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

NYP RR21 no. 5760.5

CCAR RESPONSA

5760.5

Conversion When The Spouse Remains a Gentile

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

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

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

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

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

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

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

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

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

NOTES

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

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

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

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

BT Yevamot 22a and parallels.

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5758.4

CCAR RESPONSA

Reproving a Congregation for Violations of Tax Law

5758.4

She’elah

I have discovered several instances of irregularities with federal tax laws at the congregation I serve as rabbi. One of these involves the granting of a parsonage allowance to a staff member not entitled to one under the rules set by the U.S. Internal Revenue Service (IRS). The other two involve underpayment of Social Security and Medicare taxes by the same staff member and by a prior staff member. I have called both irregularities to the attention of congregational leadership, who have done nothing about it.

Do I have an obligation under Jewish law to report these violations to the IRS?

Teshuvah

We begin by noting the obvious: your legal responsibility in this matter is determined by the tax laws of the United States and of your local jurisdiction. Jewish law also recognizes this fact, under the principle dina demalkhuta dina (the law of the state is valid and binding upon us).[1] It is therefore vital that you consult with an attorney as to your legal obligation.

Yet Jewish law speaks as well to the substance of your question. Leviticus 19:17 reads: “Reprove your kinsman” (hokheach tokhiach et amitekha), which our Sages teach us establishes a positive duty to point out a wrongdoer’s sin.[2] As Maimonides puts it: “When one sees that his fellow has committed a sin or has chosen the wrong path, it is a mitzvah to restore that person to righteousness by informing him that by his evil deeds he sins against himself.” This reproof should take place privately and should be spoken gently, so that the sinner is made to realize that this criticism is to his benefit. It should be repeated, if necessary, until the person receiving the reproof responds in anger, making clear that he does not accept it. “Whosoever has it in his power to protest against sin and does not do so is implicated in that very sin, inasmuch as he could have issued a rebuke.”[3]

This last point bears considerable emphasis. The positive duty of reproof (tokhechah) involves us deeply in the actions of the wrongdoer. Failure to discharge this duty means that we bear partial responsibility for his or her sin; the Biblical text requires us to rebuke the sinner “so that you not incur guilt on his account (v’lo tisa alav chet; Lev. 19:17).”[4] If we are not part of the solution, in other words, we are part of the problem; when we do not meet our ethical responsibilities in this matter, we commit the sin of “hating our kinsman in our heart.”[5] For this reason, we must repeat the rebuke should our message not be received the first time.[6]

On the other hand, as Maimonides and his sources point out, there is a limit to the number of times we are obligated to perform the mitzvah of tokhechah. This limit is determined by the measure of effectiveness: should it become obvious that the recipient obstinately refuses to accept one’s rebuke, one is at that point discharged from any further duty.[7] As we read in the Talmud, “just as it is a mitzvah to speak out when our words will be heeded, so it is a mitzvah to refrain from speaking out when our words will not be heeded.[8] We must also take care that our rebuke not cause shame and embarrassment to the recipient.[9] The difficulty involved in carrying out this mitzvah in a way that preserves the dignity of all led R. Elazar b. Azaryah to doubt whether anyone alive in his day could perform it.[10]

Let us now apply the lessons of our tradition to your case. Every one of us has a duty to offer reproof for wrongdoing that we perceive, and this is especially true for the rabbi of a congregation, the teacher of Judaism and its ethical doctrines to his or her people.[11] By raising the tax issues with your congregational leadership, you have begun to meet your responsibility of tokhechah, but you may not yet have discharged it in full. We are required to offer rebuke again and again, at some personal risk, until such time as we are convinced that it will not be accepted. You should therefore pursue this manner until you are certain that your efforts have come to naught. At that point, when it becomes clear that further reproof will result only in anger directed against you, then you have fulfilled your obligation under Jewish law. Inasmuch as reproof is a private matter that must be carried out so as to spare its recipient embarrassment and shame, you are under no Judaic requirement to report your suspicions to the IRS. We repeat, however, the caveat stated at the outset of this t’shuvah: you should consult an attorney as to your obligations under civil law (dina d’malkhuta).

In any event, it is imperative for our communities and for our moral standing within them that we rabbis seek as best we can to fulfill the mitzvah of tokhechah when the situation requires it. As R. Yehudah Hanasi teaches us: “which is the path of righteousness that one should choose for oneself? It is to love reproof. For so long as there is reproof in the world, there is peace of mind in the world, there is goodness and blessing in the world, and evil departs from the world, as we read: ‘to those who are reproved shall come delight’ (Proverbs 28:23).”[12]

NOTES

For a discussion of the subject dina d’malkhuta dina, see our responsum 5757.1.

 2. B. Arakhin 16b.

 3. Yad, De`ot 6:7, based upon B. Arakhin 16b. “Until the person receiving the reproof responds in anger…” is a paraphrase; Rambam literally writes “until he strikes him (the one who issues the reproof).” This follows the view of Rav in the Talmud loc. cit., against those of Shmuel (“until he curses him”) and R. Yochanan (“until he rebukes him [k’dei nezifah]”). Rambam’s commentators are puzzled as to why he does not follow R. Yochanan, whose views are usually considered authoritative against those of Rav. Indeed, Sefer Mitzvot Gadol (positive commandment no. 11) explicitly rejects this decision and rules according to R. Yochanan. We would suggest that all three of these suggested “end points” of reproof are synonymous with the expression here.

