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

NYP no. 5763.3

CCAR RESPONSA

5763.3

Hastening the Death of a Potential Organ Donor

She’elah

I serve on the board of the Mid-America Transplant Association. One of our committees is struggling with the issue of non-beating organ retrieval. This concerns someone who may not be technically brain dead but cannot live without life support. All concerned recognize that the person will most likely die and the family has given consent for organ donation. The issue concerns the massive amount of anti-coagulant that must be given to keep the organ viable for donation. Technically, the administration of this medicine (usually heparin) “kills” the person because it causes internal bleeding. I know that we are supposed to do nothing to hasten death. I also know that there is nothing holier than saving a life by donating an organ. (Rabbi Susan Talve, St. Louis, MO)

Teshuvah

This question, as our sho’elet correctly notes, arises out of our commitment to two fundamentalBand, in this case, perhaps conflicting Jewish ethical principles. The first principle is what we might call the sanctity or the inviolability of human life.[1] We are forbidden to take any action that shortens human life or hastens death, even in the case of the goses, one whose death is imminent. The goses is compared to a flickering candle; “the one who touches it and causes it to go out is guilty of bloodshed.”[2] At the same time, we are commanded to preserve human life through the practice of medicine (refu’ah),[3] and the transplantation of human organs has become a major weapon in our struggle against life-threatening diseases. The critical shortage of organs available for transplantation is in large part responsible for creating the situation to which our she’elah alludes.[4] Our task here is to consider whether the desire to acquire organs, in the name of the preservation of life, has led to the adoption of measures that are in some way destructive of life and of our duty to preserve it.

1. The Medical Context.[5] Human organs destined for transplant can be retrieved from one of four sources: cadavers; live donors; donors who are brain dead but whose organs are maintained by life-support technology; and non-heart beating donors (NHBDs), that is, individuals whose deaths are determined by cessation of heart and respiratory function rather than loss of whole brain function. Our she’elah deals primarily with donors in this latter category, which in some ways marks a return to the “old” cardiorespiratory criteria of death that were superseded by the general acceptance in the medical profession of neurological criteria (brain death) as the determinative indicator that death has taken place.[6] The NHBD category was reintroduced in response to two perceived needs. The first of these was the growing shortage of organs available to meet the demand for transplantation. The second was the desire among some dying patients, usually acting through their surrogates, to donate their organs upon death. To meet these needs, the University of Pittsburgh Medical Center developed a set of guidelines, commonly referred to as the “Pittsburgh protocol,” to allow for “planned” organ retrieval. In the hypothetical case, a patient or the patient’s surrogates make a legal and ethical decision to withdraw life support. The patient is weaned from the ventilator and is simultaneously prepared (“prepped”) for organ retrieval. The patient’s pulse is monitored by a femoral catheter, and the heart’s electrical activity is measured by electrocardiogram (EKG). When these show a total absence of a pulse and of cardiac activity for a period of two minutes, the patient is pronounced dead and organ retrieval may proceed. If the patient spontaneously resumes breathing after the removal of the ventilator, he or she is returned to the intensive care unit.

During this process, anticoagulant drugs such as heparin are administered to the donor a few minutes before the withdrawal of life support. This is done to prevent blood clots that would render the retrieved organs useless for transplantation. Our she’elah indicates that heparin “‘kills’ the person because it causes internal bleeding.” This assertion, as far as we can determine, is unproven. According to a report by the Institute of Medicine, an arm of the National Academy of Science, heparin may cause internal bleeding if administered to some NHBDs, especially in large doses. The report therefore concludes that it is appropriate to use heparin for the purposes described here, provided that this decision is made on a case-by-case basis and that the drug is administered carefully, so as not to harm the patient or to hasten his or her death.[7] According to the information made available to us, standard medical practice restricts the dosage of heparin administered to NHBDs to the “safe” range, so that it does not harm the donor. Indeed, given that hemorrhagic organs would be useless for transplantation, physicians have no motivation for administering these drugs in doses large enough to kill the patient by causing internal bleeding.[8] In light of these findings, there is no Jewish ethical reason to prohibit the use of heparin or other anticoagulants in this situation, provided that the drugs are in fact administered so as not to shorten the life of the donor.

2. Non-Heart Beating Donors and The Criteria for Death. Beyond the specific concern of anticoagulant drugs, our she’elah raises a more general and troubling issue. The “Pittsburgh protocol” specifies that organs may be retrieved once Athe patient meets the cardiopulmonary criteria for death, i.e., the irreversible cessation of cardiopulmonary function,”[9] and it determines that “irreversible cessation” has occurred once the patient’s pulse has stopped for a period of two minutes. To wait longer than two minutes would subject the internal organs to warm ischemia (damage caused by lack of blood flow) and possibly render them useless for transplantation. This presents a serious problem for those who accept neurological criteria (brain death) as the determinative indicator of death. Put starkly, “there are no clear empirical data proving that a patient who meets the Pittsburgh protocol’s criteria for cardiopulmonary death, two minutes of pulselessness, also meets the neurological criteria for death, irreversible loss of all brain functions.”[10] Indeed, since “no one would claim that two minutes of anoxia is sufficient evidence that the brain has ceased to function,”[11] a patient declared dead according to the Pittsburgh protocol may not in fact be brain dead at the time his or her organs are retrieved. We must therefore address the question: are the Pittsburgh protocol’s criteria for death for non-heart beating organ donors acceptable according to our understanding of Jewish tradition?

The “classic” halakhic “definition” of death (that is, the set of criteria accepted by virtually all Jewish legal authorities prior to the late 1960s) is based upon cardiopulmonary indicators: death is established by the complete and irretrievable cessation of heartbeat and respiration.[12] This standard proceeds from Mishnah Yoma 8:6-7, which declares that the saving of life supersedes the laws of Shabbat even when it is not certain that an individual’s life is in danger or, for that matter, that he is still alive.[13] Thus, when a building collapses upon an individual on the Sabbath, the halakhah permits all necessary labor to remove the debris so that it can be determined whether he is still alive. The Talmud (BT Yoma 85a) cites a dispute as to how we are to ascertain that fact: do we examine his heartbeat or his respiration? The major codes rule that the cessation of respiration is the determinative criterion for death.[14] This does not mean that heartbeat is an irrelevant factor; later poskim realized that the cardiac and respiratory functions are inextricably linked.[15] Thus, R. Moshe Sofer, the “Chatam Sofer” (18th-19th century Hungary), established a threefold set of criteria for death: “when a person lies still as a stone [i.e., absence of reflexes], with no discernible pulse, and then his respiration ceases, he is certainly dead.”[16]

Yet alongside the Yoma passage, we find in the halakhic sources suggestions of a different “definition,” namely that death is indicated by the cessation of neurological activity.[17] With the advent of the “Harvard criteria,”[18] which established testing protocols for determining that all neurological activity (including that of the brain stem) has ceased, some halakhists came to accept brain death as a proper indication of death according to Jewish law. This does not, in their view, contradict the cardiopulmonary standard as promulgated by Sofer: death is still indicated by the complete cessation of independent cardiac and respiratory activity. The difference is one of diagnostic technology. In Sofer’s day, death could be determined solely by the actual measurement of heartbeat and respiration. Today, when the accepted tests can establish the cessation of all neurological activity, the patient may be declared dead, since “brain death is final and irreversible and there is no possibility that autonomous respiration will begin anew.”[19] The fact that the organs of a brain-dead person are kept functioning by means of life support technology does not mean that the person is still alive, because with the cessation of neurological activity autonomous, independent heartbeat and respiration cannot be restored. Those Orthodox poskim who accept brain death as an adequate indicator of death have ruled in favor of heart and liver transplantation surgery, which require that these organs be retrieved from brain-dead donors.[20] This stance, however, remains controversial within the Orthodox world; most noted halakhists continue to insist on the literal application of the “Chatam Sofer” standard: death occurs only when heartbeat and respiration have irretrievably ceased.[21]

Liberal halakhic opinion,[22] including that of this Committee,[23] accepts the brain death standard as a proper criterion for death. Brain death, again, does not replace the “older,” cardiopulmonary criteria; rather, it confirms them. Since the determination of brain death signals that the body has irretrievably lost its ability to maintain cardiopulmonary functions on an independent basis, the brain death standard satisfies the demands of both Jewish tradition and simple moral sense. When clinical tests establish beyond scientific doubt that brain activity has irretrievably ceased and that circulation and respiration are maintained solely through mechanical means, the patient is dead. It is then, and only then, that the body’s organs may be removed for transplantation.

As we have seen, the Pittsburgh protocol standard does not meet the criteria for brain death. We should also note that it does not meet the Jewish standard of establishing death according to cardiopulmonary criteria. That standard, like the brain death standard, was meant to indicate that heartbeat and respiration have irreversibly ceased to function. Two minutes of pulselessness are not sufficient to meet this test: cardiopulmonary functions can return spontaneously or be restored through resuscitation during a much longer period, even up to ten minutes following asystole (cardiac arrest).[24] It may be, of course, that physicians and family members have no intention of resuscitating such a patient. That decision can be a proper one. As we have written, there are times when it is ethically permissible to withdraw most forms of medical treatment, to “allow nature to take its course” and to let the patient die without further “heroic” measures.[25] Yet such a decision does not indicate “irreversibility.” The fact that pulse and respiration will not be restored through medical intervention does not prove that they cannot be restored. Until that latter point is reached, until it is clear that “there is no possibility that autonomous respiration will begin anew,” we cannot certify that the cessation of heartbeat and respiration are in fact irreversible. It is for this reason that the brain death standard, which does testify to the irreversible cessation of autonomous heart and lung activity, meets the criteria for death as set forth in the sources of our Jewish tradition.

3. To Change the Criteria for Death? Why have some hospitals and clinics adopted the Pittsburgh protocol as a standard for determining the death of non-heart beating organ donors? Why have they abandoned the brain death standard, which is still recognized as the predominant criterion for establishing death?[26] The obvious, practical reason is the desire to increase the availability of organs for transplantation: “(T)he number of persons eligible to donate organs who die when heart and lung functions stop is believed to be much larger than the number who are pronounced ‘brain dead’ while on life support.”[27] This desire, to be sure, is not evidence of evil intent. The goal of organ transplantation, after all, is to save human life, to fulfill the mitzvah of pikuach nefesh. The donors (or their surrogates) have consented in advance to this procedure: they have asked to be removed from life support and have permitted the removal of the needed organs from their bodies. Nor is the acceptance of the Pittsburgh protocol necessarily an act of cynical manipulation, the altering of the definition of death in order to serve our own purposes, however exalted. As some ethicists argue,[28] “death” is not a biological event that can be defined by medical criteria. All that science can do is to identify specific clinical situations, such as the irreversible cessation of heartbeat or of brain activity. The decision to regard those situations as evidence of “death” is a legal or moral decision, arrived at through discussion among scientists, practitioners, and the community as a whole. Death “happens,” in other words, at a point in the clinical situation that is morally, sociologically, and anthropologically acceptable. Why then is it wrong or immoral to declare death at a moment which is consistent with the retrieval of vital organs? Such thinking may have motivated the acceptance of the brain death standard several decades ago,[29] and such thinking lies behind the Pittsburgh protocol and other current proposals to accept alternative criteria for death (for example, higher-brain death or a diagnosis of permanent vegetative state) so as to increase the availability of organs for transplantation.[30]

With all this in mind, should we Reform Jews, who honor our Jewish tradition but who are open to new ways of thinking about our moral responsibilities, reconsider our own criteria for death? Should we abandon the traditional Jewish standards in favor of a new definition that, like the Pittsburgh protocol, would facilitate the retrieval of more human organs for transplantation?

We oppose such a step. We do so out of our commitment to the principle with which we began this teshuvah: the sanctity of human life. Any discussion of a Jewish approach to the determination of death must proceed from that fundamental affirmation. To perceive human life as “sacred,” in Jewish terms, is to hold it inviolate: as the ultimate possession of the God who has created it and given it to us, human life may never be taken or shortened save for those circumstances under which the Torah permits or mandates that outcome.[31] For this reason, although we are not obligated to delay a terminal patient’s impending death through the employment of therapeutically useless measures, we are forbidden to practice active euthanasia or assisted suicide, to hasten the death of that patient. The fact that there is nothing physicians can do to save the life of this patient does not entitle us to kill him or her, even out of compassion and Bimportantly for our she’elahBeven when it would benefit others were we to do so.[32] It makes no difference that the patients or their surrogates have consented to them. The sanctity of life precludes suicide just as it forbids homicide.[33] The act, however benign or beneficent, remains an act of killing.

Since our tradition regards human life as sacred, it bids us to do everything we can to save life and to heal the sick. By that same token, however, because all human lives are equally sacred, it does not and cannot permit us to save the life of one person by shortening the life of another.[34] Yes, we have accepted “new criteria for death (the brain-death standard) that justify the retrieval of human organs from donors whose hearts are still beating. Yet as we have written, the neurological criteria did not represent a change but rather a reliable alternative indicator that the traditional Jewish standard for death (the complete and irreversible cessation of autonomous heartbeat and respiration) had been met. A brain dead person is, by Jewish criteria, dead. By contrast, a medical institution that implements the Pittsburgh protocol or some of the other “alternative” criteria for death is retrieving organs from persons who, in the eyes of Jewish tradition, are likely still alive. That is a difference that makes all the difference in the world. The prospect of killing NHBDs may not trouble those who do not share the Jewish conception of the sanctity of human life. But those of us who do, who participate in a tradition that regards human life as inviolate and beyond our power to destroy even for beneficial purposes, find it a chilling thought indeed.

Conclusion.

The administration of anticoagulant drugs to a non-heart beating organ donor is permissible so long as it is done so as not to harm the patient or hasten his or her death. Organ retrieval is permissible when, but not before, the patient is declared to be brain dead.

