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

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.

NYP no. 5765.1

CCAR RESPONSA

5765.1

May Non-Jews Participate in the Writing of a Torah Scroll?

She’elah.

Our congregation has commissioned a sofer to write a new Torah scroll. Although he is Sefardi Orthodox he is being very flexible on the issue of who can help him “write” a letter in the Torah scroll by allowing women and children to participate. (The practice is to schedule “scribing” appointments where people fill in a letter that the sofer has already outlined. People make a donation to the project and fill in a letter while the sofer holds their hand, etc.) Assuming our sofer would allow it, the question is: is it appropriate to allow non-Jewish adults involved in raising Jewish children to participate in the mitzvah of writing a Torah scroll? Our initial inclination is to permit it for a number of reasons. A) Shelom Bayit: the individual is committed to raising a Jewish family and working to maintain Jewish survival. B) Ritual Consistency within a Diverse Congregation: given that we allow a non-Jewish parent to hold a Torah scroll or open the ark at a service or b’nai mitzvah, etc., it seems logical to allow/encourage this form of participation as well. C) Learning/Keruv (Nearness): by participating in this activity we are giving the individual an opportunity to learn about Judaism and to increase their love of Torah by sharing in this mitzvah. D) Shared Tradition of Scripture: assuming the individual’s religion of origin or active faith is Christianity, then the Five Books of Moses is holy to them as well. (Rabbi David Wirtschafter, Burlingame, CA)

Teshuvah.

Our tradition teaches that the very last of the Torah’s 613 commandments[1] is “the mitzvah incumbent upon every Jew to write a Torah scroll,”[2] derived by way of a midrash on Deuteronomy 31:19.[3] It is this mitzvah that these congregants seek to fulfill by taking part in the project our sho’el describes. And fundamental to this mitzvah is the fact that a Gentile does not take part in it. A Torah scroll written by a non-Jew is pasul, disqualified for the purpose of keri’at hatorah, the public reading of the Torah at worship services.[4] The non-Jew cannot act as a sofer precisely because he does not partake of the covenant of Israel; he is not a member of the Jewish community, a people defined by its obligations to the mitzvot.[5] Since it is likely that the congregation will use this particular Torah scroll for public reading, it would be inappropriate under Jewish tradition to allow non-Jews to participate in this project.

Various objections might be raised against this conclusion on halakhic grounds. One could argue, for example, that it is the sofer who does the actual “writing” when he holds the member’s hand; therefore, strictly speaking the Gentile family members would not be “writing” the scroll at all. Yet this is not persuasive, since the sofer, engaged by the congregation, is acting as the agent (shaliach) for each member who participates in the project. The general rule in the halakhah is that one’s agent acts with power of attorney, so that the agent’s acts in fulfilling the assignment are considered to be the actions of the one who engages him or her.[6]  In this specific case, moreover, we learn that “when one employs a sofer to write a Torah scroll, it is as though one has written it by oneself.”[7] Since such is the case here, we conclude that the congregants fulfill in this manner the mitzvah to write a sefer torah.

It might also be objected that, if it is indeed “incumbent upon every Jew to write a Torah scroll,”[8] then no mitzvah is being performed here, because no one person is writing the entire sefer torah or commissioning a scribe to write it. If there is no mitzvah taking place, then arguably there is no reason to prevent Gentiles from taking part in the activity. The halakhic literature does discuss at length the question whether one may successfully fulfill this mitzvah by contracting with others to write a Torah scroll. Yet though opinions are divided, the fact remains that “it is the general custom (minhag ha`olam)” for individuals to write a Torah scroll in partnership (beshutafut) with others and to presume that each member of that group, as an individual, has fulfilled the mitzvah thereby.[9] We would note, as well, the statement of tradition that when one writes a single letter of a sefer torah “it is as though he has written the entire scroll.”[10]