According to the interpretation of Nachmanides ad loc., who citesOnkelos in support. See also ibn Ezra ad loc. In the words of the author of Sefer Hachinukh (mitzvah 239): “one who has the power to reprove a sinner and does not do so is caught up in that very sin; this is obvious from the teachings of our Sages and from the sense of the verse (i.e., Lev. 19:17).” Maimonides, for his part, adopts the alternative interpretation of the verse (see below in text), namely, that one should make the reproof in such a way that it not shame its recipient. He learns the present rule (failure to rebuke implicates one in the wrongdoer’s action) from a baraita in B. Shabbat 54b; see Kesef Mishneh to Yad, De`ot 6:7.
After the first clause of Lev. 19:17; Nachmanides ad loc. draws the connection between the two issues. See also SeferHachinukh, mitzvah 239: one who does not rebuke his neighbor when necessary may well bear a grudge against that neighbor, “hating him in his heart” and seeking his harm at the earliest opportunity.
And see B. BavaMetzi`a 31a, where Rava suggests we are obliged to rebuke “even one hundred times” until the rebuke is accepted. This number is not taken literally by the halakhic authorities (poskim), but its rhetorical force is clear: we should carry out this mitzvah until it has achieved its objective.
See notes 3 and 6.
B.Y’vamot 65b (and see Proverbs 9:8). See Isserles, SA OC 608:2: the reason for keeping silent in such a situation is that it is better that the sin remain an inadvertent one. Should we issue a rebuke that will be rejected, the sin at that point becomes one of intent and premeditation, and the sinner accordingly guilty of a more serious transgression.
B.Arakhin 16b, based upon a midrash of the concluding words of Lev. 19:17, lo tisa alav chet, “do not bear a sin on his account”; Yad, De`ot 6:8.
B.Arakhin 16b.
See B. BavaMetzi`a 31a. Even the student (talmid) is obligated to reprove his teacher (rav); how much more does that duty rest upon the rabbi.
B.Tamid 28a.

RR21 no. 5768.4

CCAR RESPONSA

5768.4

Caesarian and Circumcision

She’elah

A member of our synagogue gave birth to a boy by Caesarian section (C-section) on Shabbat. The boy’s parents attempted to arrange a berit milah on the eighth day of the child’s life, also a Shabbat, but an Orthodox mohel told them C-section baby is not circumcised on a Shabbat or a festival. What is the basis in traditional Jewish law for this position? Should a Reform mohel observe the prohibition against performing the milah on the eighth day of the child’s life if that day coincides with Shabbat or a yom tov? (Rabbi Michael Dolgin, Toronto, ON)

Teshuvah.

This she’elah involves a technical point of Jewish ritual law. Yet like many such seemingly “minor” issues, it raises some interesting questions as to how we are to read and to make sense of our traditional sources when these are equivocal. And it raises similar questions concerning the way we interpret our own Reform Jewish sources when these, too, lead to differing conclusions.

1. The Traditional Prohibition. The Orthodox mohel is correct in his understanding of the halakhah, if by that term we mean “the law as stated in the major codes.”[1] While all agree that the infant boy is circumcised on the eighth day of his life, even if that day should occur on a Shabbat or a festival,[2] both Maimonides[3] and the Shulchan Arukh[4] rule that the child delivered through Caesarian section (yotzei dofen) is not to be circumcised on those days. Yet the matter is rather more complicated. The Talmudic source of this rule is B. Shabbat 135a-b, where Rav Assi draws a midrashic link between Leviticus 12:3 (the child is circumcised on the eighth day) and Leviticus 12:1, which speaks of tumat leidah, the ritual defilement that accompanies birth. From that link, he learns that the child is circumcised on the eighth day only when the mother contracts this defilement. Since the woman who delivers by means of C-section does not contract tumat leidah (M. Nidah 8:1), her baby is circumcised at birth.[5] The Talmud objects to Rav Assi’s conclusion by citing an Amoraic dispute in which both authorities are said to agree that the C-section baby is indeed circumcised on his eighth day but disagree as to whether that circumcision should take place on a Shabbat. The Talmud further cites a dispute among the earlier Tanaim as to whether, in fact, the issue of tumat leidah has anything to do with whether the child is to be circumcised on the eighth day.[6] The passage does not explicitly resolve these disagreements, and the post-Talmudic authorities are not surprisingly divided as to the proper decision. Some rule according to Rav Assi: the C-section baby is not to be circumcised on the eighth day, and his milah therefore does not override Shabbat.[7] Others say that the halakhah definitely does not follow Rav Assi, so that the milah for this baby must occur on the eighth day even should that fall on a Shabbat or a festival.[8] And others, including Maimonides and the Shulchan Arukh, unable to decide between the above alternatives, take what we would call the “cautious approach” and rule stringently on both matters:[9] the C-section baby should be circumcised on the eighth day (in case the law in fact requires this) but not on Shabbat or festivals (in case the law in fact forbids this).[10] This stance has become the predominant traditional practice and, in turn, explains what the Orthodox mohel told the parents to whom our sho’el refers.

