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

NYP no. 5758.12

CCAR RESPONSA

5758.12

Orthodox Minyan in a Reform Synagogue


She’elah.

A few years ago a young man converted to Judaism at our congregation, which is the only one in the city. He subsequently underwent an orthodox conversion, left the community and attended yeshiva in New York.  During a recent visit to Jackson he requested the use of our facilities for an “orthodox” minyan. By this he means that women, though they may attend the service, will not count as part of the minyan and will be denied any opportunity to participate in the service.

My initial response to this request was “no,” on the grounds that the minyan would not be egalitarian and therefore contrary to our communal custom (minhag hamakom). On the other hand, I wonder if the Judaic value of hospitality to guests (hakhnasat or’chim) argues in favor of accommodating Orthodox visitors? Does the answer differ when these visitors ask for space for a minyan that meets on a regular or permanent basis? How forthcoming should we be, especially in view of the numerous incidents at the Western Wall, where, to put it mildly, no accommodations are made for liberal practice and “mixed” minyanim? (Rabbi James Egolf, Jackson, MS)

Teshuvah.

  1. A Hard Case. There is an old saying that hard cases make bad law.[1] This may or may not be true;[2] what is clear, however, is that hard cases, questions for which the existing law offers no single clear and obviously “correct” solution, are unavoidable. We confront hard cases all the time, not only in the law but also in the other traditions in which we participate, such as ethics and religion, when the applicable rules, principles, and precedents of that tradition pull in conflicting directions. And when we do, we have no choice but to think our way toward an answer that, while recognizing the ambiguities of the situation, nonetheless represents our best and most coherent understanding of that tradition as a whole.

This she’elah presents just such a hard case. It involves a fundamental tension between two important Reform Jewish principles, both of which we proudly affirm. Each of these principles represents a range of values and commitments which express themselves throughout our personal and communal observance. And each of them would seem to argue for a contradictory response to our question. For the purposes of this teshuvah, we designate these principles by the labels “Jewish pluralism” and “Reform Jewish integrity.”

By “Jewish pluralism,” we mean our recognition as liberals that there are a number of different and even conflicting paths which Jews might legitimately walk in response to the call of Torah.[3] As Reform Jews, we demand the right to make our own religious decisions, and we reject any effort to impose upon our communities an “orthodoxy” which claims that there is but one correct way to believe, to pray, and to practice our faith. And simple fairness requires that, just as we assert this freedom for ourselves, we must grant it to others. We acknowledge that all Jews are entitled to observe their Judaism in a manner that speaks to them and suits their spirit. Accordingly, we do not insist that they adhere to our own version of “the correct way.”

This commitment would lead us to provide this young man and those who would join him with space to worship according to their custom. True, our congregation already offers religious services to which visitors are welcome, and we might think that in making these services available we have fulfilled toward them our duty of hakhnasat or’chim (if, indeed, that mitzvah can be said to apply to our case).[4] Yet by defining themselves as an Orthodox community, these individuals declare that they cannot meet their liturgical needs by participating in our own communal worship. As liberals who affirm Jewish pluralism, we do not wish to compel them to do so. Nor do we wish to bar our doors to them, to tell them that unless they are willing to follow our rules they shall have to assemble elsewhere. To do so smacks of rank intolerance, a narrow-mindedness that ill-befits a liberal movement such as ours. On the contrary: we who affirm the positive value of Jewish religious diversity would prefer that they gather in our synagogue, which might then serve its true purpose as a “house of prayer for all Jews,” a place where Jews of differing religious approaches may worship as they see fit.

By “Reform Jewish integrity,” on the other hand, we express our conviction that Reform Judaism is based upon certain fundamental affirmations which define and distinguish us as a religious community. These affirmations constitute our core values, the irreducible content of our approach to Judaism, a content we cannot compromise without surrendering our integrity, without denying who and what we are. We are prepared, to be sure, to make some adjustments in our practice out of respect to Jewish diversity. In the present case, we would not oppose a request by a group to hold in our building a service at which a traditional siddur is used.[5] We would object, however, when this group identifies itself as an Orthodox community, for Orthodox Judaism espouses fundamental affirmations of its own which are incompatible with ours. One of these is its denial of ritual equality to women; thus, female members of our congregation would not be counted in this minyan and would be excluded from equal participation in its service. Another is Orthodoxy’s refusal to recognize the halakhic validity of conversions supervised by Reform rabbis, on the grounds that our rabbis are incapable of constituting a valid beit din (rabbinical court); thus, the Orthodox group would not accept our Jews-by-choice as Jews at all. Our objection, in other words, is not that Orthodox practice differs from ours but that Orthodoxy disenfranchises well over half our membership and proclaims that Reform is not a legitimate expression of Judaism. To permit this group to assemble in our building is to transmit the message that its theology is somehow acceptable to us. We must not send that message.

Although we affirm Jewish religious pluralism as a great value, it is not our only value. Acceptance of diversity can never be allowed to call our other basic Judaic commitments into question. Put simply, there are limits to our pluralism. These limits are set by those standards which form the essence of our Jewish outlook, standards which can be violated only at the cost of our Reform Jewish integrity. For all our tolerance, we would never permit a group of Jews for Jesus or other apostates to hold their worship services in our facility. Nor would we allow a group to organize an “alternative” Jewish service which denies as a matter of religious principle the right of participation to any Jew on the basis of gender. No religious community, no matter how liberal, could possibly exist if it were unable to draw lines, to set boundaries, and to agree upon at least the most minimal definitions of what it does and does not believe.[6] Our commitment to gender equality and our affirmation of our own Jewish religious legitimacy are examples of such boundaries; indeed, they are in the category of minimal standards, values without which “Reform Judaism” as we know it could scarcely exist. Our congregations dedicate themselves to the furtherance of these values and to the observance of these standards. To allow space to groups which repudiate them is to act in contradiction of our very purpose as a religious community.