NOTES

  1. The term “sanctity of human life” is not native to the Jewish tradition. We do not find its probable Hebrew equivalent, k’dushat hachayyim, in the Talmudic or halakhic sources. On the other hand, it reflects the conviction, most certainly present throughout Jewish thought and discussed below in this responsum, that human life possesses supreme value and is therefore inviolate. This insight is applied in contemporary halakhic writing to the issue of suicide: (R. Ovadyah Yosef, Yabi`a Omer 8, Orach Chayim 37, sec. 5). And, in fact, some present-day Orthodox writers do use the term k’dushat hachayyim or “sanctity of life” as a way of expressing this commitment: see Piskei Din Rabani’im 1, p. 164, and J. David Bleich in Fred Rosner and J. David Bleich, eds., Jewish Bioethics (Brooklyn: Hebrew Publishing Co., 1985), 273. We think, therefore, that the term “sanctity” conveys an accurate description of the Jewish belief that life possesses inestimable value and must be protected as though it belongs to the God Who created it.
  2. S’machot 1:1: “the goses is considered a living person in all respects”; Rambam, Yad, Avel 4:5; Shulchan Arukh Yore De`ah 339:1.
  3. For sources and discussion, see our responsa 5754.14, “Treatment of the Terminally Ill,” Teshuvot for the Nineties (TFN), 337-363, at pp. 346ff. (https://www.ccarnet.org/ccar-responsa/tfn-no-5754-14-337-364); 5754.18, “Physicians and Indigent Patients,” TFN, 373-380, at pp. 373-375 (https://www.ccarnet.org/ccar-responsa/tfn-no-5754-18-373-380) ; and 5761.7, “Human Stem Cell Research,” at notes 5-13 (https://www.ccarnet.org/ccar-responsa/nyp-no-5761-7 ).
  4. See, in general, our responsum 5763.2, “Live Liver Transplantation,” https://www.ccarnet.org/ccar-responsa/nyp-no-5763-2 .
  5. We are deeply indebted to the Bioethics Committee of the Union of American Hebrew Congregations, chaired by Harvey L. Gordon, M.D., for their assistance and instruction in the preparation of this part of our t’shuvah.
  6. “Brain death” refers to the complete and irreversible cessation or stopping of all cerebral and brain-stem function. The clinical tests to determine brain death are described in ”Definition of Irreversible Coma – Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death,” Journal of the American Medical Association 205 (1968), 337-340. That brain death became a consensus standard is indicated by the statement signed by nearly all the leading American authorities in the field in Journal of the American Medical Association 246 (1981), 2184-2187. The President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research officially recognized the brain death standard in Defining Death: A Report on the Medical, Legal, and Ethical Issues in the Determination of Death (Washington: US Government Printing Office, 1981). On the question of brain death in Jewish law and in the Reform responsa tradition, see below in this t’shuvah.
  7. Institute of Medicine, Non-heart-beating Organ Transplantation: Medical and Ethical issues in Procurement (Washington: National Academy Press, 1997); see especially pp. 4 and 52.
  8. George J. Agich, “From Pittsburgh to Cleveland: NHBD Controversies and Bioethics,” Cambridge Quarterly of Healthcare Ethics 8 (1999), 517-523. In the interests of full disclosure, we note that Dr. Agich is the chair of the Department of Bioethics at the Cleveland Clinic Foundation. The Cleveland Clinic was the subject of a controversy in 1997 over the very issue that impels this she’elah: the administration of anticoagulant drugs to non-heart beating donors prior to the withdrawal of life support. Agich supports the procedure on the grounds indicated here, namely that the drugs are administered under the Institute of Medicine guidelines (see preceding note) and in dosages that do not cause harm to the patient. The Bioethics Committee of the UAHC, in a communication to this committee, agrees with Agich’s assessment: “(we) have found nothing in the literature to substantiate the assumption of your questioner that heparin causes internal bleeding, much less that it is the cause of the donor’s death.”
  9. University of Pittsburgh Medical Center, “Management of Terminally Ill Patients Who May Become Organ Donors After Death,” 1992. A text of the protocol is included in Robert M. Arnold, et al., Procuring Organs for Transplant: The Debate Over Non-Heart-Beating Cadaver Protocols (Baltimore: The Johns Hopkins University Press, 1995), 235-249. The quotation in the text is at p. 240, paragraph S. See also Kennedy Institute of Ethics Journal (1993), 3:A-1 to A-15. The “the cardiopulmonary criteria for death” referred to in the protocol match those set by the Uniform Declaration of Death Act (UDDA), sec. 1, 12 ULA 340 (suppl. 1991): “An individual who has sustained either irreversible cessation of circulatory and respiratory functions, or irreversible cessation of all functions of the entire brain, including the brain stem, is dead.”
  10. Arnold, et al. (note 9, above), 7.
  11. Joanne Lynn, “Are the Patients Who Become Organ Donors under the Pittsburgh Protocol for ‘Non-Heart-Beating Donors’ Really Dead?” in Arnold et al. (note 9, above), 91-102. The quotation is at 99. Dr. Lynn is director of the Center to Improve Care of the Dying at George Washington University. At the time of the publication of the Arnold volume, she was a Professor of Medicine at Dartmouth-Hitchcock Medical Center in Hanover, NH.
  12. See, in general, the article by our colleague, Moshe Zemer, “Terumat Eivarim Vehahalakhah,” in R. Cohen-Almagor, Dilemot Be’etikah Refu’it (Jerusalem: Van Leer Institute, 2002, 265-282.
  13. In Jewish tradition, the saving of life is called pikuach nefesh. The situation referred to in our Mishnah is one of safek n’fashot, a case where it is uncertain that life is in fact in danger. On this subject, see our responsum 5763.2, “Live Liver Transplantation” (note 4, above).
  14. See Yad, Shabbat 2:19 and Shulchan Arukh Orach Chayim 329:4. The ruling is based upon the statement of Rav Papa in BT Yoma 85a, along with the citation in that passage of Genesis 7:22 (“every creature with the breath of life in its nostrils”).
  15. That is to say, the poskim have rejected the literal reading of Rambam and the Shulchan Arukh, according to which cessation of respiration is the exclusive indicator of death. The 19th-century Galician authority Rabbi Shalom Schwadron, for example, declared that cessation of breathing indicates death only “if there is no indication to the contrary…but if any sign of vitality is detected elsewhere in the body…then it is obvious that we do not declare death on the basis of the cessation of respiration alone” ( Maharsham 6:91). See also R. Isser Yehudah Unterman in No`am 13 (1970), 1-9, and R. Eliezer Yehudah Waldenberg, Resp. Tzitz Eliezer 9:46 and 10:25, ch. 4.
  16. Chatam Sofer, Yore De`ah, no. 338.
  17. These include the following: 1) Ohalot 1:6: one whose head is severed from the body is immediately regarded as dead and capable of transmitting ritual impurity, even if all physical reflexes have not yet ceased (and see Rambam’s commentary to that mishnah, where he speaks of an “animating force” in the body that emanates from one source, suggesting that he saw the brain as the source of all bodily reflexes, including respiration); 2) BT Chulin 21a: a person whose neck is broken immediately transmits ritual impurity (i.e., is dead); 3) Yad, Tumat Met 1:15, codifying the above sources: “one does not transmit impurity until the soul has departed… if the neck has been broken… or if the head is severed… he transmits impurity even though there may be some residual reflexes in one of his limbs.”
  18. See note 6, above.
  19. Avraham Steinberg, “The Definition of Death,” in Fred Rosner, ed., Medicine and Jewish Law (Northvale, NJ: Jason Aronson, 1990), 146. Steinberg’s definition of brain death parallels that of the President’s Commission (note 6, above): “The heart and lungs are not important as basic prerequisites to continue life but rather because the irreversible cessation of their functions shows that the brain had ceased functioning.” The “accepted tests” he lists are: apnea tests, cerebral blood flow studies (e.g., radioisotope studies), Doppler tests, cerebral arteriograms, and electrophysiological examinations. “The electroencephalogram is insufficient to determine total brain death”; loc. cit.
  20. See especially R. Moshe David Tendler, who is both a rosh yeshivah at RIETS seminary and the chair of the biology department at Yeshiva University, “Kevi`at rega hamavet ve-hashtalat eivarim,” in A. Steinberg, ed., Emek Halakhah (New York: yeshiva University, 1989), 213-219 (“that the heart continues to beat (after brain death) is no sign of life, since the heart, when removed from the body and placed in a bucket with certain chemicals can maintain its pulse for hours or even for weeks”; p. 215); decision of the Chief Rabbinate of Israel, “Hashtalat lev be-yisra’el,” published in T’chumin 7 (1986), 187-189; R. Shelomo Goren, Torat harefu’ah (Jerusalem: Hemed, 2001), 82 and 112; R. Moshe Feinstein, Igerot Moshe, Yore De`ah 3:132 (dated 1976) and Choshen Mishpat 2:72 (dated 1978). The position of Rabbi Feinstein on this issue remains a subject of controversy in Orthodox circles, largely because earlier t’shuvot of his explicitly forbade the heart transplantation procedure. Tendler, op. cit., who is Feinstein’s son-in-law, insists that Feinstein changed his view as he became more informed of the technology that measures brain death.
  21. Among these are R. Eliezer Yehudah Waldenberg, Tzitz Eliezer 10:25, ch. 25; R. Yitzchak Ya`akov Weiss, Resp. Minchat Yitzchak 5:7, 9; and R. S. Z. Auerbach, cited in Nishmat Avraham, vol. 5, Yore De`ah 339:1. See, in general, J. David Bleich, Contemporary Halakhic Problems, v. 4 (New York: Ktav/Yeshiva, 1995), 316-350.
  22. See the responsa of R. Avram Reisner and R. Elliot N. Dorff in Proceedings of the Committee on Jewish Law and Standards, 1986-1990 (New York: The Rabbinical Assembly, 2001), 13-126.
  23. Contemporary American Reform Responsa (CARR), no. 78 (https://www.ccarnet.org/ccar-responsa/carr-128-132 ); R. Walter Jacob, Questions and Reform Jewish Answers (QRJA), no. 156 (https://www.ccarnet.org/ccar-responsa/narr-254-259 ).
  24. See N. Zamparetti et al., “Defining Death in Non-Heart Beating Donors,” Journal of Medical Ethics 29 (2003), 182-185, at notes 19-24.
  25. On this subject, see our responsum 5754.14, “Treatment of the Terminally Ill” (note 3, above).
  26. The Bioethics Committee of the UAHC informs us that the institutions employing the Pittsburgh protocol constitute “a small percentage” of all medical establishments and that “brain-dead donors continue to constitute the vast majority.”
  27. Arthur L. Caplan, in Arnold, et al. (note 9, above), 208. Dr. Caplan is director of the Center for Bioethics at the University of Pennsylvania.
  28. On the following, see Zampretti et al. (note 24, above).
  29. Henry Beecher, the chairman of the Harvard committee that established the brain death criteria (see note 6, above), wrote in 1971: “At whatever level we choose to call death, it is an arbitrary decision… The need is to choose an irreversible state where the brain no longer functions. It is best to choose a level where, although the brain is dead, usefulness of other organs is still present”; cited in Zampretti et al. (note 24, above) at note 36.
  30. Among these are James M. DuBois, “Non-Heart-Beating Organ Donation: A Defense of the Required Determination of Death,” Journal of Law, Medicine and Ethics 27 (1999), 126-136; Robert D. Truog, “Is It Time to Abandon Brain Death?” Hastings Center Report 27:1 (1997), 29-37; Arnold, R. M. and Youngner, S. J., “The Dead-Donor Rule: Should We Stretch It, Bend It or Abandon It?” Kennedy Institute of Ethics Journal 3 (1993), 263-278; Zampretti et al., note 24, above; and Linda Emanuel, “Reexamining Death: The Asymptomatic Model and a Bounded Zone Definition,” Hastings Center Report 25:4 (1995), 27-35. The “permanent vegetative state” criterion is a feature of Emanuel’s proposal.
  31. One major expression of this commitment is the notion that one’s life is not one’s personal property, to dispose of as one wishes; rather, human life belongs to God, to Whom we are obliged to render an account for the way in which we have used it. Thus, writes Maimonides, the beit din is not permitted to accept a ransom from a murderer in order to spare him from execution, “for the life of the victim is not the property of the avenger (or of the court) but of the Holy One” (Yad, Rotzeach 1:4). In a similar vein, under Jewish law we cannot execute a wrongdoer on the evidence of his own confession. The reason for this, explains one scholar, is that “the life of the human being is not his own property but the property of God, Who said ‘all lives are mine’ (Ezekiel 18:4). Therefore, a person’s own confession has no power to dispose of that which does not belong to him” (Commentary of R. David ibn Zimra to Yad, Sanhedrin 18:6).
  32. See TFN, no. 5754.14, “On the Treatment of the Terminally Ill” (note 3, above).
  33. Jewish law forbids suicide as it forbids homicide; S’machot 2:1; BT Bava Kama 91b (and see Genesis 9:5 and Rashi ad loc.); Shulchan Arukh Yore De`ah The halakhah as developed in the later sources presumes that the one who takes his own life is driven to do so by circumstances beyond his or her control; in other words, suicide by definition is an irrational act.
  34. See BT Sanhedrin 74a, Rabbah’s classic question mai chazit: “How can you say that your blood is redder than that of another? Perhaps his blood is redder than yours.”

If needed, please consult Abbreviations used in CCAR Responsa.

NYP 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.

NYP no. 5763.4

CCAR RESPONSA

5763.4

Conversion of an Illegal Immigrant

She’elah

A woman came to me for the purposes of conversion and told me that she is in the United States illegally. Am I obligated to treat her like any other potential proselyte (with an open heart) or would it be against our Jewish tradition to work with someone who I knew was here illegally? (Rabbi Michelle Missaghieh, Los Angeles, CA)

Teshuvah

In framing an answer to this question, we draw guidance from two principles of Jewish tradition. The first of these may be summarized by Deuteronomy 10:19: “you shall love the ger, for you were gerim in the land of Egypt.” The second is expressed by the halakhic principle that, in matters of conversion, “the decision is left to the discretion of the court.”[1]

1. It would be a sad irony were we to reject this potential Jew by choice on the grounds that she is an illegal immigrant. The word ger, which we translate as “proselyte,” in Biblical times carried the meaning of “resident alien,”[2] the “stranger” or foreigner who dwelled alongside the Israelite community but was not of the community.[3] The Biblical connotation of the word has never disappeared from the Hebrew language.[4] Thus, when the Torah notes that we were once gerim in a foreign land, it reminds us that we once shared the fate and experience of the individual in question here. As the Torah puts it, we “know the soul of the stranger” (Exodus 23:9); we of all people must not subject her to the sort of oppression and injustice that was once our lot (Leviticus 19:34 and Exodus 22:20). Indeed, the mitzvah to love and to care for the stranger lies at the root of our Reform Jewish commitment to social justice.[5] And a fundamental aspect of this commitment has been our demand that the immigrant–the ger–receive fair and ethical treatment in our society.[6]

For these reasons, one’s status as an illegal immigrant should not in and of itself disqualify him or her from conversion to Judaism. Why would we think otherwise? True, this individual has violated the laws of the United States by residing in the country without the proper legal permit. The government of the United States is entitled to prosecute or deport her, both according to its own law and according to Jewish law: under the principle dina demalkhuta dina, Jewish law accepts the validity of all legislation that pertains to the legitimate rights and powers of the civil government, and it is clear that a state enjoys the right to control its borders and to regulate matters of immigration and citizenship.[7] Yet while a government may set and enforce such laws (provided that it do so in a fair and equitable manner), this enforcement is a matter for the state and not for religious communities. On the contrary, we have always held that dina demalkhuta dina applies only to the area of monetary law (dinei mamonot) and that it has no bearing upon matters of ritual practice (isur veheter).[8] Conversion to Judaism is just such a “ritual” matter, properly the concern of the Jewish people and not of the United States government. Obviously, the rabbi and the congregation will want to consult with an attorney knowledgeable in the area of immigration law in order to determine their legal responsibilities in this case. But from the standpoint of Jewish law and tradition, this woman’s immigration status does not bar her from entering our community. When we look at her, we do not see an “illegal immigrant”; we see a stranger, a reflection of our own history. She has every right to seek to join us and to take refuge “under the wings of the Shekhinah.”[9]

2. At the same time, the decision in any particular case of conversion is left to the discretion of the supervising rabbi. This authority has traditionally exerted a lenient influence upon the law, empowering rabbis to accept proselytes in cases where the circumstances might have argued for rejection.[10] Yet it also allows the rabbi to say “no” when, in his or her considered judgment, an apparently valid request for conversion is hasty, not well thought out, or based upon improper motivations. Conversion, we should remember, is an institution, an aspect of organized community life, and not simply a personal and private religious concern. As we have written before:

Conversion… is not a decision left to the heart and mind of the proselyte but a formal and public matter. One who seeks to convert seeks to join our community as a full and participating “citizen” thereof. It is accordingly for the Jewish community, acting through its acknowledged rabbinical representatives, to determine in each and every case whether an individual who wishes to convert is in fact ready to do so, for reasons that we find persuasive and compelling.[11]

As we have said, the rabbi should not turn this woman away simply because she is an illegal immigrant. On the other hand, it is the rabbi’s task to inquire as to the reasons that motivate an individual to seek conversion,[12] and it is reasonable to presume that this individual’s immigration status is a factor, an aspect of her life story, that must be explored. Indeed, it would be irresponsible for the rabbi not to explore it. Such an inquiry might lead the rabbi to conclude that the status issue functions as an improper or unacceptable influence in the decision to convert; perhaps this person believes that conversion will improve her prospects for remaining in the country. Similarly, the rabbi might find that the individual’s immigration status is an element or a symptom of a deeper issue that, in the rabbi’s opinion, augurs against conversion. The members of this Committee do not and cannot know, of course, whether such possibilities apply in this particular case; if, however, they do apply, then the rabbi may properly decide that “no” or “not yet” is the best response to this request for conversion.

Conclusion

. The fact that one is an illegal immigrant does not constitute valid, objective grounds for denying his or her request to become a Jew. Yet immigration status can be one important factor in the rabbi’s inquiry into a candidate’s readiness to take the fateful step of joining the Jewish people. The decision, in all cases, lies within the rabbi’s discretion. If this individual is accepted for conversion, the rabbi should certainly counsel and assist her in resolving her immigration status as soon as possible. The mitzvah to love the ger implies a duty to help her relieve her distress: we do not want her to remain in violation of the laws of the United States. Whatever the rabbi’s course of action, we trust that it will be undertaken with perception, sensitivity and, as our sho’elet puts it, with an open heart.

NOTES

 

  • Hakol lefi re’ut einei habeit din

; R. Yosef Karo, Beit Yosef to Tur, Yoreh De`ah 268, and R. Shabetai Kohen, Siftei Kohen to Shulchan Arukh, Yoreh De`ah 268, no. 23.

  • The Targum of Onkelos preserves this bivalence. In each of the verses cited above, the ger whom we are required to love or forbidden to oppress is rendered as giyora, “proselyte,” while the word gerim as a description of our status in Egypt is translated as dayarin, “temporary residents.”
  • See Bernard J. Bamberger, Proselytism in the Talmudic Period (New York: Ktav, 1968), 16: “in the Bible the word ger means a foreign resident in Palestine. It is frequently joined by ‘and’ to the word toshab, meaning the same thing, and usually translated ‘sojourner.'” See also his comment to Lev. 19:34 in W. Gunther Plaut, The Torah: A Modern Commentary (New York: Union of American Hebrew Congregations, 1981), 899. On the legal distinctions between the ger and the native-born Israelite (ezrach), see Moshe Weinfeld, Deuteronomy and the Deuteronomic School (London: Oxford U. Press, 1972), 229-232, and Jacob Milgrom, “Religious Conversion and the Revolt Model for the Formation of Israel,” Journal of Biblical Literature 101/2 (1982), 169-176. See also Milgrom’s remarks in The JPS Torah Commentary: Numbers (Philadelphia: The Jewish Publication Society, 1990), Excursus 34, 398-402.
  • See, for example, Rashi to Exodus 22:20: “the word ‘ger’ refers to a person who was not born in that particular community but came from another community to dwell (lagur) there.”
  • In 1997, citing Exodus 22:20 (“You shall not wrong a stranger or oppress him, for you were strangers in the land of Egypt”), the Central Conference of American Rabbis called upon the United States Congress not to reduce welfare benefits to immigrant families and to facilitate their acquisition of citizenship. In addition, the resolution urged Reform congregations to undertake efforts to provide vital services to immigrants, including those immigrants who for one reason or another are unable to attain citizenship. See CCAR Yearbook 107 (1998), 65-67 (www.ccarnet.org/cgi-bin/resodisp.pl?file=citizen&year=1997).
  • On the subject of dina demalkhuta dina, see our responsum 5757.1, “Loyalty to One’s Company Versus Love for Israel,” at www.ccarnet.org/cgi-bin/respdisp.pl?file’1&year’5757 .
  • On the conditions for and limitations upon the principle dina demalkhuta dina see ibid. at notes 13-15.
  • See BT Shabbat 31a, the statement of the three proselytes: “Shamai’s strictness would have expelled us, but Hillel’s patience brought us under the wings of God’s presence.”
  • See Tosafot, Yevamot 24b, s.v. lo, referring to the decisions by Hillel (BT Shabbat 31a) and Rabbi Hiya (BT Menachot 44a) to accept proselytes whose motivations to become Jewish were not considered to be religiously sincere. In each case, the rabbi believed that the individual would one day be a good Jew (sofo la`asot leshem shamayim) and was therefore “worth the risk.”
  • CCAR Responsa Committee, no. 5758.7, “Conversion of a Person Suffering From Mental Illness,” www.ccarnet.org/cgi-bin/respdisp.pl?file=7&year=5758 . See also our responsum 5760.5, “Conversion When The Spouse Remains A Gentile” (http://www.ccarnet.org/cgi-bin/respdisp.pl?file’5&year’5760), at the conclusion: “A person who wishes to become a Jew should not be rejected merely because his or her spouse will remain a Gentile… 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.”
  • Shulchan Arukh Yoreh De`ah

268:12: when a prospective ger or giyoret comes before us, we examine him or her to determine whether the motivation for the conversion is religiously sincere and–in our eyes–acceptable.

