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).

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).

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

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

See Chidushey HaRitva, Rosh Hashanah 18a.

, 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.

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.

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

, 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?

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.

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.

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

“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.
“‘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.
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.
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).
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.
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).
Berakhot 1:2; Yad, Keri’at Shema 1:12 and Tur, Orach Chayim 58.
Mishnah Berurah, Orach Chayim 58, no. 27.
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.
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.
Chidushey HaRashba, Berakhot 10b, citing “Tosafot”, and Mishnah Berurah, Orach Chayim 58, in Bi’ur Halakhah, s.v. kor’ah belo birkhoteha.
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.
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.
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.
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 (17^th-cent. Eretz Yisrael), Peri Chadash to Orach Chayim 58, no. 1, for a detailed refutation of Karo’s theory.
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.
Berakhot 26b; Tosefta Berakhot 3:1.
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.
See Yad and Shulchan Arukh, loc. cit.
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.
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.
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.
Berakhot 31a, on Daniel 6:11 and Psalms 55:18.
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,”
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.
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.
The minchah reading normally consists of ten verses from the parashah of the subsequent Shabbat; Bava Kama 82a, Shulchan Arukh Orach Chayim 292:1.
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 (16^th-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.

RR21 no. 5759.3

CCAR RESPONSA COMMITTEE

5759.3

Who Is a Rabbi?

She’elah.

A new congregation has been formed in my city, founded by a woman who has attended the International Institute for Secular Humanistic Judaism (IISHJ), the rabbinical school of the Society for Humanistic Judaism. She serves as the congregation’s rabbi, even though she has yet to be ordained by that school. She has been licensed by the state to perform weddings, and also does conversions. Should we accept these conversions as valid, even though they were supervised by someone other than an ordained rabbi? In general, what is our position with respect to individuals who have received private ordination or who claim to possess ordination from seminaries, schools or yeshivot with which we are unfamiliar? Do we recognize them as rabbis? Do we accept them as colleagues in our communities?

Teshuvah.

Conversions Supervised by a Layperson. Your first question has been addressed quite clearly by the Central Conference of American Rabbis (CCAR). We hold that, while “a rabbinical beit din is desirable for giyur,” conversion should at any rate take place in the presence of a rabbi and no fewer than two lay leaders of the community.[1] We base this position upon considerations of both a halakhic and a practical nature.
Our tradition teaches that conversion must take place in the presence of a beit din, a court of Jewish law.[2] The Rabbis derive this requirement through a midrash,[3] the interpretation of biblical verses in which the Hebrew root sh-p-t (“judgment”) appears in connection with the word ger, or “proselyte.”[4] The precise make-up of this court is a matter of dispute in the literature; some contend that the Torah itself requires that a beit din consist of no fewer than three judges,[5] while others believe that one judge is sufficient and that the requirement of three judges in cases other than penal law is a rabbinic stringency.[6] Both views agree, however, that the judges must be knowledgeable of the law and qualified for their task. Although the codified halakhah declares that any three individuals, including those with no special legal training,[7] may constitute a beit din, it justifies this provision on the assumption that among a gathering of three persons “it is impossible that there should not be one who knows something of the law.”[8] It follows that the rule will change should this assumption prove inaccurate: “if there is not one among these three judges who has studied the law, they are disqualified from serving as a court.”[9]

In particular, the beit din which oversees a conversion must be composed of knowledgeable Jews.[10] Conversion, we stress, is much more than the stated desire to become a Jew. Choosing Judaism is a complex and demanding intellectual and emotional procedure. It involves, first of all, the study of Torah and Jewish practice (hoda`at hamitzvot), a curriculum which is taught at least in part by the members of the court.[11] Our tradition also requires that we “examine” the prospective Jew-by-choice, to determine whether his or her decision to become a Jew is sincere, well thought out, and motivated for reasons we find acceptable.[12] The journey by which one enters into the Jewish people, the veritable creation of a brand new identity – indeed, “the proselyte is like a new-born child”[13] – should therefore be supervised by a specialist who possesses the Judaic education and counseling skills necessary for this important task. We would add, moreover, that issues of personal status are among the most sensitive that face our community. It is deeply in our interest that we as a people be able to agree, to the greatest extent possible, upon “who is a Jew”, arriving at a consensus as to the standards by which we determine the Jewish identity of those who claim to possess it. “Conversions” performed by those who are unqualified to do so endanger this vital but fragile consensus, for they are likely to create a class of Jews whose very Jewishness will be suspect in the eyes of many. It is for these reasons, to insure the quality and the validity of conversion procedures, that our Conference along with the rest of the organized Jewish community insists that the supervision of conversion be a rabbinic prerogative.