  1. A Halakhic Precedent. We cannot resolve this issue, therefore, simply by invoking “Reform religious principles,” because more than one such principle speaks to it and because those principles draw us in contradictory directions. How then shall we proceed in this situation, in which Jews deeply divided over matters of religious outlook and practice seek to live together within the same institutional framework?

Our tradition offers us guidance in the form of a helpful precedent. We refer to the Talmud’s discussion of one of the halakhic conflicts which divided the early rabbinical “schools” of Hillel and Shammai.[7] The question arises: although the halakhah generally follows the view of the school of Hillel,[8] did the school of Shammai ever put its theoretical viewpoint into concrete practice? Some, the Talmud suggests, answer this question in the affirmative. Yet to say this raises a problem: would not such an act violate the prohibition, derived from Deuteronomy 14:1, “do not divide yourselves into separate sects”?[9] This rule, if applied literally, seems to demand that those holding the minority or rejected legal viewpoint yield in practice to the majority or accepted opinion. The Talmud responds that the rule “do not divide yourselves” applies only to the context of a single beit din (rabbinical court), so that once a decision is rendered its judges do not express public dissent over it; however, “in a case of two separate rabbinical courts within the same community, the rule does not apply.”[10] Each “court” is a distinct religious institution which enjoys its own halakhic integrity and is entitled to practice as it sees fit. The schools of Hillel and Shammai are equivalent to two separate “courts” within the same community; thus, each may practice according to its own understanding of the halakhah.

This passage reminds us of two important points. It teaches us, first of all, that the rabbinic tradition indeed places a high value upon unity in religious practice. We are, after all, one people, in possession of one Torah, who ought to be united in service to the one God. Divisiveness in practice should be discouraged, for it suggests that we have failed to study the Torah properly and are therefore unable to agree on its message for us; such disagreement makes it appear that we are following “two Torahs” instead of the one.[11]

Yet the existence of conflicting “schools” of Jewish thought and practice reminds us that diversity is inevitable. We Jews have never agreed on all questions of belief and observance, nor is it likely that we ever will. “Majority” and “minority” views will always exist among us; we cannot enforce a unity of religious life that, however ideal, is illusory in reality.[12][i] Our text therefore suggests a compromise which pays allegiance to both these goals. Opposing viewpoints (“courts”; “schools”) may coexist within the same institutional framework (“city”), so that each “court,” while accepting the existence of the other, possesses a distinct identity. Unity is preserved both as a theoretical goal and because each “school” retains the practical authority to determine its own standards. Diversity is acknowledged because each “school” is granted Jewish legitimacy within its own realm.

Our case, we believe, closely resembles the situation that obtained between the “schools” of Hillel and Shammai. We Reform Jews define our religious outlook in a particular way, and we want our synagogues and other institutions to reflect this definition. For this reason, we might well insist upon the rule “do not divide yourselves into separate sects” and require that those who meet to worship in our facilities do so according to our own standards of liturgical practice. Yet so long as the nascent Orthodox minyan enjoys a separate organizational identity from our own, there is no need to enforce this artificial unity. Like the school of Shammai, the Orthodox minyan is and can be seen by all to be a distinct entity–a beit din, “court”or “school”–whose practices and doctrines are not to be confused with those of the larger Reform congregation. This group can coexist within our “city,” alongside our Reform “court,” so long as the separate existence of each group is acknowledged and made clearly visible to all. By facilitating this coexistence, we most certainly do not endorse the religious views of the Orthodox minyan, any more than the coexistence of the schools of Hillel and Shammai meant that either beit din endorsed the conflicting decisions of the other. Our Reform Jewish integrity therefore remains intact. We say rather that Jewish unity and diversity–integrity and pluralism— are equally worthy goals and that our tradition would have us make room for both.

We are aware of the irony of this position. We know that, were the situation of our she’elah to be reversed, an Orthodox congregation would not likely grant permission to a Reform group to hold services in its synagogue building. This is because Orthodox Judaism is not a liberal creed. It proclaims that there is but one correct version of Jewish practice, and that Reform Jewish worship is not an acceptable variation of that correct version. They do not regard our disagreements as similar to the conflict between the schools of Hillel and Shammai, two legitimate if conflicting interpretations of the same Torah. On the contrary: they condemn us as heretics, they cast us outside the pale, they deny the Jewish validity of our practice. It may be tempting to respond in kind, to reject them in return, to deny them space within our precincts as they would surely deny it to us. Yet our religious principles forbid us the path of retaliation. The conduct of the Orthodox Jews who drive us from our rightful place at the Western Wall cannot serve as a model for our own behavior. If they are not liberals, we are; if their conception of Judaism cannot make room for diversity, ours does and must. We look upon Orthodox Jews not as enemies but as friends. We greet them not as aliens and heretics but as our brothers and sisters. And whether or not they would do the same for us, our liberal Jewish faith demands that we reach out to them in a spirit of fellowship and generosity.

Conclusion. A Reform congregation may provide space within its facility for an Orthodox congregation to worship, provided that the latter maintains a separate and distinct identity. In this way, all will know clearly that our synagogue, while reaching out in friendship to our fellow Jews, in no way endorses those aspects of their religious practice that are offensive to us.