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5766.3

CCAR RESPONSA

5766.3

Hunger Strike: On the Force Feeding of Prisoners

She’elah
What would be the Jewish view of force feeding (strapping somebody to a chair and putting a tube down their nose in as painless a fashion as possible) a mentally stable prisoner who desires to starve himself to death to make a political statement? (Rabbi Joel Schwartzman, Morrison, CO)

Teshuvah

This question arises with respect to the treatment of detainees imprisoned at the U.S. naval base at Guantanamo Bay, Cuba. These detainees were captured during military operations beginning in 2001 against the Al Qaeda terrorist organization and the Taliban government of Afghanistan. During the summer and fall of 2005, they staged a hunger strike to protest their detention and treatment. In February, 2006, various news organizations reported that prison officials were force feeding the detainees, in a manner similar to that described by our sho’el, as a means of breaking the strike. Military officials justified these harsh measures as necessary to save the lives of the hunger strikers. The prisoners themselves have charged that both the restraint and the insertion of the feeding tubes were accomplished through excessive violence.[1]

We compose this responsum in the summer of 2006, a time when the “war on terror” and the invasions of Afghanistan and Iraq are subjects of intense political controversy. We seek, however, to set the politics aside and to view this she’elah, as we do all others, as a Jewish one, involving the interpretation and application of values central to our religious tradition. With respect to this question, those values point us in different and conflicting directions. This is not an easy question for us; the “Jewish view,” as our sho’el puts it, is far from obvious. We will therefore set forth as thoroughly as we can the arguments both for and against force feeding, in the hope that our answer will encompass the valid points raised by both sides and do justice to the genuine complexity of the case.

Arguments In Favor of Force Feeding. Jewish tradition teaches that pikuach nefesh, the preservation of human life, is a mitzvah, a religious duty, and that it transcends and supersedes virtually all others.[2]  The Rabbis derive this from Leviticus 18:5: “You shall keep My statutes and My laws, which a person shall perform and live by them.” They interpret the words “and live by them” to mean: “and not die by them.”[3] Thus, “one is to perform the mitzvot in such a way that one’s life is not subjected to danger.”[4] The supreme value that Judaism places upon the safeguarding of life expresses itself in three related rules. First, we are forbidden to cause physical harm (chavalah) to ourselves[5] or to place ourselves in any unnecessary danger.[6] Second, the practice of medicine is itself a form of pikuach nefesh and therefore supersedes other conflicting religious obligations,[7] even such serious ones as the prohibitions surrounding Shabbat and Yom Kippur.[8] And third, we are forbidden “to stand idly by the blood” of another (Leviticus 19:16): that is, we bear a positive obligation to rescue the lives of those who are in danger.[9]

These teachings raise a sharp critique of the tactics of the hunger strikers. If there is a single, uncontested feature of the “Jewish view” of this question, it is that human life is sacred and that it must be treated with the utmost reverence. Yes, there are times when our tradition would permit and even demand that one die rather than violate a mitzvah, but the circumstances in which this demand applies are strictly limited.[10] In other words, one is not entitled to choose martyrdom in order “to make a political statement.”[11] All of this would lead to the conclusion that the prisoners are forbidden to endanger their lives by engaging in a hunger strike and that the prison officials, who are ultimately responsible for the health and safety of those in their custody, are justified in taking strong action if necessary to bring the strike to an end. That such action may involve force and violence is regrettable, but the blame for this unhappy result lies with the prisoners themselves. By refusing nourishment, it is they who are endangering their lives. The prison officials, by contrast, are simply following the dictates of Jewish law, which enjoins us to fulfill the obligation of pikuach nefesh quickly and diligently: “whosoever delays in the performance of this mitzvah is guilty of bloodshed.”[12]

Arguments Against Force Feeding. On the other hand, a case can be made that Jewish tradition does not warrant the force feeding of prisoners who have undertaken a hunger strike. That case rests upon the following three points.

1. This is a political, not a medical question. Answers are frequently dictated by the way in which we frame the questions. If we define this question primarily as a medical one, we will tend to ask it as follows: “under Jewish law, is a patient entitled to refuse life-sustaining medical treatment?” The answer, clearly, is “no”: under the rule of pikuach nefesh, a patient is morally obligated to accept a remedy that consensus medical opinion regards as refu’ah bedukah or refu’ah vada’it, one that offers a reasonably certain prospect of a successful therapeutic outcome.[13] If hunger is a disease, then food is a “sure remedy” for it. Yet we would note that the prisoners themselves do not see this as a medical question. They have chosen the hunger strike as a tactic to protest against the conditions of their captivity. Their goal is to bring pressure upon their jailors, not necessarily to kill themselves or to cause themselves irreparable physical harm. Indeed, the prison officials at Guantanamo concur in this assessment.[14] If so, then the forceful insertion of nasogastric tubes is arguably a political rather than a medical intervention, designed not to save lives but “to break the hunger strikes because they were having a disruptive effect and causing stress for the medical staff.” If the strike and the attendant force feeding both serve political goals, then the rules and principles that apply to a medical context may not be appropriate here.[15] In this connection, we would note that the prohibition against inflicting physical damage upon oneself, to which we refer above, is limited to cases in which the injury is done “in a contemptible manner” or for no good purpose.[16] Obviously, those who undertake a hunger strike in protest against prison conditions would say that the harm they inflict upon themselves does not fall into that category. We would add that a number of Orthodox rabbis participated in hunger strikes during the 1990s in protest of the Oslo peace accords between Israel and the Palestine Liberation Organization. Although the strikes were controversial, the fact that they took place suggests that they were able to distinguish, on Jewish grounds, between an action designed to endanger one’s life and health (forbidden) and an action intended to “make a political statement” (permitted).[17]

2. Force feeding is widely regarded as torture. This policy is set forth by the World Medical Association (WMA) in its “Declaration of Tokyo” concerning “torture and other cruel, inhuman or degrading treatment or punishment in relation to detention and imprisonment”:[18]

Where a prisoner refuses nourishment and is considered by the physician as capable of forming an unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment, he or she shall not be fed artificially. The decision as to the capacity of the prisoner to form such a judgment should be confirmed by at least one other independent physician. The consequences of the refusal of nourishment shall be explained by the physician to the prisoner.

The American Medical Association, a member organization of the WMA, has reaffirmed its endorsement of this clause of the Tokyo policy.[19] In March, 2006, the British medical journal The Lancet published a letter of protest, signed by over 250 distinguished physicians from the United States and Europe, against the force feeding at Guantanamo. The letter, which calls upon the U.S. government “to ensure that detainees are assessed by independent physicians and that techniques such as forcefeeding and restraint chairs are abandoned forthwith in accordance with internationally agreed standards,”[20] has garnered the support of well-known human rights organizations.[21] We take these statements with the utmost seriousness. As Jews, we are heirs to a tradition that commands us to pursue justice (Deuteronomy 16:20) and to a Torah “whose ways are pleasantness” and “whose paths are peace” (Proverbs 3:17).[22] How then can we support a tactic that much of the world’s enlightened medical-ethical opinion has castigated as a form of torture? To do so is arguably to perpetrate a chilul hashem, a profanation of God’s name, an offense we commit whenever we behave in a manner inconsistent with the high standards that the world expects of a people that lives in covenant with God.[23]

Before we reach that conclusion, however, let us consider that the Tokyo Declaration’s opposition to force feeding is based upon two principles that enjoy a dominant – some would say a “canonical”[24] – standing in contemporary secular bioethics. The first of these is patient autonomy, which holds that a medical procedure is ethical to the extent that a competent patient makes his or her own decision regarding that procedure in an autonomous manner, free of coercion. The second is informed consent: the patient agrees to a suggested treatment only when he or she has been supplied with all material information that a reasonable medical layperson would consider significant with regard to that decision.[25] Applied to our case, these principles suggest that when a prisoner makes a rational, informed decision that he does not wish to be fed, we are not permitted to feed him against his expressed will, even though the decision may result in his death.[26] Yet as we have seen, the classical Judaic approach to questions of life and death is founded not upon the affirmation of individual autonomy but upon the commitment to the sanctity of life and the duty to heal. In the traditional Jewish view, the patient has no right to make a decision, however “informed,” for suicide, and the physician, who like every person bears a positive duty to save life, has no right to sit passively and watch the patient die.[27] The Jewish physician can therefore make a powerful argument that, when confronted by a situation such as the one described in our she’elah, his or her ethical responsibility is to save the patient’s life rather than to respect the patient’s autonomy.[28]

We do not believe that the contemporary Western model of bioethics is any more exalted, noble, or humane than the Judaic approach. In saying this, we do not mean to disparage modernity or its contributions to moral thought. We mean rather that as heirs to both the classical Jewish tradition and the culture of modernity, we would not wish to live in a society that rejects either source of ethical value. Thus, while we acknowledge that the modern affirmation of the dignity of the individual human being serves in our world as a bulwark against tyranny and oppression, particularly of the sort rooted in religious extremism, we reject the notion that “modern, progressive, and Western” culture enjoys a monopoly upon moral truth. On the contrary: we believe that contemporary secular civilization can learn a great deal from the Jewish tradition, especially in the realm of bioethics, where the Judaic approach can yield answers that might well be morally superior to those produced by secular thought.[29] As citizens of Western society and participants in its culture, we cannot ignore the fact that the predominant medical-ethical opinion in our society and culture defines the force feeding of patients as an immoral act. But as Jews, we cannot apply the label “torture” to a procedure designed to save the life of prisoners in our custody, even if they seem bound and determined upon suicide.

 

3. Force feeding transgresses against Jewish ethical principles. Yet even if we view this as a medical rather than a political question, the fact that a patient is obligated to accept life-sustaining treatment does not necessarily mean that we may force it upon her against her will. Here it is essential to consider just what force feeding entails. As one Guantanamo detainee has described the procedure:[30]

The head is immobilized by a strap so it can’t be moved, their hands are cuffed to the chair and the legs are shackled. They ask, “Are you going to eat or not?” and if not, they insert the tube. People have been urinating and defecating on themselves in these feedings and vomiting and bleeding. They ask to be allowed to go to the bathroom, but they will not let them go. They have sometimes put diapers on them.

Another charges that “a lieutenant came to his isolation cell and told him that if he did not agree to eat solid food, he would be strapped into the chair and force-fed. After he refused to comply, he said, soldiers picked him up by the throat, threw him to the floor and strapped him to the restraint chair.”[31] The nasogastric tubes, inserted forcibly against the prisoners’ wishes, have been said to cause “unbearable pain.”[32] We have no way, of course, to verify these statements, and we also know that the force feeding has been defended by officials of the U.S. Defense Department as “compassionate” and “humane.”[33] Still, it is possible that these descriptions are accurate, and it is quite plausible that harsh, violent measures would be required to compel nutrients upon a prisoner who is determined to refuse them. And it is questionable whether Jewish tradition obligates us to resort to such violence even when the treatment is necessary to save a patient’s life. R. Moshe Feinstein, for example, has ruled that medical treatment, though compulsory under Jewish law, “must be administered in such a way that it does not frighten the patient. For fear, even though it be irrational, may itself cause him harm or even kill him… It is therefore preferable that the physicians not administer treatment against the patient’s will… and the physicians must consider this matter very carefully.”[34] We would phrase this point somewhat differently: medical treatment can be considered obligatory only when it is medicine, that is, when it partakes of the mitzvah of healing (refu’ah). To the extent that a medical procedure causes significant harm to a patient, it may be said to lose its therapeutic value and therefore its standing as “medicine” that the patient would be obligated to accept.[35] We are, of course, in no position to draw a proper balance in this case between the “harm” caused to the detainee by the violent force feeding and its obvious benefit of saving his life, provided that he was intent upon suicide in the first place. Nonetheless, the concern over the negative effects of these measures must give us pause before we assert that we are morally bound to administer them by force.

In addition, even if force feeding could be said to have no objective and observable “negative effects,” we would still have reason to oppose it. Violence against a patient, even when exercised by medical professionals convinced they are acting in the patient’s best interests, is still violence.[36]  It is the sort of treatment that offends against our most basic conceptions of kevod haberiyot, the essential dignity that all of us, including prisoners, possess as human beings created in the image of God.[37] Force is sometimes necessary in our dealings with others, but it should never be resorted to lightly. And when we do choose that path, we had best make sure that our actions are truly the only available means by which to achieve a vital purpose.

Toward a Conclusion. What is the “Jewish view” of force feeding? As we have indicated, we think that there can be no simple, one-sided answer to this question. We have encountered powerful Judaic arguments both for and against the practice, arguments based upon Jewish legal and moral values that demand our respect and assent. Accordingly, our response acknowledges the wisdom of all these arguments in an effort to arrive at what we think is the most persuasive interpretation of the teachings of our tradition.

We begin from the obvious starting point: pikuach nefesh, the duty to preserve human life and to rescue those in danger, is the overriding Jewish moral concern. In any sort of “Jewish view,” the obligation to save the life of a patient must take precedence over the desire to respect the patient’s autonomously chosen decision to die. This is especially true given that a decision to embark upon a hunger strike must raise concerns as to the patient’s ability to arrive at a truly rational choice based upon “informed consent.”[38]

At the same time, force feeding by its nature is a violent, even brutal tactic that “shocks the conscience”[39] and robs the prisoner of his fundamental human dignity. Although force feeding can under extreme circumstances be justified on medical grounds, we think that prison authorities can abuse it all too easily for non-medical purposes, as a tool for punishment or discipline. When they do so, we fully agree with those who condemn the measure as a form of torture. It is to be avoided in all cases except when it is obviously necessary to save the life of the hunger striker.

How do we draw a proper balance between these conflicting values and concerns? We find helpful guidance, surprisingly perhaps, in the regulations regarding hunger strikes adopted by the U.S. Federal Bureau of Prisons.[40] These provide that a prisoner who embarks on a hunger strike is at first permitted to maintain that action. He is placed under careful medical supervision, and food is brought to his cell three times a day. Prison officials will make efforts to persuade him to abandon the strike, but they will not force him to do so until “a physician determines that the inmate’s life or health will be threatened if treatment is not initiated immediately.” The prisoner may be fed involuntarily only “if the physician is convinced to a reasonable medical certainty that there is an immediate threat to the inmate’s life, or permanent damage to the inmate’s health.”[41] The words “immediate” and “permanent” are crucial here. They declare that the only acceptable grounds for force feeding are medical and that those grounds must be sufficiently urgent to remove virtually all doubt that the feeding is medically necessary. These regulations, if adhered to in the case of the Guantanamo detainees, would prevent the misuse of force feeding for other purposes, such as for maintaining prison discipline or for relieving “stress” upon the prison staff.[42]

One final note. The Bureau’s rules also provide that when nasogastric tubes are inserted by force, “these events should be videotaped.”[43] We cannot overemphasize the importance of this point for our teshuvah. The force feeding of prisoners must be carefully supervised, for only in that way can we hope to prevent excessive violence and other mistreatment. This supervision therefore should be performed by outside observers who do not represent the prison system or the military. Although this might interfere with the secrecy which currently surrounds the activities at the Guantanamo prison camp, we think it is the best way for the U.S. military to demonstrate its commitment to “humane” and “compassionate” treatment of the detainees in the face of severe international criticism. In so doing, they would fulfill the spirit of the Mishnah’s dictum that it is essential to display our innocence in the sight of people as well as in the sight of God.[44] It would also meet the high standard set by the United States Declaration of Independence, which proclaims the American people’s “decent respect to the opinions of mankind.”

NOTES

1.         This description is culled from the following news sources: “Force-Feeding at Guantanamo Is Now Acknowledged”, New York Times, February 22, 2006 (http://www.nytimes.com/2006/02/22/international/middleeast/22gitmo.html?ex=1298264400&en=7ea399aeaba6605e&ei=5090&partner=rssuserland&emc=rss); “Doctors Attack US Over Guantanamo,” British Broadcasting Corporation, March 10, 2006 (http://news.bbc.co.uk/1/hi/world/americas/4790742.stm);  “Guantanamo Force Feeding Tactics Are Called Torture,” Washington Post, March 1, 2006 (http://www.washingtonpost.com/wp-dyn/content/article/2006/02/28/AR2006022801344.html) .