Each member of the congregation, then, fulfills the mitzvah to write a Torah scroll by taking part in this project. Accordingly, it is inappropriate for Gentiles to participate in it, just as it is inappropriate for them to be called to the Torah and to perform other important ritual mitzvot on our behalf.[11] The sefer torah is the most visible and powerful symbol of Israel’s covenant with God. The writing of the scroll enables us to read it in public, an act by which we reenact the giving of the Torah at Sinai and rehearse our identity as a covenant people. A Gentile does not partake of Jewish identity. He or she bears no obligation under the mitzvot, the terms of the covenant, and therefore cannot perform this mitzvah for us. Our case, it is true, involves “non-Jewish adults involved in raising Jewish children.” We deeply appreciate the love and devotion with which the non-Jewish parents in our midst help see to it that their children receive a Jewish upbringing and education. Yet so long as they remain outside the covenant of Israel, they bear no responsibility to bring their children into that covenant. That responsibility, that obligation, is precisely what we Jews bear as Jews.[12] If the non-Jews in our midst wish to accept these responsibilities and obligations upon themselves, they may do so through the process of conversion, a path that is freely open to them. Many individuals who came to our congregations as non-Jewish spouses or partners have chosen to take this step, and they now participate fully and equally in the public life of our Jewish community. If others choose not to convert (or not yet to convert), we respect their choice, and we believe that they will recognize the obvious implications of that choice. We believe, that is, that they will respect our need to maintain the lines and definitions that preserve our distinctness as a Jewish community.

With these considerations in mind, we would respond to the arguments cited by our sho’el in favor of permitting non-Jews to take part in the sefer torah project.

    1. Shelom Bayit. Although these individuals are “committed” to raising Jewish families, they are not, as we have seen, obligated to do so under the terms of the covenant. The obligation to respond to God’s call to Israel is what we term mitzvah, and this obligation, which the Gentile by definition does not share, is the key factor in our case. A non-Jew cannot perform on our behalf ritual mitzvot by which we constitute ourselves as a covenant community.
    2. Ritual Consistency Within A Diverse Congregation. Our position, which we have expressed elsewhere,[13] is that non-Jews should not participate in the Torah service or lead the central rubrics of our communal liturgy. This view, again, is based upon the fact that non-Jews are not members of the Jewish people and therefore cannot lead or perform on our behalf those rituals that affirm our identity as a Jewish community. The same reasoning applies to the question before us.
    3. Learning/Keruv. It is important to afford individuals the opportunity to learn about Jewish life and to draw them closer to it. As we note below, there are appropriate ways in which the congregation might design this project toward that end. Yet keruv, or “outreach,” has its proper limits, a reality that all congregations accept and understand. For example, the wording of our she’elah indicates that this congregation does impose some restrictions upon the participation of non-Jews in its ritual life. The reason for these limits, we would think, is the felt need to preserve the nature of the congregation as a Jewish religious community, one in which the performance of defining constitutive rituals is reserved for Jews. The writing of a sefer torah is just such a ritual act.
    4. Shared Tradition of Scripture. Although the Five Books of Moses are holy to Christians, they mean something very different to them than they mean to us. For Christians, these books are not “Torah”; they are the “Old Testament,” the first part of a record of revelation in which the climax is the incarnation of God in the person of Jesus Christ. Christian theology traditionally holds that the Hebrew Bible has been superseded by the “new covenant” established through Jesus, and it reads Jewish scripture in large part as a prophecy of his advent and ministry. This interpretation, obviously, contradicts the most fundamental tenets of our own faith. Thus, while we may “share” some scriptural traditions with Christians, they do not share our Jewish understanding of the covenant. For that reason, they should not participate in the creation of the scroll that embodies and symbolizes that understanding.

    We emphasize that our objections to the participation of non-Jews in this project focus specifically upon the writing of the sefer torah. At the same time, non-Jews might take part in related activities that are not, strictly speaking, mitzvot.[14] Non-Jewish family members might craft ornaments and coverings for the Torah scroll, participate with the sofer in writing a certificate to be presented at the dedication of the sefer, and so forth. Thus, if the congregation so wishes, it can design its project in a way that would include all family members, thereby serving the goal of keruv, a vital task in our communal life.

