Not Yet in Print (responsa published by the Responsa Committee, but not yet in bound collections)

RR21 no. 5759.7

CCAR RESPONSA

5759.7

The Second Festival Day and Reform Judaism

She’elah

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

Teshuvah

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

 

NOTES

 

  • Alexander Guttmann, “The Jewish Calendar,” in Peter S. Knobel, ed., Gates of the Seasons: A Guide to the Jewish Year (New York: Central Conference of American Rabbis, 1983), 10.
  • The sources are gathered by W. Gunther Plaut in The Rise of Reform Judaism: A Sourcebook of its European Origins (New York: World Union for Progressive Judaism, 1963), 195-199, from Protokolle der dritten Versammlung deutscher Rabbiner, Breslau, 1846, 208ff.
  • R. Solomon B. Freehof, Reform Jewish Practice and Its Rabbinic Background (Cincinnati: Hebrew Union College Press, 1963), 1:16, 19.
  • Michael Meyer, Response to Modernity: A History of the Reform Movement in Judaism (New York: Oxford U. Press, 1988), 373.
  • See the discussion by Lawrence A. Hoffman in Gates of Understanding 2: Appreciating the Days of Awe (New York: Central Conference of American Rabbis, 1984), 56-62.
  • See the meditations and blessings “For those who wear the Tallit” and “For those who wear Tefillin” in Gates of Prayer, 48-49.
  • Compare the fourth principle of the Pittsburgh Platform (Meyer, 388) with the language of Gates of Mitzvah, ed. Simeon J. Maslin (New York: Central Conference of American Rabbis, 1979), 40 (E-6) and 130-133.
  • For the way things were, see Freehof, Reform Jewish Practice 1:89 (the chupah is omitted from many Reform weddings), 96 (the kiddushin and nisu’in blessings are combined and only one glass of wine is used), and 98 (“the breaking of the glass is entirely omitted from Reform marriage ceremonies”). For the differences today, see Rabbi’s Manual (New York: Central Conference of American Rabbis, 1988), 50-59 and 239.
  • In 1893, the CCAR adopted a resolution which formally did away with the requirement for circumcision (milah) and ritual immersion (tevilah) in the conversion process; see American Reform Responsa (ARR), no. 68. Compare, however, Rabbi’s Manual, 210-215, which makes provisions for milah and tevilah, and 232, which offers an explanation for the use of the traditional rituals in Reform Judaism. See also Teshuvot for the Nineties (TFN), no. 5752.1, at 244-246, and the sources it cites, as well as our responsa no. 5756.6 (on the use of the mikveh for conversion) and 5756.13 (which provides a detailed critique of the scholarship employed in justification of the 1893 resolution).
  • See the fourth principle of the Pittsburgh Platform (Meyer, 388). This follows upon the third principle, which rejects the binding character of the Torah’s ceremonial legislation; “to-day we accept as binding only the moral laws.”
  • We say “roughly” because the term mikra kodesh is applied to Shabbat in Lev. 23:3, as is the term mo`ed, “appointed season.” The Sifra (perishta 9:1, cited by Rashi to the verse) notes this apparent discrepancy, asking: “what has Shabbat to do with the ‘appointed seasons’?” It answers that this comparison is brought as a means of strengthening the observance of the festivals: “when one desecrates a festival, it is as though he has desecrated the Sabbath.” The term is also applied to Yom Kippur (Lev. 23:27), even though the rules for abstaining from work on that day are equivalent to those for Shabbat and more stringent than those for the yamim tovim.
  • The term is melekhet avodah, translated variously as “servile work” or “working at one’s occupation.” Maimonides (Yad, Yom Tov 1:4) gives the traditional halakhic understanding of the term: melekhet avodah includes all the labors prohibited on Shabbat (melakhah; cf. M. Shabbat 7:2) with the exception of transferring fire (as opposed to kindling, which remains forbidden), carrying objects in the public thoroughfare and from one “domain” to another, and the activities involved in the preparation of food (to be consumed on the holiday itself; 1:9).
  • Both conditions are necessary in order for a day to be regarded as a yom tov; thus, Rosh Chodesh, on which additional sacrifices (musafin) were offered, is not a yom tov because labor is not biblically prohibited on that day. Similarly, the intermediate festival days of Sukkot and Pesach (chol hamo`ed) are not considered yamim tovim, even though they were the occasion for musaf sacrifices in the Temple. Although “unnecessary” sorts of work are prohibited on those days, one is traditionally permitted to undertake labor in order to avoid a substantial monetary loss, so long as the effort involved is not deemed “excessive.” See Yad, Yom Tov 7:1ff.
  • So Rambam (Yad, Yom Tov 1:1), after Lev. 23:36, even though Shemini Atzeret is regarded as a festival in its own right.
  • See Exodus 12:2, “this month (hachodesh hazeh) shall be for you (lakhem) the beginning of the months.” The Rabbis understand this to mean that God points out the form of the new moon (the demonstrative hazeh, or “this”) to Moses and Aaron (BT Menachot 29a), instructing them that the task of declaring the new month and setting the calendar shall be the exclusive responsibility of the beit din (lakhem, “for you,” i.e., the determination of the new moon shall be for you, Moses and Aaron and all your judicial successors, to accomplish; BT Rosh Hashanah 22a).
  • M.

Rosh Hashanah 2:8. See also Devarim Rabah, parashah 2, no. 14: when the angels gather to ask God when Rosh Hashanah will occur, God tells them to consult the earthly beit din, which has the authority, under Lev. 23:4, to determine the dates of the festivals.

  • Since Exodus 12:2 is understood to require that the new moon be physically seen and identified. In the absence of such testimony on the thirtieth day of the month, the first of the two days on which the new moon might appear, the court would declare the new month on the following day; see M. Rosh Hashanah 2:7.
  • See M. Rosh Hashanah 1:3: messengers were sent out following the new moons of Nisan, Av, Elul, Tishri, Kislev, and Adar, in order that the communities may know of the upcoming holidays and fasts. During the days of the Temple, messengers were also dispatched in Iyar, to inform the communities of Pesach Katan (Sheni; 15 Iyar).
  • BT

Beitzah 4b and Rashi ad loc., s.v. shel galuyot.

  • Yad

, Kiddush Hachodesh 5:5-6, and Yom Tov 1:21.

  • See Chidushey HaRitva, Rosh Hashanah 18a.
  • Yad

, Kiddush Hachodesh 5:8, based upon BT Beitzah 4b-5a and the ruling of Alfasi, fol. 3a. On the other hand, the talmudic discussion there suggests the possibility that Jerusalem and the land of Israel may have reverted to a one-day observance of Rosh Hashanah following the destruction of the Temple and the disappearance of the old eyewitness-based calculation of the new moon. There is evidence that this was indeed the case. See R. Zerachyah Halevy’s comment, in Sefer Hama’or Hakatan, to Alfasi, ad loc.: the requirement to observe two days of Rosh Hashanah in the land of Israel applied only during the time when the calendar was fixed by eyewitness testimony. Thereafter, “all the land of Israel took on the status of the Great Court” in this regard and observed one day. This situation held until “sages of Provence arrived and established there the custom of observing two days, according to the ruling of Alfasi.” R. Zerachya’s description of the practice in Eretz Yisrael is confirmed by paetanic, geonic, and later halakhic sources; for discussion of these see Charles L. Arian and Clifford E. Librach, “The ‘Second Day’ of Rosh haShana: History, Law and Practice,” Journal of Reform Judaism 32:3 (1985), 70-83, and Yosef Tabory, Mo`adey yisrael betekufat hamishnah vehatalmud (Jerusalem: Magnes, 1995), 231-232. Rabbi Solomon Freehof (Modern Reform Responsa, no. 51) concludes that Rosh Hashanah was observed for only one day in the land of Israel until the eleventh century. Yet there is also evidence for the opposite custom, namely that two days of Rosh Hashanah were observed in some places in Eretz Yisrael during the immediate post-talmudic period, possibly as a result of Babylonian influence; see the remarks of Ezra Fleischer in Tarbitz 53 (1984), 293-295.

  • BTBeitzah 4b.
  • See Magen Avraham, OC 624, end: since we know how to determine the month by means of mathematical calculation, and since our ancestors themselves did not institute a second day of Yom Kippur, why should we do it? According to Isserles, OC 624:5, the physical danger involved in a two-day fast is the reason we fast for only one day. On the other hand, we do have reports of at least some talmudic sages who fasted for two days; see BT Rosh Hashanah 21a. See Questions and Reform Jewish Answers, no. 66.
  • See Rashi, BT Beitzah 4b, s.v. veleima kasavar rav asi. According to a geonic tradition, the institution of yom tov sheni was an ordinance of the prophets; “thus did Ezekiel; thus did Daniel.” See Otzar Hageonim, Yom Tov, 3-9.
  • BT

Beitzah 4b, according to Rashi, s.v. degazrey. The Yershalmi version is found in PT Eruvin 3:9 (21c), end, the statement of R. Yose; see Peney Moshe and Korban Ha`edah ad loc.

  • See the argument of S. Herxheimer, Protokolle, 211.
  • Yad

, Kiddush Hachodesh 5:5. See also Yom Tov 1:21.

  • Yad

, Mamrim 2:2.

  • Hasagat HaRabad

, Mamrim 2:2. The case is that of neta reva`i, the produce of the fourth year of fruit-bearing trees, which is sanctified to God (Lev. 19:24). The Rabbis likened this to the “second tithe” (ma`aser sheni; Deut. 14:22ff), which was to be transported to Jerusalem and consumed there or, alternately, redeemed for money to be spent in Jerusalem (BT Kiddushin 54b; PT Ma`aser Sheni 5:2). An old takanah prohibited landowners living in close proximity to Jerusalem from redeeming their fruit. Instead, they were to carry the produce itself to Jerusalem, in order to adorn the city with the produce of the land (M. Ma`aser Sheni 5:2 and Bartenura ad loc.). Rabban Yochanan ben Zakai annulled this takanah, on the sensible ground that, following the destruction of the Temple, there was no longer any city to adorn (BT Beitzah 5a-b; Rashi 5b, s.v. ta`ama).

  • R. Yosef Karo (Kesef Mishneh to Mamrim 2:2) responds that perhaps Rabban Yochanan was actually “superior” to his predecessors and therefore had the legal power to depart from their takanah. This is an interesting departure from the general theory that the earlier authorities (rishonim) always enjoy greater stature than the later authorities (acharonim), and it is little wonder that Rambam’s other commentators (see Radbaz and Lechem Mishneh ad loc.) do not adopt it. But suppose that Karo has a point: could it not be that other generations than that of R. Yochanan ben Zakai are to be regarded as enjoying equal or superior stature to that of their predecessors?
  • See R. Eliezer Berkovits, Halakhah: kochah vetafkidah (Jerusalem: Mosad Harav Kook, 1981), 173, and Herxheimer, 212.
  • Tosafot

, Beitzah 6a, s.v. ha’idana; Hil. HaRosh, Beitzah 1:5.

  • Commentary of R. David ibn Zimra (Radbaz), Mamrim 2:2. The difference is that in some cases, we may be aware of the reason for the takanah even if the sources do not state it explicitly. In those cases, one may conclude that the takanah was meant to last even in the absence of that reason. When, however, the rabbis declare that “we are doing this on account of X,” they are telling us that their ordinance lasts only so long as X does. Note, too, that Radbaz does not contend that the later court “annuls” (mevatel) the words of its predecessor; rather, the earlier takanah loses its own force (nitbatlah), regardless of the lesser authority of the later court as compared to the earlier one. On all this, see Berkovits, 171-174.
  • Berkovits, 175.
  • “A decree is not imposed upon the community unless the majority of the community is able to abide by it”; BT Avodah Zarah 36a and parallels. And see Yad, Mamrim 2:7: a gezerah that was mistakenly thought to have been accepted by “all Israel” can be annulled by a subsequent court. The problem here, of course, is that the decree establishing yom tov sheni was in fact accepted by all Israel for hundreds of years prior to the nineteenth century. We would respond that the economic and social conditions of Western society following the Emancipation were of a fundamentally different nature than those facing the Jews prior to that era. As such, the Jews of modernity could not have been included in the original gezerah, and their inability to abide by it must be taken as a serious challenge to its applicability in their communities.
  • See Herxheimer in Protokolle, 214-215.
  • See Daniel Freelander, Robin Hirsch, and Sanford Seltzer, Emerging Worship and Music Trends in UAHC Congregations (New York: UAHC, 1994), 1: 206 Reform congregations, or 38 percent of those responding to a survey on ritual practice, noted that they observed two days of Rosh Hashanah. Anecdotal evidence suggests to us that the figure is higher today.
  • See note 16.
  • “All that is forbidden on the first day of yom tov is similarly forbidden on the second… There is no distinction between the first and second days of yom tov, except for burying the dead and painting the eye (for medical purposes)”; SA OC 496:1-2, and see OC 526 for the rules concerning preparations for burial on the festival.
  • Gates of the Seasons

, 133, n. 174.