2.         The classical formulation of this rule is the phrase ya`avor ve’al yehareg, “one should transgress the commandment rather than be killed,” in the event that a persecutor demands that a Jew either violate the mitzvah or forfeit his life. See B. Sanhedrin 74a and Avodah Zarah 27b; Yad, Yesodei Hatorah 5:1ff; Shulchan Arukh Yore De`ah 157:1. On the exceptions to this rule see note 10, below.

3.         B. Yoma 85b, Sanhedrin 74a, and Avodah Zarah 27b; Sifra to Lev. 18:5.

4.         Rashi, B. Yoma 85b, s.v. deshmu’el leit leh pirkha.

5.         B. Bava Kama 90b; Yad, Chovel Umazik 5:1. But see below in the text.

6.         Derived from Deuteronomy 4:9. Yad, Rotzeach 11:4; Shulchan Arukh Choshen Mishpat 427:8-10. On this basis, a number of contemporary Orthodox authorities have begun to prohibit smoking. See the discussion in Teshuvot for the Nineties (TFN), no. 5753.23, pp. 331-335 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=23&year=5753) .

7.         M. Yoma 8:5; Nachmanides, Torat Ha’adam, ed. Chavel (Jerusalem: Mosad Harav Kook, 1964), 41-42; Tur and Shulchan Arukh Yore De`ah 336:1.

8.         Thus, a person who rejects the instruction of a competent physician (rofe baki) on the grounds that the instruction involves prohibited labor on Shabbat is “a pious fool (chasid shoteh). This is not an act of piety but of suicide. One is required to do what the physicians prescribe”; R. David ibn Zimra (Egypt, 16th-17th centuries), Resp. Radbaz 1:1139.

9.         B. Sanhredrin 73a: “From where do we learn that one who sees his fellow drowning in the river, attacked by a wild beast, or threatened by robbers is obliged to save him? From the verse ‘do not stand idly by the blood of your fellow.’” Rambam (Yad, Rotzeach 1:14) codifies the rule as follows: “One who is able to save his fellow (from danger) and does not do so has transgressed against the mitzvah of Leviticus 19:16.” See also Shulchan Arukh Choshen Mishpat 426.

10.       See the sources enumerated in note 2, above. Jewish tradition requires martyrdom in three specific cases; to put this differently, there are three mitzvot which one must never violate, even at the cost of one’s life. These are idolatry, the sexual transgressions enumerated in Leviticus 18, and murder. These are formulated in the sources as “exceptions” to the rule of pikuach nefesh established by the interpretation of Leviticus 18:5. Each exception is itself derived by way of midrash (textual interpretation) or sevara (logical inference); see B. Sanhedrin 74a.

11.       See Yad, Yesodei Hatorah 5:4: “If the case is one in which the Torah says ‘transgress the commandment and save your life,’ the one who chooses to die rather than transgress is culpable for his own death”; i.e., he has committed suicide. But see below in the text.

 

12.       Shulchan Arukh Yore De`ah 336:1.

13.       See TFN, no. 5754.14, pp. 337ff (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=14&year=5754), at notes 38-40.

14.       According to Maj. Gen. Jay W. Hood, commander of the prison camp at the Guantanamo naval base, the hunger strikers are not suicidal but are simply protesting their confinement. “In none of these [cases] have I ever gotten the impression that these guys want to die.” See Susan Okie, M.D., “Glimpses of Guantanamo: Medical Ethics and the War on Terror,” New England Journal of Medicine 353:24 (Dec. 15, 2005), 2529-2534.

15.       “Force-Feeding at Guantanamo Is Now Acknowledged”, note 1, above. The quotation is attributed to two “Defense Department officials.” See also “Guantanamo Medics Accused of Abusive Force-feeding,” Boston Globe, Oct. 15, 2005 (http://www.boston.com/news/nation/articles/2005/10/15/guantanamo_medics_accused_of_abusive_force_feeding), quoting Dr. Arthur Caplan, director of the Center for Bioethics at the University of Pennsylvania: “Medicine is supposed to remain neutral. When you start to become complicit in efforts to break resistance using medical expertise that should be there simply to protect the health of people, you’re headed down the wrong track.”

16.       Yad, Chovel Umazik 5:1: the phrase is derekh nitzayon (or, in some readings, bizayon). See TFN, no. 5752.7, “Cosmetic Surgery” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=7&year=5752).

17.       See R. Menachem Feliks, “Ve’af `al pi khen: shevitat ra`av,” Techumin 16 (1996/5756), 291-295. Feliks contends that the halakhah permits an individual to undertake a voluntary fast (ta`anit yachid) in order to protest against policies of the Israeli government that, in the individual’s opinion, endanger the Jewish people and state. He would not apply his argument, obviously,  to the Muslim detainees at Guantanamo. From a liberal perspective, though, the notion that one may declare a fast in service to a “higher purpose” is a principle that should not be restricted to Jews.

18.       The World Medical Association Declaration of Tokyo (1975, 2005, and 2006), paragraph 6 (http://www.wma.net/e/policy/c18.htm ).

19.       “AMA Reiterates Opposition to Feeding Individuals Against Their Will,” statement by Duane Cady, M.D. , chair, American Medical Association (http://www.ama-assn.org/ama/pub/category/16086.html ).

20.       David J. Nichol et al., “Forcefeeding and restraint of Guantanamo Bay hunger strikers,” The Lancet 367:9513 (March 11, 2006; http://www.thelancet.com/journals/lancet/article/PIIS0140673606683268/fulltext).

21.       Among these are Physicians for Human Rights   (http://www.phrusa.org/research/torture/news_2006-03-10.html) and Amnesty International (http://www.amnesty.org.uk/news_details.asp?NewsID=16898 ).

22.       Halakhic authorities sometimes cite this verse as a guide for the interpretation of the Torah’s laws according to its ultimate intent. Thus, Maimonides rules (Yad, Chanukah 4:14) that, in the event one has only enough oil either for household illumination or for the Chanukah lamp, one should use it for household illumination, “for the sake of domestic peace” (mishum shalom beito). He adds: “Great is peace, for the entire Torah was given to bring peace to the world, as it is said, “whose ways are pleasantness, etc.”

23.       For sources and discussion on chilul hashem, see our responsum no. 5764.1,  http://data.ccarnet.org/cgi-bin/respdisp.pl?file=1&year=5764 , at notes 11-15.

24.       The term is used by R. Hamel, “The Reign of Autonomy: Is The End In Sight?” Second Opinion, January, 1995, 75-79.

25.       These definitions reflect the formulation of American law, represented especially by the leading case Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). The classic formulation is perhaps that of Judge Benjamin N. Cardozo in Schloendorff v. Society of N.Y. Hospital, 105 N.E. 92 (N.Y. 1914): “Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.” See, in general, Ruth R. Faden, Tom L. Beauchamp, in collaboration with Nancy M.P. King, A History and Theory of Informed Consent (New York : Oxford University Press, 1986).

26.       See the statement from the WMA’s Tokyo Declaration at note 18, above. It is, however, not certain that the Guantanamo detainees are able to make an “informed” decision under the conditions of their incarceration. See Okie, note 14, above, at 2530-2531.

27.       In this, Jewish tradition would dissent from the decision of the British authorities who allowed hunger striking members of the Irish Republican Army to starve themselves to death while in prison in 1981. See Okie, note 14, above, 2530.

28.       For an example of such a powerful argument, see Shimeon Glick, M.D., “Unlimited Human Autonomy: A Cultural Bias?” New England Journal of Medicine 356 (March 27, 1997), 954-956  (http://content.nejm.org/cgi/content/full/336/13/954?ijkey=85e85facc59a79e4f0fc74e07b6ad449df1b0ce5&keytype2=tf_ipsecsha ).

29.       For an example, see our responsum no. 5763.2, “Live Liver Transplantation” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=2&year=5763 ), section 4 and following.

30.       “Force-Feeding at Guantanamo Is Now Acknowledged,” note 1, above.

31.       Ibid.

32.       “Guantanamo Force Feeding Tactics Are Called Torture,” note 1, above.

33.       “Force-Feeding at Guantanamo is Now Acknowledged” and “Doctors Attack US Over Guantanamo,” note 1, above.

34.       Resp. Igerot Moshe, Choshen Mishpat 2:73, part 5.

35.       For a detailed analysis of this point, see TFN, no. 5754.14. “On the Treatment of the Terminally Ill,” 337-363, at section III (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=14&year=5754 ).

36.       Some of these objections, it might be argued, can be removed simply by sedating the prisoners prior to force feeding. While it is true that, as a matter of degree, sedation would reduce the amount of violence employed in force feeding, it would still in its essence, as a forcible transgression of the patient’s will, constitute an act of violence against him. As such, the Judaic principles cited in this paragraph would continue to apply. Needless to say, moreover, the procedure would still be defined as “torture” under the Tokyo Declaration (note 18, above).

37.       Although it may sound like a lofty ethical principle with little substantive content, kevod haberiyot functions as a real consideration in halakhah. In its general formulation, the rule is that considerations of “human dignity” may be great enough to supersede a conflicting Rabbinic ordinance (B. Berakhot 19b; Yad, Shabbat 26:23 and Kilayim 10:29). In this case, of course, the conflicting ordinance is pikuach nefesh, which originates in the Torah (de’oraita), and one might argue that the saving of life surely overrides considerations of kevod haberiyot. But one leading posek suggests that “dignity” (kavod) may in some cases override pikuach nefesh. See R. Shelomo Kluger (19th-cent. Galicia), Chokhmat Shelomo to Shulchan Arukh Choshen Mishpat 426, no. 1.

38.       See note 26, above, as well as Glick (note 28, above), 955: “One might perhaps see forcing people to undergo lifesaving therapy as an action that does respect their autonomy and for which they may ultimately be grateful; their judgment may be temporarily compromised by irrationality, although they remain within the bounds of legally defined competence.”

39.       This phrase is particularly appropriate here, in that it is the definition of “torture” adopted by the U. S. Supreme Court in a case involving the seizure of evidence from a suspect by means of induced vomiting. The Court held that “(t)he proceedings by which the conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience… They are methods too close to the rack and the screw to permit of constitutional differentiation.” Rochin v. California, 345 U.S. 165 (1952), at 172.

40.       U.S. Department of Justice, Federal Bureau of Prisons, Program Statement, no. P5562.05, July 29, 2005, available at http://bop.gov//policy/progstat/5562_005.pdf .

41.       Program Statement, p. 6.

42.       See above at note 15. The goal of prison population control can be met in other ways. For example, the Statement provides that when a prisoner undertakes a hunger strike, he or she may be isolated in “a medically appropriate locked room” (p. 3). The formal justification for this rule is medical: isolation allows for close monitoring of the prisoner’s physical condition. But it also addresses the concerns surrounding discipline (i.e.,preventing the hunger strike from causing disturbances among the inmate population), thereby avoiding the resort to force feeding as a means of breaking the strike.

43.       Program Statement, p. 7.

44.       M. Shekalim 3:2, based upon Numbers 32:22.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5763.6

CCAR RESPONSA COMMITTEE

5763.6

Matriarchs In The Tefilah

 

She’elah.

I have two questions concerning the wording of the liturgy we use in our Reform synagogues.

  1. The Reform movement has sought to include the Matriarchs in the Avot. Which order is appropriate: should the names of the three Patriarchs be stated first followed by the Matriarchs, or should the wives be paired with their husbands (Avraham veSarah), etc? In my opinion the goal of reducing gender bias is best achieved with the latter approach and therefore is preferable.
  2. Of the four woman who bore the sons of Jacob, we mention Leah and Rachael in the Avot. Should Bilhah and Zilpah be included as Matriarchs? By leaving these women out, the Reform movement gives tacit approval to the idea that woman is property. Indeed after Rachael and Leah die, Israel refers to Bilhah and Zilpah as his wives. In my opinion, it is essential to the concept of equality to add these two unsung mothers in the Matriarch listing.As the new Reform prayer book its reaches conclusion, these two issues need immediate attention. I look forward to your responses. (Cantor Jerome Krasnow, South Windsor, CT)

Teshuvah.

  1. The Matriarchs in the Tefilah.[1] It has become the widespread minhag (custom) in our congregations to add the names of the imahot, the Matriarchs Sarah, Rebecca, Leah, and Rachel, to the names of the Patriarchs in the first benediction of the tefilah.[2] The motive for this change in the traditional prayer text was to express our understanding that all Jews, both male and female, participate equally in Israel’s covenant with God and to give voice to the role of our Matriarchs in the transmission of that covenant to their descendants. This innovation is consistent with the liturgical tradition of the Reform movement, which from its inception has embraced the notion that the formal, public prayer recited in our synagogues should reflect our people’s most deeply-held values and commitments.[3]Our innovation is also consistent with the much older liturgical tradition of Rabbinic Judaism, the foundation of our own worship service. We say this in terms of both the history and the theory of that tradition. The history of Jewish prayer is a story of ongoing change and development, not only during the Talmudic period, a time when the formal rules of liturgical practice had not yet been established,[4] but also during subsequent centuries, when the halakhah of Jewish liturgy had supposedly been set in stone.[5] In adjusting the words of the tefilah to the needs of our time, therefore, we are simply doing what Jews have always done with the text of their prayer. Moreover, the halakhah itself, the “rules” and theory of traditional Jewish liturgy, does not prohibit liturgical innovation. On the contrary: change, fluidity, and pluralism are the essence of prayer as that term is understood in the sources of Jewish law. The Talmud defines “prayer” as rachamei, a heartfelt supplication to God, rather than the recitation of a fixed text; therefore, “one may pray in whatever way one wishes to pray.”[6] Indeed, as Maimonides recounts the story, in its original form the Torah’s mitzvah of prayer imposed no fixed text upon the worshiper: one may approach God with words of one’s own choosing that reflect the content of one’s mind and heart.[7] Over time, of course, the Jewish community adopted a fixed text for the tefilah, the “Eighteen Benedictions.”[8] This text was taken quite seriously. The Talmud goes so far as to declare that “one who alters the form (matbe`a) of a benediction (berakhah) that the Sages ordained has not fulfilled his obligation.”[9] Yet even this rule does not forbid us from making appropriate adjustments in the text of the liturgy: a berakhah may depart from its accepted wording provided that its content and theme of the new text correspond to those of the traditional form (inyan haberakhah).[10] Our version of the tefilah’s first benediction does retain its traditional content and theme: that our God is also the God of our ancestors, the Biblical progenitors of the Jewish people. Our text surely does not please those Jews who are temperamentally opposed to all liturgical innovation.[11] Nonetheless, it is in accord with the history of Jewish prayer and with the demands of liturgical halakhah.
  1. The Order of the Names. Let us turn now to our sho’el’s specific queries. Is it better, as he suggests, to recite the names of the Imahot along with the names of their husbands or to recite them separately, as is our custom? There is no one obviously correct answer to this question. Our sho’el may be right when he says that his version–“the God of Abraham and Sarah, the God of Isaac and Rebecca,” and so on – is the more egalitarian one.[12] Yet it can be argued that his text would have the opposite effect, presenting the Matriarchs primarily as wives rather than as individuals, each with her own personal relationship with God. Indeed, our “female” parallel to that formulation –“the God of Sarah, the God of Rebecca, the God of Leah, and the God of Rachel”[13]– expresses the idea that the Matriarchs are equivalent to the Patriarchs as a group as well as individually. Moreover, the current formulation – “the God of Abraham, the God of Isaac, and the God of Jacob”– is taken verbatim from the Torah’s narrative of God’s revelation to Moses at the burning bush (Exodus 3:15 and 4:5). The tefilah is replete with Biblical quotations, and preserving these expressions in our prayer can be said to reinforce the link between our present-day community and our origins as a covenant people. In short, each of these two wordings has its advantages, and we see no compelling reason to demand that one version be given preeminence over the other.
  2. The Maidservants. Should the names of Bilhah and Zilpah, the maidservants of Rachel and Leah, be included in the tefilah? Again, one can argue in favor of this departure from our Reform minhag. As our sho’el indicates, the Torah does refer to these two women as the “wives” of Jacob (Genesis 30:4, 9; Genesis 37:2), even though elsewhere it calls them his concubines (Genesis 35:22).[14] Moreover, there is a midrashic text that numbers Bilhah and Zilpah among the “six matriarchs” of Israel.[15] Finally, it can be argued that to include the maidservants in our prayer is to make a strong statement against social elitism and in favor of an affirming attitude toward diverse family structures.[16]Yet much can also be said in defense of our current custom. We single out the names Sarah, Rebecca, Leah, and Rachel, not because of their legal status, but because each of them plays a pivotal role in the Biblical narrative: in their relationship to their families, husbands, and children and in their influence upon the events that shaped the course of Israelite history. Each of these four women, in other words, appears to us as a personality in her own right, not simply as the wife of a patriarch. The agadic tradition, in fact, regards them as prophets,[17] recipients of divine revelation. This suggests that it is possible to view Sarah, Rebecca, Leah, and Rachel as partners with their husbands in the establishment of the covenant. By including their names in the first benediction of the tefilah, we simply take this traditional Jewish conception and make it explicit. By contrast, none of these characteristics apply to Bilhah and Zilpah, who simply do not occupy such an exalted position in the Biblical narrative and in the religious memory of the Jewish people.[18]

    Thus, in this case as well, while Reform Jews are certainly entitled to include the names of Bilhah and Zilpah in the first benediction of the tefilah, we find no compelling reason to recommend that change from our current practice.