In principle (l’khatchilah), therefore, conversion should not be supervised by a layperson. We deal here, however, with a situation of “after the fact” (b’di`avad), with conversion ceremonies that have already taken place, with individuals who perhaps have been accepted as Jews-by-choice in your community. And in such a case, the halakhic tradition permits us to acknowledge the conversions, for although it ought to take place in the presence of a knowledgeable beit din, a conversion ritual administered by three unlearned judges (hedyotot) is nonetheless valid.[14] Let us be clear: we are under no obligation to recognize the validity of any “conversion” merely because a ritual bearing that name was performed by a group of three persons claiming to be a beit din. We are entitled to withhold our recognition of the conversion, for example, when we have serious doubts as to the legitimacy of the “court” or the fitness of its members to serve as “judges.”[15] Yet such objections do not apply here. Although we have our religious differences with Humanistic Judaism,[16] we have no reason to doubt the Jewishness or the Judaic sincerity of those who practice it. Similarly, we have every reason to believe that the individuals who have converted with this person demonstrate a genuine desire to live a Jewish life as it is understood by their community. They have made a carefully considered and public decision to take their place in the covenant of Israel, joining their fate to that of the Jewish people. For our part, we do not want to erect barriers to their entry. On the contrary: as Reform Jews, whose movement has distinguished itself by its encouragement of those who wish to choose Judaism, we ought to welcome them actively into our midst.

Thus, our advice is two-fold. We urge you to advocate in your community that conversions to Judaism be supervised and guided solely by ordained rabbis. Such a standard reflects honor to the Torah and the seriousness with which we take the conversion procedure. It will also forestall difficulties by helping to ensure that the validity of conversions is accepted by most of the Jewish population. Yet to reject the individuals already converted by this person would serve no purpose save to embarrass them, sowing the seeds of bitterness and divisiveness within the community. Out of concern for Jewish unity and communal peace, and in recognition of their evident sincerity, you should rather accept them as full-fledged members of the Jewish people.

Rabbis with “Suspect Ordination.” How we are to evaluate the rabbinical credentials of those who have received private ordination? What of those who have graduated from rabbinical schools with which we are unfamiliar or which we regard as inferior in quality? Do we accept these individuals as our colleagues, as rabbis in our communities?
We might begin by considering the nature of the ordination by which we bestow the title “rabbi.” As we know that institution today, “ordination” is but the symbolic representation of the ancient s’mikhah described in the Talmudic sources.[17] Ancient ordination, according to halakhic theory, formed a new link in the chain of s’mikhah from teacher to student that stretched back all the way to Moses. The musmakh, or ordained judge, was therefore the legal successor to the seventy elders who stood with Moses on Sinai, and he was entitled to exercise the full range of legislative, judicial, and executive power pertaining to that exalted station. Among these was the power to enforce his decisions upon litigants even against their will, that is, if they had not agreed in advance to accept him as their judge. The musmakhim who constituted the High Court (beit din hagadol) could issue ordinances (takanot) that were binding upon all Jews everywhere. This s’mikhah was never practiced outside of the land of Israel; the Babylonian amoraim (sages of the Talmudic period) did not possess it, unless they received s’mikhah in the land of Israel. At best, the Babylonian “rabbis” (for without s’mikhah they did not take that title but were rather called rav) could regard themselves as “agents” of the rabbis of Eretz Yisrael, who commissioned them to exercise legal authority (sh’luchotayhu avdinan, “we perform their agency”)[18] within carefully circumscribed boundaries. Today’s rabbis, too, function as the agents of the rabbis of old. Although we do not wield the full legal power which they enjoyed–“today, we are all lay judges (hedyotot); we do not exercise the Toraitic power of jurisdiction”[19] – tradition suggests that they have empowered us to act in their name on matters that occur frequently in the legal life of our community or that are important enough to demand a response from contemporary authorities.[20] The “s’mikhah” that we practice today does not confer this ancient grant of jurisdiction upon the recipient. It is merely an attestation by a teacher that the recipient, his student, “has attained the requisite knowledge to rule on matters of Jewish law (higi`a l’hora’ah) and does so with the permission (r’shut) of the rabbi who has ordained him.”[21] Thus, our ordination does not endow its recipient with the authority to issue rulings that our people must accept. It is merely an expression of a teacher’s opinion that the student is capable of serving as a rabbi for a community which wishes to engage him or her. And nowhere do the sources tell us that a person must be ordained in order to perform rabbinical tasks. Rather, all rabbinical power today flows from the willingness of a community to abide by the rabbi’s rulings.[22]

