Jewish status

RR21 no. 5760.2

CCAR RESPONSA

5760.2

Presumption of Jewish Identity

She’elah

A woman presents herself to a rabbi and states she wants to join the congregation. The woman is unknown to the rabbi, the congregation and the Jewish community. The rabbi inquires if she is Jewish and she states that she is. Does the rabbi accept her at her word, or is the rabbi obliged to conduct further inquiry as to her Jewish status? If further inquiry is required, what threshold of proof need be met? (Rabbi Joshua Aaronson, Perth, Australia)

Teshuvah

Jewish law, in general, determines the status of persons or things in either one of two ways. The first is edut berurah, or clear proof, whether in the form of eyewitness testimony[1] or other evidence.[2] The second is presumption, which itself can take two forms: chazakah, or “presumption” proper; and rov, the “majority” principle. The rules governing these processes are much too complex and detailed to summarize here.[3] Suffice it to say that Jewish law relies upon them as grounds for action in the absence of clear proof. There are many situations for which clear proof or documentary evidence does not exist, yet the court can determine the legal status of the things or persons at issue by means of an appraisal (umdana) of what was the case prior to the raising of the issue or of what is likely to be the case according to the usual behavior of persons or things. Indeed, the most fateful sort of legal decisions-i.e., those dealing with capital offenses-can proceed from judgments based upon chazakah and rov.[4]

Presumption has always played a crucial role in determining an individual’s Jewish status. We customarily do not ask newcomers to supply proof of their Jewishness before allowing them to join our communities.[5] This custom is based upon the rule in Jewish law that when a person we do not know comes to us and claims “I am a Jew,” we accept that claim on his or her word alone.[6] This rule is explained in several ways. According to some authorities, the claim “I am a Jew” needs no proof because “the majority (rov) of those who come before us are Jews”; therefore, we accept this person as a member of that majority.[7] Other commentators say that we accept the claim “I am a Jew” because we presume that a person would not lie about such an easily-discoverable fact.[8] In either event, the Jewish status of this person is established not by means of hard evidence but by the community’s presumption that the individual is telling the truth. For this reason, it is common practice to accept as Jewish those who come to our communities and present themselves as Jews.[9]

 

How does this halakhic standard apply to the case before us? In theory, the rabbi could follow one of the above presumptions and accept this woman as a Jew on the strength of her claim alone. Yet the matter is hardly so simple. A presumption, as we have noted, is a determination of the status of a person or thing based upon a judgment as to what the status is likely to be; it operates in situations where we lack firm evidence to prove what that situation actually is. We think that there is serious doubt that these presumptions concerning Jewish status, which were formulated in an era when it was quite rare for non-Jews to seek to join the Jewish people, can be applied literally to the situation in our communities. To put this bluntly, it is no longer as “likely” as it once was that those who come before us are in fact Jews. This is not to say that these persons are necessarily of malicious intent or that they knowingly lie about their Jewishness, but rather that the once sharply-drawn definitions of Jewish identity are much less clear to many people today. An individual becomes a member of the Jewish people either through birth or through conversion.[10] Yet in our liberal society, where religion is often perceived as a strictly personal matter and where changing one’s religious affiliation has become increasingly commonplace, many people take the position that “I am what I claim to be.” In this view, religious identity is more truly established “internally,” by one’s heartfelt association with a particular community, than through adherence to “external,” formal standards of membership. Many of us have dealt with individuals who regard themselves as Jewish but whose Jewish identity stems neither from birth nor conversion but from an emotional bond, a feeling of connection with us. Such persons might be encouraged to consider conversion to Judaism, but until they complete the conversion process they are not Jews. In addition, there are individuals who claim to be Jewish out of genuine misunderstanding of the rules that define Jewishness.[11] Under current conditions, to apply the old presumptions without modification-to say, in effect, that anyone who claims to be Jewish must be Jewish-is quite arguably tantamount to ignoring reality.