  • Current Reform Responsa

, no. 10.

  • See Gates of Understanding (New York: CCAR, 1977), 271.

 

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5766.2

CCAR RESPONSA

5766.2

When A Parent Requests Cremation

She’elah

A man, who is approaching death, has instructed that his body be cremated. His children are very uncomfortable with this request. They ask whether, under Jewish tradition, they are obliged to honor it, or are they entitled to bury him intact, in contradiction to his express wishes? Rabbi Solomon B. Freehof has ruled that in such a case we apply the Talmudic dictum “it is a mitzvah to fulfill the wishes of the deceased” (B. Gitin 40a and elsewhere). I wonder, however, if a more nuanced approach is better suited to a case such as this, where the children have strong religious objections to their father’s instruction? (Rabbi David Katz, Binghamton, NY)

Teshuvah

In the responsum that our sho’el mentions, Rabbi Freehof rules that “we should urge” the family to carry out a father’s wish to be cremated.[1] He acknowledges that the principle “it is a mitzvah to fulfill the wishes of the deceased” is not absolute; we are in fact forbidden to fulfill the wishes of the deceased if he or she instructs us to commit a transgression against Jewish law.[2] Thus, an Orthodox rabbi would surely rule against the request: “since cremation is contrary to Jewish law, the man’s wish contravenes the law and may not be carried out.” However, since the question has been posed to a Reform rabbi, “the answer cannot be so clear-cut.” For us, cremation does not necessarily “contravene the law”; the Central Conference of American Rabbis (CCAR) resolved in 1892 that “in case we should be invited to officiate” at a cremation, “we ought not to refuse on the plea that cremation be anti-Jewish or irreligious.”[3] Rabbi Freehof notes that there is no clear and obvious prohibition against cremation in the sources of Jewish law and that “the Orthodox agitation against cremation actually began about a century ago” in response to the growing movement toward cremation in Western societies. Indeed, “when one studies the (Orthodox) arguments adduced against cremation, one can see that they are forced.” On this basis, Rabbi Freehof concludes that Reform Jews can have no principled religious objections to cremation. In the instant case, unless the man’s family is Orthodox, we should counsel them to honor his instruction. “Surely, if we officiate at a cremation, we cannot refrain from fulfilling or encouraging the fulfillment of a man’s wish for this type of disposal of his body.”

We have quoted at length from Rabbi Freehof’s responsum because we do not want to minimize the challenge that faces us. Our sho’el is asking that we rule against our teacher, and we are ordinarily reluctant to do so.[4] We would argue, though, that the times demand a different response. For one thing, the situation is no longer “so clear-cut”; the Reform position on cremation is more complex today than it was when Rabbi Freehof wrote his teshuvah. We also think that our attitude toward the maintenance and encouragement of traditional forms of Jewish observance has changed quite a bit over the last several decades. For these reasons, we hold that the children in this case may well be entitled to act upon their own religious beliefs and not to fulfill their father’s request.

In order to make this argument, we shall have to consider, first of all, the attitude of Jewish law and tradition toward cremation as a means of the disposal of human remains. We shall then look at the developing Reform Jewish attitude toward cremation as expressed in the literature of the CCAR. Finally, we shall consider this particular case in the context of Jewish tradition, Reform Jewish practice, and the ethical obligations that the children may owe to their dying father.

1. Cremation in Jewish Law. There is no explicit requirement in the Biblical text that the dead be buried rather than cremated. The sources make clear that burial was the normative practice in ancient Israel,[5]  but nowhere do we find an express prohibition of the burning of the corpse. The Rabbis understand burial to be a requirement of Torah law, derived from Deuteronomy 21:23.[6] Maimonides codifies the law as follows: “If the deceased gave instructions that his body not be buried, we ignore him, inasmuch as burial is a mitzvah, as the Torah says (Deut. 21:23), ‘you shall surely bury him.’”[7] Yet like the Bible, the Talmud and the classical halakhic literature contain no explicit prohibition of cremation. The subject seems almost never to have come up, most likely because cremation was simply not practiced by the Jews and no one thought to ask whether it was permitted or forbidden.[8] The silence lasted until the nineteenth century, “when cremation became an ideal that was agitated for through many societies in the western lands.”[9] At that time, the leading halakhic authorities condemned cremation as a transgression against Jewish law, an opinion that remains the consensus viewpoint.[10] This prohibitive opinion rests primarily on two halakhic grounds. First, cremation does not fulfill the commandment to bury the dead, based as we have seen on Deuteronomy 21:23. Burial of the cremains would not rectify this, since the mitzvah of burial applies to the body itself and not to its ashes.[11] Second, Jewish tradition mandates kevod hamet, that we treat the corpse with honor and respect, and it regards the burning of a body as an act of nivul (or bizayon) hamet, contemptible treatment of a corpse.[12] Other arguments include the prohibition against imitating Gentile customs (chukot hagoyim)[13] and the contention that cremation is tantamount to an act of heresy in that it denies the belief in techiyat hametim, the physical resurrection of the dead.[14]

These arguments may or may not be “forced,” as Rabbi Freehof describes them. Some of them may be more persuasive than others. What is certain, though, is that Orthodox authorities are united in the opinion that cremation violates traditional Jewish law, an opinion shared by Conservative[15] and Reform[16] writers.

2. Cremation in the Literature of the CCAR. Our Conference has published a number of statements with respect to cremation.

a. The 1892 resolution, referred to above, declares that “in case we should be invited to officiate as ministers of religion at the cremation of a departed co-religionist, we ought not to refuse on the plea that cremation be anti-Jewish or anti-religion.”[17] The resolution followed upon the report of a special committee, chaired by Rabbi Bernard Felsenthal, that had been appointed to study the issue. The report made two essential points. First, it demonstrated at some length that the practice of cremation was contrary to Jewish law and tradition.[18] Second, it sought to avoid the substantive issue of whether to endorse cremation as a method for disposal of human remains. “The writer of this does not wish to be understood that he pleads for cremation. He also does not oppose it.” Since a rabbi is not “a competent expert” in the matter of whether cremation is “preferable” to burial, the only motion “in order in a rabbinical conference” is one that calls upon rabbis, whatever their position concerning cremation, to provide pastoral care for those of their people who do choose the procedure.[19]

b. The 1961 Rabbi’s Manual, recounting the 1892 resolution, states: “Since that time, most Reform Jews have gone beyond this cautious tolerance and have accepted cremation as an entirely proper procedure. A number of leading Reform rabbis have requested that their bodies be cremated.”[20] In its section on funeral liturgy the Manual contains a prayer suggested for recitation when “the body is to be cremated.”[21]

c. The 1974 responsum of Rabbi Freehof discussed at the beginning of our teshuvah.

d. Gates of Mitzvah, a guide to Reform Jewish life-cycle observance published in 1979, stresses that “while both cremation and entombment in mausoleums are acceptable in Reform Judaism, burial is the normative Jewish practice.”

e. In1980 the CCAR Responsa Committee appended a comment to the 1892 resolution. It notes that the resolution “remains unchallenged policy within our Conference,” but adds: “In this generation of the Holocaust we are sensitive to terrible images associated with the burning of a body. Rabbis may, therefore, choose to discourage the option of cremation. The practice remains permissible, however, for our families.”[22]

f. The current Rabbi’s Manual, published in 1988, states: “We continue to stress that burial is the time-honored Jewish way of disposing of the dead… However, the practice of cremation has lately spread, for a number of reasons. We would reiterate that it ought to be discouraged if possible, especially in our generation which has seen the murderous dispatch of millions of our people by way of crematoria. If, however, cremation has been decided upon by the family, we should not refuse to officiate. It is suggested in such cases that the service be held at an appropriate place and not at a crematorium.”

g. A 1990 responsum notes: “Reform Jewish practice permits cremation… although… we would, after the Holocaust, generally discourage it because of the tragic overtones.”[23]

The record of these statements suggests a perceptible shift of attitude toward cremation within North American Reform Judaism during recent decades. While our earlier pronouncements accept cremation as permissible or even as “entirely proper,” the Conference since 1979 has pulled back from that affirmative stance. Although acknowledging that the 1892 resolution remains on the books and that Reform Jewish practice “permits” cremation, our more recent statements call upon rabbis to actively “discourage” the practice. This negative position is based upon two threads of argument: that burial is the normative traditional Jewish practice and that, after the Holocaust, cremation has become associated with one of the darkest periods in Jewish and human history.

These threads of argument, in turn, reflect two important transformations in the way that many Reform Jews have come to think about their religious lives and decisions. The first has to do with the positive reevaluation of “tradition.” In the past, the fact that a particular observance was “traditional” or accepted Jewish practice did not in and of itself recommend that observance to Reform Jews. Indeed, we were quite ready to dispense with any such practices that were “not adapted to the views and habits of modern civilization” and that “fail to impress the modern Jew with a spirit of priestly holiness.”[24] It is for this reason that Rabbi Felsenthal could argue both that cremation was a transgression against traditional Jewish law and that this fact was irrelevant to Reform Jewish thinking on the subject:

Joseph Qaro’s Code is of no obligatory authority to you. The Talmud is of no obligatory authority to you. Even the laws of the Bible as such are of no obligatory authority to you… Shall we for the sake of the living inquire of the dead? Shall we for the sake of the living open the old folios, and submit to what they have said hundreds of years ago under quite different conditions of life? Shall we learn there whether or not cremation is in accord with the spirit of Judaism?[25]

Rabbi Felsenthal’s words remain an eloquent expression of a central article of Reform Jewish faith. To this day, we affirm our right to define the “spirit of Judaism” and to abandon, alter, or replace old practices that we no longer find religiously meaningful. In this view, we cannot declare to Reform Jews that cremation ought to be forbidden solely because it runs counter to the halakhah or to the customs of our ancestors.

In recent decades, however, a new attitude has taken hold within our community. We have described it as follows:

(M)any of us have reclaimed ritual observances abandoned by previous generations of Reform Jews, from the generous use of Hebrew in the liturgy, to the wearing of kipah, talit and tefilin, to the dietary laws (kashrut), to the ceremonies surrounding marriage and conversion. These examples – and more could be cited – testify that our approach to traditional ritual practice differs significantly from that of our predecessors. This difference stems, no doubt, from the divergent religious agenda that we have set for ourselves. If our predecessors regarded their acculturation into the surrounding society as a predominant objective, we who benefit from the social and political gains that they achieved are more concerned with taking active measures to preserve our distinctive Jewishness. Thus, where they may have viewed many ritual observances as barriers to social integration and as obstructions to “modern spiritual elevation,” we may find them an appropriate and desirable expression of our Jewish consciousness.[26]

This is what we mean by the positive reevaluation of “tradition.” The point is not that traditional practices exert, to use Rabbi Felsenthal’s words, “obligatory authority” upon us. The point, rather, is that we take the Bible, the Talmud, and even “Joseph Qaro’s Code” more seriously than we did in his day as positive influences upon our own religious behavior. We are now more inclined than ever before to adopt or to preserve a ritual observance precisely because it is “Jewish.” We are more likely to regard a practice’s traditional pedigree as a reason for maintaining it, especially when there are no compelling moral or aesthetic arguments against that practice. We are therefore today more likely – though not obligated – to oppose cremation on the grounds that burial is a mitzvah, the “normative” Jewish way of disposing of human remains.

 

We might in a similar way explain our differences over whether cremation constitutes an act of nivul hamet (contemptible treatment of a corpse). A Reform Jew is certainly entitled to define this term in a way that is “adapted to the views and habits of modern civilization.” Cremation is widely accepted in Western culture as an honorable way of treating human remains. We are therefore under no obligation to regard it as an act of nivul hamet solely because some rabbinic texts portray it as such. Yet to say that we are not obligated to adopt the traditional definition does not entail that we are forbidden to do so. It is true that concepts such as “honor” and “disgrace” do not admit of objective definition. All this means, however, is that such terms can only be defined from within a particular social context; to reach these definitions, we must choose to work within a particular culture’s set of values and affirmations. The particular culture that is Jewish tradition declares the burning of the corpse to be an act of nivul or bizayon. A Reform Jew today who finds special and satisfying meaning in the values and affirmations of Jewish tradition is thus entitled – though, again, not obligated – to adopt this definition precisely because it flows from the religious and cultural heritage of our people.