If this is the case, then no seminary, yeshivah or other institution owns a monopoly over the power to ordain. Any rabbi today is entitled to ordain any student who in the rabbi’s opinion has attained that level of knowledge which qualifies him or her to function as a rabbi. And the community, which has the final say as to who shall perform that function in its midst, is under no obligation to engage the services of an ordained person as its rabbi. From all this, one could argue that there is no substantive, objective content to the title “rabbi.” A “rabbi” is rather anyone who claims to possess some sort of ordination from a teacher. It would follow that we must recognize all such “rabbis” as legitimate possessors of that title.

Yet though this is true according to the theory of Jewish law, our practice – that is, the way in which we live our law – has moved in the opposite direction. We emphatically do not believe that any and every person who is called “rabbi” or who serves some congregation in that capacity necessarily deserves the title. To us, rather, a “rabbi” is someone who is qualified for that distinction. It is therefore the widespread minhag among our communities, liberal and otherwise, to require that our rabbis receive the “customary ordination” before we engage their services.[23] Like our medieval ancestors, we utilize ordination as a criterion to measure one’s qualifications for the rabbinate, to determine that one meets and hopefully exceeds the minimum requirements of knowledge and expertise that we would set for our rabbinical leaders. If ordination is to serve as such a standard, it must surely be something more than an expression of some rabbi’s opinion or a signature on a piece of paper. Ordination must rather attest that its recipient has successfully completed an extended and rigorous program of Torah study and professional training which prepares one to exercise the rabbinical function in our communities.

How do we define this program? Every Jewish community since the Middle Ages has developed its own answer to that question. In our community, that is, in the Reform Jewish community of North America, it is customary to require that those who wish to serve as rabbis graduate from rabbinical schools, seminaries and yeshivot whose curricula in our estimation clearly reach the necessary and desirable standards of educational excellence. We use the phrase “in our estimation” advisedly. We know that it is difficult to define “standards of educational excellence” to the satisfaction of all. Indeed, our rabbinical curricula have always been the subject of much debate among practitioners and educators. We acknowledge that our seminaries are not perfect, that a seminary ordination is no ironclad guarantee that its bearer will be a brilliant scholar and an inspiring religious leader. We believe, however, that as a general rule, the education provided by these schools, with the scholarly resources at their command, is a better preparation for the rabbinate than that afforded by lowly-regarded institutions or by individual rabbis who bestow “private ordination.”

We also assert the right and the duty to act upon this belief. Every profession is entitled to define its own carefully considered educational standards. Those standards will inevitably be the subject of controversy, but at the end of the day it is the responsibility of the members of the profession to decide upon them and to enforce them. To deny us the right to set the standards we would demand for rabbinical education merely because they are controversial is to conclude that there are no standards, that there is no substance to the word “rabbi,” and that a rabbi is legitimately and properly anyone who chooses to assume that title. We do not believe this. The people whom we serve do not believe this. To draw such a conclusion would be absurd, and to act upon it would have destructive consequences for both the rabbinate and Jewish life. The best path, the one we must surely take, is to insist that our rabbis meet educational standards that, in our eyes, do honor to the title they carry.

As a way of distinguishing between those who meet these standards and those who do not, the various rabbinical associations have developed sets of criteria to determine an individual’s fitness to join the rabbinical fellowship. The CCAR’s Admissions Guidelines[24] serve as a good example. The Guidelines specify that all applicants for membership to our Conference must have earned the degree of Bachelor of Arts (or its equivalent) from a recognized institution of higher learning, and the Master’s degree in Jewish Studies (or its equivalent). Rabbinic graduates of Hebrew Union College-Jewish Institute of Religion and of the Leo Baeck College of London are eligible for CCAR membership without interview or examination, provided that they apply within four years after ordination. Rabbinic graduates of other “approved seminaries” may be admitted to the CCAR following a process of interview or examination (which may include academic examination). Graduates of seminaries and yeshivot not on the “approved” list can be admitted following an investigation of the quality of those schools and of their courses of study. This is a crucial point: we do not claim that only the graduates of “approved seminaries” are worthy of admission to the Conference. Others may join as well, provided that they can prove that their rabbinical education meets standards of excellence similar to those of the recognized schools. On the other hand, a private ordination will not be accepted, for the ordination of students by individual rabbis whose programs of study are not supervised by any responsible authority endangers the maintenance of any and all standards of educational excellence.[25] It should go without saying–but, in the interests of clarity we shall say it nonetheless–that students or graduates of “rabbinical” schools affiliated with the various messianic Jewish movements are apostates; they are not rabbis, and our community must not grant them that distinction.