 

NOTES

  1. It is not the function of this Committee to determine the text, structure, or wording of the new prayer book of the Central Conference of American Rabbis (CCAR). Those tasks belong to the prayer book’s editors, as overseen by the CCAR Liturgy Committee. (As of this writing, the new prayer book of the CCAR, Mishkan Tefilah, is still in preparation.) We therefore venture no opinion here as to the appropriate text of the new siddur. We consider this she’elah rather because it touches upon a matter of Reform Jewish religious observance and, as such, does pertain to the function of this Committee.
  2. This innovation appears in recent liturgical publications of the Conference, including Gates of Prayer for Shabbat (New York: CCAR, 1992). Our current “official” siddur, Gates of Prayer: The New Union Prayer Book (New York: CCAR, 1975), does not include the imahot in the Hebrew texts of the tefilah, but it does mention them in several English renditions of those texts (e.g., at pp. 229 and 356).
  3. For the historical record of liturgical innovation within our movement, see Jakob J. Petuchowski, Prayerbook Reform in Europe: The Liturgy of European Liberal and Reform Judaism (New York: World Union for Progressive Judaism, 1968), and Eric L. Friedland, Were Our Mouths Filled With Song: Studies in Liberal Jewish Liturgy (Cincinnati: Hebrew Union College Press, 1997).
  4. Space does not permit us to cite the long list of scholarly works in the history of Jewish liturgy that argue this point. We content ourselves with mentioning two of them: Stefan C. Reif, Judaism and Hebrew Prayer (Cambridge: Cambridge University Press, 1993), and Joseph Heinemann, Prayer in the Talmud (New York: de Gruyter, 1977).
  5. Two of our CCAR colleagues have produced groundbreaking research in this area: Lawrence A. Hoffman, The Canonization of the Synagogue Service (Notre Dame: University of Notre Dame Press, 1979), and Ruth Langer, To Worship God Properly: Tensions Between Liturgical Custom and Halakhah in Judaism (Cincinnati: Hebrew Union College Press, 1998).
  6. BT Berakhot 20b and Sotah 33a.
  7. Yad, Tefilah 1:1-3. Rambam derives that prayer is a Toraitic mitzvah from a midrash on Deuteronomy 11:13, which requires that one “serve God with all your heart”: “what is this ‘service of the heart’? It is prayer” (BT Ta`anit 2a). Not all halakhists accept this narrative. Nachmanides, for example, holds that Jewish prayer originated not as a Toraitic commandment but as a popular practice, reflecting the need and desire of human beings to communicate with God. See his hasagah to Rambam’s Sefer Hamitzvot, positive commandment no. 5. Importantly, though, both authorities agree that tefilah was originally an utterance that had no fixed, defined text or structure.
  8. Yad, Tefilah 1:4. Rambam holds that this text was instituted by “Ezra and his beit din (rabbinical court).” This is his version of the Talmudic tradition that ascribes the text of the tefilah to the “120 elders, including the latter prophets” (BT Megilah 17b) or to “the members of the Great Assembly” (BT Berakhot 33a). Historians of Jewish liturgy do not take these statements literally, although some are of the opinion that the tefilah was in fact the product of a formal enactment by a religio-legal institution. Rambam’s narrative affirms the traditional conception that the specific forms of the prayer we recite are miderabanan, established by Rabbinic ordinance (takanah).
  9. BT Berakhot 40b, following the opinion of Rabbi Yose.
  10. Rambam, Yad, Berakhot 1:5-6. If this is the case, then what in Rambam’s view does constitute an “unacceptable” change in the matbe`a of a benediction? The answer can be found in Yad, Keri’at Shema 1:7. There, Rambam writes that because Ezra and his beit din instituted the forms of the blessings, “one is not entitled to detract from them or to add to them. In a place where (the Sages) require that one conclude with a chatimah (i.e., to recite a “barukh atta” formula at the end of a paragraph), one is not permitted to do otherwise. In a place where they require that one not conclude with a chatimah, one is not entitled to do otherwise… The general rule is this: one who alters the form (matbe`a) of a berakhah that the Sages established is in error and must repeat the berakhah correctly.” In other words, an unacceptable change in the form of a berakhah is defined as an alteration of its formulaic structure. A change in the wording of a benediction, including the wording of its chatimah, is not defined as an improper alteration of its form and is therefore halakhicly acceptable, so long as the new form retains the content and theme (inyan) of the traditional matbe`a. This is the plain sense of Rambam’s rulings in these passages, and it is the way that R. Yosef Karo understands him as well; see the latter’s Kesef Mishneh, Berakhot 1:5-6.
  11. For example, we imagine that Rambam himself would not have been delighted with our insertion of the names of the Imahot. In Yad, Berakhot 1:5, he writes that “it is not proper (ve’ein ra’ui) to alter the texts of the berakhot, to add to them or to detract from them.” Yet as Karo notes (Kesef Mishneh ad loc.), Rambam pointedly does not say that one who changes the traditional wording of a berakhah does not fulfill his ritual obligation thereby. In Rambam’s view, so long as one retains the theme and content of the traditional berakhah, “it is not an error (ta`ut)” to recite the benediction according to its altered wording, even though he would prefer that the individual not make that linguistic change. In other words, opposition to liturgical innovation per se is a matter of style and temperament rather than of liturgical law.
  12. It also reflects the historical and developmental nature of our understanding of God: the covenant is handed down from generation to generation, and each generation arrives at its own appreciation of its terms.
  13. Our current siddur texts mention Leah before Rachel. Yet it is perfectly acceptable to alter that order, following the verse in Ruth 4:11.
  14. See Ramban to Gen. 37:2, end: perhaps Jacob made Bilhah and Zilpah his wives following the deaths of Rachel and Leah. This elevation in their legal status can be seen as an effort to insure that the sons they bore to Jacob (and the tribes who descended from them) are considered equal to his other sons. Rashi hints at this possibility, while R. David Kimchi states it explicitly; see their commentaries to Gen. 37:2.
  15. The text in Bamidbar Rabah 12:17 (Vilna ed.) is paralleled in Shir Hashirim Rabah 6:2 Esther Rabah 1:12.
  16. Rabbi Richard Rheins, a corresponding member of this Committee, states: “I believe that it is our duty to raise awareness of the blessed role Bilhah and Zilpah played as mothers and nurturers of our people. Questions about their social status or even their ethnic origin are irrelevant. The Torah does not give us minute details about their lives. Accordingly, the text’s ambivalence permits us the interpretive freedom to see Bilhah and Zilpah in roles that seem modern and familiar. In the modern era, interfaith families, new spouses, single parents, and stepchildren are not uncommon. And yet the quality of a family cannot be judged by its composition. The essence of a family is in the commitment made by each of its members to love and nurture. Those who fulfill that commitment deserve our honor, respect and appreciation regardless of their ethnicity or social status. An inclusion of Bilhah and Zilpah would be an effective role model for those of blended families.”
  17. Bereshit Rabah (Vilna ed.) 67:9 and 72.6. Sarah is a special case: her gift of prophecy is said to have exceeded that of her husband (BT Megilah 14a; Shemot Rabah 1:1; Rashi to Gen. 21:12).
  18. We would add that we disagree with the sho’el’s assertion that by omitting the names of these maidservants “the Reform movement gives tacit approval to the idea that woman is property.” By this logic, one might as well say that by mentioning the names of Leah and Rachel we give our tacit approval to the idea of polygamy. That conclusion, of course, would be absurd.

NYP no. 5763.7

CCAR RESPONSA COMMITTEE

5763.7

Sharing the Synagogue’s Membership List

She’elah.

Jewish organizations often request that a synagogue share its membership list with them, in order that those organizations may reach a wider audience for their work. Is it ethical for the synagogue to provide its membership list to these organizations without the express consent of each member? (Rabbi Larry Englander, Mississauga, ONT)

 

Teshuvah.

This she’elah requires that we consider the balance between communal authority and personal privacy. Our tradition bestows upon the community a great deal of power to do good, to see to it that its members perform mitzvot, the duties and obligations of Jewish life. It also evidences deep concern for the dignity of the individual, protecting him or her from the unwarranted interference of the community and the unwanted gaze[1] of the other. When these two values clash, how shall we draw the line between them?

  1. The Jewish Community and Its Authority. We Jews, in the view of our tradition, find meaning first and foremost not as individuals but as members of am yisrael, the Jewish people. The covenant, the eternal bond between God and Israel, was made with the community as a whole and is expressed in communal language: we are to be “a kingdom of priests and a holy nation” (Exodus 19:6), and it is the “entire congregation of Israel” that hears the commandment that “you shall be holy” (Leviticus 19:2).[2] The liturgy of our prayer book (siddur) expresses the essentially corporate nature of our existence and destiny. Our prayers are written in plural language, so that even when a Jew prays privately, he or she speaks of the God “who has sanctified us,” praises the God “who in love has chosen the people Israel” for divine service, and implores God to “heal us and we shall be healed.” The tradition teaches us that it is better to pray in the midst of a congregation than to do so privately[3] and provides that certain parts of the liturgy, those having to do with the sanctification of God, may be recited only in the midst of a congregation, for “I will be sanctified in the midst of the people of Israel” (Leviticus 22:32).[4] In other words, we most truly uphold the covenant and sanctify the name of God when we become “Israel,” the Jewish community.

    Given its emphasis upon the centrality of community, it is not surprising that Jewish tradition speaks hardly at all about “individual rights.” Jewish law, after all, proceeds from the mitzvot of the Torah, the obligations imposed upon the people by their covenant with God. When we study our sacred texts, we are much more likely to read of “duties” than of “rights.”[5] To put this differently, the Torah does not proclaim a libertarian philosophy. Our lives, our bodies, and our property are not our own, to do with as we please so long as we do not interfere with the rights of others; they belong rather to God, who has given them to us for safe-keeping and to Whom we owe an ultimate account for the way we use them.[6] It follows that when we see another Jew transgressing against the Torah, each of us is entitled (and even required) to take action to insure that he or she abides by the Torah’s dictates.[7] Talmudic law allows the proper authorities to coerce an individual to perform a variety of mitzvot that are incumbent upon him or her: to fulfill a vow,[8] to issue a divorce,[9] to give tzedakah,[10] and others.[11] Indeed, the organized community exercises the same authority as that possessed in Temple times by the Sanhedrin, the great beit din (rabbinical court), to enforce its decrees upon its citizens.[12]

  2. The Privacy of the Individual. From the foregoing discussion, we might well draw the conclusion that the community, in this case the synagogue, ought to allow other Jewish organizations to solicit its members to participate in and to contribute to their programs. Many of these organizations — local federations, day schools, Zionist groups, facilities for senior citizens, social action agencies, and numerous others — serve vital Jewish purposes, and since the community is traditionally empowered to enforce the performance of mitzvot, it would follow that the synagogue board is authorized to aid these organizations in the achievement of their goals. This, perhaps, is what Hillel had in mind when he instructed us “do not separate from the community” (M. Avot 2:4): when the community is engaged in Torah and mitzvot, “this is truly the crown of God’s glory,” and it is unworthy of any of us to stand aside.[13] One could therefore make a strong argument that the synagogue, the present-day embodiment of the Jewish community of old, ought to provide its membership list to these organizations, for to do so would strengthen and enrich the community as a whole.

    Against this argument, however, stands our concern for the privacy and the dignity of the individual synagogue member. Although, to repeat, Jewish tradition does not speak in terms of “rights,” including a “right” to privacy, it does impose upon us the corresponding duty to refrain from infringing upon a person’s essential dignity. A homeowner, for example, may take action to protect the household against the prying eyes of neighbors, for “damage caused by visibility” (hezek re’iyah) is an actionable tort under Jewish law.[14] The Torah and halakhah forbid gossip and slander (rekhilut) as damaging to a person’s reputation,[15] and they prohibit us from saying or doing anything that causes embarrassment (halbanat panim) to others.[16] Significantly, although as we have seen the halakhah allows the community to coerce individuals to give tzedakah, we are forbidden to shame them in public.[17] Taken together, these and other provisions of Jewish law proclaim that the life of the individual is not a completely open book, that at some point the community must cease their efforts to intervene into what are, at bottom, matters that are none of its business. As we have written in another context: “There are aspects of our existence which are and must remain off-limits to the eyes and tongues of those among whom we live, and we are therefore under no moral or religious obligation to share with them information about ourselves that they have no legitimate reason to know. This conclusion drawn from our law may not be the exact equivalent of the ‘right to privacy’ in other legal systems. But it does express, in language too clear to permit of misunderstanding, a commitment to the proposition that all of us, created in the divine image, are possessed of a dignity which at some critical point requires that all others leave us be and let us alone.”[18]

    This concern for individual privacy counsels against a synagogue’s sharing its membership list with other agencies in the absence of the individual’s express consent, or in the absence of a duly-adopted provision in the synagogue’s bylaws permitting such an action. The question has to do with what lawyers would call a “reasonable expectation of privacy.” In our day, when the Jewish community no longer enjoys the coercive powers described above, individuals who join our synagogues expect that their membership information will remain the confidential property of the synagogue. To act in a manner contrary to that expectation, to grant other organizations access to membership information without the member’s consent, would be a violation of the halakhic prohibition of fraud and deception (geneivat da`at).[19] True, our tradition has permitted the rare act of deception for the sake of a “higher” purpose,[20] and the organizations that seek our mailing lists undoubtedly believe that they represent such purposes. We think, however, that they face a high burden of proof if they wish to set aside Judaism’s protection of individual privacy and prohibition of deceptive conduct.

    Conclusion. The community enjoys a high standing in Jewish law, particularly as an agency for aiding (or even coercing) individuals to do that which is right and good. In our own time, the community does not enjoy the coercive powers it once possessed. It still has the duty, however, to encourage its members to perform mitzvot. On the other hand, Jewish tradition shows a deep regard for the dignity and privacy of the individual. In our case, individual members of a synagogue have a reasonable expectation that the synagogue will not share their names and other personal information with other organizations without the express consent of the member or in the absence of a clear statement in the congregation’s bylaws permitting the sharing of this information. Whether the synagogue should adopt such a policy is a decision for its members to make.

 

NOTES

  1. See Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America (New York: Random House, 2000).
  2. See Rashi ad loc., quoting the Sifra to Lev. 19:2: the mitzvot in this section of the Torah were spoken in the presence of the entire community because they contain the essence of the Torah itself.
  3. BT Berakhot 7b:8a. As Maimonides expresses the idea: “The prayer of the community is always accepted… Therefore, one should strive to join the community, and one should not pray privately if one is able to pray with a congregation” (Yad, Tefilah 8:1).
  4. See Megilah 4:3, BT Megilah 23b, Yad, Tefilah 8:5-6, and Shulchan Arukh Orach Chayim 69:1: “matters having to do with sanctification” (kol davar shebikedushah) must be recited in the presence of a congregation (edah) consisting of no less than ten adult Jews. These “matters” include the liturgical rubrics kaddish, kedushah, barekhu, and the reading of the Torah (Mishnah Berurah, Orach Chayim 55, no. 2).
  5. See Haim Cohn, Human Rights in Jewish Law (New York: Ktav, 1984), 18: “the particular structure of Jewish law qua religious law–with God as the central object of love and veneration, and the worship and service of God as the overriding purpose of all law–postulates a system of duties rather than a system of rights.” See also R. Elliot N. Dorff, To Do the Right and the Good: A Jewish Approach to Modern Social Ethics (Philadelphia: Jewish Publication Society, 2002), 17-26.
  6. This idea, found throughout our sources, is perhaps best expressed in the traditional prohibitions against suicide and against doing physical harm to our bodies. Jewish tradition is not neutral when it comes to these so-called “victimless” crimes, for the individual is not the owner of his or her own life and body to do with them as he or she pleases. For sources and discussion, see Teshuvot for the Nineties (TFN), no. 5754.14, “On the Treatment of the Terminally Ill,” pp. 337-363, especially at 3 and 4, and no. 5752.7, “Cosmetic Surgery,” pp.127-132. See also our responsum no. 5759.4, “Tattooing, Body-Piercing, and Jewish Tradition,” .
  7. For example, Leviticus 19:17 enjoins us to “reprove your kinsman, so that you not incur guilt on his account,”and our tradition adds that “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” (Yad, De`ot 6:7, from BT Arakhin 16b).The well-known Talmudic saying kol yisrael arevim zeh bezeh, which is usually translated as “all Jews are responsible for one another,” in fact declares that each of us bears a duty to intervene when we see a fellow Jew committing a sin; BT Shevu`ot 39a and Sanhedrin
  8. BT Bava Batra 48a and Arakhin 21a; Yad, Ma`aseh Hakorbanot14:16.
  9. BT Bava Batra 48a and Arakhin 21a; Yad, Gerushin 2:20; Shulchan Arukh Even Ha`ezer 134:5 and 154:21. See, in general, Teshuvot for the Nineties, no. 5754.6, pp. 209-216.
  10. BT Bava Batra 8b (and Tosafot ad loc., v. akhpeh); Yad, Matanot Aniyim 7:10; Shulchan Arukh Yoreh De`ah 248:1.
  11. For example, should a mohel refuse to circumcise a baby boy, the beit din may coerce him to do so if there is no other mohel available ( Rashba 1:472; Shulchan Arukh Yoreh De`ah 461). How, precisely, could such “coercion” take place in a way that is safe for the child? See Pitchey Teshuvah, Yoreh De`ah 261, no. 4: the beit din is permitted to trick the recalcitrant mohel, to promise him an exorbitant fee and to renege on the offer following the circumcision.
  12. Although the Talmud never states that the community (kahal) may employ coercion to enforce its decrees, the medieval authorities recognized such a power. The equation of the kahal to the Sanhedrin is most associated with R. Shelomo b. Adret (Rashba; d. 1310) of Barcelona; see his Responsa 5:126, 1:729, 3:411 and 3:417. See also R. Asher b. Yechiel (d. 1327), HaRosh 6:5, 7, who extends the “majority rule principle” (acharei rabim lehatot) from its original context (i.e., that a court’s verdict is determined by the majority of its judges) to apply to all matters of public (rabim, i.e., community) concern. Other scholars derived this communal power from other sources. See our responsum 5758.1, “The Reform Rabbi’s Obligations Toward the UAHC,”.
  13. See the commentary of R. Yonah Gerondi to Avot 2:4, included in the standard printed editions of the Babylonian Talmud.
  14. Bava Batra 3:7; B. Bava Batra 2b-3a; Yad, Shekhenim 2:14; Shulchan Arukh Choshen Mishpat 54.
  15. Leviticus 19:16; Yad, De`ot 7:1-2. For sources and discussion on the prohibition of gossip in general, see our responsum “Gossip Between Husband and Wife,” TFN, no. 5750.4, pp. 187-190 ( ).
  16. The prohibition is derived from Leviticus 19:17; see Sifra to the verse and Arakhin 16b. See also Yad, De`ot 6:8, and Sefer Havhinukh, mitzvah 240.
  17. Bava Batra 8b; Yad, Matanot Aniyim 7:11; Tur, Yoreh De`ah 248; Shulchan Arukh Yoreh De`ah 248:7.
  18. CCAR Responsum no. 5756.2, “Privacy and the Disclosure of Personal Medical Information,” , section 2.
  19. BT Chulin 94a; Yad, De`ot 2:6 and Mekhirah 18:1ff; and SA CM 228:6.
  20. 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. See Nachmanides to Gen. 18:13 for a less daring but essentially similar evaluation of God’s report. In addition, see at note 11, above.