We suggested above that the Talmudic source of this halakhah is equivocal. This is because it does not clearly indicate the correct rule and has led to conflicting legal interpretations over the centuries. The “cautious approach” of the major codifiers is therefore a reasonable one. When the arguments on both sides of a dispute are so closely balanced that it is impossible to decide with confidence between them, it makes sense to steer a middle course and to affirm the central concerns of both points of view. Halakhic authorities often resort to this device.[11] We, however, are not convinced that the cautious approach was necessary in this case, because it appears to us, as it appears to several rishonim,[12] that the dispute is not so equally balanced. A careful reading of the Talmudic passage indicates that a majority of the Sages named therein reject the connection that Rav Assi makes between tumat leidah and the date of circumcision. In our view, therefore, the better reading of that passage is that the halakhah definitely does not follow Rav Assi:[13] the C-section baby ought to be circumcised on the eighth day, even on Shabbat and festivals.

2. The Reform Halakhic Tradition. The situation in Reform practice is also equivocal, because the two Reform responsa that address this issue arrive at conflicting decisions. Rabbi Solomon B. Freehof rejects the traditional prohibition and rules that we circumcise the C-section baby on Shabbat or a festival.[14] Rabbi Walter Jacob, meanwhile, writes that “we must respectfully disagree” with Rabbi Freehof’s decision[15] and that we should postpone the milah of such a child to the next day.[16] Given that we must choose between these two positions, let us examine the arguments that each of them presents.

Rabbi Freehof criticizes the traditional prohibition on the grounds that the ruling “overextends the statement in the Mishnah (Shabbat 19:3) which speaks only of the androgynous and does not at all mention the Caesarian child.” This is true, but the Mishnah’s silence concerning the C-section baby does not mean that Jewish law ignores the subject. This particular rule, as we have seen, is based not on the Mishnah but on a series of Amoraic and Tanaitic statements brought forth in the Talmud (B. Shabbat 135a-b). All subsequent authorities base their rulings on this Talmudic source, and they do not cite the Mishnah’s silence as an argument either pro or con. As Rabbi Freehof does not discuss the Talmudic source, his responsum offers no substantive argument against the prohibition as registered by Maimonides and the Shulchan Arukh.

Rabbi Jacob upholds the prohibition because “there is neither a Reform ideological reason for a change nor any other reason.” He thereby invokes a general principle of Reform halakhic decision making (pesak): the “default” position of our responsa should be to affirm the traditional practice unless there is sufficient cause based in Reform doctrine that would lead us to depart from that standard. This principle is a powerful one. The affirmation of traditional practice, particularly because that standard helps to unite us with the rest of the Jewish community, has often informed our thinking.[17] Yet in this instance we can identify at least two good “Reform ideological reasons” that do argue for a departure from the traditional practice.

a. Talmudic halakhah treats the C-section baby as an exceptional case because, in the view of the Sages, such a child was “delivered” but not “born” in the usual sense of that term.[18] But this notion is foreign to our contemporary way of thinking. Caesarian section, once considered extremely dangerous and hence very rarely performed, has become much safer and more commonplace; in 2002, nearly 26% of all births in the United States were C-sections.[19] In the conceptual world in which we Reform Jews live and function it no longer makes sense to draw legal and ritual distinctions between babies delivered in the “natural” way and those brought forth from the womb via C-section. To put it another way, the means by which this child has entered the world is much less important to us than the fact that he has entered it.

b. To enforce the traditional prohibition may distract our people’s attention from the religious significance of the mitzvah of berit milah. That mitzvah is performed, in the absence of medical complications,[20] on the eighth day of a Jewish boy’s life, even if that day is a Shabbat or a festival. The timing is an essential element of the mitzvah; we have consistently held that circumcision must take place on the eighth day and be neither advanced nor postponed out of reasons of convenience.[21] To delay the milah from Shabbat until Sunday in this case, on grounds that will strike many as a technicality devoid of substance and relevance, may well persuade members of our community that it is permissible to postpone milah for other, unacceptable reasons (i.e., for the sake of convenience) that they will nonetheless take more seriously.

3. Conclusion. We hold that the Jewish child delivered by Caesarian section should be circumcised on his eighth day, even if the eighth day is a Shabbat or a festival. We do so because the traditional rule that prohibits such circumcisions is grounded upon a weak and contested reading of the halakhic sources; because the prohibition is no longer coherent with our understanding of childbirth; and because the maintenance of the prohibition conflicts with our insistence upon the eighth day as the proper time for the mitzvah of berit milah.

It is important to note, however, that all C-sections are not the same. Sometimes the procedure is performed, as it was always performed in the past, as an emergency measure, to deliver a child when a problem developed with a vaginal birth. Today, however, it is often the case that physicians will routinely schedule C-sections for women whom they know or fear will have difficulty giving birth vaginally. For purposes of berit milah, we consider an emergency C-section no different than a regular birth. A baby born as the result of an unscheduled C-section should be circumcised on the eighth day even if that day is Shabbat or a festival. However, a scheduled C-section is a different matter, since parents in that case have the option to choose a day that would avoid scheduling a berit milah on Shabbat or a festival. In those cases, the berit milah should be performed after Shabbat or the festival, in keeping with traditional practice.

