not be considered a proselyte, and her two children, therefore, would not be Jewish.

It must be added that although the child was conceived while she was still a Gentile, yet if she had continued in the conversion process and the child had been born after her conversion was complete, then the child would be Jewish. This would be true even if the father was a Gentile, for the child that she was carrying would be deemed to have been converted with her (seen Modern Reform Responsa, pp. 143 ff., and Yore Deah 268:6).

But all the above is theoretical in the case which we are discussing, since the conversion process was under the guidance of a Reform rabbi. Reform Judaism has made a drastic change in the conversion process. One might say that the stress placed on the intellectual and spiritual elements in the Orthodox conversion Halachah became decisive in the development of the Reform ritual. The two purely ceremonial rituals, circumcision and mikvah, are disregarded. They are no longer required. But the intellectual and ethical elements are strengthened. The Reform process of conversion involves a much longer and more complete course of training than the Orthodox practice requires. As for the closing ceremony after the instruction (in Orthodoxy this means circumcision and/ormikvah), in Reform it is not much more than a sort of solemn commencement exercise, a giving of a certificate after the study course is completed.

Since, therefore, the woman took the instruction, which is the important part of the Reform conversion process, and since she considers herself Jewish and her home Jewish, her conversion in this case may well be considered complete, for the sake of her children, even if she did not participate in the formal closing ceremony until after the children were born. Her children, therefore, from the point of view of Reform are fully Jewish. Even if they were to be deemed not Jewish, which in this case would be contrary to the spirit of Reform Judaism, the CCAR has decided that such children, if given full instruction in our religious schools, need no further acts of ritual conversion.

5773.3

CCAR RESPONSA COMMITTEE

 

5773.3

 

Conversion Beit Din via Videoconference

 

 

Sh’elah.

 

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

 

 

 

T’shuvah.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

 

NOTES

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

17.       See note 10, above.

 

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

 

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

 

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

 

 

 

RR21 no. 5758.7

CCAR RESPONSA

Conversion of a Person Suffering from Mental Illness

5758.7

She’elah

A woman in my congregation, married to a Jewish man, has been coming to me to study for conversion to Judaism. Her own religious background is quite mixed, and she feels

no particular attachment to any other faith. She has some knowledge of Judaism, and has been reading and studying with me for about six months. I believe she is sincere about wanting to convert to Judaism, although some of the motivation undoubtedly comes from her in-laws. In my opinion, however, she is not mentally stable.

The first thing she told me when we met was that she was a borderline personality who had been sexually abused by both of her parents. In the fairly brief time I have known her she has been on the verge of divorce twice, stated that her husband was abusing her, changed therapists, and asked if she could bring her dog into the sanctuary with her for emotional solace in a new environment. She often makes very dramatic statements, only to back away from them later. From everything I have been able to learn, she is quite clearly a borderline personality, a well-recognized diagnosis of significant mental illness. She is not, however, insane or incapable of making decisions for herself.

May I reject her as a candidate for conversion on grounds of her mental illness?

Teshuvah

1. Mental Competence and Mental Illness.

The possession of mental competence (da`at or de`ah) is one of the principal requirements for conversion to Judaism. This is because conversion is understood as the acceptance by a Gentile of the mitzvot, the obligations of Jewish life.[1] One who is mentally incompetent is not judged legally accountable for his or her actions;[2] therefore, a Jew who lacks da`at is exempt from the duty to perform the mitzvot.[3] Accordingly, the Jew-by-choice who seeks to enter the community of mitzvot must be able understand the nature of the duties he or she is accepting and to be held responsible for them. As our Committee has written in a similar case:[4] “conversion to Judaism is a major religious step which cannot be taken lightly; this act has legal (halachic) implications… (since) a complete understanding of Judaism is necessary for a sincere and complete conversion, such prospective converts must be of sound mind and mentally competent. We cannot accept individuals who do not meet these prerequisites.”

For these reasons, it is clear that we are entitled and even required to reject a candidate for conversion should we find that he or she does not possess the necessary mental competence. The question we face here is whether this prospective proselyte fits that concept. Does she, on account of her emotional disturbance, lack the “sound mind” necessary to make the responsible choice to enter the covenant of Israel?