The rabbis of your community can certainly develop some admissions criteria of their own, patterned after those of the CCAR and the other rabbinical associations. These associations will certainly assist you as you seek information concerning the programs of study at rabbinical schools with which you are not familiar.

To summarize: not everyone who may be called “rabbi” is necessarily deserving of that distinction. Your community is under no obligation to recognize the rabbinical credentials of those individuals who have received “ordination” privately or from lowly-regarded institutions. The rabbis in your city are similarly under no obligation to accept these persons as colleagues and as members of your local rabbinical association. You should, of course, act towards them with grace, cordiality and tact, with all due concern for communal unity, in the spirit of a tradition that calls upon us to follow “the paths of peace.” Yet the ultimate message is clear: if we as rabbis truly care about the quality and the reputation of our calling, it is our duty to advocate that membership in the rabbinate be restricted to those who clearly meet the proper educational standards.

NOTES

Rabbi’s Manual (New York: CCAR, 1988), 232.
B. Y’vamot 46b and Kiddushin 62b; Yad, Isurey Bi’ah 13:6-7 and 14:6; SA YD 268:3.
The text says “verses” because the Talmud does not specify which verse is the subject of the midrash. According to Rashi (Y’vamot 46b, s.v. mishpat k’tiv beh), the verse in question is Numbers 15:16, and “judgment (mishpat) does not occur with less than three judges”; on the other hand, in Kiddushin 62b, he points to Leviticus 24:22. Tosafot (Y’vamot 46b, s.v. mishpat) offers Deuteronomy 1:16, following a baraita on Y’vamot 47a.
The identification with the biblical term ger with the proselyte is found in the rabbinic literature. In the Bible itself, the ger is not a “convert to Judaism” but rather a “resident alien,” a non-Israelite permitted to dwell in the land and who, though remaining a non-citizen, enjoys certain privileges. For sources and discussion, see our responsum 5756.13.
M. Sanhedrin 1:1; Rava, B. Sanhedrin 3a. The number three is derived by way of midrash on three appearances of the word elohim (“judges”) in Exodus 22; see the baraita near the top of B. Sanhedrin 3b. Rava holds that this requirement applies to all matters of monetary law (mamonot) as well as to matters involving fines (k’nasot).
Rav Acha b. deRav Ika, B. Sanhedrin 3a.
The term used here is hedyotot, which can be translated either as “persons ignorant of the law” or “persons who are not ordained judges (musmakhim).” In this case, the Talmudic text (B. Sanhedrin 3a) makes it clear that we are speaking of the former.
SA HM 3:1. This reasoning is used in the Talmud (B. Sanhedrin 3a) to support the position of Rav Acha: that is, although the Torah permits one person to judge a case, the Rabbis impose the requirement of three so that at least one of them will be gamir, i.e., one who is familiar with the law at least on a basic level (see Rashi, Sanhedrin 3a, s.v. d’gamir: “one who has heard some of the laws from sages and judges”).
Tosafot, Sanhedrin 3a, s.v. ‘i efshar; Hilkhot HaRosh, Sanhedrin 1:1; SA HM 3:1.
The noted nineteenth-century Galician authority and scholar R. Zvi Hirsch Chajes writes in his chidushim to Shabbat 46b that a conversion beit din must be composed of scholars (talmidey chakhamim). The opposite view, however, is taken in Resp. Binyamin Ze’ev (16th-century Greece), 1:72.
B. Y’vamot 47b (according to Rabbi Yochanan’s emendation of the baraita at the top of the page): “three scholars (talmidey chakhamim) stand by him (at the moment of ritual immersion), informing him of some of the lighter and weightier commandments.”
On the requirement of “examination,” see Yad, Isurey Bi’ah 13:14 and SA YD 268:12. The question of motives is discussed in B. Y’vamot 24b. One who wishes to convert for the “wrong” reasons (marriage; hope for financial gain or political power, etc.) Should not, in theory, be accepted, although once accepted is a valid proselyte. And in all cases, the determination of “proper” and “improper” motivation or readiness for conversion is a matter left to the judgment of the beit din (Tosafot, Y’vamot 24b, s.v. lo; Beit Yosef YD 268, end; Siftey Kohen, YD 268, no. 23. That a decision to convert must be “well-thought-out” implies that the Jew-by-choice be made aware of the obligations which Judaism imposes and of the difficulties and even dangers that have historically been the lot of the people of Israel; see B. Y’vamot 47a-b.
B. Y’vamot 22a and parallels.
Yad, Isurey Bi’ah 13:14-17; SA YD 268:12. Maimonides does require that in the case of a ger who converts before a panel of hedyotot who do not properly examine his motivations, we “watch him until his sincerity is proven.” This does not mean that the ger is not a Jew (see Magid Mishneh and Kesef Mishneh to 13:17), but rather that we may not allow him to marry a Jew until we are certain of his proper intent.
For example, if one of the members of the panel were a non-Jew or an apostate.