 

The second transformation in our religious thinking concerns our sensitivity to the experience of the Shoah (Holocaust). There is, to be sure, all the difference in the world between the Nazi crematoria and the freely-made choice of cremation for ourselves and our loved ones. We should, moreover, be wary of invoking the memory of the Shoah as a facile justification for decisions concerning religious practice.[27] Yet for all that, the Jewish world is a different place now, “after Auschwitz,” than it was before. Neither we nor our religious consciousness has emerged unchanged from our confrontation with that event. And one such change, as the recent statements of our Conference affirm, has to do with our attitude toward the machinery of cremation. The images of fire, ovens, and smokestacks, which we recall so vividly when we contemplate the mass murder of our people, can and do persuade many liberal Jews that today, after Auschwitz, the consigning of our dead to the flames is not the proper Jewish way to honor them.[28]

 

We emphasize that we are dealing here with general trends. To speak of transformations in our religious thinking is to describe what is happening within large segments of the Reform Jewish community rather than to prescribe a correct course of action in a specific instance. Not all Reform Jews are affected in the same way by these trends, and not every Reform Jew will draw from them the same conclusions concerning his or her religious observance. As a noted jurist once remarked, “General propositions do not decide concrete cases.”[29] Yet in this particular concrete case, the Conference has moved decisively away from its previous acceptance of cremation. The members of this Committee reiterate this stance. Although we, like our more recent predecessors, continue to acknowledge that the 1892 resolution remains the formal policy of the CCAR, we would continue to call upon our rabbis to discourage the practice of cremation among our people. We do so for three primary reasons. First, burial is the normative traditional Jewish practice; as such, it is a mitzvah that exerts a strong persuasive force upon us. Second, we note the absence of convincing moral or aesthetic objections to the practice of traditional burial that would move us to abandon it.[30] Finally, we concur with our predecessors that today, after the Shoah, the symbolism of cremation is profoundly disturbing to us as Jews.

 

3. The Question Before Us. How should the children of whom our she’elah speaks respond to their father’s request? Considering all the above, we would counsel the following.

 

a. The North American Reform movement does not regard cremation as a “sin.” The 1892 resolution of the CCAR calls upon rabbis to officiate at cremation services, and despite our reservations concerning cremation, we hold that the procedure does not “contravene the law.” Therefore, the children are not forbidden to honor this request, and they may arrange for cremation in response to the mitzvah to honor our parents and to the dictum that we should seek to fulfill the wishes of the deceased.

 

b. Nonetheless, the children are not obligated to honor their father’s request. The CCAR discourages the choice of cremation; it supports the choice of traditional burial; and Reform thought today recognizes the right of our people to adopt traditional standards of religious practice that previous generations of Reform Jews may have abandoned. The commandment to honor one’s parents does not apply in such a case, for a parent is not entitled to compel his or her children to violate their sincerely held Judaic religious principles.[31] Thus, when a Reform Jew has serious and substantive religious objections to cremation, he or she may refuse a loved one’s request for it.

 

c. By “traditional burial,” we do not mean to endorse many of the practices that, although associated with burial in the public mind, would be deemed as excessive or inappropriate by many of us. Among these are such elaborate and unnecessary steps as embalming, expensive caskets, and the like. Jewish tradition emphasizes simplicity and modesty in burial practices; individuals should not feel driven to choose cremation in order to avoid the expense and elaborate display that all too often accompany contemporary burial.[32]

 

d. It is essential that families speak about such matters openly, honestly, and before the approach of death. When the child fails explicitly to say “no” to a parent’s request for cremation, the parent will justifiably think that the child has agreed to carry out that instruction. In such a case, the child quite likely has made an implied promise to the parent and thus bears an ethical responsibility to keep it. Therefore, if the children have objections to cremation, they should make their feelings known to their parents sooner – much sooner – rather than later.

NOTES

1.         “Family Disagreement Over Cremation,” Contemporary Reform Responsa (1974), no. 51.

 

2.         See the midrash cited in  B. Yevamot 5b. Leviticus 19:3 says: “Each of you shall revere his mother and father, and you shall keep my Sabbaths.” The midrash explains that the second clause comes to limit the scope of the first: we “revere” our parents (i.e., we fulfill their wishes) so long as they do not instruct us to contravene the laws of the Torah, of which Shabbat is an example. See also Yad, Mamrim 6:12 and Shulchan Arukh Yoreh De`ah 240:15.

 

3.         American Reform Responsa (ARR), no. 100 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=100&year=arr). A much more complete version of the debate that led to the adoption of this resolution can be found in CCAR Yearbook 3 (1893), 53-68.

 

4.         We have on occasion differed with Rabbi Freehof. Often, this is due to transformations in the religious outlook of Reform Jews from his day to ours. Such changes are inevitable over the course of time, so that by responding to them we do not believe that we do any dishonor to Rabbi Freehof’s teachings or to his accomplishments in the field of Reform responsa, a genre he did so much to develop. In fact, we think he would be pleased that we, his successors, continue his work in the spirit of free and critical inquiry, an ideal which he always championed and to which our movement has long pledged loyalty. On the other hand, we are aware that were he with us Rabbi Freehof would no doubt offer cogent responses to our objections. We don’t do this lightly; after all, as the Talmud cautions, “do not contradict the lion after his death” (B. Gitin 83a-b).

 

5.         “There is no evidence that corpses were cremated in Palestine, except in days long before the coming of the Israelites, or among groups of foreigners; the Israelites never practiced it”; Roland de Vaux, Ancient Israel (New York: McGraw-Hill, 1965), volume 1, 57. See also Encyclopedia Mikra’it, v. 7, 4-5: “it is clear that (cremation) was not generally practiced.” This doesn’t mean that it never happened. Amos 6:10 speaks of the mesaref who comes to the house during time of plague to collect the bones of the dead, presumably for burning (s-r-f). Scholars, however, are unsure of the precise explanation of the term; see F. I. Anderson and D. N. Freeman, The Anchor Bible: Amos (New York: Doubleday, 1989), 572, 574. Then there is the burning of the corpses of Saul and his sons by the men of Yavesh-Gilead (I Samuel 31:12-13). This detail causes some obvious perplexity and embarrassment to later writers; the Chronicler (I Chron. 10:12) omits it entirely, and the traditional Jewish commentators are at pains to explain it away. From this, we can learn two important points: first, that cremation was not unheard of in ancient Israel, and second, that later Jewish tradition did not derive any positive support for the practice of cremation from these isolated references.

 

6.         Although that verse speaks of the body of an executed offender, its requirement of burial is interpreted to apply to all the dead. See B. Sanhedrin 46b, which cites the verse as a remez(a hint; an indication) to the fact that burial is a Toraitic obligation.

 

7.         Yad, Avel 12:1. See also Rambam’s Sefer Hamitzvot, pos. comm. no. 231. In the Talmud (B. Sanhedrin 46b) we find a dispute over whether the purpose of burial is to safeguard the corpse from contemptible treatment (mishum bizyona) or to effect atonement (kaparah) for the deceased. If the latter is the case, the Talmud suggests that the deceased would be within his rights to instruct his heirs not to bury him, since he is entitled to refuse atonement for himself. The dispute is not firmly resolved (Hilkhot Harosh, Sanhedrin 6:2); therefore, say some authorities, we ought to rule strictly and require burial, inasmuch as the Torah mentions it (Sefer Or Zaru`a, Hilkhot Avelut, ch. 422). R. Yosef Karo (Kesef Mishneh, Hilkhot Avel 12:1 and Beit Yosef, Yoreh De`ah 348) arrives at a similar conclusion, which he attributes to Nachmanides. The Lechem Mishneh (Yad, Avel 12:1) argues that this dispute is relevant only for those who hold that the mitzvah of burial is of Rabbinic origin. Maimonides, quite clearly, holds that it is a Toraitic commandment. In any event, we find no evidence in the traditional halakhah that one is in fact entitled to instruct his heirs not to bury him.

8.         In the 13th century, R. Shelomo ben Adret permitted mourners, who wanted to transport their father to a family plot, to put quicklime on the corpse in order that the flesh be consumed rapidly and to spare it the dishonor (bizayon) of rotting (Resp. Rashba 1:369; see Isserles, Yoreh De`ah 363:2). Does this serve as a precedent to allow cremation? Most likely, the answer is no. For one thing, not everyone would be persuaded that fire is analogous to quicklime. For another, subsequent interpreters have limited Rashba’s decision to precisely this sort of case: the exhumation and transport of a corpse for permanent burial. See the 18th-century R. Ya`akov Reischer (Resp. Shevut Ya`akov 2:97), who permits quicklime in a case where the alternative to transporting the corpse would be to bury it in a place where it could not be protected and would necessarily suffer bizayon. See also Arukh Hashulchan, Yoreh De`ah 363, par. 2. This line of thinking, in other words, deals with exceptional circumstances and not to the use of cremation as a regular means of disposing of human remains.

 

9.         Freehof (see note 1), at 230. Does this mean, as Rabbi Freehof suggests, that cremation is considered a transgression only because of the 19th-century Orthodox “agitation” against it? Not necessarily. It is just as likely that cremation would have been explicitly prohibited had the question been raised during the 17th century, or the 13th, or earlier. The question was not considered until the practice became widespread in the West.

 

10.       R. Yitzchak Shmelkes, Resp. Beit Yitzchak, Yoreh De`ah 2:155; R. David Zvi Hoffmann, Resp. Melamed Leho`il, 2:113-114; R. Chaim Ozer Grodzinsky, Resp. Achiezer 3:72; R. Avraham Yitzchak Hakohen Kook, Resp. Da`at Kohen, no. 197; R. Ya`akov Breisch, Resp. Chelkat Ya`akov, Yoreh De`ah, no. 203; R. Yekutiel Greenwald, Kol Bo `al Avelut, 53-54; R. Yechiel M. Tykocinski, Gesher Hachayim 16:9.

 

11.       Hoffman (see note 10) learns this from Y. Nazir 7:1 (55d): Deuteronomy’s commandment to “bury him”applies to the entire body (kulo, or at least to the major part of the body) and not to a small portion of it (miktzato). He points as well to the fact that the ashes of a burnt human corpse, unlike the corpse itself, are not a source of ritual impurity (M. Ohalot 2:2; Yad, Tumat Met 3:9-10). In other words, burnt remains are not a “body” such as requires burial under the law. Grodzinsky (note 10) notes simply that ashes are not the “body” of the dead person. Although it may be proper (rau’i) to bury the ashes of those who have been accidentally burned in a Jewish cemetery, he concludes, no actual obligation is fulfilled thereby.

 

12.       Among other prooftexts, the authorities point to the law that permits the removal of a corpse on Shabbat from a courtyard in which a fire has broken out. Transferring the corpse under normal conditions would violate the rules concerning the moving of objects on Shabbat, but it is permitted in this case because it would be a disgrace (bizayon) to the body were it consumed in the fire. See Shulchan Arukh Orach Chayim 311:1 and commentaries (the latter make it clear that the permit to remove the body extends to transferring it to another reshut.). Although the Magen Avraham commentary to that passage (no. 3) suggests that burning would not be a case of bizayon hamet (or, at least, not enough of a bizayon to warrant setting aside the restrictions of Shabbat), his opinion is rejected by virtually all other commentators.

 

13.       Leviticus 18:3 and 20:23. On the issue, see our responsum “Blessing the Fleet,” Teshuvot for the Nineties, no. 5751.3, pp. 159-164 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=3&year=5751).

 

14.       See Freehof (note 1, above) at 230. This point does appear in the writings of some of the authorities cited in note 10. It is, however, a somewhat tangential argument. The poskim do not spend much time developing it, nor do they present it as the major focus of their objection to cremation. It is unfortunate, therefore, that Rabbi Freehof cites this contention as his only example of the “arguments adduced (in the last century) against cremation,” which he describes as “forced.” This might give the reader the erroneous impression that Orthodox opposition to cremation is founded mainly upon a doctrine that we Reform Jews have long since rejected, at least in its literal form. In fact, the Orthodox writers invest a great deal more intellectual effort into the halakhic arguments that we have noted, namely that cremation does not fulfill the mitzvah of burial and that it constitutes an act of bizayon hamet.

 

15.       See the responsum authored by Rabbi Morris N. Shapiro, “Cremation in the Jewish Tradition,” issued in 1986 by the Committee on Jewish Law and Standards of the Conservative movement’s Rabbinical Assembly (http://rabbinicalassembly.org/teshuvot/docs/19861990/shapiro_cremation.pdf) .

 

16.       See at notes 18 and 19, below.

 

17.       See note 3, above.

 

18.       This was in response to a paper delivered at a previous conference by Rabbi Max Schlesinger (CCAR Yearbook 2 (1892-1893), 33-40. Schlesinger’s argument, namely that cremation was “the primitive custom among the Hebrews” (p. 36), was thoroughly refuted by Felsenthal and his committee.