To ask this question is to ask whether, in the terms of our tradition, this woman exhibits the characteristics of the shoteh/ah, the “insane” person, who by definition does not possess da`at and is thereby exempted from any and all responsibility to uphold the mitzvot.[5] The talmudic sources identify the shoteh as one who wanders alone at night, who sleeps in the cemetery, who rips his or her clothing, or who loses everything that is given to him or her.[6] The halakhic consensus holds that a person need not exhibit all of these behaviors to be defined as a shoteh; one of them alone is sufficient, provided that the action is performed regularly and in such a way that it offers evidence of insanity.[7] There is considerable disagreement in the literature as to whether insanity (shetut) is to be identified by these actions in particular or whether they are to be seen as examples of a more general condition. Some authorities regard the list in talmudic sources as exhaustive; “we have nothing to rely upon except the words of our Sages.”[8] Maimonides, on the other hand, takes the opposite view. The shoteh of whom we speak is only the one “who walks about naked, breaking things and throwing stones,” but rather “one who has lost his mind and whose mind is consistently disturbed with respect to any matter, even though he speaks rationally on all other matters.”[9]

This position surely strikes us as the more reasonable one, since it is difficult to imagine a plausible definition of insanity that restricts itself to but three or four specific actions out of a host of others that are clearly symptomatic of serious mental disturbance. As noted above, even a person who exhibits those behaviors is not judged insane by talmudic standards unless they are performed in a manner that indicates insanity (derekh shetut);[10] thus, “insanity” is better understood as a manner of behavior, a state of mental disturbance which can express itself in any number of ways, rather than as a catalogue of several specific acts.[11] Although contemporary Orthodox halakhists tend not to decide between the two sides of this legal dispute,[12] they are capable of recognizing that judgments in this area are necessarily complex. As one puts it: “it is impossible to define with precision just who is called a ‘shoteh’ in our time, or more properly, at which stage (of an illness) a person is defined as ‘insane’ and exempt from the mitzvot… On account of the wide variety of psychiatric ailments along with the many specific forms of behavior, which can change from time to time due to natural causes or as a result of treatment, we are required to judge each case separately, in accordance with the opinion of experts and the judgment of the rabbinic authority or beit din.”[13] For our part, we hold that the definition of mental illness is to be made by observation a matter of medicine and psychology, properly determined by the accepted procedures of those disciplines. As we have written, “given 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.”[14] We think that this position accurately reflects the view of Maimonides, applied in the context of the scientific and cultural realities of our time.

None of this, of course, renders the answer to this she’elah a simple one. Even if we accept this woman’s testimony that she suffers from an emotional disorder, we may not be in a position to declare that she does not possess the requisite mental competence we demand of a person who chooses Judaism. To be sure, borderline personality disorder (BPD) is a serious condition, and those afflicted with it “present a variety of neurotic symptoms and character defects.”[15] They may, we are told, fail to establish their own identities. They may be emotionally unbalanced and impulsive, display multiple phobias, obsessive thoughts and behaviors, and paranoid traits. They may be constantly angry and frequently depressed, sexually promiscuous, and have a pronounced tendency toward drug and alcohol abuse. They are unable to develop lasting relationships in marriage and career, They are quite difficult as patients, often attempting to manipulate their therapists in order to gain needed gratification. Many of them threaten suicide, and some of them are indeed suicidal. All of this may be true of BPD individuals in general and of this woman in particular, yet this is still not enough to say that she, the individual whose case we are addressing here, is a shotah, lacking the da`at or capacity to make rational decisions and judgments about herself and her life. We should not forget that a medical term such as “borderline personality disorder” is simply a name given to a particular constellation of “neurotic symptoms and character defects.” It is a category utilized by the mental health professions as a means of classifying data and determining courses of treatment. It is a description of a general phenomenon which in and of itself does not tell us that this woman is “insane.” Put another way, while this woman may be “mentally ill,” we do not know by that token that she is mentally incompetent. The diagnosis, assuming it is an accurate one, cannot serve as a substitute for a careful examination of her character, her strengths and weaknesses, her “defects” and her resiliency in overcoming or compensating for them.

This is merely another way of saying that “general principles do not decide concrete cases;”[16] or, as Maimonides remarks in his discussion of mental competence, “since it is impossible to define ‘da`at’ with full precision in writing, the matter must be decided by the judge in the particular instance.”[17] To translate this insight into the terms of the present she’elah, we cannot say this individual is unfit for conversion based upon a diagnosis that she suffers from a general syndrome known as “borderline personality disorder.” Such a determination can be based only upon a finding that this person, this individual human being, lacks the mental competence we think necessary to make an informed and rational choice for Judaism.