How might we best maintain this “separateness” as we host the Orthodox congregation? On this point, the members of the Committee differ.

Some of us feel that the necessary separation can be maintained only by insisting that this arrangement be temporary. They are willing to provide space to the Orthodox minyan for a strictly limited period, to enable them to find suitable quarters of their own; should this prove impossible, it would be evidence that the community as a whole cannot support a separate Orthodox congregation. In any case, we will have done our duty to assist them.

Others are willing to allow the Orthodox minyan to meet in our building on a permanent basis, provided that they do not assemble for worship in our sanctuary. The sanctuary has been dedicated to Reform Jewish worship, in which all members of our congregation are accepted as equals. An Orthodox minyan would exclude many of us from equal participation. To permit them to assemble in our sacred space would amount to an insult, a lessening of its sanctity.

The majority of us, however, would permit the Orthodox group to meet on a permanent basis in our building, including the sanctuary; we do not agree that the worship service of any legtimately Jewish congregation affects the holiness of that space. We would place two provisos upon our permission. First, the Reform congregation must be acknowledged as the ba`al habayit, the owner of the building. This means that the Orthodox group may use our facilities only so long as their usage does not conflict with our own services and other events. A clear and binding written agreement specifying the restrictions placed upon their usage of our facilities is a necessity. Second, it is best that this Orthodox group formally and legally constitute itself as an independent congregation, so that it not appear to be a chavurah or sub-group of our own. Moreover, we should charge them rent for the use of our facilities, although this rent might well be set at a purely symbolic amount. In this fashion, it will be evident to all that the two groups, their congregation and ours, are separate and distinct entities, so that each may pursue–together yet independently of the other–its chosen path to Judaism and Torah.

 

NOTES

  1. A legal maxim of uncertain origin. The definition of “hard cases” here follows that of the legal philosopher Ronald Dworkin; see his Law’s Empire (Cambridge, MA: Belknap/Harvard Press, 1986), 255-256. As such, it represents a change from the original understanding of the term: “judicial decisions which, to meet a case of hardship to a party, are not entirely consonant with the true principle of the law. It is said of such: ‘hard cases make bad law’”; J.R. Nolan and J.M. Nolan-Haley, eds., Black’s Law Dictionary, 6th ed. (St. Paul: West Publishing Co., 1990), 717, taken from Corpus Juris 29:213 (1922). It is this definition that Justice Oliver Wendell Holmes, Jr. had in mind when he wrote: “Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.  These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend”; Northern Sec. Co. v. United States, 193 U.S. 197, 400; 24 S. Ct. 436, 468, 48 L. Ed. 679 (1904) (Holmes, J., dissenting). On the difference between the “new” and “old” definitions, see note 2, below.
  2. Actually, the maxim makes sense only if we accept the original definition of a “hard case” as one in which law and equity, conceived of as two separate realms not to be mixed, are at loggerheads. In such an instance, it might be claimed that an equitable decision makes “bad law” by introducing non-legal considerations into the legal system. The definition adopted by Dworkin better refers to what we might call a “difficult case,” and as Richard A. Posner points out, “only difficult cases make law, good or bad. Cases that are easy to decide are so by virtue of being controlled by existing law”; see his The Problems of Jurisprudence (Cambridge, MA: Harvard U. Press, 1990), 161, n. 1.
  3. Note the phrase “a number of different and even conflicting paths.” By this, we mean a not-unlimited “number.” No plausible interpretation of Jewish pluralism requires us to recognize every conceivable version of “Judaism” as legitimate. None of us, for example, would dissent from the thoughts expressed below concerning the Jews for Jesus.
  4. On the source of the mitzvah of hospitality, see BT Shabbat 127a-b, where it is listed among the things “whose fruits one consumes in this world and whose principal remains available for one in the world-to-come,” an example of gemilut chasadim (acts of lovingkindness). Maimonides classifies such acts under the rubric of “love your neighbor as yourself” (Lev. 19:18; Yad, Avel 14:1). This obligation, however, is traditionally understood in the more literal sense as hospitality to travelers, hosting and feeding them in one’s home or in some other suitable location. We know of no interpretation of this mitzvah that calls a congregation to modify its liturgical practice in order to accommodate a visiting group within its midst. On the contrary: normative practice is for the visitors to accommodate themselves to the minhag of the host synagogue.
  5. If there are objections as to the content of the siddur, we might respond that those passages which offend our religious sensibilities can either be reinterpreted or, if necessary, excised from the service.
  6. For a fuller version of this point, see Teshuvot for the Nineties, Introduction, especially at xvii-xxi.
  7. M. T’vamot 1:1-3 and B. Y’vamot 13a-14a. This particular dispute centers upon the institution of levirate marriage (yibum), the requirement that the widow of a childless man be married to her brother-in-law in order that she might raise up a child in the name of her deceased husband (Deuteronomy 25:5-10). Both schools agree that should the widow be forbidden to her brother-in-law as an ervah, one of the sexual unions prohibited in Leviticus 18, she is exempt from both the requirement of yibum and the legal ceremony of chalitzah which releases that requirement. The school of Hillel go farther, holding that if the deceased had two wives then both of them were equally forbidden as an ervah to the brother of the deceased. The school of Shammai disagreed; they held that the “second” wife in such a case had to submit to yibum or chalitzah if she were not actually an ervah. According to the school of Hillel, the child born of that union–permitted and required by the school of Shammai–is a mamzer. As we can see, therefore, this dispute was hardly a matter of superficial importance.
  8. By virtue of the decision of the bat kol, the heavenly voice, which proclaimed that “the views of both schools are in accord with divine teaching (eilu ve’eilu divery elohim chayim hem), but the halakhah follows the school of Hillel”; B. Eruvin 13b.
  9. From the phrase lo titgodedu. The literal meaning of these words, of course, is a prohibition against making gashes in one’s body with sharp instruments (Rashi to Deut. 14:1; Yad, Avodat Kokhavim 12:13). The Talmud here resorts to a fanciful midrash and reads the words as: lo te`asu agudot agudot, “do not divide yourselves into separate sects.” As the discussion in B. Y’vamot 13b-14a makes clear, the “separateness” referred to here is not a purely theological matter but one of separate standards of halakhic observance.
  10. This is according to the opinion of Rava in B. Eruvin 14a, which is cited as halakhah in Hil. HaRosh, Yevamot 1:9 (see also R. Menachem Hameiri, Beit Habechirah, Y’vamot 14a). It differs from the opinion of Abaye, who declares that the prohibition does not apply in the case of two courts in two separate cities but does apply to two courts in the same city. Maimonides (Yad, Avodat Kokhavim 12:14) follows Abaye, a ruling which puzzles his commentators, since according to the normal rules of halakhic decision making the law follows Rava in virtually all cases when he is disputed by Abaye. Rava’s position, moreover, is presented by the Talmud as the conclusion of the sugya, another fact which indicates its predominance. And his view is clearly superior to that of Abaye, for it more effectively answers the difficulty raised against those who argue that the school of Shammai actually practiced according to their “incorrect” opinion. It has been suggested that Maimonides gives evidence here of his distaste for machloket: he thus decides according to Abaye because Rava’s view is the more lenient and tolerant of dispute. See R. David ibn Zimra, Resp. Radbaz, no. 1384.
  11. Thus Rashi (Y’vamot 13b, s.v. lo te`asu) explains the prohibition against dividing into “separate sects”: “denir’in kenohagin shtei torot.”
  12. See the remark of R. Menachem Hameiri, Beit Habechirah, Y’vamot 14a: “So long as we are dealing with two separate courts, even though they reside in the same city, each one holding to its own understanding of the law, they do not violate the rule ‘do not divide yourselves.’ For it is impossible that everyone should always agree to follow the same opinion.”