    Conclusion. The writing of a sefer torah is a mitzvah, a constitutive ritual of Jewish religious life, a powerful symbolic expression of Israel’s covenant with God. It is a duty that only Jews can fulfill; others cannot do it on our behalf. Non-Jews may take part in other activities surrounding the creation of a Torah scroll.

    NOTES 

      1. See Makot 23b-24a. The number 613 is derived from the verse (Deuteronomy 33:4): “Moses commanded us (the) Torah.” The numerical value of the letters of the word “Torah” equals 611; hence, we received 611 mitzvot from Moses’ intercession with God. We heard two other commandments (“I am Adonai your God” and “You shall have no other gods besides Me”; Exodus 20:2-3) directly from God. Sefer Hachinukh, which lists the mitzvot according to their appearance in the text of the Torah, counts this one as mitzvah no. 613.
      2. The wording is that of Rambam, Yad, Sefer Torah 7:1, repeated by R. Yosef Karo in Shulchan Arukh Yoreh De`ah 270:1.
      3. Sanhedrin 21b. In the verse, God tells Moses to “write down this poem”; the Rabbis interpret this as an instruction to each Israelite to write an entire sefer torah.
      4. Gitin 45b; Yad, Tefilin 1:13; Shulchan Arukh Yoreh De`ah 281:1. Although our printed texts use the phrases oved kokhavim (“idolator”), kuti (“Samaritan”), or kena`ani (“Canaanite”) in place of “Gentile,” the evidence of manuscripts and early commentators to the passage is that it properly reads goy, or “non-Jew.” That word was often removed from Talmud texts by copyists and printers under pressure from censorship, especially in Christian Europe. Moreover, as the midrash that supports this rule makes clear (see below), the principle objection to a Gentile scribe is precisely that he is a non-Jew and not that he worships other gods.
      5. See Gitin 45b. The specific midrash that supports the disqualification is a hekesh (comparison) drawn from two nearly adjacent verses: just as a non-Jew is not commanded to “bind them as a sign upon your hand” (Deuteronomy 11:18), he is also excluded from the community of those who “write these words…” (Deuteronomy 11:20).
      6. Shelucho shel adam; Berakhot 5:5; B. Kidushin 41b and parallels.
      7. Menachot 30a; Isserles, Shulchan Arukh Yoreh De`ah 270:1. See also Yad, Sefer Torah 7:1.
      8. Asher b. Yechiel, a preeminent halakhic authority of the 13th-14th century, argued that this mitzvah is no longer incumbent upon Jews, since we no longer use Torah scrolls for the purpose of study. Instead, “it is a positive commandment for every Jew…to write chumashim and texts of the Mishnah and Talmud and their commentaries, in order that he and his sons might study them” (the quotation is from the Tur, written by Asher’s son Ya`akov, Yoreh De`ah 270). Subsequent authorities disagree over the precise meaning of this statement. Some argue that R. Asher did not mean to exempt us from the requirement to write a sefer torah but simply to note that in our time it is also a mitzvah to write other sacred texts (R. Yosef Karo, Beit Yosef to Tur, Yoreh De`ah 270 and Shulchan Arukh, Yoreh De`ah 270:2; Turey Zahav and Bi’ur HaGra ad loc.; R. Aryeh Lev b. Asher [18th cent. Lithuania], Resp. Sha’agat Aryeh, no. 36). Others read R. Asher literally, concluding that there is no specific mitzvah in our day to write a sefer torah (Perishah to Tur, Yoreh De`ah 270; Siftey Kohen to Shulchan Arukh, Yoreh De`ah 270, no. 5). We do not wish, at this point, to take a position on this machloket. We would merely observe that both sides of the dispute would undoubtedly agree that when a person writes a sefer torah he or she does fulfill a ritual duty (after all, we do have to produce Torah scrolls for the purpose of public reading), whether or not there exists a specific requirement that each and every Jew perform the act of writing.
      9. On all of this see Pitchey Teshuvah, Yoreh De`ah 270, no. 1.
      10. Menachot 30a; Yad, Sefer Torah 7:1; Isserles, Shulchan Arukh Yoreh De`ah 270:1. The verb that these sources use is magi’ah, which means “to correct”; it applies in our case because a Torah scroll that lacks even a single letter is pasul (unfit for public reading) until it is corrected. Hence, one who writes a single letter is correcting a defective scroll.
      11. See Teshuvot for the Nineties, no. 5754.5, pp. 55-75 ( ). These mitzvot are roughly equivalent to tefilat chovah, “obligatory prayer,” those sections of the service that most closely reflect the public, corporate (as opposed to personal and private) elements of Jewish worship. These include the Shema and its benedictions, the tefilah, the Torah service (aliyot and other honors), and the recitation of public benedictions (berakhot) at public gatherings.
      12. See our responsum no. 5762.2, “A ‘Hebrew Name’ For A Non-Jewish Parent,” section 2 (available at  ).
      13. See above at note 11.
      14. Is the crafting of appurtenances to the Torah scroll not a mitzvah in itself? The issue may be clouded somewhat by the fact that the word mitzvah enjoys several layers of definition. Some mitzvot are ritual acts that are constitutive of Jewish identity and community; therefore, they can be fulfilled only by Jews. That is the case with the rituals of public worship (see note 11, above) and with the writing of a sefer torah. Other mitzvot are duties that are incumbent upon Jews but not necessarily restricted to them. Donations to tzedakah and to the synagogue fall into this category; see our discussion in responsum no. 5761.2, at notes 5-7 ( Although Jews, as members of the covenant, have an obligation to give to tzedakah, non-Jews are not prohibited from doing so.