2. Proper and Improper Motivations for Conversion.

Yet the definition of “insanity” is not the only issue here. Our case turns as well upon the question of proper motivations for conversion to Judaism, which the Talmud discusses in two places. In the first, which describes what we must call the ideal state, the prospective proselyte is warned of all the hardships and dangers that await him should he become a Jew; if he says, “would that I merit to participate in their suffering!,” he is accepted forthwith.[18] The second text speaks not of the pure religious motivations of the ideal candidate but of those that inspire other sorts of individuals. It tells us that, in principle (lekhatchilah), we should not accept proselytes who wish to convert in order to marry a Jew, or who seek to join us out of a desire to share in our good fortune, or who come to Judaism in response to fear or threats, real or imagined, although should such persons undergo a valid process of conversion they are nonetheless considered proselytes.[19] The medieval commentators raised a difficulty against this “in principle” standard, noting several examples of Talmudic sages who accepted as proselytes individuals who came before them with evidently improper motives. They resolved the difficulty by suggesting that in those cases the sages were confident that the proselytes who came originally out of ulterior motivations would ultimately accept the Torah “for the sake of Heaven.”[20] And on the basis of that resolution, later authorities declare: “we learn from this that (with respect to conversion) the entire matter is left to the judgment of the beit din.”[21]

This, as far as we are concerned, is a chief guiding principle in our thinking about conversion. It is for the beit din, the religious tribunal under the supervision of the presiding rabbi, to determine in each and every case whether the person who comes before us for conversion does so for reasons that are appropriate. Occasionally, Orthodox authorities will rely upon this discretionary power in order to accept proselytes who wish to become Jews for reasons that fall far short of the ideal standard of pure religious conviction.[22] Yet whether for leniency or stringency, the decision is in any event for the authorities to make. On this point we are in full agreement with Orthodox halakhic thinking. Conversion, for us no less than for other Jews, is not a decision left to the heart and mind of the proselyte but a formal and public matter. One who seeks to convert seeks to join our community as a full and participating “citizen” thereof. It is accordingly for the Jewish community, acting through its acknowledged rabbinical representatives, to determine in each and every case whether an individual who wishes to convert is in fact ready to do so, for reasons that we find persuasive and compelling.

Let us turn this insight to the present case. If the rabbi under whose guidance this woman is studying believes that she is ready for conversion, that she fully understands the fateful nature of this step and is preparing to undertake it out of motivations that strike him as credible and appropriate, then he is entitled (and perhaps even obligated)[23] to accept her as a Jew-by-choice. On the other hand, should the rabbi find that there is significant doubt as to this woman’s mental and emotional readiness to make a thoughtful, careful and responsible decision to convert to Judaism, he is entitled (and perhaps required) to reject her candidacy. The burden of proof, that is to say, is upon the candidate to demonstrate her readiness and not upon the rabbi to demonstrate the opposite. His decision need not be based upon preponderant evidence that she is “insane” and lacking in da`at. He may even find, as he tells us in his she’elah, that she is “sincere” in her desire to convert. Yet so long as he is not convinced that she is ready to take this step, so long as he has good reason to believe that her desire to convert is reflective of an emotional pathology rather than what can be defined as a reasonable and responsible choice, he is definitely under no obligation to accept her.

Conclusion.

The rabbi may indeed reject this woman as a candidate for conversion, although not simply on the grounds of mental illness. A finding that she is “mentally ill” or even that she displays a condition as serious as borderline personality disorder does not necessarily in and of itself prove that she is lacking in da`at, the ability to make responsible and appropriate choices. The term “mental illness” is a broad descriptive category and not a diagnosis of the fitness of the individual person; we should beware of taking any step which suggests that those who suffer from “mental illness” are to be labelled as “insane.” He may reject her rather on the grounds that this decision, in his carefully considered opinion, is motivated by factors that call its rationality and appropriateness into serious question. In any event, “the entire matter is left to the discretion of the beit din.”

NOTES

 

  • On the process of kabalat hamitzvot by a proselyte, see BT Yevamot 47a-b; Yad, Isurey Bi’ah 14:1-5; SA YD 268:2-3. Conversion is commonly portrayed in the sources as the ritual and spiritual equivalent of the acceptance of the Torah by our ancestors at Sinai; see BT Keritot 9a and Yad, Isurey Bi’ah 13:1-5, along with BT Yevamot 46a, and Rashi, s.v. be’avoteinu shemalu.
  • M.

Bava Kama 8:4; Yad, Chovel Umazik 4:20; SA CM 424:8.

  • BT

Chagigah 2b and Rashi, 2a, s.v. chutz: the deaf-mute (cheresh), the insane person (shoteh), and the minor (katan) are exempt from the obligation to perform the mitzvot on the ground that “they do not possess de`ah.” See also M. Rosh Hashanah 3:8: these same individuals cannot sound the shofar on behalf of others because they themselves are not “obligated with respect to this act.” See Yad, Edut 9:9: the shoteh is not qualified to serve as a witness because “he is not subject to the mitzvot”; and Yad, Chametz Umatzah 6:4 (based upon BT Rosh Hashanah 28a): one who performs a mitzvah during a moment of insanity has not fulfilled his obligation, for at that moment he was “exempt from all the mitzvot.”