[i]           See the remark of R. Menachem Hameiri, Beit Habechirah, Yevamot 14a: “So long as we are dealing with two separate courts, even though they reside in the same city, each one holding to its own understanding of the law, they do not violate the rule ‘do not divide yourselves.’ For it is impossible that everyone should always agree to follow the same opinion.”

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5759.1

CCAR RESPONSA COMMITTEE

5759.1

Conversion for Adopted Children

She’elah.

 

A family adopted two biological sisters from Korea when the sisters were ages 9 and 11.

The girls had been in a Protestant orphanage for a year prior to the adoption. Before that, they lived first with both parents until their father died, then with their mother, and after her death, with their grandmother. All that is known about their religious upbringing during that time is that they participated in some form of honoring their ancestors, visiting their graves, and bringing them food. But we do not believe they had any significant religious upbringing. There is no Jewish community in Korea and so there is no possibility the girls were born Jewish.

From their arrival in the United States, the sisters lived in a clearly Jewish home, in which the daily rhythm of life is exclusively and actively Jewish. Both girls had naming services at their own request after having been here for approximately one and one-half years. Both attended religious school from about one year after their arrival. The time lapse was calculated to allow them to learn English. The parents encouraged their learning so that they would understand the religion of their new parents. The girls were not told this was to be their religion. Both girls studied through Confirmation in religious school, and were privately tutored in Hebrew. The younger sister celebrated her Bat Mitzvah at age 13 and the older at age 16.

The sisters are now 25 and 27, and have very strong Jewish identities. One is now in graduate school, and the other living on her own. Their parents are concerned that since there was no formal conversion process when the girls were adopted, their Jewishness might be in question.

Since the sisters were adopted as older children, and because they were not formally converted to Judaism, although they certainly were immersed in it and have chosen to continue to live it, are these women to be considered Jewish or ought they be advised to formally convert? (Rabbi Lynn Koshner, Albany, NY)

 

Teshuvah.

 Jewish identity, a concept that lies at the heart of our she’elah, can be defined and understood in terms of both substance and form. As a matter of substance, there is no question that these sisters regard themselves as Jews and that Judaism is their sole and exclusive religion. As a matter of form, however, they do not meet the traditional definition of Jewish status, according to which a person is “Jewish” if he or she is the offspring of a Jewish mother[1] or has become a Jew by means of a recognized and valid procedure of conversion (giyur).[2] The Central Conference of American Rabbis (CCAR) has altered this standard to some degree through its Resolution on Patrilineal Descent,[3] which holds that the child of one Jewish parent (either the father or the mother) “is under the presumption of Jewish descent” and may establish his or her Jewishness “through appropriate and timely public and formal acts of identification with the Jewish faith and people.” This resolution, of course, does not apply to our case, which deals with children born to two Gentile parents. In such an instance, the child cannot be said to enjoy such a presumption of Jewish descent. The halakhah would require that the child be formally converted to Judaism.[4]