 

19.       CCAR Yearbook 3 (1893), 67-68.

 

20.       Rabbi’s Manual (New York: CCAR, 1961), 140.

 

21.       Ibid., 90.

 

22.       Found at the conclusion of ARR, no. 100 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=100&year=arr).

 

23.       Questions and Reform Jewish Answers (QRJA), no. 191; (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=191&year=narr ).

 

24.       The “Pittsburgh Platform” of 1885, paragraphs 4 and 5. A text is available at http://www.ccarnet.org/documentsandpositions/platforms.

 

25.       CCAR Yearbook 3 (1893), 66.

 

26.       Responsa Committee, no. 5759.7, “The Second Festival Day and Reform Judaism” (notes omitted) (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=7&year=5759).

 

27.       An argument in this vein can be found in our responsum “A Defective ‘Holocaust’ Torah Scroll,” no. 5760.3 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=3&year=5760).

 

28.       The above paragraph reflects the ways in which the CCAR, through the publications we have cited, has described this particular “transformation in our religious thinking.” Rabbi David Lilienthal, a corresponding member of our Committee, notes that the reaction of survivors of the Shoah may be quite different. His work in Europe with many survivors and children of survivors indicates that some may be inclined to choose cremation for themselves as a sign of solidarity with murdered family members. Other members of our Committee report that they have detected no such tendency among survivors and descendants. In any event, we stress again that we are referring here to general trends and that, when it comes to the perception of the symbolic meaning of particular ritual acts, one community may well differ from another.

 

29.       Justice Oliver Wendell Holmes, Jr., dissenting in the case of Lochner v. New York (198 U.S. 45, 76). He continues: “The decision will depend on a judgment or intuition more subtle than any articulate major premise.”

 

30.       This is not to say that such objections cannot be raised but rather that they do not persuade us that there is a compelling reason to adopt cremation as the standard procedure for the disposal of human remains. Individuals, of course, may be impressed by arguments to this effect, but we as a Committee are not. Although this is not the place for a lengthy discussion of specific issues, we think that the ecological and economic criticisms that are raised from time to time against traditional burial can be addressed in ways that do not entail the choice of cremation. See the article by our colleague Daniel Schiff, “Cremation: Considering Contemporary Concerns,” Journal of Reform Judaism 34:2 (Spring, 1987), 37-48, and see below in the text at note 32.

 

31.       See our responsum no. 5766.1, “When A Parent Instructs A Child Not to Say Kaddish.”

 

32.       See Gates of Mitzvah, 55. We should follow the example of Rabban Gamliel, who instructed that he be buried in simple linen shrouds rather than expensive ones to demonstrate that burial need not impose a crushing financial burden upon the mourners; B. Mo`ed Katan 27b.

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5765.2

CCAR RESPONSA

5765.2

Times for the Shacharit Service

She’elah

A congregant has asked that a Sabbath morning service, during which her daughter will lead the congregation in worship as a Bat Mitzvah, will read Torah, haftarah and offer a devar torah, begin as late in the morning as possible, perhaps as late as 11:30 AM or even 12 noon. She makes this request so that her elderly and ill father, the grandfather of the Bat Mitzvah, will be able to participate and to fully appreciate the service and the efforts of his granddaughter, as she demonstrates her commitment to Judaism as a young Jewish adult. He is suffering from a severe illness and is not fully aware until late in the morning or early afternoon. The family and the Bat Mitzvah want to participate in a Sabbath morning service, as they feel that it is more rewarding than the shorter minchah, afternoon service.

Our congregation does not normally have a Sabbath morning or afternoon service. The Friday eve service is the “flagship” service of our Temple. Sabbath morning services are held only when a Bar Mitzvah or a Bat Mitzvah leads our congregation in worship. Such Sabbath morning services have begun as early as 10:00 AM or as late as 11:00 AM. (Rabbi Harry D. Rothstein, Utica, NY)

Teshuvah

This she’elah, in addition to the particular case it addresses, raises a more general issue. It is the common custom (minhag) for Reform congregations in North America to begin their Shabbat morning services (shacharit) at 10:00 AM or later. This custom is no accident, and it did not emerge for reasons of mere convenience. We have established it in order to facilitate a larger attendance at worship services, which enables more people[1] to fulfill the mitzvah of tefilah betzibur, the traditional Jewish preference for public over private prayer.[2] Yet alongside this positive goal, our late starting times ensure that the congregation will recite the central rubrics of the morning liturgy – the shema and the tefilah – at an hour later than is prescribed for them according to the codified halakhah. This fact might lead to two conclusions. On the one hand, it might suggest that our prayers, because we say them “late,” are invalid in the eyes of Jewish law. On the other hand, it might raise the suspicion that Reform Judaism is indifferent to the question of proper times for prayer, which would mean that it is of no consequence whether this synagogue schedules its morning service at 11:30 AM, at noon, or even later.

Both these conclusions, in our view, are erroneous. To establish this point, we want first to consider the general issue: does the Jewish legal and liturgical tradition offer support for our minhag to begin services late in the morning? We will then turn to the case at hand: given that we do begin our services during the late morning, do we nonetheless recognize a time limit, a terminus ad quem beyond which a morning service should not begin? And if so, should we insist upon that time limit in a difficult case such as this one?

  1. The Morning Shema. The shema, according to our Rabbinic tradition, is to be recited “when you lie down and when you rise up” (Deuteronomy 6:7), that is, in the evening and in the morning.[3] Although the precise time for the recitation of the morning shema is the subject of a dispute in the Mishnah,[4] the settled halakhah is that one must recite it by the end of “the third hour” of the day, the time by which the vast majority of the community have “arisen” from sleep.[5] The hour to which our sources refer is a “temporal hour” (sha`ah zemanit), that is, a segment consisting of one-twelfth of the period of daylight on a particular day. Thus, the “end of the third hour” is equivalent to the first quarter of the daylight period.[6] As we note above, few Reform congregations ever recite the shema before that time.

The tradition, however, is more complex than the above might indicate. For one thing, although one should recite the morning shema before the end of the third hour, it is not forbidden to recite it afterwards. The Mishnah states that “one who recites it (after the third hour) loses nothing; he is as one who reads (the shema) in the Torah,” fulfilling the mitzvah of Torah study if not the mitzvah of reciting the shema at its proper time.[7] Moreover, one is encouraged to recite the shema even though one has missed its “deadline,” for “it is good to accept upon oneself the yoke of the Kingdom of Heaven” at any time of day.[8]Maimonides declares that if one has not recited the shema before the end of the third hour, one may recite it along with its accompanying blessings (Yotzer Or, Ahavah Rabah, and Emet Ve-yatziv)[9] throughout the day.[10] Other scholars do not go so far, but they nonetheless allow the recitation of the shema and its accompanying blessings until noon, the latest acceptable time for the recitation of the tefilah (see below).[11] Although these rulings are controversial,[12] they raise the possibility that the entire day is the “proper time” for the fulfillment of the mitzvah.[13] This interpretation is suggested by R. Yosef Karo, the author of the Shulchan Arukh, in his commentary to Rambam’s Mishneh Torah. In Karo’s view, Rambam holds that the “by the end of the third hour” rule is a Rabbinic stringency imposed upon the basic Toraitic (de’oraita) standard, which requires only that the shema be said during the daytime, the time of “rising up.”[14]

Most authorities do not accept this interpretation of Maimonides; for them, the “proper time” for reciting the morning shema, even according to the Torah, is the first quarter of the day.[15] Yet the undeniable existence of this interpretation, along with the fact that it is not forbidden to recite the shema and its blessings after the end of the third hour, offers support for our Reform practice to recite the shema after 10:00 AM. Given the positive reasons for which we schedule our services later in the morning, we believe that we stand upon solid traditional ground.

  1. The Morning Tefilah. The Mishnah records the following dispute: “The morning tefilah (tefilat hashachar) is recited until noon; Rabbi Yehudah says it is recited until the end of the fourth hour.”[16] The argument centers over a disagreement as to when the tamid shel shachar, the public morning sacrifice brought daily in the Temple, was offered at noon or by the end of the fourth hour.[17] The halakhah is decided according to R. Yehudah;[18] hence, the morning tefilah must be recited before the end of the first third of the daytime. Again, many Reform services would miss this deadline, reciting the tefilah later than its set time. On the other hand, one who recites the tefilah after the fourth hour but before noon – the mid-point of the daylight hours – fulfills the mitzvah of prayer, even though he or she does not achieve the merit of praying at the set time.[19] Reform congregations do recite the tefilah prior to noon.

Further, we would note that the traditional set times for the tefilot are not relevant in a Reform Jewish context. Each of the fixed prayers – shacharit, minchah, arvit, and musaf – is scheduled to correspond to a sacrifice or a related event at the ancient Temple.[20] Reform Judaism has long since abandoned this connection.[21] We have instead returned to a different, earlier understanding of prayer times,[22] one that schedules prayer not according to activities in the Temple but according to “astronomical” criteria, to the time of day. The Talmud itself cites Daniel’s custom to pray three times daily and suggests with the Psalmist that these times are “evening, morning, and afternoon.”[23] We pray at these times of day, in other words, not because our ancestors brought sacrifices at those hours but because they are regarded as natural and proper times to turn to God with words of praise and supplication. If morning is one of those times, then we should define it in the way it is customarily defined in our culture, not by its association with the tamid shel shachar: “morning” is that part of the day prior to noon. And as we have noted, we begin our services later in the morning in order to enable more people to attend them and to fulfill the mitzvah of public prayer.

  1. Service Times and Exceptional Circumstances. Our Reform custom to hold services in the late morning is therefore a valid expression of Jewish liturgical tradition, reflecting both its letter and its spirit. Our discussion implies, however, that our morning service at any rate be held in the morning, a requirement that would seem to pose a hardship to the family at the center of our she’elah. Can their special needs be satisfied within a principled understanding of our own Reform liturgical practice? We offer the following comments and suggestions.

(1) The set schedule for synagogue services should not be altered for the convenience of individual members. It is especially important to make this point in connection with the observance of Bar/Bat Mitzvah, a minhag that tends to overwhelm the regular weekly observance of Shabbat in our congregations. The Shabbat service is a synagogue service, a communal event, and not a private simchah.[24] To change the starting time for the benefit of the Bat Mitzvah’s family would tend to give the opposite impression.

(2) In this case, however, the congregation does not have a regular Shabbat morning service. The community assembles on Saturday mornings, at either 10:00 AM or 11:00 AM, only when the service is held in conjunction with a Bar/Bat Mitzvah observance. Given that these services by their nature are special events, there would be no objection to scheduling them later than the usual starting time, provided that they remain morning services, that is, the congregation should be able to recite both the shema and the tefilah before noon. This suggests a starting time of no later than 11:30 AM.

(3) If the grandfather cannot be brought to the synagogue by that hour, the service might pause briefly between the tefilah and the Torah reading in order to give him time to arrive.[25]

(4) Alternately, the Bat Mitzvah observance might be scheduled at minchah.[26] Although the family feels that a Shabbat morning service is a more “rewarding” experience, a bit of liturgical creativity can lend a similar feel to the minchah service. The young person might read a bit more Torah than is normally read at minchah,[27] and she may also recite her haftarah, albeit without the blessings.[28]

(5) Finally, all the above applies only if it is truly impossible or unfeasible for the grandfather to be awakened early to be brought to the synagogue. In the event that he can arrive by the normal starting time, we should not delay the beginning of services.

This last point deserves emphasis. We want to do everything we can to respond to this family’s special situation. At the same time, a large part of becoming a Bat Mitzvah is the acceptance of Jewish communal responsibilities. One of those responsibilities is to participate in the religious rituals of the community, observances that are created by our tradition and defined by a set of rules. Among these rules are the set times for the recitation of the shema and the tefilah. There is flexibility in the way we interpret and apply these rules, but because the rules possess substance and meaning for us, there are limits to that flexibility. This is a reality that should be recognized by all members of the community, including the bat mitzvah and her family on her special day.