  • American Reform Responsa

(ARR), no. 67. The she’elah there dealt with a prospective convert described as “mentally unbalanced (paranoid).”

  • See M. Arakhin 1:1 and the sources cited in note 3.
  • Tosefta

Terumot 1:3; BT Chagigah 3b-4a; PT Terumot 1:1 (40b) and parallels.

  • Hil. HaRosh

, Chulin 1:4, following the view of R. Yochanan and the setam talmud in BT Chagigah 3b-4a; SA Yore De`ah 1:5; R. Shelomo Luria, Yam Shel Shelomo, Chulin 1:4.

  • R. Yosef Kolon (15th-cent. Italy), Resp. Maharik Hachadashot, no. 20, quotes R. Avigdor Hakohen (13th-cent. Germany) in a teshuvah to R. Meir of Rothenburg: “one who is not judged a shoteh by the actions mentioned in the first chapter of Chagigah [3b] must be declared mentally competent in all respects.” R. Yitzchak b. Sheshet, it would seem, also reads the talmudic list as exhaustive; Resp. Rivash, nos. 20 and 468. And R. Yosef Karo, in SA YD 1:5, defines the shoteh as one who exhibits the behaviors mentioned in the Talmud. See, however, note 9.
  • Yad

, Edut 9:9-10. See R. Yosef Karo’s discussion in Beit Yosef, EHE 121. Karo adopts Maimonides’ definition of the shoteh in SA CM 35:8, thereby creating a difficulty against his ruling in YD 1:5.

  • BT

Chagigah 3b.

  • We might echo in this regard the rhetorical question posed by R. Ya`akov Weil (15th-cent. Germany, Responsa, no. 52): “consider the one who does not rend his garments, does not sleep in the cemetery and does not wander alone at night and yet acts in an insane manner in all other respects. Is he not to be judged insane?” Other poskim suggest that the “symptoms” mentioned in BT Chagigah do not define insanity but are rather standards by which to measure insanity in its most obvious and extreme manifestation. Thus, R. Yosef Kolon (see note 8), who does not decide the machloket between Maimonides and the opposing view, writes that “if one agrees that the ‘signs’ of insanity mentioned in Chagigah are not exhaustive and that the Sages were simply giving examples… (this means that) one should examine to see whether a person has reached an extreme level of shetut such as evidenced by these behaviors.” This position is accepted explicitly by R. Yechezkel Landau (18th-cent. Prague), in a responsum included in the book Or Hayashar (ch. 30), an 18th-century work containing rabbinical responsa over the validity of a get issued by a husband who may or may not have been “insane.”
  • See R. A.S. Avraham, Nishmat Avraham 3:181, who recites the machloket but does not attempt to resolve it directly.
  • Ibid

., 181-182.

  • Responsum no. 5757.2.
  • A.M. Freedman, MD, Harold I. Kaplan, MD, and P.J. Sadock, MD, eds., Comprehensive Textbook of Psychiatry, Second Edition (Baltimore: Williams and Wilkins Co., 1975), 550. The medical information in this paragraph is taken from that source and from Benjamin B. Wolman, editor-in-chief, The Encyclopedia of Psychiatry, Psychology, and Psychoanalysis (New York: Henry Holt, 1996), 83.
  • The quotation is taken from the famous dissent of U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. in Lochner v. New York, 198 U.S. 45, 74 (1905). Holmes continued that “the decision will depend on a judgment or intuition more subtle than any articulate major premise.” This notion is a key to the understanding of legal reasoning, no less applicable to the halakhic tradition than to any other system of law.
  • Yad, Edut 9:10.
  • BT

Yevamot 47a and Rashi, s.v. ve’eini kedai; Yad, Isurey Bi’ah 14:1; SA YD 268:2.

  • BT

Yevamot 24b, including the mishnah (M. Yevamot 2:8); Yad, Isurey Bi’ah 13:14-17; SA YD 268:12.

  • Tosafot

, Yevamot 24b, s.v. lo. The exceptional cases are those involving Hillel (BT Shabbat 31a) and R. Chiya (BT Menachot 44a).

  • Beit Yosef

, YD 268; Siftey Kohen, YD 268, no. 23.