The foregoing remarks are not to suggest that these problems have reached crisis proportions. In the vast majority of cases, we are satisfied with an individual’s statement that “I am a Jew.” Indeed, it would be tragic were rabbis and congregations as a rule to greet newcomers with suspicion and probing questions. This would violate both our common sense of decency and the mitzvah of hospitality to strangers (hakhnasat orechim).[12] Yet there will be times when the rabbi, on reasonable grounds, will not be satisfied with the individual’s claim of Jewishness. We will not attempt to define those “reasonable grounds”; that is a matter best left to the responsible and educated judgment of the rabbi, acting in his or her capacity as mara de’atra (local authority). When the rabbi feels that such grounds exist, he or she may inquire into the individual’s Jewish status. Ideally, the inquiry will be restricted to questions of the “getting-to-know-you” variety. They should be unobtrusive and respectful of the person’s basic human dignity; our tradition, as we know, prohibits us from causing another to suffer unnecessary shame and embarrassment.[13] Yet if the rabbi, mindful of these requirements, feels it necessary to ask for proof of the individual’s Jewish status, he or she may do so. To make such determinations, however sensitive the subject matter, is quite simply part of the rabbi’s job. And we trust that our rabbis will perform that task with diligence and with sensitivity.

CCAR Responsa Committee

. Mark Washofsky, chair; Walter Jacob; Yoel H. Kahn; Debra Landsberg; David Lilienthal; Rachel S. Mikva; W. Gunther Plaut; Samuel Stahl; Leonard B. Troupp; Moshe Zemer.

 

 

NOTES

 

  • Deuteronomy 19:16; Yad, Edut 5:1ff.
  • The classic example is documentary evidence (shetarot). Witnesses are ordinarily required to testify orally in the presence of the beit din (BT Gitin 71a on Deut. 19:16 and Yad, Edut 3:4, although Rabbenu Tam disagrees; see Tosafot, Yevamot 31b, s.v. dechazu and Hagahot Maimoniot, Edut, ch. 3, no. 2). Still, a document such as a promissory note or a deed of sale is acceptable as evidence in legal proceeding on the grounds that “when witnesses sign a document, it is as though their testimony has been investigated by the court” (BT Ketubot 18b).
  • For example, the articles on chazakah in the Encyclopedia Talmudit extend from vol. 13, pp. 553-760 and then to vol. 14, pp. 1-423.
  • That is, we make judgments concerning blood and marital relationships based upon chazakah (BT Kidushin 80a and Yad, Isurei Bi’ah 1:20) and rov (BT Chulin 11a-b). These judgments, in turn, determine the application of the prohibitions against incest and adultery, both of which are punishable under biblical law with death.
  • In the words of the 13th-century R. Moshe of Coucy (Sefer Mitzvot Gadol, negative commandment no.116): “It is common practice (ma`asim bekhol yom) that, when visitors come to our communities, we do not investigate their origins. (Rather), we drink wine with them and eat the meat that they have slaughtered” (two things that these Jews would never have done had they suspected these visitors of being Gentiles).
  • This rule is based upon the Talmudic discussion of the person who comes to us and claims “I am a convert to Judaism” (BT Yevamot 46b-47a). Halakhah requires this person to supply proof of conversion only if we know in fact that he or she was originally a non-Jew. If, however, we do not know this person’s origin, we accept the claim of conversion because he or she could have said simply “I am a Jew,” a claim for which no proof is demanded. The legal principle here is migo: we may accept a claim as true on the grounds that this individual could have made a more advantageous claim. Since we would have accepted on face value the claim that “I am a Jew,” there is no reason for us to doubt the veracity of the claim “I am a convert,” which entails that he or she was born a Gentile. Maimonides (Yad, Isurei Bi’ah 13:10) calls this an example of the rule hapeh she’asar hu hapeh she-hitir: a person who is the sole source of information that is disadvantageous to him- or herself (“I was a non-Jew”) is believed when he or she gives testimony that reverses the disadvantage (“…but I have converted to Judaism”).
  • Rabbenu Tam, Tosafot, Yevamot 47a, s.v. bemuchzak lekha (and see below, note 8); Hilkhot HaRosh, Yevamot 4:34. See also BT Pesachim 3b and Tosafot, s.v. ve’ana.
  • R. Moshe ben Nachman (Ramban), R. Shelomo b. Adret (Rashba), and R. Yom Tov ibn Ishbili (Ritva) in their chidushim to Yevamot 47a; R. Nissim Gerondi (Ran) in his chidushim to Pesachim 3b; and Rabbenu Tam in Sefer Hayashar (ed. Schlesinger, 1959), ch. 336.
  • Beit Yosef