 

NYP no. 5764.1

CCAR RESPONSA COMMITTEE

5764.1

Collection of Debts to the Congregation

 

She’elah.

What are proper and/or acceptable methods for dealing with situations in which congregants and former congregants refuse to pay their debts to the congregation? We already have in place systems for reducing dues and fees, as well as for people making payments over time. We are interested in knowing what further steps we might take, including the sending of dunning notices from an outside service; the use of a collection agency, including credit reporting; and the filing of a lawsuit. (Rabbi Marc J. Belgrad, Buffalo Grove, IL)

 

Teshuvah.

“The very fact that the question is asked reveals a feeling that it is wrong to bring Jewish religious disputes to the secular courts.” Thus begins a responsum issued by the CCAR Responsa Committee in 1961, dealing with the question of whether a congregation may use legal processes to collect delinquent building pledges.[1] The teshuvah rules that the resort to such processes “is contrary to both the letter and the spirit of Jewish legal tradition” and bases its conclusion primarily upon three points:

1. a building pledge is best understood as a document of gift (shtar matanah), “which cannot legally (in the eyes of Jewish law) be dealt with by the non-Jewish courts”;

2. a long tradition in Jewish law denounces resort to Gentile courts;

3. to bring intra-communal disputes of this nature to the secular courts is a chilul hashem, an action that “profanes God’s holy name.”

This Committee, however, disagrees substantially with the reasoning upon which our predecessors based their decision. Specifically, we take issue with each of the three major points of their 1961 ruling. Although we are most reluctant to see synagogues resort to lawsuits and other legal action in order to collect obligations owed to them, and although we believe that such steps may well be destructive to the ethos of the synagogue and the purposes for which it exists, these measures should be available to congregations as a last resort, when all others have failed.

1. Collection of Debts in Non-Jewish Courts. The 1961 responsum cites a single source (Shulchan Arukh Choshen Mishpat 68:1) to support its contention that the halakhah forbids the resort to Gentile courts in order to enforce “Jewish Documents of Gift.” Yet a careful reading of that text shows that, in fact, it speaks to the opposite situation: the validity of a Gentile Document of Gift in a Jewish court.[2] The Shulchan Arukh adopts the ruling of Maimonides,[3] who declares that a document of gift processed by a Gentile court is invalid under Jewish law and is therefore not enforced by the judges of a Jewish court (beit din).[4] This rule does not address the question before us, and it therefore does not prohibit a synagogue or other Jewish institution from asking a secular court to enforce a monetary pledge that, as the 1961 responsum notes, is considered valid and enforceable under Jewish law.[5]

2. The Prohibition Against Resort to Gentile Courts. The halakhah, to be sure, does record a general prohibition upon Jewish litigants from bringing actions in Gentile courts,[6] and the 1961 responsum cites this “long tradition in Jewish law” as a major justification for its decision. We, however, find the reliance upon this prohibition to be puzzling, for several reasons. First, the earlier responsum acknowledges that this requirement is waived in the event that one of the litigants refuses to appear before or accept the judgment of the Jewish tribunal. If the other litigant finds that he cannot recover his property through the processes of Jewish law, which is certainly the case in the question before us, he may seek redress in the Gentile courts.[7] In other words, while the halakhah demands allegiance to the Jewish legal system, its overriding concern is justice: Jewish individuals and institutions must be able to protect their legal rights, and they are therefore permitted to bring suit before whichever court is empowered to grant that protection. The 1961 responsum, by contrast, suggests that we are somehow less than entitled to this legal redress. Second, as historians and halakhists have written, Jewish courts have lost their juridical autonomy and powers of enforcement during the modern period, and it has therefore become customary for Jews to take their monetary disputes to the civil courts.[8] The 1961 responsum, ironically, would deny to Reform synagogues a legal tool that other Jews, including those in the Orthodox community, accept as normal procedure.[9] Finally, the traditional prohibition simply does not speak to our present-day political situation. We Jews who are full citizens of our nation, who participate in the making and the administration of its law, and who expect and demand equal protection under that law simply do not regard its court system as foreign and alien to us. These are not “Gentile” courts, but our courts, belonging to “us” just as surely as to “them.” To suggest that Jews should not avail themselves of our nation’s courts on the grounds that they are “secular” or “Gentile” tribunals is to imply that our legal position in this society is not that of equal citizenship. We ought to avoid any such implication.[10]

3. Chilul Hashem. The Torah (Leviticus 22:32) forbids us to act in such a way as to profane the holy name of God. What sorts of acts are contemplated by this prohibition? Jewish thought over the centuries has offered several distinct answers to this question.[11] In one familiar usage, this prohibition means that a Jew should not act in such a way as to bring disrepute upon the name of God and upon the people of Israel in the eyes of the nations of the world.[12] Adopting this interpretation, the 1961 responsum suggests that synagogues not bring disputes before the civil courts, for to do so is to invite scandal and, therefore, chilul hashem. Once again, we would dissent from the reasoning in that responsum. Although we do not make light of its concern, we think that it reflects an earlier period in American Jewish life, when genteel antisemitism was rampant, and Jews, as a result, were excessively fearful of presenting a negative image to the general public. Today, thankfully, we are more confident of our position in society. American Jews today can stand up for their rights without fear that doing so will invite scandal. In the contemporary context, to argue for our rights before a court of law is not to court public humiliation or to “wash our dirty linen in public.” It is, rather, to demand the justice to which we are entitled according to the law of the land and according to the dictates of our Torah and tradition. We need not be dissuaded from seeking justice for ourselves on account of our fears as to what others might think of us.

There is, however, another interpretation of chilul hashem, one that makes a much more powerful demand upon us.  In both Biblical[13] and Rabbinic teaching,[14] various types of behavior are said to profane the Divine name because they are sharply inconsistent with the moral standards expected of us as a people covenanted with God. These actions are not necessarily “sins”; they do not necessarily violate any explicit prohibitions of the Torah.[15] Nor are they to be avoided primarily because of the negative impression they might make upon Gentile observers. They are “wrong” purely and simply because of the impression they ought to make upon us, because those who strive to be holy should not behave in such a manner. Viewed in this light, our issue takes on a very different cast. The question the congregation should ask itself prior to taking legal action to collect on members’ obligations is not whether such action is permitted under Jewish law (for it manifestly is permitted) but rather whether it accords with our vision of what a synagogue ought to be and of its role in Jewish life.

This question admits of no easy answers. Like all other institutions, a synagogue budgets for its expenses on the basis of projected revenue. Like all other voluntary associations, the contemporary synagogue depends for its revenue upon the willingness of its members to meet their financial obligations. When a member who has the ability to pay a freely accepted obligation to the synagogue refuses to meet that pledge, it is neither “illegal” nor “immoral” for the congregation to take legal action against that individual’s breach of faith.[16] Yet the synagogue is not like all other institutions. It is first and foremost a community of Jews bound together by ties of faith, affection, and mutual concern. These values, which define the synagogue’s mission and form the basis of its spiritual strength and institutional prestige, stand fundamentally at odds with the strife and contention that characterize our overly litigious society. When a synagogue initiates legal action against one of its members, whatever its justification for that action, it embarks upon a course of conduct that is by its nature a bitter and divisive exercise, destructive of the core values that define the synagogue’s mission and purpose. It does something that the synagogue, as the institutional embodiment of our covenant with God, ideally should not do. And for that reason, it may constitute an example of chilul hashem.

Conclusion. Jewish tradition permits a synagogue to undertake legal action to collect debts owed to it by its members. We are not prohibited from seeking justice on these matters in the civil courts. Yet because we are lessened as a religious community when take such steps, we should engage in legal action only as the absolutely last resort, when all other available remedies have been tried and have failed.[17] The choice rests in the hands of the synagogue’s leaders; ultimately, it is for them to decide whether the financial benefit of enforcing a member’s obligations justifies the spiritual price the synagogue shall pay in collecting it.

 

 

NOTES

1.         American Reform Responsa (ARR), no. 17; CCAR Yearbook 72 (1961), 127-129; http://www.ccarnet.org/responsa/arr-58-61/.

2.         This issue begins with the Mishnah’s declaration that “all documents processed by Gentile courts, even though their signatories are Gentiles, are valid, with the exception of documents of divorce and manumission” (M. Gitin 1:5). The Talmud (BT Gitin 10b) objects that this rule cannot apply to a document of gift (shtar matanah). Unlike a document of sale (shtar mekhirah), which serves merely as evidentiary evidence that a sale has taken place (and was effected through some other instrument, such as money, physical possession, etc.), a document of gift is itself the instrument through which the transaction was effected. How then can a Jewish court accept and enforce such a document if it was processed in a Gentile court? Two possibilities are suggested. The Amora Shmuel says: “the law of the state is valid law” (dina demalkhuta dina): that is, our courts do accept such documents as valid. The anonymous voice (stam) of the Talmud, however, prefers to emend the text of the Mishnah’s rule: “all documents…are valid, with the exception of documents like those of divorce, etc.” In other words, if a document processed by a Gentile court is in itself the instrument through which a legal transaction is effected (as is the case with divorce, which is effected by the document [get] itself), a Jewish court will not accept that document as valid and will not enforce it; see Rashi, ad loc., s.v. tanei chutz.

3.         Yad, Malveh Veloveh, 27:1, based upon the Talmudic discussion cited in the preceding note.

4.         See Magid Mishneh to Yad, ad loc.: like Rashi (see note 2), Rambam holds that unlike a deed of sale, which serves a purely evidentiary function, a deed of gift is itself the instrument of transaction and is therefore invalid under Jewish law. The Sefer Me’irat Einayim, Choshen Mishpat 68, no. 3, gives a similar explanation to the identical ruling in the Shulchan Arukh.

5.         A pledge to tzedakah is considered a vow (neder; Shulchan Arukh Yoreh De`ah 257:3). See also Yoreh De`ah 248:1: the obligation to give tzedakah is enforceable by the court.

6.         BT Gitin 88b, a saying of Rabbi Tarfon, based upon a midrash on Exodus 21:1: “These are the laws you shall place before them”–that is, and not before Gentile courts. The prohibition, as enunciated by Maimonides (Yad, Sanhedrin 26:7) and the Shulchan Arukh (Choshen Mishpat 26:1), declares: “Whoever brings his case before the Gentile courts is a wicked man, whose action amounts to blasphemy and violence against the Law of Moses, our teacher.”

7.         This rule is found in the Maimonides and Shulchan Arukh passages cited in the preceding note. The commentaries to those passages (and see also Beit Yosef to Tur, Choshen Mishpat 26) tend to identify BT Bava Kama 92b as the Talmudic source of this rule. Originally, the halakhah specified that a Jew might have recourse to a Gentile court only upon receiving prior permission from the Jewish court. Recently, however, this situation has changed; see the responsum by Kluger in the following note.

8.         Among the historians, see especially Menachem Elon, Jewish Law: History, Sources, and Principles (Philadelphia: Jewish Publication Society of America, 1994), 1575-1584. Elon posits that the loss of Jewish juridical autonomy accounts for the lack of significant development in Jewish monetary law (diney mamonot) over the past several centuries. Among the halakhists, see R. Solomon B. Freehof, Reform Responsa (Cincinnati: Hebrew Union College Press, 1960), 7-8: Jewish civil law is now neglected by almost all Jews. “People who surely consider themselves Orthodox have simply ceased to resort to rabbinical courts in business matters” (p. 8). Ironically, Rabbi Freehof is the principal author of the 1961 CCAR responsum that urges a Reform synagogue to observe the prohibition against resorting to non-Jewish courts. The clearest Orthodox halakhic statement concerning this is perhaps the ruling by R. Shelomo Kluger (19th-century Galicia), Resp. Ha’elef Lekha Shelomo, Choshen Mishpat, no. 3. R. Kluger notes that it has become the “widespread custom” (minhag pashut) for Jews to resort to non-Jewish courts even without the prior permission of a beit din, “especially because under the law of the land (dina demalkhuta), Jewish courts are unable to enforce their decisions.”

9.         The most interesting example is the prenuptial agreement signed by some Orthodox couples, under which the groom undertakes, in the event of civil divorce, to provide maintenance of his wife at the level set according to Jewish law. This agreement serves as an inducement to the husband to issue a Jewish document of divorce (get piturin) to his wife,who would otherwise be forbidden to remarry under Orthodox auspices, since it is only upon religious divorce that he would be free of the obligation of maintenance. Significantly, this agreement is drawn up as a contract enforceable in a civil court. In other words, at the outset of marriage the couple enter into an agreement that explicitly contemplates the resort to a non-Jewish court, if necessary, in order to secure justice for the wife. See Elyakim Ellinson, “Seruv latet get,” Sinai 69 (Sivan-Tamuz, 5731/1971), 135-168; J. David Bleich, “Modern-Day Agunot: A Proposed Remedy,” Jewish Law Annual 4 (1981), 167-187; J. David Bleich, Contemporary Halakhic Problems, vol. 1 (New York: Ktav/Yeshiva, 1977), 154-159; and Reuven P. Bulka, The RCA Lifecycle Madrikh (New York: Rabbinical Council of America, 1995), 69-75. A similar procedure is utilized by some liberal Jewish communities in Europe.

10.       We do not mean to disparage the possibility that Jews in our society might choose to order their affairs through the processes of Jewish law. Some Jews do submit their disputes to a beit din, a rabbinical court that operates according to halakhah, and they agree in advance to accept the decision of that court as binding. There are good reasons, in fact, to recommend such a course, not the least of which is our desire that the long and honored tradition of Jewish civil law be developed and brought up to date through its application to contemporary issues in the areas of torts, obligations, property and the like. All we are saying here is that we Jews who reside in democratic societies should not regard the civil courts of our country as “Gentile” courts that do not belong to us.

11.       One of these, not directly relevant to our she’elah, is provided by Maimonides, Yad, Yesodey Hatorah 5:10: any Jew who violates any mitzvah out of his own free choice simply in order to demonstrate his rejection of its authority (lehakhis) is guilty of chilul hashem.

12.       See Encyclopedia Talmudit 15:351-356. Among the many examples of this line of interpretation, see the commentaries of Nachmanides to Numbers 14:13 and of Abraham ibn Ezra (both the “long” and the “short” versions) to Exodus 32:12. In these cases, Moses dissuades God from destroying Israel with the argument that such an action would be destructive to God’s reputation in the eyes of the nations. See also Rabban Gamliel’s takanah forbidding Jews from making use of the stolen property of Gentiles on the grounds of chilul hashem; Y. Bava Kama 4:3, 4b.

13.       See Amos 2:7, concerning the maltreatment of the poor as well as sexual immorality, and Jeremiah 34:16, concerning the people’s failure to honor the obligation (called a covenant) to set free their indentured servants.

14.       See BT Yoma 86a, where the sage Rav declares that he would commit chilul hashem were he to fail to pay his debts to shopkeepers in a timely fashion. See also Rashi to Numbers 25:14. The classic statement of this approach to chilul hashem is Yad, Yesodey Hatorah 5:11.

15.       See Yad, Yesodey Hatorah 5:11: when a person known for his righteous behavior commits an act that causes the community to doubt his righteousness, even though that act is not a “sin” per se, he has profaned God’s holy name.