See Teshuvot for the Nineties (TFN), no. 5751.4, pp. 9-16, https://www.ccarnet.org/ccar-responsa/tfn-no-5751-4-9-15/
For sources and discussion, see our responsum “Private Ordination,” TFN, no. 5753.4, pp. 133-139, https://www.ccarnet.org/ccar-responsa/tfn-no-5753-4-133-140/. Yad, Sanhedrin ch. 4, along with Tur, SA, and Arukh Hashulchan, HM 1, offer useful summaries of the rules and definitions of rabbinic status in ancient times and in our own day.
See B. Gitin 88b, on the coercion of divorce from recalcitrant husbands.
Tur, HM 1.
Today’s judges, who do not possess s’mikhah, are empowered to adjudicate matters which are “frequent” (i.e., normal occurrence in social life, such as torts, contracts, inheritance, etc.) and which involve monetary loss; SA, HM 1:1. Conversion itself is an interesting case. If the Torah requires three judges to preside over giyur, it might be thought that these judges (shoftim) should be ordained according to the biblical standard. This would mean that conversion, in the absence of such judges, could not take place today. Yet conversions manifestly do take place. Therefore, halakhists have developed the theory that the ordained judges of old have also commissioned us to act as their agents in matters of conversion, on the grounds that “we should not bar the door to proselytes”; Tosafot, Y’vamot 46b-47a, s.v. mishpat.
Isserles, YD 242:14, based upon a responsum by R. Yitzchak b. Sheshet (14^th-century Spain/North Africa), Resp. Rivash, no. 271.
We should note that this “willingness” is not an arbitrary matter. In the traditional understanding, a “good” Jewish community certainly wants to live its life in accordance with Torah. While anyone, in theory, can study Torah and apply its provisions to his or her own life, the complexity of the halakhah has led to the long-established minhag to turn to sages and scholars for the reliable interpretation of Jewish law. Rabbis, as these sages and scholars, are therefore indispensable to traditional Jewish life. The point we make here is that no individual “rabbi” can through the power of ordination force any individual or community to abide by his particular interpretations and rulings. Rather, by engaging or recognizing the individual as “their” rabbi, Jews traditionally stipulate their willingness to accept his rulings. Power, in other words, flows from the community to the rabbi and not, as it did in the days of ancient s’mikhah, from the ordaining institution to the rabbi.
See Arukh Hashulchan HM 1:14: no one should preside over weddings, divorces, or chalitzah rituals unless he has received “the customary ordination.”
On file with the CCAR.
See as well TFN, no. 5753.4 (note 17, above), at 137-138: private ordination, which offers a shortcut to s’mikhah which bypasses the rigors and requirements of a seminary curriculum, is surely destructive of our efforts to support the rabbinical schools that meet the standards of educational excellence upon which we insist.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5767.1

CCAR RESPONSA

5767.1

Berakhah and Gender

She’elah

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

Teshuvah

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOTES

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

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

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

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

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

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

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

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

9. B. Berakhot 40b.

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

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

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

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

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

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

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

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

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

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

20. Mishnah Berurah 214, no. 4.

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

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

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

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

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

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

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

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

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

30. See above, note 5.

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

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5767.2

CCAR RESPONSA COMMITTEE

5767.2

Adoption, Conversion, and “Patrilineal” Descent

She’elah.

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

Teshuvah.