NOTES

  1. “A numerous people is the glory of the king” (Proverbs 14:28). From this, the Sages infer that it is better to pray in a larger rather than in a smaller assembly. See Berakhot 53a and Megilah 27b; Magen Avraham, Orach Chayim 90, no. 15; Mishnah Berurah, Orach Chayim 687, no. 7.
  2. “‘May my prayer to You be at a time of favor’ (Psalms 69:14). When is this ‘time of favor’? When the community prays together”; Berakhot 7b-8a. Thus, “one must join the community to pray, and one must not pray alone when one is able to pray with a congregation”; Yad, Tefilah 8:1 See also Shulchan Arukh Orach Chayim 90:9.
  3. See Berakhot 1:3. As we shall see, the word “morning” may not be precise; it may be permissible to recite the Shema at any time during daylight hours. Still, the sources all speak of keri’at shema shel shacharit, that is, the morning shema.
  4. Berakhot 1:2. The other opinion in the Mishnah holds that the shema must be recited by sunrise. This is now recognized as the standard of the “vatikin” (i.e., those who are particularly stringent in their observance of the mitzvot; Bartenura to M. Berakhot 3:5 and M. Dema’i 6:6) rather than the standard applied to all. Since sunrise is the earliest time that the tefilah may be recited, those who are particularly strict seek to recite the shema right at sunrise, so that the two rubrics may be recited together (B. Berakhot 9b: keday sheyismokh ge’ulah letefilah).
  5. Berakhot 10b (Shmuel declares that the halakhah follows the viewpoint of R. Yehudah in the Mishnah); Yad, Keri’at Shema 1:11; Shulchan Arukh Orach Chayim 58:1.
  6. Shulchan Arukh loc. cit. On the sha`ah zemanit, see Rambam’s commentary to Berakhot 1:2. Some authorities rule that we begin to measure these twelve temporal hours at dawn (see Magen Avraham, Orach Chayim 58, no. 1), while others say that the daytime for this purpose begins with sunrise (Bi’ur HaGRA, Orach Chayim 459, no. 2).
  7. Berakhot 1:2; Yad, Keri’at Shema 1:12 and Tur, Orach Chayim 58.
  8. Mishnah Berurah, Orach Chayim 58, no. 27.
  9. Berakhot 1:4. “Ahavah Rabah” is the name of the second berakhah in the Ashkenazic rite; Sefardim begin that benediction with the words Ahavat Olam, as they (and all other rites) do in the evening.
  10. Yad, Keri’at Shema 1:13. The Talmud (Berakhot 10b) explains the Mishnaic phrase “one who recites it (after the third hour) loses nothing” as: one does not lose the opportunity to say the benedictions that accompany the shema. Rambam cites this explanation in his Commentary to Berakhot 1:2. See also Sefer HaChinukh, mitzvah 420.
  11. Chidushey HaRashba, Berakhot 10b, citing “Tosafot”, and Mishnah Berurah, Orach Chayim 58, in Bi’ur Halakhah, s.v. kor’ah belo birkhoteha.
  12. Most authorities hold that it is forbidden to recite the accompanying blessings of the shema after the end of the fourth hour – e., one-third – of the day. This ruling is attributed to Hai Gaon; see Hilkhot HaRosh, Berakhot 1:10 and Chidushey HaRashba, Berakhot 10b, who explain that Hai arrives at his “fourth hour” limit by linking the shema to the tefilah, which according to the accepted halakhah (see below) is to be recited by the end of the fourth hour. The Tur and the Shulchan Arukh, Orach Chayim 58:6 adopt this position as well, as do “most of the acharonim” (the authorities who have flourished since the publication of the Shulchan Arukh); see Mishnah Berurah, Orach Chayim 58, in Bi’ur Halakhah, s.v. kor’ah belo birkhoteha.
  13. The theory is that, were it unacceptable to recite the shema past the third (or fourth) hour, it would be forbidden to recite the blessings. A blessing recited at an inappropriate time is considered a berakhah levatalah, quite possibly an instance of taking God’s name in vain (see note 26, below). A number of the authorities cited in the preceding note make this very point in limiting the recitation of the blessings to the fourth hour or to noontime.
  14. Kesef Mishnah, Keri’at Shema 1:13. This interpretation proceeds from a consideration of the evening shema. Although the settled halakhah is that one must recite the evening shema before midnight, this is understood to be a Rabbinic stringency. As far as the Torah law is concerned, one fulfills one’s obligation by reciting the shema at any time during the night, because the entire night is “the time of lying down” ( Berakhot 1:1; Yad, Keri’at Shema 1:9). Karo posits that the same is true for the morning shema: if beshokhbekha means “all night long,” then uvekumekha means “all day long.” Though the Rabbis have introduced their stringency, the Torah would permit the recitation of the shema throughout the “time of rising up,” i.e., the entire daytime period.
  15. Both Magen Avraham (Orach Chayim 58, no. 7) and Turey Zahav (Orach Chayim 58, no. 4) reject Karo’s interpretation of the Torah’s language uvekumekha, “and when you rise up.” This, they say, does not mean “when you are awake” but rather “when you arise from sleep,” e., during the early part of the morning. By contrast, beshokhbekha, “and when you lie down,” can be and is interpreted to mean “when you are in bed,” i.e., the entire night. Magen Avraham notes that this insight is adopted by the earlier Sefer HaChinukh, mitzvah 420. See also R. Chizkiyah Da Silva (17th-cent. Eretz Yisrael), Peri Chadash to Orach Chayim 58, no. 1, for a detailed refutation of Karo’s theory.
  16. Berakhot 4:1. The phrase ad arba sha`ot is translated “until the end of the fourth hour” according to the Talmud’s conclusion at B. Berakhot 27a.
  17. Berakhot 26b; Tosefta Berakhot 3:1.
  18. Berakhot 27a: the halakhah follows the individual opinion of R. Yehudah against the anonymous viewpoint because M. Eduyot 6:1 supports his position. See Yad, Tefilah 3:1 and Shulchan Arukh Orach Chayim 89:1.
  19. See Yad and Shulchan Arukh, loc. cit.
  20. According to the baraita in support of R. Yehoshua ben Levi in B. Berakhot 26b and Tosefta Berakhot 3:1. Although no sacrifice was offered at night, the baraita notes that the internal organs that had been placed upon the fire for the minchah offering were consumed at that time. The ne`ilah prayer on Yom Kippur corresponds to the “closing of the gates” of the Temple at the end of the day; Ta`anit 4:1; Tosefta Berakhot 3:2.
  21. Witness to this is our omission of the musaf Musaf, more than any other prayer, expresses the traditional link between tefilah and the sacrifices. Indeed, it is seen as the fulfillment of Hosea 14:3: “instead of bulls, we will pay the offering of our lips”; Tosafot, Berakhot 26a, s.v. i’ba`aya.
  22. Relevant here is a baraita in Berakhot 26b, cited in support of R. Yose b. R. Chanina, who holds that “the Patriarchs established the times for prayer.” This position is not the “officially” accepted narrative for the origins of the daily cycle for prayer (see Yad, Tefilah 1:5), quite possibly because it does not account for the establishment of musaf. It does show, however, that the tradition is not unanimous in determining the prayer times in accordance with the daily schedule at the Temple.
  23. Berakhot 31a, on Daniel 6:11 and Psalms 55:18.
  24. On this point, see our responsum no. 5758.9, “Transporting a Torah Scroll to a Private Bat Mitzvah Ceremony,” and responsum no. 5762.6, “Bar/Bat Mitzvah on a Festival,”
  25. Aside form its being part of the “morning” service, there is no set hour for the reading of Torah on Shabbat. But while it would be permissible to read Torah later than 12:00 noon, those organizing the service must be cognizant of tircha detzibura, the possibility that the delay will be a burden upon the congregation.
  26. In most cases, we discourage the practice of holding Bar/Bat Mitzvah observances at Shabbat minchah (see the responsa in the preceding note). The reason is that most of our congregations do not hold a regular weekly Shabbat minchah service, so that the Bar/Bat Mitzvah observance would perforce be a private rather than a public, congregational event. In this case, where even the Shabbat morning service would be held only when a Bar/Bat Mitzvah is being observed, the distinction between shacharit and minchah.
  27. The minchah reading normally consists of ten verses from the parashah of the subsequent Shabbat; Bava Kama 82a, Shulchan Arukh Orach Chayim 292:1.
  28. Since the haftarah is normally not read on Shabbat at minchah, the recitation of the blessings would be an instance of berakhah levatalah or “an unnecessary berakhah,” and it is forbidden to recite a blessing when one is not required to do so. See Encyclopedia Talmudit, v. 4, 280-285. There is no objection, however, to reading from the Prophets without the berakhot.

 

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5759.4

CCAR RESPONSA

5759.4

Tattooing, Body-Piercing, and Jewish Tradition

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

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

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

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

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

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

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

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

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

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

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

 

 

NOTES

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5760.8

CCAR RESPONSA

5760.8

Withholding Paternity Information from a Father

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

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

We base our answer upon the following considerations.

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

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

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

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

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

 

 

 

 

NOTES

 

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

NYP no. 5769.1

CCAR RESPONSA

5769.1

Congregational Fund-raising on Shabbat

She’elah

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

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

Teshuvah

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

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

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

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

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

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

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

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

NOTES

 

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

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5769.2

CCAR RESPONSA

5769.2

Annulling a Pledge to Tzedakah

She’elah

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

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

Teshuvah

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

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

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

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

Against this, Ploni could raise two pertinent arguments.

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

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

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

NOTES

1. Yad, Matanot Aniyim 8:1.

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

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

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

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

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

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

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

9. Resp. Radbaz 4:134.

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

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

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

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5769.3

CCAR RESPONSA

5769.3

Tzedakah, Recession, and Social Policy

She’elah

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

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

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

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

Teshuvah

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOTES

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

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

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

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

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

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

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

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

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

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

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

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

13. Chidushei HaRitva, Ketubot 49b.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

30. Yad, Tefilah 11:1.

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

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

33. Resp. Maharik, shoresh 128.

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

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

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

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

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

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

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

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5769.4

CCAR RESPONSA

5769.4

Patrilineal Descent, Conversion, and the Rejection of Circumcision

She’elah

Three boys in my congregation who are not circumcised are progressing toward Bar Mitzvah. In one case the boy’s father is Jewish and his mother recently became a Jew by Choice. During that process I discussed having their son circumcised and going through mikveh at the same time as his mother. The boy’s father is adamantly opposed to circumcision (even though he himself is circumcised) and his wife acquiesces to his wishes. There is a significant history of serious mental illness in the father’s family and the father has been living on disability for many years as a result.

The second case involves twin boys. This family recently joined the congregation. The father is Jewish and completely non-observant. The mother is not Jewish and told me she plans to become Jewish. She immediately told me that, if the boys must be circumcised, she will not do it. She considers circumcision to be “genital mutilation.”

Historically, the Reform movement has not regarded circumcision as an absolute requirement for male proselytes. Has this policy changed in recent times, given that we have embraced greater sensitivity toward traditional gerut practices? Do we still allow non-circumcised boys to be called to the Torah for Bar Mitzvah? (Rabbi Martin Lawson, San Diego, CA)

Teshuvah

In one sense, this question invites a clear and simple answer. The rabbi is mara de’atra, the religious and halakhic authority for his or her congregation, and the decision as to the ritual requirements for conversion customarily falls within the rabbi’s jurisdiction and prerogative. The rabbi is not obligated to rescind or to modify those requirements in the face of reluctance or opposition on the part of prospective Jews-by-choice. Indeed, there is every reason for the rabbi not to do so, for basic, fundamental principles such as this should not be made an object for negotiation. This stance, we emphasize, does not reflect a desire to dissuade prospective Jews-by-choice from joining our community but rather our assertion of the Judaic integrity of our position on these questions. Gerim cannot expect to become part our community while simultaneously demanding that we change, just for them, our normal requirements for entry. Indeed, the rabbi who is prepared to compromise on these requirements in response to opposition by prospective gerim undermines the very concept of “rabbinical prerogative” itself, suggesting that we rabbis do not insist upon or believe in our own justified authority. Such compromise, in addition, would invite a backlash from those Jews-by-choice who did comply with the entry requirements and with the authority of the rabbis who administered them.

In a deeper sense, though, this she’elah is not about the authority of the rabbi. Our sho’el knows that it is his prerogative to insist upon circumcision for male proselytes. He asks, rather, whether he should insist upon it, particularly in cases such as those he describes, where the parents of the child to be converted “adamantly” oppose the procedure. In order to arrive at an answer, we shall have to consider three distinct issues. First, we will explore the history of the Reform movement’s position on milat gerim, the traditional requirement that male proselytes to Judaism be circumcised. Second, we will discuss these cases in light of the resolution of the Central Conference of American Rabbis (CCAR) concerning “patrilineal descent,” that is, the possibility that the boys in question might already be considered as Jews without the necessity of a formal conversion and therefore of circumcision. Finally, we must talk about the procedure of circumcision itself, particularly in light of the antipathy that these parents openly express toward it. Should that antipathy influence the rabbi’s response to them? Is it a sufficient reason for him to modify his position and to allow the conversions without milat gerim?