The present she’elah asks whether our Reform tradition follows the halakhah on this point. Does a child born of non-Jewish parents require a conversion when adopted into a Jewish family? This is not the first time the question has been posed. Reform responsa and halakhic literature have dealt with it in the past, but they are deeply divided as to its answer. Some of our sources take the position that the adoption itself establishes the child’s Jewishness. One teshuvah states that “among us as Reform Jews, if no formal conversion took place during infancy then the act of raising the child is tantamount to such conversion and nothing else needs to be done.”[5] The 1961 edition of our Rabbi’s Manual (p. 111) holds that “a child adopted by a Jewish family is recognized as a Jewish child,” implying that no formal conversion is required. Other sources, however, express a different view. One responsum asserts that the naming ceremony performed in the synagogue once the adoption process is completed “would be considered sufficient ritual conversion” in most Reform synagogues, implying thereby that some sort of ceremony apart from the adoption itself is required.[6] A 1984 teshuvah suggests that the adopted child be named in the synagogue, “with a berit for a male, and if the family desires, tevilah,” “ritual acts” that are defined as “the conversion conducted at the time of infancy.” This suggests that a formal conversion, distinct from and subsequent to the adoption itself, is necessary to “designate this youngster as Jewish.”[7] The Gates of Mitzvah, the CCAR’s guide to the Jewish life cycle, tells us that “an adopted child should be named in the synagogue and entered into the berit as soon as the initial legal procedures for adoption have been completed.” Here, too, a distinction is made between the legal process of adoption and the ritual establishment of the child’s Jewishness. If the adopted child is not an infant, “the rabbis should be consulted as to the procedure for formal entry into the Jewish community;” again, the “formal entry” into the Jewish community is a ritual or ceremony other than the adoption itself.[8] Finally, the 1988 edition of the Rabbi’s Manual (p. 224) notes that all legal adoption procedures be completed “before finalizing any change of [the child’s] religious status,” indicating once more that the legal adoption and the establishment of the child’s Jewishness are two separate processes.

Our task here is to decide which of these two positions represents the better interpretation of Reform Jewish doctrine and practice. The first position holds that no formal conversion is required in the case of adoption, and it is not difficult to understand the theoretical basis upon which it rests. Adoption, after all, is simply another way of creating a family, and the ties which bind this family are equivalent to those that exist between parents and their biological children. The Rabbis teach that “one who raises an orphan in his home is considered as though he had begotten that child.”[9] And this Committee has declared that the adopted child “is absolutely and completely a member of the family, a full child of the parents,”[10] who are that child’s parents “in every respect.”[11] If so, then we might well conclude that the legal process of adoption transfers the Jewishness of the parents to the child, in the same way that the biological child of two Jewish parents automatically enjoys Jewish status.

We think, however, that the second position is the more persuasive one: adoption by a Jewish family does not confer Jewish status upon the child of Gentile parents, and a formal conversion is necessary. The legal process of adoption indeed creates a family. Still, that process is an act of the state, of the civil government in whose jurisdiction we happen to reside. To say that “adoption is conversion” is to say that the secular magistrate[12] is empowered to confer Jewish status upon a child, and it is difficult in the extreme to imagine that any of our responsa and religious writings would suggest that we depart so radically from the historical standard of Jewishness. Simply put, we do not believe that the government of state, province or nation is entitled to decide “who is a Jew.”[13] That determination is rather a Jewish concern, one which rests exclusively with the Jewish community. The way that the Jewish community–including our own–confers Jewish status upon a person born of non-Jewish parents is through the process of giyur. Therefore, the child of Gentile parents who is adopted into a Jewish family requires a formal conversion to Judaism, a conversion process that is distinct from the adoption itself.

We should note that the definition of a “formal conversion” in our Reform communities has been an exceedingly fluid one. In a resolution adopted in 1893, the CCAR declared that “it is lawful and proper for any officiating rabbi, assisted by no less than two associates, to accept into the sacred covenant of Israel…any honorable or intelligent person…without any initiatory rite, ceremony, or observance whatever…”.[14] In practice, this means that we do not officially require the traditional conversion rituals of circumcision (milah or hatafat dam berit) and immersion (tevilah) but that we do demand some formal notice (such as the beit din of three rabbis, which the resolution does require) that a conversion, the conferral of Jewish status, has taken place. It is for this reason that a naming ceremony “would be considered sufficient ritual conversion” for a child adopted into a Jewish family.[15] Indeed, we believe that the responsum which holds that “the act of raising the child is tantamount to such conversion”[16] should be interpreted in this light: the “act” of raising a Jewish child would surely include some sort of naming ceremony, and it is this Jewish ritual, rather than the secular legal process of adoption, that “is tantamount to such conversion” under the terms of our 1893 resolution.

Conclusion. The fact that these sisters were adopted by Jewish parents does not in and of itself establish their Jewish status. They do, however, qualify as Jews in that we recognize their naming ceremonies as sufficient for formal conversion in accordance with the CCAR’s resolution of 1893. In this sense, we accept them as Jews in form as well as in substance, and they need not “be advised to formally convert.”