NOTES

1. This note is not the place for an extended discussion of the nature of halakhah. It bears emphasis, however, that our entire Reform responsa enterprise is based upon the assertion that “the” halakhah is not to be identified with any particular, formal statement of it, whether that statement is a paragraph in the Shulchan Arukh or whether it reflects the consensus opinion among the contemporary Orthodox rabbinate. In fact, we would argue that the entirety of the Jewish legal tradition is based upon this assertion. Halakhah is the ongoing conversation and argument over the meaning of the texts of that tradition and their application to our lives. To identify any “code” or banc of poskim as the final arbiters of the law is to cut short this argument and to deny us the opportunity to read and to understand the sources as best we can, according to our own lights.

2. See Leviticus 12:3 (“On the eighth day the flesh of his foreskin shall be circumcised”) and B. Shabbat 132a (“‘On the eighth day’ – even if it is a Shabbat”). Yad, Milah 1:9; Shulchan Arukh Orach Chayim 331:1ff and Yoreh De`ah 266:2.

3. Yad, Milah 1:11.

4. Shulchan Arukh Orach Chayim 331:5 and Yoreh De`ah 266:10.

5. See Rashi ad loc., s.v. kol she’ein imo temei’ah leidah.

6. If the answer to this question is “no,” which is the view attributed to the anonymous (majority) position in the baraita (against that of R. Chama), then the C-section baby would obviously be circumcised as all other babies: on the eighth day, including Shabbat.

7. Among these: R. Yonah Gerondi, cited in Chidushei HaRashba, Shabbat 135b and in R. Nissim Gerondi’s commentary to Alfasi, Shabbat 135b; Chidushei HaRitva, Shabbat 135b.

8. See Nachmanides, Chidushei HaRamban, Shabbat 135b, who takes this position in theory (although retreats from it in practice). He is perhaps the anonymous authority to whom this position is attributed in R. Nissim, Rashba, and Ritva (see preceding note). See as well Sefer HaHashlamah (Provence, early 13th century), Shabbat 135b.

9. This is how R. Nissim (note 6, above) and R. Yosef Karo (Kesef Mishneh, Milah 1:3 and Beit Yosef, Orach Chayim 331 and Yoreh De`ah 266) account for Rambam’s ruling (see note 2, above) as well as the silence of R. Yitzchak Alfasi on this issue in his Halakhot to Shabbat 135. See also R. Asher b. Yechiel, Hilkhot HaRosh, Shabbat 19:6; R. Menchem HaMe’iri, Beit Habechirah, Shabbat 135b; and R. Zerachyah Halevi, Sefer Hama’or to Alfasi, Shabbat 135b.

10. Yad, Milah 1:7; Shulchan Arukh Yoreh De`ah 262:3.

11. Another example of this approach is the compromise over hatafat dam berit, the taking of a drop of blood from a proselyte who was circumcised prior to deciding upon conversion to Judaism. Some authorities say that this ritual is a requirement for conversion, while others say that there is no requirement that we take a drop of blood from a previously-circumcised proselyte. Therefore, we do take the drop of blood, “just in case” the halakhah requires this of a Jew by choice, but we do not recite a berakhah over this procedure, “just in case” it is not required (which would render the blessing a berakhah levatalah). See Shulchan Arukh Yoreh De`ah 268:1 and Siftei Kohen ad loc., n. 1.

12. Nachmanides, Rashba, and R. Nissim (notes 6 and 7, above), among others, make this point.

13. This reflects the general rule that “we incline after the majority” in deciding disputes among Talmudic authorities: M. Eduyot 1:5; B. Berakhot 9a and numerous other places (“yachid verabim halakhah kerabim”); B. Bava Metzi`a 59b (“acharei rabim lehatot” in a dispute over legal interpretation). We should not imagine that this “general” rule is an ireoclad one; “majority rule” does not always decide matters in the Talmud. However, the fact that Rav Assi’s is a minority opinion does serve to weaken its claim to being the “correct” interpretation of the halakhah.

14. Today’s Reform Responsa (TRR), no. 35, pp. 92-94.

15. This reminds us that Jewish law, as a general rule, does not recognize a doctrine of binding precedent (takdim mechayev, in the language of contemporary Israeli jurisprudence). The decisions of past authorities can and do serve as sources of guidance (takdim mancheh) for the present-day posek, and most halakhists show deference to such decisions, particularly if they represent a historical consensus in the scholarship. However, the individual judge is entitled to rule as she or he sees fit on the basis of his or her best interpretation of the sources. See (at length) Mark Washofsky, “Taking Precedent Seriously: On Halakhah as a Rhetorical Practice,” in Walter Jacob and Moshe Zemer, eds., Re-Examining Reform Halakhah (New York: Berghahn Books, 2002), 1-70.

16. Questions and Reform Jewish Answers (NARR), no. 95 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=95&year=narr).