NYP no. 5765.2

CCAR RESPONSA

5765.2

Times for the Shacharit Service

She’elah

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

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

Teshuvah

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOTES

 

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

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5765.3

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. 5765.4

CCAR RESPONSA

5765.4

A Sex Offender in the Synagogue*

She’elah

A young man was sexually molested at a synagogue day camp program by a junior counselor. The perpetrator was convicted, spent about a year in juvenile detention, and was recently released. The victim.s family has gotten a restraining order that prevents the perpetrator from being near the victim.s home, school and synagogue.

  • If the judge had not allowed the synagogue to be included in the restraining order, should we have allowed him to attend services or religious school and under what conditions?
  • During the hearings, it came out that the perpetrator’s mother was aware that her son had previously molested other children and she had not informed the Director of Education, who was in charge of the camp program. Given this circumstance, is there any reason to deny the mother access to the synagogue? (The victim’s mother, due to her anger, cannot tolerate being in the same place as the perpetrator’s mother.)

 

Teshuvah

This she’elah presents us with two separate cases. The first is a hypothetical one: should the synagogue have denied access to the perpetrator had the court not done so?

1. Readmitting the Offender? The Mitzvah of Repentance. The perpetrator, who seeks access to the synagogue and to its programs, might argue that he has met the terms of the punishment administered for his crime. For the synagogue to deny him entry would be to add to his punishment, to make it more severe than required by law, and such a course, he might say, does him an injustice. The wrong, he might further argue, is compounded by the fact that he is a minor, whom the law does not hold totally responsible for his actions, and by the fact that he can claim that his tendency towards sexual abuse is the product of social and psychological factors that lie largely beyond his control. Expulsion from the synagogue, therefore, might cause him real psychological harm and be counterproductive to his successful reintegration into the community. It would run counter to a fundamental goal and norm of Judaism: the encouragement of repentance (teshuvah), the process by which the sinner turns away from evil. Our sources, as we all know, speak at length of the overriding importance of teshuvah.[1] We read, in particular, that “great is repentance, because it annuls the verdict (gezar din) rendered against a person.”[2] Teshuvah, in other words, expunges the record of our sins,[3] so that “even one who is wicked throughout his lifetime may do teshuvah at the very end, and not a single fact of all his evil will be remembered against him.”[4] God therefore does not desire the punishment of the sinner but rather that he or she turn away from wickedness.[5] And do the Rabbis not tell us, with deep insight into human character, that the repentant sinner is more to be admired than a purely righteous person, because the former, unlike the latter, has experienced and overcome the temptation to do evil?[6]