1. The CCAR on Milat Gerim. Jewish tradition prescribes several initiatory rites for the Jew by choice. Male proselytes are circumcised, and both males and females immerse in a mikveh or another suitable body of water. [1] Gerim who were circumcised prior to their decision to become Jewish undergo the ritual of hatafat dam berit, in which a drop of blood is taken so as to declare, symbolically, that their circumcisions are now considered to have taken place for the purpose of conversion (leshem gerut).[2] The Rabbis understood these rituals as a reenactment of the process through which the ancient Israelites prepared themselves to receive the Torah at Sinai.[3] That is to say, given that the ancestors of all Jews by birth entered the covenant through an experience of “conversion,” today’s Jew by choice must have that same experience in order to become, truly, one of us. The traditional conversion rites are still the universal practice among the Jewish people, including Reform and Liberal Jews outside the United States. The Reform rabbinate in the United States, however, speaking by way of a resolution of the CCAR, declared in 1893 that it is “lawful and proper for any officiating rabbi, assisted by no less than two associates, to accept into the sacred covenant of Israel and declare fully affiliated to the congregation (davar shebikdusha) any honorable and intelligent person, who desires such affiliation, without any initiatory rite, ceremony, or observance whatever.” All that was required of the prospective convert is that he or she pledge “to worship the One, Sole, and Eternal God, and none besides Him,” “to be consciously governed… by God’s laws,” and “to adhere… to the sacred cause and mission of Israel, as marked out in Holy Writ.”[4] This resolution constituted a truly radical break with Jewish law and tradition. For the first time in history, a rabbinical organization had formally stated its readiness to accept a male proselyte without benefit of milat gerim and either a male or female proselyte without benefit of immersion (tevilah). The special committee that brought forth this resolution, perhaps seeking to mitigate its revolutionary nature, produced a lengthy scholarly essay that argued that Jewish law does not in fact require circumcision and immersion of prospective proselytes or that, at least, it does not regard those rites as legally indispensable for formal admission into the Jewish community. This claim, to put it mildly, is controversial; this Committee, in a lengthy essay of its own, has found the scholarship on which the claim is based to be faulty, inaccurate, and unreliable.[5] Nonetheless, even if the 1893 scholarly essay fails to prove its case, the 1893 resolution has never been repealed, and it remains on the books as the official position of the Central Conference of American Rabbis.

That resolution speaks specifically of adult proselytes, those who are legally competent to declare their readiness to adhere to Judaism.[6] The Conference did not address the question of conversion of minor children until 1947, when a special Committee on Mixed Marriage and Intermarriage presented its report to the CCAR. In a section entitled “Gentile Children,” the report recommends that “the declaration of the parents to raise (infant children) as Jews shall be deemed sufficient for conversion,” while children of school age are regarded as Jews simply if their parents enroll them in Jewish religious instruction. The traditional rites of milah and tevilah are thus suspended for children as they are for adults, and for much the same reason: “with us where not the ritual elements of conversion but only the ethical and intellectual are considered prerequisite, how are we able to convert young children or even infants?”[7]

Taken together, the 1893 resolution and the 1947 report portray conversion as primarily an experience of mind and heart, a transformation of religious consciousness, the reasoned decision to accept the faith of Israel and the Jewish way of life, as opposed to a legal act (ma`aseh beit din) attested by formal rites and ceremony. During the past several decades, however, our thinking on this subject has undergone a deep transformation of its own.[8] We in no way disagree with our classical Reform forebears that conversion essentially involves the “ethical and intellectual” elements of which the report speaks. The tradition, too, which compares the ger to a newborn infant,[9] sees conversion as a revolution in the spirit and in the aspirations of the Jew by choice.[10] We have, however, come to a positive reappraisal of the value of the traditional rites. As our sho’el correctly puts it, “we have embraced greater sensitivity toward traditional gerut practices.” We recognize “that there are social, psychological, and religious values associated with the traditional initiatory rites, and therefore recommend that the rabbi acquaint prospective converts with the halachic background and rationale for berit mila, hatafat dam berit, and tevila and offer them the opportunity to observe these rites.”[11] The above statement, accepted as “(t)he position of the CCAR since 1979,”[12] parallels the stance taken by this Committee in a number of responsa issued over the past quarter century and more.[13] That position conveys a positive attitude toward the traditional rites, which become the preferred option for prospective gerim. While rabbis are certainly not forbidden to accept proselytes without milah and tevilah, we have argued that such a policy be reserved for special cases in which those rituals would constitute an undue impediment to conversions that, all other factors considered, ought to take place.

This recovery on our part of the traditional conversion rites, in turn, expresses a different (if not entirely different) understanding of the phenomenon of conversion from that held by our Reform predecessors. As we have put it in a recent responsum: “Conversion in this view is no longer exclusively a matter of personal religious transformation but, as well, the ritual process that signifies one’s entry into the Jewish people, an act of identification with the history and traditions of Israel.”[14] Conversion, in addition to being a matter of the mind and the spirit, is also a process of law, the means by which one becomes a “naturalized citizen” of the Jewish polity, and it therefore ought to be attested by the sort of public and formal rites by which any community ratifies its welcoming of a new member. The responsum on this basis found that the 1947 Report on Mixed Marriage and Intermarriage, “which held that adopted children need not undergo conversion, no longer defines our attitudes on these questions”[15] and recommended that adopted children who are not Jews by virtue of birth be entered into the Jewish community by way of conversion. The same conclusion would seem to apply in this case. If we can say that none of the boys mentioned in our she’elah is a Jew by birth – an assumption we shall explore in the following section of this teshuvah – then they should be formally converted to Judaism prior to the time of Bar Mitzvah. And if as a rule the rabbi requires milat gerim for male proselytes, then he is within his rights to apply those requirements in this case. Such lies within his prerogative, and the CCAR’s more recent position offers him its full support and endorsement.

2. Are These Children Already Jews? It is possible, on the other hand, that these boys are indeed Jews by birth under the terms of the CCAR’s 1983 resolution concerning the Jewish status of the children of mixed marriages:[16]

The Central Conference of American Rabbis declares that the child of one Jewish parent is under the presumption of Jewish descent. This presumption of the Jewish status of the offspring of any mixed marriage is to be established through appropriate and timely public and formal acts of identification with the Jewish faith and people. The performance of these mitzvot serves to commit those who participate in them, both parents and child, to Jewish life.

Depending on circumstances, mitzvot leading toward a positive and exclusive Jewish identity will include entry into the covenant, acquisition of a Hebrew name, Torah study, Bar/Bat Mitzvah, and Kabbalat Torah (Confirmation).

The resolution does not confer Jewish status automatically upon every child of a mixed marriage. It holds, rather, that children of mixed unions are potentially Jews by virtue of birth (“the presumption of Jewish descent”) and that this possibility must be affirmed (“established”) by the child’s participation in various life-cycle rituals (“appropriate and timely public and formal acts of identification”). These rituals testify that “both parents and child” are committed to Jewish life and that the parents intend to raise their child with “a positive and exclusive Jewish identity.” The resolution’s second paragraph lists a number of these rituals, but it does not require that the child participate in all of them in order to qualify as a Jew by birth. As a footnote to the resolution puts it: “According to the age or setting, parents should consult a rabbi to determine the specific mitzvot which are necessary.”[17] The critical issue is not the sheer number of rituals but the state of affairs to which they purportedly testify: have the child and the parents made a clear, “positive and exclusive” commitment to Jewish life? If so, then the child may be accepted as a Jew under terms of the resolution even if he or she did not participate in all of the rituals mentioned in its second paragraph.

In light of the above, let us consider whether the boys mentioned in our she’elah might be recognized as Jews by birth without need for conversion. With respect to the twin boys in the second case, and based upon the information that the she’elah provides, the answer would seem to be “no.” We are told that the family “recently joined the congregation,” that the Jewish father is “completely non-observant,” and that the Gentile mother refuses to become Jewish or to permit her sons to be converted if the boys must be circumcised. The parents, to be sure, have registered their sons in religious school, and this would count as an “appropriate…formal act of identification.” We wonder, however, whether these boys and their family have participated in any sort of Jewish life until now. Given their parents’ conflicted feelings (to put it mildly) regarding Judaism, we find it difficult to imagine that the decision to send the boys to religious school truly testifies that “both parents and child(ren)” are committed to Jewish life or that the boys’ upbringing has led them “toward a positive and exclusive Jewish identity.” We stress again that we speak on the basis of the evidence we have been provided. Ultimately, the rabbi is charged with the decision concerning the children’s Jewishness, and he must make that decision in accordance with his own best judgment of the facts of the case.[18] From where we sit, however, we would argue that this family does not fall within the intent of the 1983 resolution, so that the boys would need to be converted to Judaism prior to their becoming Bar Mitzvah.

The boy mentioned in the first case, on the other hand, may indeed qualify as a Jew by birth. His mother has recently converted to Judaism, and we have no indication that his father, unlike the father of the twin boys in the second case, is indifferent to Jewish life and observance. We might thus conclude that the parents have indicated their desire to raise their son with “a positive and exclusive Jewish identity,” and this suggests we might accept the boy as a Jew under the terms of the 1983 resolution without need for conversion.

Should the fact that this boy is not circumcised make a difference in our answer? We could reply that since the 1983 resolution does not explicitly mention circumcision as one of its “appropriate and timely” mitzvot (it uses instead the term “entry into the covenant”), it does not require milah for male children of mixed marriages. Yet given that our Conference has explicitly declared circumcision to be a mitzvah,[19] it is quite arguable that “entry into the covenant” does imply milah. Furthermore, let us keep in mind that the 1983 resolution deals not with gerim (for whom circumcision is no longer required, under the terms of the 1893 statement on conversion) but with children who, despite their mixed parentage, are defined as born Jewish. To say that the resolution does not require circumcision is to say that the CCAR contemplated the existence of a class of born-Jewish boys who need not be circumcised, which would contradict our stated position that berit milah is a mitzvah. This is a confusing situation, and the fact that each Reform rabbi in the United States[20] is currently free to interpret the requirements of the 1983 resolution in either direction simply adds to the general disarray over our standards concerning Jewish identity. Accordingly, the members of this Committee urge the Conference to revisit the 1983 resolution so as to establish a clear and firm standard for our movement.

3. The Parents’ Antipathy Toward Berit Milah. There is one more factor that may influence our answer to this she’elah. Not only are these boys not circumcised, but their parents raise strong and substantive objections to the ritual of circumcision itself. Should the rabbi for that reason refuse to convert the boys? We certainly do not seek to punish people for expressing their heartfelt opinions. Free and open debate (machloket) is a hallmark of historical Jewish religious culture as well as an essential aspect of our conception of liberal Judaism. Yet by acceding to these parents’ demands and relaxing his usual standards for conversion, the rabbi risks giving the impression that he accepts their opposition to circumcision as a legitimate Reform Jewish belief.

The rabbi, we believe, must avoid giving that impression. It is one thing for these parents to feel anxiety over the prospect of their sons’ circumcision (and see below). But when they condemn circumcision on grounds of principle – that it is medically harmful, or immoral, or an act of “genital mutilation” – our duty is to remind them, gently but firmly, that we categorically reject all such arguments. Our devotion to the mitzvah of berit milah, which our Committee has termed “an essential and fundamental commandment,” is unequivocal,[21] and we maintain that stance in the face of the criticisms that are all too frequently raised against circumcision. As rabbis and teachers of Judaism, we must be prepared to respond to such criticisms, especially given that some of our congregants, like the parents in these cases, have been influenced by them. The Berit Mila Program of Reform Judaism and the National Organization of American Mohalim together constitute an invaluable resource for this purpose, and much useful information is available at their website (http://beritmila.org). Our goal here is not to duplicate their educational work but simply to indicate, in summary form, the directions that our response ought to take.

A. Medical Objections. Opponents of circumcision often attack the procedure on medical grounds, contending that circumcision affords few if any hygienic benefits and that whatever benefits it does provide are outweighed by the risks entailed in the surgery. Medical societies currently do not endorse this negative view, but they tend to regard the “risk versus benefits” scale as more or less balanced and therefore do not recommend the routine circumcision of all newborn males.[22] On the other hand, these findings remain the subject of deep controversy. Research indicates that the rate of procedure-related complications arising from circumcision ranges from two to five per 1000 cases, with most of the problems described as non-serious: i.e., short-term in duration and easily treatable.[23] In particular, the oft-heard claim that circumcision leads to psychological trauma or to a decrease in adult male sexual satisfaction is either refuted or called into question by a number of studies.[24] As for the pain of the circumcision procedure, local anesthesia can be applied as a remedy.[25] Some authorities, moreover, hold that the benefits far exceed the dangers. The World Health Organization, for example, has concluded that “(b)ased on the existing evidence, experts (have) recommended that male circumcision now be recognized as an additional important intervention to reduce the risk of heterosexually acquired HIV infection in men.”[26] In addition, circumcision has been associated with a number of health benefits, such as lower rates of urinary tract infection, penile cancer, sexually transmitted infections, and of cervical cancer among sexual partners of circumcised men.[27] In short, the collected data challenges the portrayal of circumcision as medically non-beneficial and potentially dangerous.