17. For a description of how this principle works in the activity of the Responsa Committee, see the Preface by Rabbi W. Gunther Plaut to Teshuvot for the Nineties (TFN) (New York: CCAR, 1997), p. x: “Our procedure [in writing responsa] was marked by two considerations. First we asked: ‘How might Tradition answer this question?’ Then, after exploring this aspect, we asked: ‘Are there reasons why, as Reform Jews, we cannot agree? If so, can our disagreement be grounded in identifiable Reform policy?’ In this way we placed Reform responsa into the continuum of halakhic literature.” For an example of this principle at work, see our responsum “A Non-Traditional Sukkah,” TFN, no. 5755.4, pp. 91-96 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=4&year=5755).

18. The sources say this explicitly; see M. Nidah 8:1. Indeed, the connection that Rav Assi draws between circumcision on the eighth day and tumat leidah is understandable only if we think that the C-section baby was not “born” in the first place. An example of how the halakhah registers this distinction is that the yotzei dofen, because he was not technically “born” to his father, is not regarded as the firstborn son (bekhor) for purposes of inheritance; see B. Bekhorot 47b on Deuteronomy 21:15 (veyaldu lo); Yad, Nachalot 2:11 and Shulchan Arukh Choshen Mishpat 277:7 (lefi shelo nolad). All of this reminds us, of course, of William Shakespeare, Macbeth, Act V, Scene VIII, lines 12-16.

19. The figure is provided by the US National Institutes of Health, http://www.nlm.nih.gov/medlineplus/ency/article/002911.htm (Accessed May 30, 2008).

20. See Shulchan Arukh Yoreh De`ah 262:2 along with Siftei Kohen ad loc.

21. American Reform Responsa (ARR), nos. 55-56, (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=55&year=arr and http://data.ccarnet.org/cgi-bin/respdisp.pl?file=56&year=arr).

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5758.9

CCAR RESPONSA COMMITTEE

5758.9

Transporting a Torah Scroll to a Private Bat Mitzvah Ceremony

She’elah.

A family in my congregation wishes to celebrate their daughter’s becoming a bat mitzvah, not as part of a synagogue service, but in a private ceremony to be held on a Saturday evening at the local yacht club. The ceremony there, to be conducted by the girl’s tutor, who claims to have semikhah from an Orthodox yeshivah. They have requested the use of a Torah scroll from our congregation. I do not know whether they plan to read from the scroll during the ceremony, and I do not plan to be in attendance. Our board is deeply divided over this issue. Some argue that we should not lend them the scroll, that we should not encourage families to schedule beney mitzvah services away from the synagogue. Others say that we should lend them the scroll, on the grounds that we should do whatever we can to help insure that our members may have a memorable and meaningful religious experience.

Should we lend them a Torah scroll for their ceremony? (Rabbi Bonnie Steinberg, Great Neck, NY)

Teshuvah.

In one sense, this is a question about the proper use of a Torah scroll (sefer torah), the times when and purposes for which it may be moved from its honored place in the synagogue in order to meet the needs or desires of individuals. Our tradition offers much specific guidance on that point, and we have much to learn from what it teaches us. In another sense, this is a more general question concerning the nature of the relationship between a congregation and its members, the reasons why congregations are formed and the purposes they serve. On this issue, too, we think that a careful study of that tradition, in both its letter and spirit, will lead to an answer that reflects our best understanding of the values that ought to guide and animate our religious communities.