In ancient times, the Temple and the sacrifices were the means by which Israel achieved atonement for sin. Today, when repentance is the only avenue remaining for atonement,[7] it is the task of the synagogue – the “Temple in miniature”[8] – to provide a locus for the work of teshuvah. The perpetrator thus might argue that to exclude any Jew from the synagogue on the grounds that he or she is a sinner is to frustrate the performance of this task. To exclude this Jew, a young man for whom rehabilitation is surely not yet an impossible dream, would send the message that we do not truly believe in the possibility of teshuvah and that the synagogue is no longer a place in which those who truly seek to repent can work toward personal redemption.

2. Readmitting the Offender? The Mitzvah to Protect Ourselves from Danger. Responding to all this, those who would deny access to the perpetrator would argue that no individual possesses an unlimited right of membership in the community and of access to its institutions. Jewish tradition, indeed, permits the community to exclude an individual from membership and participation for sufficient cause.[9] The ban or excommunication (cherem or nidu’i) served in medieval times as a principal means by which the community enforced its decrees on taxation and other rules. To be sure, such expulsion is difficult to square with our modern temperament. We should, in general, avoid taking such a drastic step to express our displeasure with any member of a congregation. As Rabbi Solomon B. Freehof puts it: “Much more, it would seem, could be accomplished by bringing the Jew of ill repute under the influence of the synagogue and its teachings.”[10] Nonetheless, the halakhah does recognize that cherem can be a legitimate expression of communal power, and as the institutional embodiment of our community, the synagogue is entitled to determine just who shall be a member and who shall cease to be a member of the congregation.

Moreover, while there is no denying the centrality of teshuvah to our Judaic value system, it can be argued that “repentance” is an inappropriate category with which to approach this question. As Maimonides puts it: “What is true repentance? When a person has the opportunity and capacity to repeat that particular transgression but refrains from doing so, not on account of fear or weakness but because s/he has repented of that sin.”[11] In our case, this is a standard that cannot be met. This “sinner,” we must remember, is a sex offender, one who has committed an act of sexual abuse against another young person. It is, to say the least, far from obvious that an individual who displays tendencies to this sort of behavior can ever be rid of them or bring them under full control. All that we know about the etiology of sexual abuse suggests that this perpetrator, should he be permitted to take part in the life of the synagogue, may well pose a continued danger to the safety and well-being of its children.[12] And our tradition also teaches that we are obligated to remove from our property any factor that poses danger to the life, health, or property of others.[13] Hence, we might say that it is our duty to deny this young perpetrator access to our synagogue and that, should we allow him entry and should he repeat his abusive behavior, it is we who must do teshuvah.

3. The Committee’s Opinion. It is never an easy thing to decide between two moral or religious values that seem to pull us in opposite directions. In this case, however, it is clear to us that our first duty, the obligation that takes precedence over all others, is to ensure that our synagogues and schools are places of safety for those who enter them. While the convicted sex offender is right to look upon the synagogue as a place of spiritual healing, that right pertains to all of its members, its families and their children. Their sense of security and well-being can be threatened by the presence of a sex offender in the midst of the congregation. In the case that prompted this inquiry, the court agreed that the danger was real and issued its restraining order. In the hypothetical case posed by our she’elah, the danger might be no less real, and it is reasonable to presume that the offender’s presence would be deeply disturbing to his victim as well as to others. It is their synagogue, too, and the congregation’s leadership bears the overriding duty to reassure all its members that the synagogue is a safe place and that this safety extends to all congregational functions. The congregation is therefore under no Judaic religious obligation to admit this young person, a convicted and (hopefully) recovering sex offender, onto its grounds or into its programmatic activities.