16.       Consider, for example, what would happen were the synagogue to fail to pay its own financial obligations. It is most unlikely that the synagogue’s vendors would refrain from taking legal action to collect on those obligations merely because the synagogue is a religious institution.

17.       A number of these remedies exist. The congregation can alert all other synagogues in the community that this member has broken faith, so that he or she should not be invited to join any institution within the Jewish community until all past obligations are paid. Similarly, we can tell our members that acceptance of their children to religious school, admission to High Holiday services, and the scheduling of certain life-cycle events are contingent upon payment of financial obligations or the making of acceptable arrangements to do so. Obviously, these steps do not guarantee that financial obligations will be met; still, they are less difficult, divisive, and contentious than the initiation of legal action to collect debts.

 

 

 

NYP no. 5764.3

CCAR RESPONSA

5764.3

May A Jew Join The Society of Friends?

She’elah

A member of my congregation has sent me the following query. .In addition to belonging to our synagogue, I have also been attending Quaker meeting for several years. I would like to know if the synagogue would have a problem with me becoming a member of the Society of Friends. Granted the Quakers have a background in Christianity, the meeting for worship on Sundays is not a church service and Quakers do not have clergy. We simply sit in silent prayer for an hour and give ministry when we feel moved to speak.. What should be our response? (Rabbi David Wirtschafter, Burlingame, CA)

Teshuvah

Liberal Judaism affirms the value of religious pluralism in our society. Our understanding of pluralism allows us to engage in interreligious dialogue, participate in interfaith worship that is

respectful to all faiths involved, and occasionally borrow non-Jewish  patterns and styles of worship and adapt them to our own distinctly  Jewish worship.[1] That understanding, however, also presumes the existence of real and essential differences,  distinctions, and boundaries between religious faiths and faith communities. Judaism, therefore, is different from other faiths in its commitments and practices, and it is frequently the task of rabbis to call our  people’s attention to this distinctiveness and the boundary lines that define our unique religious tradition

That is exactly the rabbi’s task in this case. We cannot affirm or support the desire of this congregant to join the Society of Friends.[2] Judaism makes exclusive religious demands of us: one cannot successfully be a practicing Jew and, simultaneously, a communicant of another religion.[3] The congregant might respond that Quaker worship, which lacks a verbal liturgy and contains no formal and required Christological references, is not truly Christian in nature and does not qualify as “another religion.”[4] This argument fails, however, because the Quakers by virtue of history and doctrine are unquestionably a Christian sect.[5] The Society of Friends was founded in England by George Fox (1624-1691), whose distinctive message was based upon the New Testament conception of the “true light.”[6] Thus, “the Lord hath opened to me by His invisible power how that every man was enlightened by the divine light of Christ.”[7] Quaker worship dispenses with a verbal liturgy precisely in order that the individual might contemplate this “divine light,” the presence of Christ within.[8] That the Quakers conduct their worship in silence is therefore evidence of the presence of Christ–and not his absence–in their meeting. To put this another way, Quakerism is a thoroughly Christian theology even though the Quaker service makes no explicit reference to Jesus.[9]

The short answer to this question, therefore, is “yes”: the synagogue most definitely would “have a problem” with the congregant’s decision to join the Society of Friends. In saying this, we do not mean to imply that the synagogue ought to sever its ties with one who is, after all, a Jew and a member of our community. We would hope that, through continuing discussions and contact with fellow congregants and the rabbi, this individual might discover that the tradition of Jewish worship offers the very sort of spiritual satisfaction that he or she is seeking.[10] Our point, rather, is that we as a Jewish community cannot grant our explicit or implicit approval to this request.

NOTES

  • Some opinions hold that such adaptation runs counter to Jewish law. They refer to the practice of chukkat hagoyim, the imitation of non-Jewish customs, which is prohibited under the Rabbinic interpretation of Leviticus 18:3; see BT Sanhedrin 52b and Avodah Zarah 11a, along with Yad, Avodat Kokhavim 11:1. We would note, however, that this prohibition has never been regarded as absolute. For discussion and sources, see Teshuvot for the Nineties (TFN), no. 5751.3, pp. 159-164 ( ). Two important rabbinical rulings on this subject are R. Yitzchak bar Sheshet Perfet (14th-15th cent. Spain-North Africa), Resp. Rivash, no. 158, and R. Yosek Kolon (15th-cent. Italy), Resp. Maharik, no. 88.
  • The term “join” does not necessarily indicate a formal act of conversion to the Society of Friends or to any other religious group. A given denomination might not require an explicit rite of passage of its new members, and it might not demand that its members regard the denomination as their exclusive religious affiliation. From our perspective, none of this matters: the difficulty begins when a Jew seeks to “become a member” of a Christian sect, however that sect defines membership.
  • We have stressed this point in a number of responsa. We do not officiate at the berit milah of a child whose parents intend to raise him simultaneously in two religious traditions (Questions and Reform Jewish Answers [QRJA], no. 109; ). Similarly, a child raised simultaneously in two religious traditions does not qualify for Jewish status under the “patrilineal descent” doctrine of the Reform movement and therefore may not be prepared for Bar/Bat Mitzvah (Contemporary American Reform Responsa [CARR], no. 61, ; QRJA, no. 88, and TFN, no. 5754.3, pp. 263-264, ).
  • The implication is that a Quaker service is more akin to an exercise in meditation, which is not necessarily antithetical to Jewish belief and practice. See CARR, no. 169 ( ) on the distinction between acceptable and unacceptable meditative practices within a Jewish context.
  • See, for example, Faith and Practice: The Book of Discipline of the New York Yearly Meeting of the Religious Society of Friends (2001 ed.),  , p. 7: “The Religious Society of Friends arose from personal experience of direct spiritual encounter with God as revealed in Jesus Christ.” See also the website of the Friends United Meeting, “an international association of Friends Meetings and Churches, organized for more effective Christian ministry, outreach and evangelism” (
  • See John 1:7-9.
  • J. L. Nickalls, ed., Journal of George Fox (Cambridge, 1952), 33. Given the religious ferment in England during the days of the Protectorate and the Restoration, this was hardly a non-controversial idea. In suggesting that every person might attain perfection by obeying the inner light of Christ, Fox set himself firmly against the Calvinist dogma of predestination, which lay at the core of Puritan belief, as well as against Roman Catholic and Anglican practice. See Michael Watts, The Dissenters: From the Reformation to the French Revolution (Oxford: Oxford University Press, 1978), 186-204.
  • John Dillenberger and Claude Welch, Protestant Christianity (New York: Scribner’s, 1954), 118-121.
  • As we have noted on several occasions, a prayer or a hymn may be authentically “Christian” even if its text makes no explicit references to Christ. Thus, it is inappropriate for a Jew to recite the “Lord’s Prayer,” even though the text of the prayer does not mention the name of Jesus; CARR, no. 171 ( ). See also TFN, no. 5752.11, pp. 21-22 ( , on the hymn “Amazing Grace.”
  • For example, Judaism does not reject meditation per se; see the responsum cited at note 4. Indeed, many teachers and streams of our tradition have understood prayer as a profound and intense spiritual, emotional, and intellectual experience. A case in point is the Musar movement, born in 19th-century Lithuania. The “Musarniks,” in the words of a leading scholar of that movement, found prayer “an opportunity for comprehensive spiritual development: concentration of thought, energizing of the emotions, contemplation of the wonders of creation and the greatness of God, and the strengthening of faith and trust in God’s goodness.” The liturgy in some Musar yeshivot was recited very slowly, “as though one were counting out coins,” so that the worshiper could mentally associate the words of the sidur with important religious and ethical concepts; Dov Katz, Tenu`at hamusar (Jerusalem, 1982), 2:176. We might also cite the turn toward meditative practices in some contemporary Jewish circles. Our own Union for Reform Judaism sponsors a “meditation kallah,”a yearly retreat that “focuses on authentic Jewish meditative practices that support the deepening of Jewish spirituality and identity” (see ). This is not to say that these approaches to prayer are exact parallels to the Quaker style of worship, but instead to suggest that one need not go outside the Jewish tradition to find tendencies in worship that emphasize quiet yet intense contemplation.

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5764.4

CCAR RESPONSA COMMITTEE
5764.4
Commitment Ceremonies for Heterosexual Couples; Jewish Wedding Ceremony in the Absence of a Civil Marriage License

 

She’elah.

A retired heterosexual couple has approached me to perform a commitment ceremony for them in lieu of a wedding, since they wish to avoid losing social security benefits but still want to have a ceremony affirming their mutual love and commitment. They wish for their relationship to be validated in the eyes of our faith and also in the eyes of their family. They have cited the gay/lesbian commitment ceremonies as precedent. Should such a ceremony be conducted? (Rabbi Michael Sternfeld, Chicago, IL)

Teshuvah.

Our she’elah raises the issue of a commitment ceremony, in lieu of a wedding, for a heterosexual couple. In this responsum, we wish to deal as well with the question of whether a Jewish wedding should be provided for a couple who, though eligible to marry under Jewish law and tradition, do not wish to obtain a marriage license from the government.[1] While these situations differ, they both involve a desire on the part of the couple to achieve Jewish religious recognition for their union and simultaneously to avoid becoming husband and wife in the eyes of civil law.

  1. Jewish Wedding Ceremony in the Absence of a Civil Marriage License. We begin with the second question because it affords us a basis from which to analyze the first. Rabbi Solomon B. Freehof, in a teshuvah published in 1974,[2] rules that a rabbi[3] should not officiate at a wedding when the couple, seeking “to avoid reduction in the total of their Social Security,” do not take out a marriage license. He bases this decision upon the Talmudic principle dina demalkhuta dina, “the law of the state is valid in Jewish law.”[4] That is, Jewish law holds as binding upon Jews all laws enacted by the civil state that fall within its legitimate domain. By the government’s “legitimate domain,” as Rabbi Freehof reminds us, the tradition means “civil matters, taxes, business law, etc., but not… ritual matters.”[5] Jewish law would never countenance an effort by the civil government to restrict our freedom of worship or ritual observance, and since “marriage and divorce are deemed spiritual matters in which the law of the state does not apply,”[6] we would properly resist any effort by the government to interfere in these areas.[7] On the other hand, “if the state imposes a tax on the entire community, it is a valid mandate in Jewish law that the tax must be paid.” A rabbi should not officiate at such a wedding, not because the state has the right to define rabbinical prerogatives, but because “Social Security legislation is a civil matter…valid in Jewish law.” Therefore, even from the perspective of Jewish tradition, “the Rabbi may not assist in contravening the laws of Social Security.”

Rabbi Freehof also notes that it may well be a violation of state law for a clergyperson to officiate at a wedding where no license has been issued.[8] This legal prohibition is also valid under the principle dina demalkhuta dina, for state has a legitimate interest in regulating the monetary and familial aspects of marriage: ownership of property, issues of inheritance, child custody and the like. Therefore, the state may legitimately require a couple to register their marriage with the proper authorities, and we rabbis would be expected under Jewish law to honor this requirement.

This Committee affirms the decision of Rabbi Freehof, which is also endorsed by the Central Conference of American Rabbis: we do not officiate at weddings in the absence of a valid marriage license.[9] We would simply add that the principle dina demalkhuta dina has been justified in halakhic tradition on the theory that the residents of the community “willingly accept the king’s laws and statutes upon themselves.”[10] Other justifying theories are offered as well,[11] but we find this one, which emphasizes the will of the people as the basis of the law’s validity, to be the most congenial to our own democratic temperament. Indeed, as citizens of the state in which we reside, we are the malkhut, the state itself; its laws are our laws, which we as citizens have enacted by taking part in its democratic processes and which we have stipulated in advance to accept as valid and binding. Since we have participated in the establishment of Social Security legislation as well as the rules that enable the state to regulate the monetary aspects of marriage, it would be hypocritical for us to aid individuals or couples in the contravention of these laws.

Against this conclusion, it might be argued that when we rabbis officiate at weddings we do so primarily as representatives of the Jewish tradition and not as agents of the state. Thus, when a marriage license has not been issued, a rabbi might legitimately perform a wedding ceremony on the grounds that this is a purely “religious” ritual, so that the marriage might be valid in the eyes of Judaism even if not recognized by civil law. We disagree, because the Jewish tradition that this rabbi represents does not make such a distinction between “religion” and “state.” In Judaism, the wedding is both a ritual and a legal ceremony, one that forges monetary bonds, as well as spiritual ones, between the couple.[12] These aspects of marriage are inseparable in our law; there is no such thing as a Jewish marriage that is valid “religiously” but not “legally,” that has spiritual but not material consequences. To suggest otherwise is to distort the essential content of Jewish marriage as well as to encourage couples to “marry” while evading the law.

  1. Commitment Ceremonies for Heterosexual Couples. We can now turn to the present she’elah: granted that a rabbi should not perform a wedding that is not recognized by state law, may he or she arrange a “commitment ceremony” in its stead? Such a ceremony, though “affirming” a couple’s union, is emphatically not a wedding and therefore creates no marriage, either in Jewish or in civil law. Since the state, which would not recognize this union as a marriage, requires no license for it, no evasion of the law is involved. As our she’elah notes, rabbis may perform this non-marriage ritual for same-gender couples.[13] Why, then, should they deny it to heterosexuals?

Our answer is that the two situations are not analogous. Same-gender couples do not enjoy the legal right to marry in virtually any of the communities in which we live.[14] A commitment ceremony is their only Jewish recourse, the only ritual means available to them for affirming their union. Rabbis who perform commitment ceremonies urge the couples to take all legal steps available to them to demonstrate and enact their mutual social and legal obligations. In other words, these ceremonies are the closest possible existing equivalent to legal marriage for same-gender couples in most jurisdictions. A heterosexual couple, by contrast, need search for no “equivalent” to marriage, for marriage itself is the means by which, in our tradition, a couple establish their union and build a household together. Among all other human relationships, marriage is unique in that, through the wedding ceremony, a couple sanctify their bond by declaring it to be an exclusive and inviolable one, not open to other partners. It is for this reason that the ceremony of marriage is termed kidushin, a word that denotes holiness and consecration, separateness and exclusivity.[15] Similarly, marriage is a union that aspires to stability and permanence. Through the ceremony of marriage, the couple commit themselves to one another, legally and financially as well as spiritually and emotionally, pledging to maintain the household they form in the face of all but the most insurmountable difficulties.

We presume that the couple in question wish to define their own relationship in these terms. They see themselves, in other words, as husband and wife, as a couple in the fullest, most permanent sense of that word. Yet while Judaism offers marriage as the means of establishing such a relationship, the couple have chosen to reject that option for themselves. We are not insensitive to the reason they cite for their decision. As we have written, financial duress ought not to prevent couples from fulfilling the mitzvah of marriage, and Judaism calls upon us, as individuals and as an organized community, to help remove the monetary obstacles in their path. As Jews have always done, we can offer financial assistance to couples in need.[16] If we regard the Social Security law to be unfair in its treatment of married couples, we can work to change the law. The fact remains, however, that though this couple seek to “validate” their relationship “in the eyes of our faith,” our faith offers no other ritual means than marriage for “validating” — i.e., sanctifying– a heterosexual relationship.[17]

We stress, again, that this couple seek to affirm a relationship that is tantamount to marriage. By arranging a “commitment ceremony” instead of a wedding, they wish to declare themselves married in the eyes of everyone but the state. For this reason, their device is in substance an attempt to evade the law. It also runs counter to our own Jewish tradition, which does not recognize a “marriage” that is spiritually but not legally binding. The rabbi should not arrange a commitment ceremony for them.