Transporting a Sefer Torah to a “Private” Service. The halakhic discussion of this subject customarily begins with Mishnah Yoma 7:1, which describes the reading of the Torah by the high priest (kohen gadol) on Yom Kippur. The sexton (chazan) of the synagogue on the Temple mount would hand the sefer torah to the highest synagogue official, who would pass it on to the sagan, the high priest’s deputy, who would then hand it to the kohen gadol to conduct the day’s reading. The Talmud Yerushalmi criticizes this procedure: “everywhere else, we are told to go to the Torah, but here, you say that we bring the Torah to them!” That is to say, our usual conception of the duty to render honor unto the sefer torah would require that the high priest go to the synagogue to read it there. The Talmud answers this objection by noting that since these individuals occupy exalted ritual offices (beney adam gedolim), the Torah scroll is actually honored when it is brought to them.[1] This passage finds its way into two 13th-century Ashkenazic texts, which use it as a basis for two different yet related halakhic rulings. The Or Zaru`a cites it in support of his decision that when an exalted person (adam chashuv) is ill and cannot attend synagogue, a minyan of worshipers may assemble at his home and a sefer torah may be brought to him “so that it may be read in a quorum of ten.”[2] The second source is R. Mordekhai b. Hillel, who quotes a responsum which, basing itself upon the Yerushalmi text, declares: “we do not transport a sefer torah to a prison in order that it may be read to those incarcerated there, even on Rosh Hashanah or Yom Kippur.”[3] Since prisoners are generally not “exalted personages,” it would seem that it is an act of disrespect (zilzul)[4] to take the scroll from its rightful place and bring it to the prison. This decision is in turn codified by R. Yosef Caro: we do not transport the Torah scroll to prisons.[5] Caro does not mention the Or Zaru`a and does not speak to the issue of bringing a Torah scroll to the home of one who is ill.Caro’s ruling, however, is significantly modified by the discussions of two other authorities. The 16th-century R. Meir Katznellenbogen[6] observes that all of the sources which address this issue–the Yerushalmi, the Or Zaru`a, and R. Mordekhai–refer to a situation in which the Torah scroll is simply transported to be read in another place and thereupon returned immediately to the synagogue. This contrasts with “our practice,” in which we overcome the objections against transporting a sefer torah by taking the scroll from the synagogue and placing it in an ark at the “private” location “a day or two” prior to its scheduled reading there. “It would never occur to anyone to prohibit this procedure. No insult (p’gam) is done to the scroll, since it resides in its own special place. And there is no distinction to be drawn between a ‘permanent’ and a ‘temporary’ synagogue.” That is to say, we show disrespect to a sefer torah not because we take it to a “disreputable” place such as a prison but because we move it in an abrupt and thoughtless manner. Moreover, Katznellenbogen offers a slightly different reading of the text of the Yerushalmi: the “exalted personages” are b’ney adam g’dolim batorah.[7] They are Torah scholars, not merely “powerful, wealthy, or influential.” He concludes that if we transport the scroll for the benefit of a noted Torah scholar who cannot come to the synagogue, we do not insult but rather honor the Torah thereby. R. Moshe Isserles cites these views in his emendations to the Shulchan Arukh.[8] This is followed a century later by R. Chizkiyah da Silva, a leading commentator to the Shulchan Arukh, who critiques Caro’s ruling on textual and ethical grounds.[9] His textual argument is that the Yerushalmi passage upon which Caro and the Mordekhai base their prohibition offers no support for it, since the text deals with persons who can go to hear the Torah reading in the synagogue but who for whatever reason do not do so. In such a case, we insult the sefer torah by bringing it out to those persons unless they are “exalted,” like the High Priest and the other Temple officials. Prisoners, by contrast, are anusim, “coerced”, physically unable to come to the synagogue; the Yerushalmi simply does not speak to such a case. His ethical argument[10] asks: on what grounds are we justified in denying these prisoners the opportunity to fulfill their ritual obligation in the only way they possibly can? We do not debase the sefer torah by bringing it to the prison; we honor it thereby. This argument, which effectively overturns the ruling of the Shulchan Arukh, is adopted by numerous later authorities.[11]We learn from this discussion that it is generally forbidden to transport a sefer torah from its proper and honored place in the synagogue to be read in a place of “private” worship. To do so is to show disrespect to the scroll; we should strive to bring ourselves to the sefer torah rather than have it brought to us. This rule may be suspended, however, when any one of the following three conditions is met:
1. A worshiper is unable for good and compelling reasons (such as illness or incarceration) to attend services in the synagogue, and a minyan is assembled elsewhere for that person’s benefit.
2. An “exalted” or “important” individual, most likely a noted Torah scholar, is present, and to assemble a minyan there at which the Torah is read can be said to render honor to the scroll.
3. The scroll is placed in an ark at the private place a “day or two” prior to the scheduled service, so as to establish there a temporary synagogue that serves as a “proper” resting place for it.[12]

When we turn to the case before us, we find that not a single one of these conditions is met. First, as a Shabbat service, a bat mitzvah ceremony is ordinarily held in the synagogue. The family is in no way prevented from scheduling it there, and the invited guests could easily attend it there. The yacht club is no doubt a fine setting for the dinner and celebration that will follow the service, but there is no reason why the service itself cannot be held in the synagogue. The desire to schedule all the day’s events in one convenient location hardly transforms the girl, her family, and the invited guests into anusim, a designation which in this discussion is reserved for those who are physically unable to come to the synagogue. Second, the category of “exalted personage” is irrelevant to our situation. Even were we to assume, for the sake of argument, that the girl’s tutor possesses a genuine semikhah from a recognized institution of rabbinical education and even were he to possess a degree of Torah learning that marked him as clearly above the rabbinical norm, this would not matter: the guests are not gathering at the yacht club in order to “honor” him. Indeed, the point of this service is not to “honor” anyone. Its purpose is to allow this girl to mark her reaching the age of mitzvot by being called to the Torah. It is customary in our day and age to hold such services in the synagogue. It is also customary for rabbis and tutors to be present there, at the synagogue service, and we do not think that we somehow fail to “honor” these teachers when we hold the service in the synagogue rather than in their homes. Third, it is most unlikely that the Torah scroll will be transported in an ark to the yacht club long enough in advance to turn the place into a temporary synagogue. Indeed, it seems clear that the yacht club was chosen as the location, not primarily as a good setting for the ceremony, but because it is especially well-suited for the dinner and party that will follow it. Given such an atmosphere, it is difficult to think of the yacht club in any way as a “synagogue,” even a temporary one.