4. The Offender’s Mother. The second part of this she’elah is not hypothetical: should the mother of the perpetrator, who did not inform the congregation of her son’s history of sexual abuse, be denied access to the synagogue? We sympathize with those who say yes. The mother’s failure to notify the synagogue, however she attempts to explain or to justify it, is inexcusable. Unlike her son, she is an adult, and we hold her fully culpable for this shocking lapse of moral responsibility. Yet we think that it would be inappropriate for the congregation to deny her access, for two reasons. First, she poses no threat to the safety of congregants. Second, she, too, must do teshuvah, and she must do it in the synagogue, the very place where she committed her transgression. She must ask the forgiveness of those against whom she has sinned: her son’s victim, the victim’s family, and, for that matter, the entire congregation.[14] We recognize, as our she’elah emphasizes, that to allow her to return to the congregation will lead to tension and to personal distress, particularly to the victim’s mother. Yet this is no argument in favor of banishment. On the contrary: the victim’s mother bears her own responsibility in this process of teshuvah. It is her duty – and the duty of the congregation as a whole – to accept the repentance of the perpetrator’s mother, if and when she offers it fully and sincerely.[15] That task will be difficult, but it is what our tradition requires.

5. A Partial Dissent. One member of this Committee, though agreeing with the broad trend of the decision, believes that the congregation should be encouraged to find appropriate means of allowing those who have committed sexual offenses to participate in synagogue life. To this end, we could benefit from the experience of a number of Christian churches that have developed protocols stipulating the precise conditions under which a sex offender might be allowed entry and participation in the community.[16] These may include restricted access to the synagogue building(s) and grounds; a requirement that while on synagogue grounds the offender be accompanied at all times by a family member or by an individual designated by the synagogue; a prohibition of access to the school and nursery areas of the synagogue facility; and so forth. The synagogue might require that the offender and (if he/she is a minor) the offender’s family sign an agreement expressly accepting these restrictions, and it might require them to report from time to time to an appropriate committee concerning their adherence to these guidelines. In addition, the synagogue might require the perpetrator to make a statement acknowledging the pain he or she has caused the victim. Such an open acknowledgment of responsibility, called a vidu’i, is perfectly consistent with our tradition’s conception of repentance.[17] Taking these or similar measures will allow us to reach out in love and concern to one of the most marginalized and, frankly, one of the most despised segments of our Jewish population. This member agrees, however, that should these protocols prove impractical to administer and enforce, or should they fail to reassure the congregants that they and their children are truly safe while at the synagogue, the congregation is entitled to deny access to the perpetrator, on the grounds that its overriding duty is to make the synagogue a safe place for all who make up its community.

 

NOTES

*          The Responsa Committee gratefully acknowledges the assistance provided by Rabbi Ruth Alpers, the Jay Stein Director of Human Relations at the Hebrew Union College-Jewish Institute of Religion, in the preparation of this teshuvah.

1.         See, for example, the praises to repentance (“gedolah teshuvah”) in B. Yoma 86a-b: “Great is teshuvah” because it brings healing to the world, lengthens the span of our days, hastens the final redemption, and because “when one person repents of sin, the entire world finds forgiveness.”

2.         B. Rosh Hashanah 17b.

3.         Cf. Isaiah 1:18: “though your sins be red as crimson, they shall become white as snow.”

4.         B. Kidushin 40b; Yad, Teshuvah 1:3.

5.         Ezekiel 18:23 and 32 and 33:11. See as well B. Berakhot 10a, where Beruriah, the wife of R. Meir, subjects Psalms 104:35 (“may sinners perish from the earth”) to a creative re-reading. By deftly altering the vocalization (nikud) of the word chata’im, she changes the meaning of the verse: God desires the death of sin, not the death of sinners. Reform and repentance must take precedence over punishment.