This counsel must be accompanied by two important qualifications. First, our words are meant to apply bedi`avad, after the fact: as we have written elsewhere, the 1893 resolution is best understood today as speaking to situations in which it is either infeasible or impossible to perform the traditional conversion rituals. Ours is such a case, inasmuch as these women have been accepted as Jews in our Reform communities for many years. In general, however, we urge rabbis to administer those rituals as part of the conversion procedure.[17]

And second, our words apply only within the Reform Jewish communities of North America. Elsewhere, these sisters will not be recognized as Jews in the absence of giyur, which would include ritual immersion; even our Reform and liberal communities outside of North America would likely require a formal conversion in their case.[18] We cherish the principle of Jewish unity (kelal yisrael), however difficult that principle may be to realize in practice. For this reason, we would recommend that these women give serious consideration to formal conversion, not because there is any doubt as to the quality of their Jewish commitment, but because we believe (and we would hope they join us in this belief) that their status as Jews ought to be accepted by Jewish communities around the world.[19]

NOTES
  1. The “classic” halakhic source for this standard is M. Kiddushin 3:12 and BT Kiddushin 68a-b.
  2. See BT Keritot 9a and Yad, Isurey Bi’ah 13:1 ff.: just as our ancestors entered the covenant at Sinai through a discrete ritual process, so the non-Jew who wishes to accept the covenant today takes on a Jewish identity by means of these rituals.
  3. CCAR Yearbook 93 (1983), 157-160; American Reform Responsa (ARR), 547-550.
  4. On the theory and practice of giyur for minors, see BT Ketubot 11a and SA YD 268:7-8.
  5. Questions and Reform Jewish Answers (New American Reform Responsa), no. 118.
  6. ARR, no. 63. The teshuvah also speaks of the possibility that some adoptive parents will want to undertake for their children hatafat dam berit, the ritual taking of a drop of blood from a previously-circumcised boy, and tevilah, or ritual immersion. Such ceremonies make sense only if we understand them as part of a procedure of giyur.
  7. Contemporary American Reform Responsa (CARR), no. 37.
  8. Gates of Mitzvah (New York: CCAR, 1979), D-2 and D-3, p. 18.
  9. BT Megillah 13a and Sanhedrin 19b.
  10. American Reform Responsa (ARR), no. 62.
  11. Teshuvot for the Nineties (TFN), no. 5753.12.
  12. By “secular magistrate” we mean the legal representative of the civil government. It makes no difference, therefore, if the magistrate who supervises the adoption is a Jew. He or she acts as the agent not of the Jewish community but of the civil government, and as such enjoys no power to confer Jewish status.
  13. This teshuvah deals with the North American legal context and does not address the situation in Israel. There, the determination of Jewish status is a matter of official concern to the civil authorities, inasmuch as the Law of Return, which guarantees the right of Israeli citizenship to every Jew, is an act of the Knesset and administered by the government. Yet we should remember that even in Israel, the government does not claim to confer Jewish status upon the individual; it rather acknowledges that the person in question meets the traditional criteria of Jewishness (i.e., one who is born of a Jewish mother or who has converted to Judaism), which are set by Jewish religious law and not created by an act of the secular legislature.
  14. CCAR Yearbook 3 (1893), 94-95; ARR, no. 68, at 236-237.
  15. See note 6.
  16. See note 5.
  17. See Rabbi’s Manual, 232.
  18. See Rabbi’s Manual, 232.
  19. We are aware, of course, that Orthodox communities will not regard these women as Jews unless their conversions were to be supervised by Orthodox rabbis. And we do not recommend they seek Orthodox conversion, for to do so would imply falsely that we Reform Jews doubt the Jewish validity of the conversions we perform. Our recommendation here would, however, greatly expand the circle of Jewish communities that recognize the Jewish status of these two women, and we think that this is a goal worth pursuing.

NYP no. 5759.2

CCAR RESPONSA

5759.2

Baptism and Jewish Status

She’elah

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

Teshuvah

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

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

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

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

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

 

NOTES

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

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

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

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

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

NYP no. 5759.3

CCAR RESPONSA COMMITTEE
5759.3
Who Is a Rabbi?

 

She’elah.

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

Teshuvah.

  1. Conversions Supervised by a Layperson. Your first question has been addressed quite clearly by the Central Conference of American Rabbis (CCAR). We hold that, while “a rabbinical beit din is desirable for giyur,” conversion should at any rate take place in the presence of a rabbi and no fewer than two lay leaders of the community.[1] We base this position upon considerations of both a halakhic and a practical nature.

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

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

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

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

  1. Rabbis with “Suspect Ordination.” How we are to evaluate the rabbinical credentials of those who have received private ordination? What of those who have graduated from rabbinical schools with which we are unfamiliar or which we regard as inferior in quality? Do we accept these individuals as our colleagues, as rabbis in our communities?

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

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

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

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

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

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

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

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

NOTES

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

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5757.7

CCAR RESPONSA

The Synagogue Thrift Shop and Shabbat

5757.7

She’elah

My congregation is considering the opening of a thrift/consignment shop as a fund-raising vehicle. The retail experts tell us that such a store would not be economically viable unless it were open on Saturday. The shop would be off the premises of the synagogue and would be operated on Shabbat by a non-Jew.

Are there circumstances under which this arrangement might be acceptable according to our Reform Jewish understanding of Shabbat? (Rabbi Deborah R. Prinz, Poway, CA)

Teshuvah

A. Shabbat Observance and Reform Judaism

. In a recent teshuvah,1 a copy of which we enclose, this Committee considered the question of Shabbat observance in general and commercial activity on Shabbat in particular. We concluded that although Reform Judaism has dispensed with many of the details of traditional Shabbat observance, the very idea of Shabbat observance, of shemirat shabbat, retains its validity for us. The nature of Shabbat as a period of holiness requires not only that we mark it with special rituals and ceremonies but also that we refrain from performing on it activities which contradict the character of the day as we perceive it to be.