  • Among the examples: R. Shelomo Kluger, Resp. Tuv ta`am veda`at, no. 230; R. David Zvi Hoffmann, Resp. Melamed leho`il 2:83, 85; R. Benzion Ouziel, Resp. Mishpetey ouziel, YD, no. 14, and EHE, no. 18.
  • See BT Yevamot 47b: once a candidate has demonstrated his full and informed acceptance of the mitzvot, “he is circumcised immediately.” Why, asks the Gemara, do we do this immediately? Because “we do not delay the performance of a mitzvah.”

 

If needed, please consult Abbreviations used in CCAR Responsa.

CARR 80-81

CCAR RESPONSA

Contemporary American Reform Responsa

47. Infant Conversion

QUESTION: A young

couple is in the process of converting. In this instance, the conversion, or the study toward

conversion, has been spread out over a period of two years due to desire for a thorough study,

as well as business problems. The couple is committed to Judaism and the conversion should be

finished in January. The couple expects a child, most likely a male, in September. The local

mohel refuses to do a berit milah, even leshem gerut, as neither parent is

Jewish. What can be done in this instance to start this young lad in life as a Jew? (Rabbi J.

Adland, Indianapolis, IN).ANSWER: Tradition makes clear provisions for the

conversion of Gentile infants to Judaism. The conversion was undertaken by a bet din

who stand in place of the father (Ket. 11a; Yad Hil. Isurei Biah 13.7; Tur, Shulhan

Arukh Yoreh Deah 268.7). This procedure was followed when a father and mother do not

convert to Judaism but wish their son or daughter to be Jewish (Rashi, Rashi, Ritba Ket. 11b).

There was some discussion as to whether a formal bet din was necessary for such

conversion. In the case of the boy there was also controversy as to whether the circumcision

must be done at the request of the bet din or independently (Smak in the name of Aderet;

also Ritba and Meiri to Ket. 11b). Although there is a fair amount of discussion on the

details of the conversion and whether, in the case of a boy the berit milah precedes or

follows the immersion in a miqveh, there is no debate on whether conversion under

these circumstances is possible. It is clearly possible and obviously occurred regularly in the

past. An infant convert always has the right, whether conversion is done at the request

of his father or at the request of a bet din, to renounce his conversion on reaching

maturity. If such renunciation takes place, it is not held against the individual in any way (Ket.

11a; Rashi to Ket. 11a; see also Ritba, Aderet, Meiri; Tur, Shulhan Arukh Yoreh

Deah 268.7). This question is raised upon reaching maturity, i.e., the age of thirteen for boys, or

twelve for girls. It would, therefore, be perfectly possible for you to convert this

youngster at the time of his berit, or if it is a girl, shortly after her birth. This may be done

with or without miqveh according to local custom. This would be completely in keeping

with tradition, as well as Reform Jewish practice. If the local mohel, because of some

individual idiosyncrasy, refuses to do so, then the berit may be conducted with equal

validity by a Jewish physician. The rabbi would recite the appropriate prayers for gerut

and berit milah.August 1984

If needed, please consult Abbreviations used in CCAR Responsa.

NARR 196-197

CCAR RESPONSA

New American Reform Responsa

125. Conversion of a Child

QUESTION: A non-Jewish woman, previously married to a non-Jew, with an eight year old daughter, has married a Jewish man. They have had a child who has been named in the synagogue and is being reared as a Jew. The second husband has now adopted the older daughter. She wishes to become Jewish; should there be a formal conversion or may she be considered under “patrilineal descent?” (Rabbi Morley T. Feinstein, South Bend IN)ANSWER: Whenever we discuss individuals and patrilineal descent, one of the physical parents must be Jewish. When there is one Jewish parent, either father or mother, a potential for Jewish life exists. The Central Conference has therefore declared “Depending on circumstances, mitzvot leading toward a positive and exclusive Jewish identity will include entry into the covenant, acquisition of a Hebrew name, Torah study, Bar/Bat Mitzvah, and Kabbalat Torah (Confirmation). For those beyond childhood claiming Jewish identity, other public acts or declarations may be added or substituted after consultation with their rabbi” (W. Jacob (ed) American Reform Responsa p 550). In this instance the child has no Jewish parents and is being adopted relatively late in her life. She should therefore be formally converted. This would, of course, be different from the conversion of an adult and would consist of her enrollment in religious school at the appropriate grade level, and a formal ritual in the synagogue, as well as immersion in a miqveh, if that is customary. These acts on her part would make the religious transition real and undoubtedly be important to her. They will strengthen her ties to her new family and should be considered an extension of the formal adoption which has taken place.December 1988

If needed, please consult Abbreviations used in CCAR Responsa.

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