It falls outside our expertise, of course, to judge the cogency of the medical evidence. More to the point, we regard the debate over the medical necessity for circumcision as largely irrelevant. To us, as Reform Jews and rabbis, the issue is not the surgical procedure called “circumcision” but the mitzvah of berit milah, through which we reenact the covenant of Abraham. Even were it proven – and, we emphasize, it has not been proven – that circumcision afforded no hygienic benefits whatsoever, we would maintain this rite out of our identification with the religious experience of our people.[28] Yet it is vital that rabbis direct those parents who may be influenced by anti-circumcision claims to sources of information that will help put the situation into its proper balance. Circumcision is hardly a “dangerous” procedure, and it may even provide some medical benefits to those who undergo it as well as to their sexual partners.

B. Ethical Objections. The parents in our cases raise a different sort of objection against circumcision. They denounce the procedure on ethical rather than medical grounds,[29] namely that the removal of a child’s foreskin constitutes a moral wrong perpetrated against him. Our response to the ethical objection should be directed toward at least the following two versions of it.[30]

 

  • Circumcision is an act of “genital mutilation.” This claim, raised literally by the non-Jewish mother of the twin boys in the second case, is ambiguous: before we can call something “mutilation,” we need a precise definition of the term. The authoritative Stedman’s Medical Dictionary defines mutilation as “disfigurement or injury by removal or destruction of any conspicuous or essential part of the body.”[31] We can certainly grant that the foreskin (orlah) is a “conspicuous” part of the body, but we would ask: on what grounds does one decide that its surgical removal is a “disfigurement” or an “injury”? Circumcision, as we have seen, poses no significant risk of medical harm (“injury”), a fact that distinguishes this procedure from clitoridectomy (female genital excision).[32] To call circumcision a “disfigurement,” moreover, is to make the aesthetic judgment that any permanent alteration of the human physical form undertaken for nonmedical reasons is ipso facto a disfigurement of the body. Like all aesthetic judgments, this one is inherently controversial: that is, the judgment cannot be rendered in the absence of the cultural biases of the one who renders it. We Jews, who have practiced berit milah since the days of Abraham, obviously do not share that cultural bias.[33] In our eyes, circumcision is not a mutilation but a mitzvah, a physical sign of the covenant of Abraham and of Sinai. We find it insulting to be told that we have been practicing physical “mutilation” upon our male infants for thousands of years. Those who condemn circumcision as “mutilation” say much more about their aesthetic standards and about the biases that lie at the foundations of those standards than they do about circumcision itself.
  • Neonatal circumcision is performed without the possibility of informed consent. Circumcision of newborns has been criticized, too, on the grounds that it violates two principles that have attained what amounts to “canonical” status in Western medical ethics.[34] The first of these is patient autonomy, which holds that a medical procedure is ethical to the extent that a competent patient makes his or her own decision regarding that procedure in an autonomous manner, free of coercion. The second is informed consent: the patient agrees to a suggested treatment only when he or she has been supplied with all material information that a reasonable medical layperson would consider significant with regard to that decision. A child, obviously, is not capable of rendering informed consent; therefore, it is argued, in the absence of clear medical necessity there is no justification for subjecting a child to a surgical procedure. Yet this thinking ignores the very real possibility that circumcision confers hygienic benefits with little risk (see above), which would constitute a medical justification for the procedure. And why must the terms “benefit” and “necessity” be restricted to the field of medicine? What of the religious benefits of circumcision, the fact that berit milah brings the Jewish boy into the covenant of Abraham? In Jewish tradition this would be seen as a benefit (zekhut) indeed, a warrant to apply the principle that “benefits may be conferred upon a person even in the absence of his informed consent.”[35] Given that parents are generally empowered to make a wide range of decisions, nonmedical as well as medical, “in the best interests of the child,” there is no ethical reason to deny Jewish parents the right to make this one.

 

We do not, therefore, accept the medical or ethical objections against circumcision. The rabbi who requires milah for the purpose of conversion should not alter that policy in the face of these arguments.

We stress that the above applies only when parents raise principled arguments against circumcision, that is, when they attack the procedure as harmful or immoral. Such arguments, precisely because they call into question the very institution of milah, must be rejected, and the rabbi must do nothing to suggest that he or she agrees with them. Suppose, however, that the parents’ concern was not the mitzvah of circumcision per se but the potentially traumatic effects that circumcision might have upon their sons, who are old enough to be frightened of the procedure but not old enough to understand its Jewish religious significance. That sort of “objection,” targeted not at milah itself but at its application in a particular case, might well lead to a different response on our part. In a previous responsum we suggested a Jewish legal theory that would argue for accepting the conversion of an eight-year-old boy without circumcision.[36] In general, we think that the 1893 resolution of the Conference which officially annulled the requirement of milat gerim applies quite well to the conversion of preteen boys, even for those of our colleagues who make milah a normal part of their conversion procedure.

Conclusion. Let us summarize our approach to the two cases presented in our she’elah.

 

  • The boy in the first case would seem to enjoy a clear claim to Jewish identity under the terms of the CCAR’s 1983 resolution on the Jewish status of the offspring of mixed marriages. The fact that he has not been circumcised, however, is a source of confusion on this point. We urge the CCAR to clarify the ambiguity of its position on this matter.
  • The twin boys in the second case do not seem to have been raised or educated as Jews until now. If that is true, they do not fall under the terms of our 1983 resolution, and they must be converted to Judaism prior to the time of Bar Mitzvah.
  • In both cases, the parents’ expressed principled opposition to milah should be a significant factor in the rabbi’s decision. That is, if the rabbi as a general rule requires circumcision for conversion, he should not alter that requirement as a result of a parent’s objection to circumcision on medical or ethical grounds. Our hope is that, through sensitive yet forthright dialogue, the rabbi can help these individuals see that their negative views are exaggerated and misplaced. Perhaps he and they will discover that their true concern lies not in the medical or ethical objections with which they frame it but in the anxiety that parents will understandably feel at the prospect of their sons’ circumcision. In that event, a much different conversation can ensue, a conversation that may well lead to more positive results.

 

NOTES

 

  • B. Yevamot 46a-b; Yad, Isurei Bi’ah 13:4, 6; Shulchan Arukh Yoreh De`ah 268:1ff. On the nature and specifications for the mikveh see our responsum no. 5756.6, “A ‘Proper’ Reform Mikveh,” http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=6&year=5756 .
  • Shulchan Arukh Yoreh De`ah 268:1.
  • B. Keritot 9a: “Just as your ancestors entered the covenant through circumcision, immersion, and a sacrificial offering, so too does the ger enter the covenant.”
  • The resolution is brought forward at the end of an extensive committee report (see below in text) included in CCAR Yearbook 3 (1893), pp. 69ff and found as well in American Reform Responsa, no. 68 (http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=68&year=arr ).
  • The Jewish term for “legal competence,” which marks the distinction between adults and minors, is da`at. Since a child does not possess the legal competence to grant informed consent to the mitzvot, he or she can be converted only upon the authority of his/her father or of the court, either of which substitutes his or its own consent for the non-existing da`at of the minor. This substitution, in turn, is provisional, sufficing only until the child becomes an adult and can give his or her own consent to the conversion. See B. Ketubot 11a and Rashi ad loc., s.v. mahu deteima oved kokhavim behefeirah nicha leih; Shulchan Arukh Yoreh De`ah 268:7-8.
  • The report, presented by our teacher Rabbi Solomon B. Freehof, appears in CCAR Yearbook 57 (1947), pp. 158-172. The sections quoted in the text are at p. 170-171.
  • This is true of our approach to many aspects of ritual observance. See the texts of our responsa nos. 5759.7, “The Second Festival Day and Reform Judaism,” http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=7&year=5759, at notes 1-10, and 5766.2, “When A Parent Requests Cremation,” http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=2&year=5766, at notes 26-30.
  • B. Yevamot 22a and parallels.
  • The best example of this, perhaps, is the text in B. Yevamot 47a, which describes the idealized initial encounter between the community and the prospective ger. The beit din asks him why, in view of the persecutions and sufferings visited upon the people of Israel, he wishes to take this apparently senseless step. He responds: “Would that I be found worthy to participate in their suffering!” (see Rashi ad loc., s.v. ve’eini khedai) and is accepted “immediately. What we hope to hear from the prospective convert, in other words, is an awareness of the meaning of Jewish existence, a meaning that is deeper and more significant than the often gloomy manifestations of the Jewish condition.
  • Simeon Maslin, ed., Gates of Mitzvah (New York: CCAR, 1979), pp. 146-147. The statement is quoted in David Polish, ed., Rabbi’s Manual. Historical and Halachic Notes by W. Gunther Plaut (New York: CCAR, 1988), p. 232.
  • Divrei Giyur: Guidelines for Rabbis Working With Prospective Gerim, Adopted by the Central Conference of American Rabbis, June, 2001, http://data.ccarnet.org/glgerim7.html, sec. 8b.
  • See the following responsa: 5756.13, http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=13&year=5756; 5756.6, http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=6&year=5756; Teshuvot for the Nineties (TFN), no. 5752.2 ((http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=2&year=5752); Contemporary American Reform Responsa (CARR), nos. 44 (http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=44&year=carr), 45 (http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=45&year=carr), 47 (http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=47&year=carr), and 49 (http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=49&year=carr); and American Reform Responsa (ARR), nos. 57 (http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=57&year=arr) and 69 (http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=69&year=arr).
  • Responsa Committee, no. 5767.2, “Adoption, Conversion, and ‘Patrilineal Descent,’” http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=2&year=5767, section 2.
  • Ibid., section 4b.
  • CCAR Resolution, “The Status of Children of Mixed Marriages,” adopted March 15, 1983, http://data.ccarnet.org/cgi‑bin/resodisp.pl?file=mm&year=1983. For discussion, see Polish and Plaut, Rabbi’s Manual (New York: CCAR, 1988), pp. 225-227.
  • Ibid., footnote 1.
  • Ein ladayan ela mah she’einav ro’ot; B. Bava Batra 131a. According to Rashbam ad loc., s.v. ve’al tigmeru, the judge’s discretion applies to the determination of logic of the law as well as to the evaluation of the facts of the case.
  • Simeon Maslin, ed., Gates of Mitzvah (New York: CCAR, 1979), p. 14. See also American Reform Responsa, no. 54, “Circumcision of Infants,” http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=54&year=arr (notes omitted): “(while) there was considerable debate about the need for circumcision on the part of converts… no one [within the Reform rabbinate] further questioned the necessity for infant circumcision. This is reflected in every subsequent manual or guide.”
  • In this regard, it should be noted that the resolution applies only to the Reform movement in the United States. Reform rabbinates in all other countries, including Canada, either reject the resolution or modify it in ways that depart essentially from its literal meaning.
  • See Contemporary American Reform Responsa (CARR), no. 29, “Naming an Uncircumcised Child,” http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=29&year=carr: when parents refuse to circumcise their son the child should not be named in a formal synagogue ceremony. The naming ceremony does not “replace” milah or make up for its loss.
  • Thus, the American Academy of Pediatrics (AAP) holds that “existing scientific evidence demonstrates potential medical benefits of newborn male circumcision, but the data was not sufficient to recommend routine neonatal circumcision”; “Circumcision Policy Statement,” American Academy of Pediatrics, Task Force on Circumcision, Pediatrics 103 (1999), 686. The Canadian Paediatric Society echoes this position; “Neonatal Circumcision Revisited,” Fetus and Newborn Committee, Canadian Paediatric Society, Canadian Medical Association Journal 154 (1996), 769.
  • Wiswell, T.E. and D.W. Geschke, “Risks From Circumcision During the First Month of Life Compared With Those for Uncircumcised Boys,” Pediatrics 83 (1989), 1011; Harkavy, K.L., “The Circumcision Debate,” Pediatrics 79 (1987), 649; Gee, W.F. and J.S. Ansell, “Neonatal Circumcision: A Ten-Year Overview,” Pediatrics 58 (1976), 824.
  • Payne, K., L. Thaler, T. Kukkonen et al., “Sensation and Sexual Arousal in Circumcised and Uncircumcised Men,” Journal of Sexual Medicine 4 (2007), 667; Fink, K.S., C.C. Carson and R.F. Devellis, “Adult Circumcision Outcomes Study: Effect on Erectile Function, Penile Sensitivity, Sexual Activity, and Satisfaction,” Journal of Urology 167 (2002), 2113; Collins, S., J. Upshaw, S. Rutchik, et al., “Effects of Circumcision on Male Sexual Function: Debunking a Myth?” Journal of Urology 167 (2002), 2111
  • R. Poland, “The Question of Routine Neonatal Circumcision,” New England Journal of Medicine 22 (1990), 1312; K. Anand and P. Hickey, “Pain and Its Effects on the Human Neonate and Fetus,” New England Journal of Medicine 317 (1987), 1321. Anesthesia is acceptable for berit milah; New American Reform Responsa, no. 101, http://data.ccarnet.org/cgi‑bin/respdisp.pl?file=101&year=narr.
  • “Male Circumcision,” http://unaids.org/en/PolicyAndPractice/Prevention/MaleCircumcision (accessed October 9, 2009).
  • The number of studies is daunting; we provide here but a brief selection. To, T., M. Agha, P.T. Dick, and W. Feldman, “Cohort Study on Circumcision of Newborn Boys and Subsequent Risk of Urinary Tract Infection,” Lancet 352 (1998), 1813; Zorc, J.J., D.A. Levine, S.L. Platt et al., “Clinical and Demographic Factors Associated with Urinary Tract Infection in Young Febrile Infants,” Pediatrics 116 (2005), 644; Fergusson, D.M., J.M. Lawton, and F.T. Shannon, “Neonatal Circumcision and Penile Problems: An Eight-Year Longitudinal Study,” Pediatrics 81 (1988), 537; Gray, R.H., G. Kigozi, D. Serwadda, et al., “The Effects of Male Circumcision on Female Partners’ Genital Tract Symptoms and Vaginal Infections,” American Journal of Obstetrics and Gynecology 200 (2009), 42; Dickerman, J.D., “Circumcision in the Time of HIV: When Is There Enough Evidence to Revise the American Academy of Pediatrics’ Policy on Circumcision?” Pediatrics 119 (2007), 1006.
  • It is possible, however, that the ethical objection presumes that a medical objection has already been raised. That is to say, the ethical objection against circumcision is much more cogent if it has been established that the procedure is either risky or medically unnecessary.
  • For a more expansive treatment see Benatar, M. and D. Benatar, “Between Prophylaxis and Child Abuse: The Ethics of Neonatal Circumcision,” American Journal of Bioethics 3:2 (2003), 35 (http://www.circs.org/library/benatar2/index.html , accessed October 16, 2009).
  • Stedman’s Medical Dictionary, 28th ed. (Philadelphia: Lippincott Williams and Wilkins, 2005).
  • It is true that this Committee has taken a dim view of certain forms of cosmetic surgery (Teshuvot for the Nineties, no. 5752.7, pp. 127-132, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=7&year=5752) and of the more extreme forms of tattooing and body piercing (Responsa Committee, no. 5759.4, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=4&year=5759 ). Our objections, however, were not based upon aesthetic standards but upon an attempt to understand the demands placed upon us by our tradition’s teachings concerning the sanctity (kedushah) of the body that God has given us. By that very token, circumcision cannot be seen as a “disfigurement,” since the Torah itself, the very source of our notions of sanctity, ordains milah as the physical sign of the covenant.
  • Zakin le’adam shelo befanav; see B. Ketubot 11a, where this principle is applied to justify the conversion to Judaism of minors even though they cannot give consent to accepting the obligation to keep the mitzvot.
  • Responsa Committee, no. 5756.13, “Circumcision for An Eight-Year-Old Convert” (see note 13, above). The classical halakhah of conversion requires, in addition to milah and tevilah, that the prospective ger bring a sacrifice to the Temple and that the entire conversion procedure be supervised by judges possessing Biblical-style ordination (semikhah). These two latter requirements have been suspended as “impossibilities” in our time; were we to insist upon them, moreover, we would make conversion impossible for those who truly desire it. Our argument was that, in the case of older boys, the requirement of circumcision might similarly be seen as rendering conversion “impossible.”