and Bayit Chadash to Tur, Yore De`ah 268, fol. 215a; Shulchan Arukh, Yore De`ah 268:10 and Siftei Kohen, no. 21.

  • This statement remains true even in North America, where the Reform movement has modified the traditional standards of Jewish status with the CCAR’s Resolution on Patrilineal Descent. Under that resolution, a child of one Jewish parent (either father or mother) may qualify as a Jew by performing “timely public and formal acts of identification with the Jewish faith and people.” Yet this possibility is open to the child because he or she was born to a Jewish parent. Conversely, the child of two Jewish parents remains Jewish under our definition even in the absence of such “timely and formal acts.” Thus, Jewishness for us continues to be established on the basis of birth or conversion. For details, see Rabbi’s Manual (New York: CCAR, 1987), 225-227.
  • For example, the determination of Jewish identity under the CCAR’s Resolution on Patrilineal Descent (see note 9) can be a source of uncertainty. Just what the resolution means by “timely public and formal acts of identification with the Jewish people” is not yet a matter of precise definition, and until that question is clarified we can expect confusion as to “who is a Jew?” according to the terms of the resolution.
  • See BT Shabbat 127a-b, where hospitality is listed among the things “whose fruits one consumes in this world and whose principal remains available for one in the world-to-come,” an example of gemilut chasadim (acts of lovingkindness). Maimonides classifies such acts under the rubric of “love your neighbor as yourself” (Lev. 19:18; Yad, Avel 14:1).
  • BT

Arakhin 16b, based upon a midrash of the concluding words of Lev. 19:17, lo tisa alav chet, “do not bear a sin on his account”; Yad, De`ot 6:8.

 

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5759.2

CCAR RESPONSA

5759.2

Baptism and Jewish Status

She’elah

The following situation has just arisen in our religious school. A child confided to her teacher in confidence that unbeknown to her Jewish father, her non-Jewish mother had her baptized several years ago. The parents are divorced and have joint custody. Technically she is being raised Jewish. Is she still Jewish? Can she celebrate Bat Mitzvah (she is 11 years old now)? Should we break her confidence and tell the father? Is a conversion necessary? (Rabbi Lynn Koshner, Albany, NY)

Teshuvah

There is no doubt that this child, as the offspring of one Jewish parent, enjoys a presumption of Jewish status, in accordance with the CCAR’s 1983 Resolution on Patrilineal  Descent. Our policy is that this status “is to be established  through appropriate and timely public and formal acts of identification with the Jewish faith and people. . . . 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. . . .”[1]  Since she has taken part in such study through enrollment in your religious school, there would seem to be no reason why this child should not be permitted to observe her becoming a bat mitzvah in your congregation.

The baptism  arranged by her mother  is irrelevant  to this child’s Jewish status,  since Jewish law does not recognize the efficacy of a Christian sacrament. The halachah does not acknowledge that the act of Christian baptism,  whether  forced or voluntary, nullifies or even calls into question the Jew’s status as a member of the people of Israel. [2]  The act of baptism would be significant from a Jewish perspective only if it were evidence that the child was being raised as a Christian or simultaneously in two religious traditions. In such a case, we have declared, the rule of patrilineal descent does not apply. [3] There is no such thing as a “half Jew”; a child can be raised either as a Jew or as a Christian but not as both.  In the present case, however,  the child is being raised as a Jew, so that the baptism  ritual is of no halachic or theological  concern to us.