For these reasons, we think that Jewish tradition would forbid a synagogue to lend its Torah scroll for this service.
The Congregation and Its Members. It is possible, however, to construct a counter-argument, one that would support a positive response by the congregation to the request of this family. This argument is in fact presented by those board members who contend that the congregation ought to “do whatever we can to help insure that our members may have a memorable and meaningful religious experience.” In this view, we would begin with the assumption that the bat mitzvah ceremony will be held at the yacht club no matter what the synagogue decides. Our only choice is whether to make a Torah scroll available to them, and to say “yes” means that the ceremony will take place in the presence of a powerful Judaic religious symbol. The bat mitzvah will even be able to read from the scroll, though the sho’elet is not certain that the ceremony is to include a Torah reading. The presence of the scroll will also help transform the yacht club into a kind of sacred space, to the point that we might consider it in traditional terminology a “temporary synagogue.” In other words, by allowing the use of its sefer torah for this service the congregation will help see to it that the event will leave a lasting and favorable Jewish impression upon the girl, her family, and their guests. To do this, the argument concludes, is to strengthen Jewish life, and to fulfill that goal is truly to render “honor” to the Torah scroll.Although there is some force to this reasoning, it is more apparent than real; indeed, we find it superficial. For while our synagogues should certainly strive to provide “memorable and meaningful religious experiences” to their people, we should note that in and of itself this term is empty of content. In the name of enabling our people to have a “meaningful religious experience,” we could conceivably advocate virtually any action and justify the violation of virtually any standard of religious practice. We could; but we don’t. That is to say, we know that no matter how “meaningful” the experience we seek to facilitate, there some actions we will not take and some standards which we dare not violate. This is because we cannot define meaning in isolation, apart from a coherent view of Judaism and Jewish religious practice as a whole. An experience is “meaningful” in Jewish terms to the extent that it partakes of that view and reflects our deepest Judaic commitments. And when we perceive that a proposed action runs counter to those commitments and is, perhaps, even destructive of them, we are likely to draw the line at that point, to place a clear limit upon what we are prepared to countenance for the sake of a “meaningful religious experience.”In our case, we are asked to provide the sefer torah for the bat mitzvah service, even though our tradition frowns upon the idea, because to do this will produce positive effects upon those in attendance. Yet the question we should ask ourselves is not whether they respond “positively” to the presence of the scroll but whether this is the sort of positive response they ought to have, the “meaning” they ought to derive. The question, framed specifically, is this: does the lending of the scroll help us to achieve the religious and educational purposes of the bat mitzvah ceremony as we understand them, or does it in fact frustrate them? And to this question, our answer is “no.” The point of marking a child’s attainment of religious majority with a formal service is to enable the young person to acknowledge his or her full adult membership in the religious community of Israel. The so-called “ceremony” of bar/bat mitzvah is therefore not a private ceremony or simchah at all but a formal and public act which takes place in the midst of the community itself. It is for this reason that the bar/bat mitzvah “ceremony” is actually a public worship service, a service held on an occasion when the Torah is normally scheduled to be read, such as Shabbat, Rosh Chodesh, or a Monday or Thursday shacharit. By being called to the Torah at such an occasion, the young person affirms that he or she is ready to join the minyan, the adult community whose presence is required in order that the quintessentially public liturgical acts, like the formal Torah reading, can be performed. And it is for this reason that we have been critical of the so-called “Havdalah” bar/bat mitzvah, for although the minchah service for Shabbat is a regularly-scheduled occasion for the reading of the Torah,[13] most of our congregations do not hold a Shabbat minchah service on a regular basis. The “ceremony” perforce becomes a private gathering rather than a public service at which the congregation is present. The emphasis at such a ceremony is upon the private joy of the family and their friends rather than upon the communal/congregational aspects of the event. And since one of the purposes of the bar/bat mitzvah observance is to “encourage attendance at regular services…it would, therefore, be wrong to change the occasion into a completely private service and hold it at a time during which the normal services are not held…unless circumstances which would benefit the congregation dictate a change.”[14]
In considering the request which prompts this she’elah, we see no such “circumstances.” It is bad enough that the ceremony is scheduled at a “private” time at which the congregation does not conduct services. It is also scheduled at a “private” place, a location away from the synagogue. And in doing so, the family has stripped this ceremony of any explicit link to the synagogue, the congregation, and its regular liturgical calendar. The chosen setting for this “religious” service is truly inappropriate, given that the family could just as easily have held the ceremony in the synagogue. A yacht club is not a synagogue; the presence of a sefer torah–which, since it may or may not be read, may be serving as a mere “prop” for the festivities–does not make it a synagogue; and the obvious inference is that to hold the ceremony there “leads to an emphasis on the social rather than religious aspects” of the occasion, an outcome that should be resisted in no uncertain terms.[15]

Conclusion. The congregation should not lend its Torah scroll for this ceremony. To do so would be to violate both the letter and spirit of our tradition. It would also be to suggest that, to us, the observance of bar/bat mitzvah is primarily a private, family event, much like any sort of social occasion that might normally take place at a yacht club. And to make that suggestion is to send precisely the wrong message to our people, one that contradicts the core values of Jewish religious life that lie at the core of our teaching. The task of the congregation in this instance is not to help this family have a “meaningful Jewish experience,” for they have chosen to celebrate their “event” in a way that transgresses against one of the basic standards which define the bat mitzvah observance and make it “meaningful” in a truly Jewish sense. Its task is rather to urge them to reconsider the priorities they have set and the values by which they define their Jewishness, especially at a moment when their daughter declares her readiness to think about those priorities and values for herself. Put differently, the synagogue’s job is not to make people feel good about “their” Judaism, but to teach Judaism, a way of life whose patterns are set in accordance with the ideals and the standards by which we as a community determine to guide and direct our practice.