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

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

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

Depending on circumstances, mitzvot leading toward a positive and exclusive Jewish identity will include entry into the covenant, acquisition of a Hebrew name, Torah study, Bar/Bat Mitzvah, and Kabbalat Torah (Confirmation). For those beyond childhood claiming Jewish identity, other public acts or declarations may be added or substituted after consultation with their rabbi.

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

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

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

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

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

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

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

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

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

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

NOTES

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

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5767.3

CCAR RESPONSA

5767.3

A Question of Disinterment

She’elah

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

Teshuvah

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

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

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

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

The “family plot” contention is somewhat forced. For one thing, the term is our translation of the Hebrew kever avot, which identifies the “family” resting place with the burial site of one’s parents and ancestors. Some authorities, accordingly, would limit the permit for disinterment to such instances and would not extend it to cover burial next to a spouse. We, along with other authorities, are comfortable with a more expansive definition of “family.”[11] Nonetheless, we would note that when Jewish tradition speaks of disinterment and reburial in kever avot, it has in mind an already existing burial site.[12] In our case, the wife does not seek to rebury her husband in such an existing site (say, next to his parents) but rather to create a new “family plot.” In so doing, she would uproot the existing family burial site, namely at the cemetery where her husband currently rests. None of the authorities who allow disinterment for purposes of reburial in kever avotrefer to a situation such as this. They would likely urge the opposite course: the wife should wish to be buried next to her husband, at the existing “family plot,” rather than to disturb his corpse for burial in a place where, as yet, no family members have been laid to rest.

The argument that the husband’s cemetery is in an area that is “not safe” is a serious one, but it is difficult to measure. R. Moshe Feinstein permits the removal of all the bodies buried in a cemetery that is located in an unsafe neighborhood and where it is impossible to protect it against vandalism,[13] and our teacher R. Solomon B. Freehof concurs that disinterment is “the optimal solution” in such a situation.[14] But just how “unsafe” is the cemetery where this woman’s husband lies buried? The members of this Committee cannot make that determination. We would suggest, moreover, that the claim that the cemetery is located in an “unsafe” area raises issues of special sensitivity. That claim, to our sorrow, is sometimes used as a code-phrase to express a sentiment that we may be unwilling to utter openly, one that might call into question our Reform Jewish commitment to social justice.[15] We have no reason to believe that the congregant who brings this she’elahis motivated by such a sentiment. Still, it is up to her rabbi to judge whether and to what extent her concern over the security of the current cemetery is warranted by the facts.

Removing the deceased to a cemetery “closer to the woman and her children” will enable them to visit his grave more often. That is surely a good thing, but we think it is insufficient grounds to permit disinterment. Our society (we speak here principally of the United States) has for some time been an increasingly transient one. Many of us live far away from what was once our family home, and we tend not infrequently to move from place to place for purposes of education, employment, professional advancement, and retirement. In our travels we have generally not thought to uproot our dead and to bring them along with us. We have preferred, in devotion to our Jewish tradition, to leave them undisturbed in their final resting places and to visit them whenever we can. This approach certainly places a burden of inconvenience upon us, but we have thought that it better comports with the specific Jewish way of rendering honor to the deceased (kevod hamet).[16] Again, we have no reason to believe that the congregant in this case is motivated primarily by considerations of personal convenience. Yet should we issue an affirmative answer to her request, that answer would rightly be cited as a precedent by others in similar circumstances who might in fact seek to disinter and to move their dead largely out of such reasons. That is a line we can ill afford to cross.

Finally, we would discourage the removal of the dead from a Jewish cemetery to a non-Jewish cemetery. Although Jewish law imposes no formal (.e., Toraitic or Rabbinic) requirement that the dead be buried in a “Jewish cemetery,” Jewish communities have by long-standing custom acquired land for the purpose of establishing their own burial places.[17] It is there that we ought to lay our dead to rest. We have, indeed, no objection to the burial of our dead in national military cemeteries that are not associated with any particular religion, since those burial grounds are considered the property of all the country’s citizens. Yet from this absence of an “objection” we have never deduced that it is permissible to disinter a Jew from a Jewish cemetery for reburial in such a cemetery, and we have in fact decided otherwise.[18] This, too, is a weighty consideration against approval of the widow’s request in our case.

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

NOTES

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

2. Yoreh De`ah 363:1.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5768.1

CCAR RESPONSA

5768.1

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

She’elah

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

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

Teshuvah.

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

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

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

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

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

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

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

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

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

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

NOTES

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

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

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

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

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

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

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

If needed, please consult Abbreviations used in CCAR Responsa.