With all this, however, we note that there are grounds for concern. The sh’eilah states that this child is “technically” being raised as a Jew. What, we ask, does this mean? Recall that the mitzvot that serve to establish Jewish status under our doctrine of patrilineal descent must testify to the child’s “positive and exclusive Jewish identity.” For this reason, we have ruled that a child of one Jewish parent raised in an environment that is incapable of transmitting a “positive and exclusive Jewish identity” does not qualify for Jewish status, even if that child had participated in such activities as religious education. [4] A “dual-religion” household is just such an environment. If the mother,  who has joint custody, practices Christianity actively and openly in her home, it is quite possible that her daughter has not been successfully raised as a Jew under the meaning of our Resolution on Patrilineal Descent. In such a case, she must undergo a conversion in order to establish her Jewish identity prior to observing her becoming a bat mitzvah. Even if the mother does not openly and actively practice Christianity, the baptism (along with any Christian religious practice and instruction that accompanied it) may have left a lasting effect on this girl. It is therefore vital to know just how she understands her Jewishness. Does she regard herself as a Jew, fully and exclusively? Or does she think of herself as a Jew and a Christian? Such distinctions are surely difficult for an eleven-year-old to grasp, particularly as she is the child of parents of different religions. Her parents’ divorce can only have complicated her sense of religious identity. And when we consider that the mother baptized her “unbeknown to her Jewish father,” we realize that this is a family situation in which the lines of communication are especially strained.  For this reason, this girl must be given the opportunity to express herself, to confront these issues in the presence of her rabbi.

This should take place, of course, prior to her becoming a bat mitzvah. Should the rabbi be satisfied as to the child’s “positive and exclusive” sense of her Jewishness, then (and only then) may she celebrate becoming a bat mitzvah in the synagogue.

As to whether  we should “break her confidence”  by telling the father,  we must balance the Judaic values of honoring a confidence and avoiding needless gossip against the evil that would be caused should the fact of her baptism  not be revealed.[5] In general, we would say that the creation and maintenance of secrets within the family is a destructive  force that can only burden  this child. She should therefore  be encouraged  to raise the issue with her father.  Counseling,  of a personal  and a family nature, is a must in this situation. Yet since there is no emergency that would compel us to reveal this information, and given that state law may hold the rabbi liable for damages incurred  in the breaking  of a professional confidence, we would advise the rabbi against taking that step at this time. In any event, it is vital that the rabbi obtain  competent legal counsel before breaking  a professional confidence.

NOTES

1. See the Report  of the Committee on Patrilineal  Descent on the Status of Children  of Mixed Marriages, CCAR Yearbook 93 (1983): 157– 60; and the commentary in Rabbi’s Manual (New York: CCAR Press, 1988),  225–27.

2. On the significance of this point in Rashi’s understanding of Jewish status,  see Jacob Katz, “Af `al pi shechata  yisrael hu,”  in Halachah V’Kabbalah (Jerusalem: Magnes, 1984),  264 – 65.

3. Thus, a mohel should not perform  a b’rit milah for a child who will also be baptized (Questions and Reform Jewish Answers  [QRJA], no. 109). See also QRJA, no. 111.

4. Teshuvot for the Nineties  (TFN),  no. 5755.17, pp. 251–58.  The case there involved a mixed-married household in which two religions, Judaism and Catholicism, were practiced  actively and on an equal basis. The home, in other words,  was not a Jewish one, and the child raised in such a home cannot  acquire a “positive  and exclusive Jewish identity,” even if he or she receives a Hebrew  name, participates in religious education, etc.

5. For sources on and discussion of these issues, see TFN,  no. 5750.3, pp. 283–88.

 

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