6.         B. Berakhot 34b: bemakom sheba`alei teshuvah `omdin, tzadikim gemurim einam `omdin. See Yad, Teshuvah 7:4.

7.         Yad, Teshuvah 1:3.

8.         B. Megilah29a, on Ezekiel 11:16.

 

9.         B. Berakhot 19a; Yad, Talmud Torah 6:14; Shulchan Arukh Yoreh De`ah 334:43.

10.       American Reform Responsa (ARR), no. 16 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=16&year=arr) .

11.       Yad, Teshuvah 2:1.

12.       This does not mean that we believe that a sexual offender cannot be successfully treated. As the American Psychiatric Association puts it, “Few perpetrators are ‘untreatable’”; see Dangerous Sex Offenders: A Task Force Report (Washington, D.C.: American Psychiatric Association, 1999, 164), which raises questions as to the reliability of recidivism statistics for sex offenders. It means, rather, that such treatment can be an involved and difficult process and that its success can hinge on a number of factors. One such factor, for example, is the offender’s desire to effect a change in his life. “No evidence supports the notion that persons with paraphilias can be treated successfully without their cooperation” (ibid., 175). Moreover, the sponsoring organization of that task force report concedes that “unlike the successful treatment outcomes for most other mental illnesses, the outlook for successful treatment and rehabilitation of individuals with pedophilia is guarded. Even after intensive treatment, the course of the disorder usually is chronic and lifelong in most patients”; American Psychiatric Association, Fact Sheet: Pedophilia  (http://www.medem.com/medlb/article_detaillb.cfm?article_ID=ZZZUZRUZGLC&sub_cat=355; accessed April 29, 2007). It also means that the definition of “success” must be a realistic one. In the words of one group of therapists, a sex offender is comparable to an alcoholic in that he should never consider himself cured. “He has a behavioral and thinking handicap that he can keep within acceptable limits only by continuing to practice a series of controls. As he demonstrates increasing internal controls, external controls can be cautiously relaxed”; Michael A. O’Connell et al., Working with Sex Offenders: Guidelines for Therapist Selection (Newbury Park, CA: Sage, 1990, 105. Treatment, in other words, is hard, slow work that takes a long time, and in the meantime, we do not know that the offender will not repeat his offense when he has the opportunity to do so.

13.       The halakhah derives this rule by extending the Torah’s requirement that the homeowner construct a parapet or guardrail for his roof (Deuteronomy 22:8). Thus, one is forbidden to keep a vicious dog or an non-sturdy ladder on one’s property (B. Ketubot 41b and Bava Kama 15b;  Yad, Rotzeach 11:4; Shulchan Arukh Choshen Mishpat 427:7-10.

14.       “Yom Kippur effects atonement for sins one has committed against God. For sins one has committed against another person, however, Yom Kippur does not effect atonement until the sinner has conciliated the offended party”; M. Yoma 8:9, Yad, Teshuvah 2:9.

15.       (The offended party) should not act cruelly and refuse to be reconciled… but rather, when the sinner requests pardon, the offended party should pardon him with sincerity and with a willing spirit”; Yad, Teshuvah 2:10, based on M. Bava Kama 8:7.

16.       Some of the suggestions found in the text can be found in Carol J. Adams, When the Abuser is Among Us: One Church’s Response to a Perpetrator (Seattle: Center for the Prevention of Sexual and Domestic Violence, 1994) and in Peggy Halsey, “When the Abuser is One of Us,” The Interpreter (a publication of the United Methodist Church), September, 2001, 24-25. On the need to set “clear rules and boundaries” for a sex offender seeking admission to the community, see Kathy MacDonald et al., Counselling for Sexual Abuse (Oxford: Oxford University Press, 1995), 279.

17.       B. Yoma 86b; Yad, Teshuvah 2:2.

If needed, please consult Abbreviations used in CCAR Responsa.

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