 

NOTES

  1. As we will explain below, the “civil government” in question is the one in power today in the countries where we reside: a regime elected democratically and characterized by the rule of law. It is in such countries that the principle dina d’malkhuta dina has force.
  2. Contemporary Reform Responsa (CTRR), no. 21.
  3. Today, of course, this formulation would include the cantor and, for that matter, any m’sader kidushin, a “celebrant” of a Jewish wedding. According to Jewish law, the presence of a rabbi or other communal official is not a requirement for a valid marriage. On a minimal basis, explains Shulchan Arukh Even Ha`ezer 27:1, all that is required is the performance of an act of marriage (kidushin)–for example, the groom gives the bride an object of monetary value under the clear mutual understanding that this action is to effect a betrothal–in the presence of two witnesses. The marriage is valid without clerical sanction. Still, since medieval times it has been the universal Jewish custom to prohibit weddings unless they have been approved in advance by the local rabbi, most often with the rabbi (or a designated representative) serving as m’sader kidushin. For one example, see Rambam, ed. Blau, no. 348 (= ed. Freiman, no. 156), where Maimonides describes the takanah of 1187 in Egypt requiring that the local rabbi participate in all weddings. For a number of similar takanot spanning all the major centers of Jewish civilization, see Avraham Freiman, Seder kidushin v’nisu’in (Jerusalem: Mosad Harav Kook, 1964). This practice has usually been justified on the grounds that the legal and halakhic issues surrounding marriage are sufficiently complicated to warrant the supervision of a recognized expert in Jewish law. The usual citation is B. Kidushin 6a: “anyone who is not an expert in divorce and marriage law should not deal with these matters.” The Shulchan Arukh cites this statement as authoritative halakhah (EHE 49:3). The Talmudic context of this statement does not mention the issue of rabbinic supervision of or participation in the wedding. Rashi (s.v. lo y’hei) interprets it to mean that a non-expert should not presume to issue authoritative halakhic decisions (hora’ah) in these areas of the law. This says nothing about whether the m’sader must be an “expert.” The Turei Zahav commentary to Shulchan Arukh 49, no. 1, makes this point explicit: the Talmudic passage does not refer to the wedding ceremony itself and therefore does not mean that a rabbi or scholar must preside over it. On the other hand, R. Ya`akov Reischer (18th-cent. Germany) reads the passage as well as Rashi’s interpretation of it to the opposite effect: the wedding itself may be conducted only by a competent scholar, either the local rabbi (mara d’atra) or his designate (Resp. Sh’vut Ya`akov 3:121).
  4. The principle, attributed to the amora Shmuel, is found in Gitin 10b and parallels.
  5. All citations of Rabbi Freehof in this paragraph are in CTRR loc. cit., at pp. 101-103. For a comprehensive analysis of the nature and limits of this legal principle, see Shmuel Shilo, Dina demalkhuta dina (Jerusalem: D’fus Akademi Y’rushalim, 1975).
  6. With these words, Rabbi Freehof concedes the weakness of one of the major theories that Reform Jews have traditionally advanced in favor of the abandonment of Jewish divorce procedures (gitin and gerushin) and the acceptance of civil divorce as sufficient for remarriage. That theory, advanced during the nineteenth century by R. Samuel Holdheim in Germany and by R. David Einhorn in the United States, holds that divorce is a matter of monetary law (dinei mamonot) falling legitimately under the purview of civil authority according to the principle of dina d’malkhuta dina. This Committee has concurred with Rabbi Freehof; see our critique of the Holdheim/Einhorn theory in our responsum “Divorce of an Incapacitated Spouse,” no. 5756.15, https://www.ccarnet.org/ccar-responsa/nyp-no-5756-15/. There, we write: “[i]n recognition of these facts our movement has created a ‘Ritual of Release’ which, though it does not take the place of the traditional get, serves as ‘a form of religious divorce’ for couples who desire it and ‘may eventually lead us to reopen the matter of a Reform get’” (footnotes omitted).
  7. For example, the civil government may not tell rabbis that they must officiate at a mixed marriage or at a marriage between two non-Jews. Similarly, the state may not determine the structure and content of a Jewish wedding service.
  8. Rabbi Freehof, cit. at pp. 100-101, discusses the fact that the rules on this subject will vary among local jurisdictions.
  9. Rabbi’s Manual (New York: CCAR, 1988), 246.
  10. Rashbam, Bava Batra 54b, s.v. veha’amar shmu’el dina demalkhuta dina. The verb used by Rashbam (R. Shmuel b. Meir, 12th-cent. France) is m’kablim: that is, the people accept the king’s laws as valid. A similar verb is used by Rambam (Yad, G’zeilah 5:18): hiskimu, that is, the people ratify the king and his laws. Rambam uses this same verb in the Introduction to his Mishneh Torah to describe Israel’s willing acceptance of the Babylonian Talmud as the standard of halakhah.
  11. For the other theories, see our responsum no. 5757.1, “Loyalty to One’s Company Versus Love for Israel” (https://www.ccarnet.org/ccar-responsa/nyp-no-5757-1/), at notes 7-12.
  12. See Yad, Ishut 12:1ff.: the wedding ceremony is the formation of a contract by which the husband and wife obligate themselves to a series of financial rights and responsibilities. While we have yielded to the state the power to regulate and to enforce these obligations, we are not neutral towards them. There is no such thing as a Jewish marriage without concurrent monetary rights and duties.
  13. The CCAR has resolved that “the relationship of a Jewish, same gender couple is worthy of affirmation through appropriate Jewish ritual”; see “Resolution on Same Gender Officiation” at http://www.ccarnet.org/cgi‑bin/resodisp.pl?file=gender&year=2000 . The resolution adds, importantly, that “we recognize the diversity of opinions within our ranks on this issue. We support the decision of those who choose to officiate at rituals of union for same-gender couples, and we support the decision of those who do not.” For a fuller argument in favor of rabbinical officiation see our responsum no. 5774.4, “Same-Sex Marriage as Kiddushin,” https://www.ccarnet.org/ccar-responsa/same-sex-marriage-kiddushin/.
  14. At this writing, the legal situation is in flux in a number of jurisdictions.
  15. It is not clear why the Rabbinic Jewish tradition chose the word kidushin (from the Hebrew root k-d-sh, “holy; to sanctify”) to denote marriage. Biblical Hebrew, as the Talmud notes ( Kidushin 2b), does not use that term. The Talmud suggests that the Rabbis sought to make a point about the ritual nature of the marital union: by “consecrating” his wife, the husband “forbids her to all other as though she belonged to the Temple (hekdesh).” In our Reform Jewish wedding ceremonies, the bride “consecrates” the groom as well, testifying to our understanding that marriage is a mutually exclusive relationship. That which is holy or sacred–kadosh–is separate and distinct from all others. See, for example, Leviticus 19:2, “You shall be holy (k’doshim) because I, Adonai your God, am holy (kadosh),” and Rashi and Ramban ad loc.
  16. On all of this, see our responsum “Marriage and Financial Distress,” Teshuvot for the Nineties, no. 5754.9, pp. 225-229, https://www.ccarnet.org/ccar-responsa/tfn-no-5754-9-225-229/). Providing financial assistance to couples wishing to marry is referred to by our tradition as the mitzvah of hakhnasat kalah .
  17. See our responsum no. 5756.10, https://www.ccarnet.org/ccar-responsa/nyp-no-5756-10/. As discussed there, Jewish law once recognized–but has long since rejected–the institution of concubinage (the pilegesh) as a form of non-marital, long-term conjugal relationship.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5764.5

CCAR RESPONSA

5764.5

Minimal Dues for Congregational Membership

She’elah

A family in my congregation has refused, claiming financial hardship, to pay even a token amount toward synagogue dues. Although we offer dues relief to households that cannot afford our standard assessments, in most cases we do ask that they pay a small amount toward their membership. We do not doubt that this family has experienced difficult financial circumstances. Still, they do not seem to be in worse straits than other households that do pay some amount, however small, in synagogue dues. What should be our approach toward this family? (Rabbi Ellen Lewis, Washington, NJ)

Teshuvah

This case, as described to us, involves a family that despite its difficult economic condition can pay a small amount toward synagogue dues but chooses not to do so. Our task is to evaluate this sort of choice from the perspective of Jewish tradition. We therefore frame the question in this way: is an individual or a household entitled to refuse to pay obligations assessed by the Jewish community? And if the answer to that question is “no,” are there circumstances under which we might make an exception to the general rule?

The Individual’s Obligations to the Community.[1] Jewish tradition teaches that every Jew is obligated to contribute his or her fair share toward the welfare of the community.[2] For example, tzedakah, support for the poor, is a mitzvah, a religious duty, and not a matter of choice.[3] This duty is incumbent upon every individual; “even the poor person who is supported by tzedakah is obligated to contribute tzedakah from what he himself is given.”[4] The poor are exempt from the normal requirement to contribute tzedakah if that gift will drive them below the poverty line.[5] If, however, the community (traditionally, the beit din) should determine through a fair appraisal[6] that an individual ought to contribute a particular amount, that person may not refuse to pay less than the assessment. Should he or she fail to meet that obligation, community authorities are empowered to collect it through coercive legal means if necessary.[7] The community is also empowered to coerce its members to build and to support its synagogue.[8] Some authorities, indeed, consider support for the synagogue to take precedence over tzedakah for the poor.[9]

The lesson is clear: support for the synagogue is understood as a tax, a legally-enforceable contribution from which only the most destitute citizens are exempt. While our Diaspora Jewish communities no longer wield the power to levy taxes or to coerce individual Jews to contribute to vital communal needs and institutions, the language of “coercion” indicates just how seriously we take these moral obligations. This is especially true with regard to the synagogue, the primary institution through which we nowadays organize ourselves as a community. It is the synagogue, more than any other agency, that brings us together for prayer, Torah study, Jewish fellowship, social and political action – in short, the synagogue enables us to live successful Jewish lives in the fullest sense of that expression. It is therefore a mitzvah for each one of us to contribute to its support.

In the she’elah before us, the family in question does not appear to be destitute. To repeat, the family can contribute a small amount to the synagogue but chooses not to do so. As we have seen, this is not a valid and acceptable Jewish choice. Were the situation otherwise – if, for example, the family simply could not contribute toward the synagogue without risking its solvency — we would hold them exempt from the requirement to contribute, just as the halakhah exempts the very poor from the obligation of tzedakah. Every synagogue with which we are familiar offers dues relief to families under financial duress and will either suspend or waive the dues requirement entirely in cases of dire need. In this case, however, the synagogue authorities have determined that this family can in fact afford “to pay a small amount toward their membership.” Assuming that this is a fair evaluation of the circumstances,[10] the family has no valid basis in Jewish law to protest the synagogue’s decision. We might add that in joining the synagogue, the family stipulated its acceptance of the congregation’s rules and procedures, including the financial obligations of membership. The family, in other words, has agreed in advance that it cannot remain a “member” of the synagogue without making an appropriate contribution toward dues.

The Community’s Obligation to Provide Jewish Education. There is, however, another perspective from which our tradition might view this question. Suppose that this family has children of religious-school age: should the congregation admit the children to its school even if the parents refuse to pay their minimum dues assessment? Jewish education, as we know, is of critical importance to our future as a people; shall we deny it to these children, who are certainly not at fault in this matter? Might we say that the goal of transmitting Torah knowledge and Jewish identity to the next generation takes priority over the strict enforcement of our financial rules and regulations? To be sure, our tradition holds the father (we today would say “parent”) primarily responsible for teaching Torah to his child[11] or for hiring a teacher to do so.[12] Yet the community has long realized an essential problem with this system: “if one does not have a father, one will not learn Torah.” For this reason, Yehoshua ben Gamla, a high priest who lived in the first century C. E., enacted a decree (takanah) that “teachers of children be placed in every town.”[13] That takanah, in turn, was adopted by all Jewish communities,[14] which have acknowledged that the funding of Jewish education is a public responsibility as well as a private, familial one.[15] Perhaps this congregation and all others should accept this responsibility, making sure that a Jewish education is available to all Jewish children, even if their parents do not fulfill their own duty under the terms of this mitzvah.

We would not, however, want to impose this as a requirement upon the congregation. The takanah of Yehoshua ben Gamla “never was intended to release parents from the obligation that the Torah imposes upon them, but rather to make it easier for them to fulfill it.”[16] Were the congregation to bear the entire cost of education for the children of parents who refuse to pay their fair share, it would send the message that parents are somehow permitted to shirk their duty toward their children and toward the community. It would, additionally, place an unfair burden upon those members of the congregation who do pay toward the upkeep of the synagogue and the school. It is indeed unfortunate that some children are denied a Jewish education as a result of their parents’ inadvertent or willful neglect of their responsibility to help provide it. It is vital that our communities develop outreach and funding initiatives that would allow Jewish education to reach the children of unaffiliated families. But it is simply wrong to expect the synagogue, an organization that depends for its survival upon the fair-share contributions of its members, to compensate for the refusal of members who can – but won’t – accept their financial responsibility toward the institution.

Conclusion. One of the most fundamental principles of Jewish communal life is that no Jew should be denied the opportunity to affiliate with the community and no Jewish child should be denied a Jewish education out of inability to pay dues and fees. The synagogue, as the central unit of Jewish association in our communities, bears the moral obligation to make membership affordable to all Jews. Yet because the synagogue is a membership organization, it can exist and function only so long as its members meet their duly-assessed financial obligations toward it. A congregation has no duty to provide membership and education services to households that refuse to pay, in the words of our she’elah, “even a token amount toward synagogue dues.” Such a refusal is evidence, not of poverty, but of a set of priorities that devalues the importance of synagogue membership and Jewish education. The refusal, in other words, stems from an economic choice on the part of the family.[17] They cannot expect the congregation to validate that choice by granting them a free membership, a benefit denied to those who are willing to contribute their fair share to the life and sustenance of the synagogue.

NOTES

 

  • Shulchan Arukh Choshen Mishpat 163:1, and Isserles ad loc.: a community is empowered to require its citizens (literally, “the citizens may coerce [kofin] each other”) to contribute to “all the needs of the city.” The chapter as a whole is a treatise on Jewish public law, the rules concerning our obligations toward the communities in which we live. See M. Bava Batra 1:5, B. Bava Batra 7b-8b, and Tosefta Bava Metzia 11:18-23.
  • “It is a positive mitzvah to give tzedakah in accordance with one’s means”; Shulchan Arukh Yoreh De`ah 247:1, an affirmative formulation of the Talmudic dictum (B. Ketubot 68a and Bava Batra 10a) that “when one ignores the duty to give tzedakah, it is as though he has committed idolatry.”
  • B. Gitin 7b; Yad, Matanot Aniyim 7:5; Shulchan Arukh Yoreh De`ah 248:1.
  • Siftey Kohen, Yoreh De`ah 248, n. 1. See also Isserles, Yoreh De`ah 251:3: “one is not obligated to give tzedakah until he has the wherewithal to support himself (ad she-yehei lo parnasato).” By “normal requirement,” we refer to the customary amounts stated in the sources (one-fifth or one-tenth of his annual income; see Shulchan Arukh Yoreh De`ah 249:1); on the other hand, even the poorest of the poor is expected to make some sort of tzedakah contribution, albeit less than that amount (Bayit Chadash, Tur Yoreh De`ah 248; Arukh Hashulchan, Yoreh De`ah 248, par. 3).
  • “Fair appraisal” means that a community may not demand from an individual a higher amount than he should properly give; B. Bava Batra 8b; Yad, Matanot Aniyim 7:11; Shulchan Arukh Yoreh De`ah 248:7.
  • B. Ketubot 49b and Bava Batra 8b; Yad, Matanot Aniyim 7:10; Shulchan Arukh Yoreh De`ah 248:1. The power to coerce an individual to give tzedakah is the subject of some controversy in the halakhah. There is a Talmudic rule (B. Chulin 110b) that “the beit din does not enforce the observance of a positive commandment when the Torah specifies a reward for the keeping of that commandment.” Since we are told that God will bless us for helping the poor (Deuteronomy 15:10), we ought not to be able to coerce over matter of tzedakah. Tosafot (Bava Batra 8b, s.v. akhpeh) notes this contradiction and offers various resolutions of it. Perhaps the best resolution of all comes from R. David ibn Zimra (16th-17th cent. Egypt), in his commentary to Yad, Matanot Aniyim 7:10. Tzedakah, he writes, differs from other positive commandments in that the welfare of the poor depends upon it. It is considered, moreover, a debt owed by the individual, and just as a creditor may take legal action to collect from the debtor, so may the court force an individual to pay his tzedakah obligation.
  • Tosefta Bava Metzi`a 11:23; Yad, Tefilah 11:1; Shulchan Arukh Choshen Mishpat 163:1.
  • Provided that the poor are not in a life-threatening situation. See Shulchan Arukh Yoreh De`ah 249:16, relying upon a decision of R. Yosef Kolon (15th-cent. Italy), Resp. Maharik, no. 128.See also R. Avraham Danzig, Chokhmat Adam 145:7. The wording “some authorities” (yesh mi she’omer) in the Shulchan Arukh passage indicates that not every authority agrees with the setting of priorities, and see Bi’ur HaGra to Yoreh De`ah 249, no. 20. As the remainder of the passage indicates, however, the issue is linked to the role of the synagogue in helping to fulfill the mitzvah of Torah study, which occupies the summit of priorities in Rabbinic Judaism (talmud torah keneged kulam; M. Pe’ah 1:1).
  • See above at note 6.
  • This responsibility is derived from Deuteronomy 11:19 (“and you shall teach [these words] to your children”). See B. Kidushin 29a-b; Yad, Talmud Torah 1:1; Shulchan Arukh Yoreh De`ah 245:1.
  • Yad, Talmud Torah 1:3; Shulchan Arukh Yoreh De`ah 245:4. Hagahot Maimoniot to Yad, Talmud Torah 1, no. 1, cites R. Meir of Rothenburg (13th century) to the effect that this requirement is simply a logical outgrowth of the mitzvah to teach Torah; if one cannot perform that task personally, one must hire an agent to do so. The requirement, moreover, can be enforced by the beit din.
  • B. Bava Batra 21a.
  • Yad, Talmud Torah 2:1; Shulchan Arukh Yoreh De`ah 245:7.
  • See Isserles, Shulchan Arukh Choshen Mishpat 163:3, end: if the parents of the children cannot pay the fee for Torah teachers, the community must raise the money by taxing its members according to their ability to pay. The Gaon of Vilna (Bi’ur HaGra ad loc.) notes that this is simply one of the “needs of the city” that the citizens are required to fulfill (see note 1).
  • R. Chaim David Halevy (20th-cent. Israel), Resp. Aseh Lekha Rav 5:23, at p. 172. See also Arukh Hashulchan, Yoreh De`ah 245, par. 9: the community taxes itself to provide education “for the poor and for the orphans.” The father, meanwhile, is coerced if necessary to pay for the education of his son; he is not released from this duty by the fact that the public is also involved in the education of children.
  • There are, of course, other possible explanations. A refusal to pay dues may be the result of a dispute over this or that synagogue policy, anger over perceived mistreatment, and the like. Our responsum presumes that the refusal to pay dues does not stem from such a factor but reflects an economic decision on the part of the family.

 

If needed, please consult Abbreviations used in CCAR Responsa.

✕