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5769.5

CCAR RESPONSA

5769.5

Funeral Service in the Sanctuary

She’elah
If a funeral takes place in a synagogue, do the Torah scrolls need to be removed from the ark? Does the presence of a deceased person render the scrolls impure? An article in the recent Reform Judaism magazine noted that there is a congregation which holds services in a Chevra Kadisha, so the scrolls must be removed because the deceased makes them impure. (Rabbi Amy Bigman, Lansing, Michigan)

Teshuvah

We are not familiar with the practice of the congregation to which the article refers. What we can say, however, is that the presence of a deceased person does not render Torah scrolls impure. Neither, for that matter, does anything else. This is based on a statement in the Talmud,[1] in the name of R. Yehudah ben Beteirah, that “the words of Torah do not contract ritual impurity” (ein divrei torak mekablin tumah). Both Maimonides[2] and the Shulchan Arukh[3] cite the statement as authoritative halakhah: “any impure person, including a menstruating woman, is permitted to take hold of a Torah scroll and to read it, since ‘the words of Torah do not contract ritual impurity.’” Thus, if a funeral service is held in a sanctuary, the Torah scrolls need not be removed for fear of ritual defilement.

There is another reason, however, for removing a Torah scroll from the vicinity of a corpse. Another talmudic statement[4] informs us that “one should not enter a cemetery while holding a sefer torah (Torah scroll) and reading from it. One who does so transgresses the maxim: ‘He who mocks the lowly (lo`eg larash) shows contempt for his Maker (Proverbs 17:5).’” The person carrying the Torah scroll “mocks the lowly” – that is, the dead – because he flaunts his ability to read the Torah and study it, mitzvot they can no longer fulfill.[5] The Talmud passage sets a four-cubit limit to this prohibition: so long as one maintains at least that distance from a corpse, one may read and study Torah at that spot.[6] The major codifiers cite the rule,[7] which in turn serves as a possible justification for removing the Torah scrolls before bringing the coffin into the sanctuary. The congregation might easily rectify this problem, of course, by making sure that the ark is closed during the funeral[8] or that the coffin is kept at least four cubits away from the ark.

Parenthetically, we would add that, from our perspective, the concept of lo`eg larash is an exceedingly weak reed with which to support the prohibition. We no longer believe that the dead are somehow “mocked” or insulted when we perform mitzvot in their presence. The opposite, in fact, is the case: we believe that we fulfill the mitzvah of kevod hamet (showing honor to the dead) when we pray or study Torah in their presence as acts of tribute to them and to the example they set for us in their lives.

All of this, however, raises another question for us: if there is no objection to bringing a corpse into a room that houses Torah scrolls, is it permissible for a Jewish community to hold funeral ceremonies in its synagogue sanctuary? This is a disputed question in the tradition.[9] On the one hand, the practice is prohibited as a general rule. The Talmud[10] includes the “private funeral” (hesped shel yachid) among a list of activities forbidden in the synagogue on the grounds of kalut rosh, an attitude of disrespect that is out of keeping with the dignity of the place.[11] On the other hand, a “public funeral” (hesped shel rabim) is permitted there. Rashi explains a “public funeral” as that of a deceased Torah scholar, “for which a large crowd will gather, and the synagogue, being a large structure, can accommodate them.”[12] The precedent for such a “public funeral” is that of R. Yehudah HaNasi, whose body was carried into eighteen separate synagogues.[13] The codifiers limit the permit of public funerals to ceremonies for outstanding Torah scholars.[14] Yet even they are willing to make exceptions for “communal leaders” (gedolei ha`ir) and their relatives, for whose funerals a large crowd can be expected to assemble.[15] More recent halakhic authorities have complained that these limited exceptions have by now become the rule, to the point that “the funeral of every person, no matter how nonobservant he or she may have been in life, is held in the synagogue, so long as they pay the fee in full.”[16]These authorities urge that the strict limits be restored: only the funerals of outstanding Torah scholars may be held in the synagogue.[17]

What does this history say to us, as Reform Jews? We can learn from it, first of all, that there is no hard and fast prohibition in Jewish law against holding funeral services in the synagogue sanctuary. And we can also conclude that there is no good reason any longer to distinguish between “public” (permitted) and “private” (prohibited) funerals: to allow “important” persons a funeral ceremony in the synagogue while denying that option to “lesser” individuals is surely offensive to our democratic and egalitarian commitments. We are also not likely to be persuaded by the tradition’s rationale for the prohibition of private funerals. A funeral, no matter how “private,” is hardly an occasion for kalut rosh. On the contrary: we would say that the synagogue setting is especially conducive to an attitude of solemnity and reverence. In addition, there are substantive positive arguments for holding funeral services (even “private” ones) in the synagogue. For example, a small Jewish community that lacks convenient access to a Jewish funeral home might find it quite helpful, for the same reasons offered by Rashi in justifying the permit for “public” funerals in the synagogue, to schedule many or even all of its funeral ceremonies in its sanctuary space.

Still, we hesitate to give a blanket affirmative response. The fact that Jewish tradition actively discourages (even though it does not absolutely prohibit) the holding of funerals in the synagogue is of considerable weight in our thinking. It is tradition, after all, that defines the nature of our religious observance. Put differently, it is tradition that tells us what is “Jewish” about a Jewish funeral. When that tradition instructs us that funerals as a general rule are not to be held in the synagogue, it may be saying less to us about kalut rosh than about the simple fact that our people have historically tended to reserve mourning for places other that the synagogue, the space set aside for communal prayer. These geographical lines, as we have seen, are not set in stone. Yet they do outline for us the contours of our communal religious life, not all of which must take place within the confines of the synagogue building. To the extent that we continue to find those contours meaningful, and to the extent that they continue to distinguish our own religious observance from that of our neighbors, their observance is beneficial to us all.[18]

For these reasons, we would encourage Reform congregations to think carefully about their policies regarding funeral services in the synagogue sanctuary. A congregation may decide to prohibit all such services, or it may permit all funerals of members to be held in that sacred space. We think it is more likely that congregations will adopt or continue to follow the traditional practice of allowing funerals in the sanctuary in exceptional cases. If so, they should make sure to define “exceptional cases” in a way that is not divisive to the community and that does not conflict with the egalitarian values that ought to characterize Reform Jewish life.

NOTES

  • B. Berakhot 22a.
  • Yad, Tefilin 10:8.
  • SA Yoreh De`ah 282:9. The passage in SA omits the final dependent clause, but it is clear that R. Yosef Karo accepts Rambam’s reasoning – “the words of Torah do not contract ritual impurity” – from his comment to the parallel passage in the Tur (see Beit Yosef, Yoreh De`ah 282, s.v. kol hateme’im).
  • B. Berakhot 18a, in a baraita.
  • See Rashi to B. Sotah 43b, s.v. lekeri’at shema.
  • Jewish law measures one’s “personal space” or domain as a radius of four cubits. One who stands beyond that distance is no longer literally standing in the “presence” of the other person. See, for example, Yad Talmud Torah 6:1: one is obliged to rise before a Torah scholar once the latter has approached to within a radius of four cubits.
  • Yad, Sefer Torah 10:6 and SA Yoreh De`ah 282:4. Neither posek cites the justification lo`eg larash, but that detail is supplied by the commentaries to both.
  • SA Yoreh De`ah 367:6: the “four cubit” rule is waived when there is a partition (mechitzah) between the corpse and the Torah scroll.
  • See, in general, R. Solomon B. Freehof, Modern Reform Responsa, no. 48.
  • B. Megilah 28b.
  • See Rashi, Megilah 28a, s.v. ein okhlin bahen: “all these prohibited activities are examples of kalut rosh, in that they cheapen or degrade (mekilin) the place.” Elsewhere, Rashi defines kalut rosh as as latzon (“joking” or “foolishness”; B. Shabbat 30b, s.v. kalut rosh ). In Suukkah 25b, s.v. umin hatefilin, he pairs it with shikhrut, “drunkenness.”
  • Rashi, Megilah 28b, s.v. hesped shel rabim.
  • Midrash Kohelet Rabah 11:7.
  • Yad, Tefilah 11:7and, especially, SA Yoreh De`ah 344:19: “for no one else is this permitted.”
  • SA Orach Chayim 151:1 and Magen Avraham, no. 3. The precedent on this point is the funeral of the daughter-in-law of the amora Rafram; B. Megilah 28b.
  • “The speaker will eulogize them with lies and falsehoods, and the rabbi makes no effort to protest”; R. Yekutiel Greenwald (20th-century USA), Kol Bo al Aveilut, p. 100.
  • R. Avraham Danzig (18th-19th century Germany/Lithuania), Chokhmat Adam 155:18; Resp. Maharam Schick, YD 345.
  • As we have written in another context (Responsa Committee, no. 5764.3, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=3&year=5764:Liberal Judaism affirms the value of religious pluralism in our society. Our understanding of pluralism allows us to engage in interreligious dialogue, participate in interfaith worship that is respectful to all faiths involved, and occasionally borrow non-Jewishpatterns and styles of worship and adapt them to our own distinctlyJewish worship. That understanding, however, also presumes the existence of real and essential differences,distinctions, and boundaries between religious faiths and faith communities. Judaism, therefore, is different from other faiths in its commitments and practices, and it is frequently the task of rabbis to call ourpeople’s attention to this distinctiveness and the boundary lines that define our unique religious tradition.

    If needed, please consult Abbreviations used in CCAR Responsa.

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