What are those prohibited activities? How should we go about identifying them? Our responsum suggests that the teachings and standards transmitted through Jewish tradition ought to enjoy a considerable presumptive weight in our thinking. We are free, of course, to define our own notion of Shabbat and to decide upon new and creative means of sanctifying it. We do not hesitate to set aside those aspects of traditional practice which strike us as irrelevant or outdated. Our primary goal, however, is to participate in the collective religious experience of our people. The Shabbat that we wish to observe and to teach to our children must correspond to our sense of contemporary values; yet it must also be an unmistakably Jewish Sabbath, one whose contours and rhythms are shaped and set by the heritage of Israel. 2

How do we arrive at a proper balance between these two desired elements in our religious life? Our Reform responsa literature has suggested a rule of thumb which we might term the “preferential option” for tradition. Tradition, that is, serves as our necessary Judaic starting point. When considering questions of observance, we begin with the standards and customs that we have inherited from our people’s past. Those practices enjoy a considerable degree of presumptive weight in our thinking. We seek to maintain them in the absence of compelling reason to alter or abandon them.3

In the case of Shabbat, this means that we must take seriously the traditional proscription of commercial activity (mekach umimkar; sale and gift) on that day. This prohibition, although not numbered among the thirty-nine categories of forbidden “work” (melakhah), is woven so deeply into the fabric of Shabbat observance that it is scarcely possible to imagine the Jewish Sabbath without it.4 Even in its liberal and tolerant approach to religious practice, Reform Judaism has steadfastly maintained that unnecessary economic activity should not take place on Shabbat.5 And if we show understanding toward those individuals and families who feel they must work on the Sabbath, we believe it to be entirely improper for a synagogue, the very institution entrusted with the teaching and transmission of Torah and Jewish heritage, to engage in commercial activity on that day.

There are, to be sure, instances when Jewish law demands that we set aside the Shabbat prohibitions, but this is not one of them. The question before us does not involve mortal danger, when the need to save life is said to “override” the Sabbath (pikuach nefesh docheh et hashabbat).6 Nor are we discussing an action such as berit milah which the Torah requires us to perform on a particular date that happens to coincide with Shabbat.7 Jewish tradition would not regard the congregation’s desire to raise funds either as a life-and-death situation or as a project which must perforce be carried out on Shabbat in violation of the proscriptions against commercial activity on that day.

One might, of course, make the argument that the Shabbat prohibitions ought to be set aside for the sake of the “greater good” of a congregation’s financial solvency. After all, leading rabbinical authorities have been known to transgress laws concerning Shabbat observance, such as the prohibition against conducting weddings on the Sabbath, on behalf of a high and noble purpose that could be achieved in no other fashion.8 This argument, however, presumes that synagogue fundraising is somehow a “higher purpose” than Shabbat observance. We have long rejected such a presumption, on the grounds that it contradicts our affirmation of Shabbat as a “higher purpose” in its own right, a sacred span of time that makes its own legitimate demands upon us.9 We do not perform weddings or funerals on Shabbat, even though these ceremonies are mitzvot, because “we encourage our members to make Shabbat a special’ day upon which we do not carry out duties and acts performed on other days.”10 We have urged that congregations refrain from scheduling tzedakah and social action programs on Shabbat when these involve traditionally-prohibited labor, for “we do not perform a true mitzvah if it is done by transgressing another command.”11 And of particular relevance here, we have strongly discouraged the scheduling of synagogue business meetings and fundraising projects on that day.12

We have, in other words, found Shabbat to be at least as great a good and as noble a purpose than the other goals whose pursuit would conflict with its observance. This is especially true in light of our movement’s increasing emphasis during recent years to strengthen Shabbat observance among our people.13 For a synagogue to operate a commercial enterprise and to collect money on Shabbat would violate the holiness of that day as we Reform Jews understand that concept.

B. Gentile Employee on Shabbat.

Does the suggestion that the synagogue hire a Gentile to operate the store on Shabbat alter the above conclusion? At first glance, the answer appears to be “no,” since the tradition forbids us to ask a Gentile to perform labor on Shabbat that we ourselves may not perform.14 The reason for this, however, is that an employee is considered the agent of his or her employer, and any action taken by an agent is deemed to be the action of the one who appoints that agent.15 Based upon this theory, it might be possible to construct the business relationship between the synagogue and its non-Jewish worker so that the latter would not in point of law be the “employee” or “agent” of the congregation. The congregation, for example, could draw up legal documents defining its connection with the worker as that of landlord to tenant or lessor to lessee. In return for the payment of a fixed fee to the synagogue, the worker would be allowed to keep all the proceeds from the store’s operation on Saturday. Since he or she would be “working for his/her own benefit,”16 the Gentile would not be classified as the employee or agent of the congregation. Jews have for centuries resorted to such legal devices in order to engage in a variety of business relationships with Gentiles and yet observe the letter of Shabbat law.17 Perhaps, it might be argued, an arrangement of this sort would enable the synagogue to operate its thrift shop on Shabbat.

Still, the tenancy relationship would not truly solve the congregation’s problem. In addition to the practical difficulties (can the synagogue set the “fixed fee” high enough so that it is feasible to operate the store on Shabbat yet low enough to attract the services of a competent worker?), there is the matter of appearances, of mar’it ayin. Even though the formal halakhah (Torah law; dina de’oraita) permits a Jew to lease a business to a Gentile for operation on Shabbat, the rabbis forbade this arrangement under the following circumstances: 1) when it is widely known that the business is Jewishly-owned, and 2) where it is not the common local practice to lease such a business. The rabbis feared that people seeing the business in operation on Shabbat

would suspect that the Gentile was in fact the employee of the Jewish owner, working for that owner and not for himself.18 Under traditional halakhah, that concern is certainly present in our case. So long as it is generally known that the thrift shop belongs to the synagogue, most people would presume that the worker, though in point of law a lessee, is in fact an employee or agent of the congregation which owns and operates the store.