In saying this, we speak to the specifics of this she’elah. We surely do not mean that a Torah scroll can never be transported from a synagogue to a “private” place. For while the sanctity of the sefer torah teaches that we should ordinarily bring ourselves to its place, there are occasions on which moving a scroll from the synagogue is an entirely proper thing to do.[16] Nor do we argue that a bar/bat mitzvah observance must always take place in a synagogue and can never be scheduled elsewhere.[17] We do insist, however, that each question of this sort be examined and argued in the context of our larger religious commitments and of the purposes that motivate our practice. Given that context, given our affirmation of the sanctity of the sefer torah, our definition of the bat mitzvah observance as a public event, and our understanding of the teaching role that our synagogues can and must fulfill, we answer this question as we do.

NOTES

PT Yoma 7:1, 44a, and P‘ney Moshe ad loc.
Or Zaru`a, v. 1, Hil. Keri’at Shema, ch. 9. See also the Hagahat Asheri of R. Yisrael of Krems (14th-cent. Ashkenaz) to Hilkhot HaRosh, Berakhot 1:8, who cites this ruling in the name of the Or Zaru`a.
Sefer Hamordekhai, Rosh Hashanah, ch. 710.
The term is suggested by R. Yisrael Meir Kagan in his Bi’ur Halakhah to Mishnah Berurah 135:14.
Beit Yosef, OC 135, end; SA OC 135:14.
Resp. Maharam Padua, no. 88.
This reading is preferred as well by the Gaon of Vilna (Bi’ur HaGra, OC 135:14) and the Mishnah Berurah, OC 135, no. 50. Katznellenbogen favors it, not only because he has a Yerushalmi text which reads thus, but also because of the continuation of that passage, in which the Talmud objects to the conclusion that the Torah is honored when brought to “exalted persons” on the basis of the Babylonian practice of bringing the scroll to the Exilarch (reish galuta). The Exilarch, according to this objection, may be a high-ranking official, but he is not “exalted” in Torah and mitzvot (see Korban Ha`eidah ad loc.). For this reason, the “variant” text is to be preferred: the “greatness” of the b’ney adam g’dolim and the importance of the adam chashuv lie in their accomplishments in Torah.
Isserles, OC 135:14: Caro’s prohibition (derived from the Mordekhai) against bringing a sefer torah into a prison does not apply if the scroll is placed there “a day or two” prior to its scheduled reading, and we may transport a Torah scroll for the benefit of an adam chashuv even without such advance preparation (Mishnah Berurah, no. 51).
P’ri Chadash, OC 135:14.
This is an “ethical” argument in that it is not supported by a textual reference. R. Chizkiyah has already shown that the Yerushalmi passage proves nothing about the case of prisoners; he now suggests, based not upon a textual citation but upon his own “natural” sense of right and justice, that the Torah scroll is honored when it is transported to those who are physically unable to come to it.
For example, Magen Avraham to OC 135, no. 23, opines that a Torah scroll may be brought to a prison in order that those incarcerated might hear the reading of parashat zakhor, since some hold that it is a Toraitic obligation to hear that reading on its proper day (see SA OC 685:7). The Mishnah Berurah at no. 46 writes that “there are those who disagree” with the Shulchan Arukh position and who hold that so long as one is anus, or prevented against his will from coming to the synagogue to hear the Torah reading, the scroll may be brought to him to allow him to fulfill his obligation. He cites these authorities in his Sha`ar Hatziyun at no. 42. See also his Bi’ur Halakhah, s.v. ein mevi’in, where he clearly sides with Peri Chadash against the Shulchan Arukh’s ruling. The Arukh Hashulchan also rules in this manner: the Torah scroll may be transported from the synagogue for the benefit of one who is either unable to go to the synagogue or who is “exalted” (OC 135, par. 31).
Some recent authorities interpret the “day or two” requirement rather stringently, asserting that the common practice (minhag) is to insure that the scroll rest in its temporary quarters long enough to be read three times. See Arukh Hashulchan, OC 135, par. 32.
M. Megilah 4:1; BT Bava Kama 82a; SA OC 292:1.
American Reform Responsa, no. 36. See also Teshuvot for the Nineties, no. 5754.5, at 69: the private/public issue can also be a problem at when the bar/bat mitzvah observance occurs on Shabbat morning.
See Rabbi’s Manual (CCAR, 1988), 230.
For example, many of our congregations schedule retreats at camps or at other locations away from the synagogue. This is perfectly proper, and there is certainly nothing wrong with taking a sefer torah to a retreat for group worship. Similarly, the Torah scroll may be transported to the site of a large public meeting, a hotel or convention hall, where religious services are to be held.
For example, there can be no objection to holding a service at another location if the synagogue building cannot accommodate the expected number of congregants. It is also an established minhag in our communities for some families to hold their bar/bat mitzvah observances in Israel. While it is possible to critique this practice on the grounds that it takes the young person away from his or her synagogue at precisely the time when he or she is acknowledging membership in that very community, a good religious argument can be made in support of this practice. We cannot say the same for a ceremony at a yacht club.

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5759.2

CCAR RESPONSA

5759.2

Baptism and Jewish Status

She’elah

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

Teshuvah

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

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

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

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

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

NOTES

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

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

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

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

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