We share that concern. We recognize, to be sure, that the principle of mar’it ayin is in one important respect a difficult one. Rabbinic tradition utilizes it as a means of prohibiting activities which according to the law of the Torah are perfectly permissible, on the grounds that these acts give the “wrong impression.” To do so suggests that, at a certain level, appearances are more important than substance, and that is a sentiment we most definitely do not accept. Yet in another respect, mar’it ayin retains its ethical power for us, as the age-old expression of the maxim that one’s actions must not only be proper but appear to be proper as well. Our religious institutions are charged with the sacred task of teaching Torah, and we accomplish this task in the example we set no less–and perhaps more–than in the words we preach. If we truly believe, as we say we do, that the observance of Shabbat is a central religious goal for Reform Jews, then surely our behavior must exemplify that belief. Whatever its legal arrangement with the Gentile worker, we seriously doubt that the congregation can operate its thrift shop on Shabbat without giving the impression that it is conducting commercial activity on that day.19 Considering the importance we attach to the observance of Shabbat as a day of rest, of worship, and of study, this is not the example that our synagogues should set for our people.

We therefore counsel your synagogue against operating its thrift shop on Shabbat.

NOTES

1Responsa Committee no. 5756.4, “Presenting a Check for Tzedakah at Shabbat Services.” That teshuvah draws heavily upon the conceptual and descriptive language of the CCAR’s Gates of Shabbat: A Guide for Observing Shabbat (New York, 1991), 49-59.

2For another expression of this idea, see Gates of Shabbat, 57: “In creating a contemporary approach to Shabbat, Reform Jews do not function in a vacuum. Although we may depart from ancient practices, we live with a sense of responsibility to the continuum of Jewish experience.”

3For references, see Responsa Committee no. 5756.4 at note 20.

4See ibid., at notes 4-7. Biblical tradition takes it for granted that commerce is incompatible with the observance of Shabbat; see Isaiah 58:13-14 and Amos 8:5. Halakhic authorities dispute whether mekach umimkar is prohibited on biblical or rabbinic grounds.

5 Gates of Shabbat, 57.

6BT Yoma 85b; Yad, Yesodey Hatorah 5:1ff; SA YD 157.

7BT Shabbat 132a on Lev. 12:3; Yad, Milah 1:9; SA YD 266:2. Since the circumcision must take place on the eighth day of a boy’s life (unless postponed for reasons of his health), aspects of that surgery which otherwise violate the prohibitions against melakhah indeed, be performed on Shabbat should that be the child’s eight day.

8The most famous case is undoubtedly that of R. Moshe Isserles, who performed a wedding on Friday night after protracted negotiations over the financial arrangements of the marriage made it impossible to conduct the ceremony before sundown. His concern was kevod haberiyot, or simple human decency: he wished to spare the families the gossip and embarrassment that would have resulted from delaying the wedding until Sunday. See Resp. HaRema, no. 125.

9See Teshuvot for the Nineties, no. 5755.12, 165-168: “The fact that Shabbat conflicts’ with another mitzvah or worthy cause does not mean that it is Shabbat which must give way. Indeed, the reverse is often the case.”

10American Reform Responsa, no. 136. See also Gates of Shabbat, 58.

11 TFN, no. 5753.22, 169-170. See also Contemporary American Reform Responsa, no. 176 and Responsa Committee, no. 5756.4.

12Questions and Reform Jewish Answers, no. 60; CARR, no. 177; Reform Responsa, no. 8.

13In addition to the various Reform responsa responsa cited here, we might mention the tone and tenor of such recent publications of the CCAR as Gates of Shabbat; Gates of the Seasons (1983), 15-33; and Shabbat Manual (1972). Each of these works underscores the theme developed in this responsum: namely, that Shabbat is not simply a “good day” available for the scheduling of “good deeds” but rather a mitzvah, a sacred observance in its own right, which places upon us legitimate demands that may not be in keeping with other activities, however socially useful they might be.

14The nature of this prohibition is a matter of dispute in the rabbinic sources. Some hold it to be Toraitic, based on the wording of Ex. 12:16; see Mekhilta ad loc. (ed. Horovitz-Rabin, 30-31). The talmudic tradition, on the other hand, sees the prohibition as rabbinic in origin (amirah lenokhri shevut; BT Shabbat 150a, Eruvin 67b and elsewhere), adopted in order to protect Shabbat: should we grow accustomed to hiring Gentiles to labor on Shabbat, we might be led to take Shabbat less seriously and come to perform these labors ourselves (Yad, Shabbat 6:1). See Nachmanides to Ex. 12:16, who argues that the midrash in the Mekhilta is but an asmakhta, a symbolic link of the halakhah to the Torah verse but not its true source.

15 Shelucho shel adam kemoto; BT Kiddushin 43a and elsewhere.

16See SA and Isserles, OC 243:1 and the introduction of the Mishnah Berurah to the chapter, on the subject of arisut, or tenancy. A tenant (lessee) “works for himself” (ada`ata denafshey avid) and not for the lessor.

17One example is shutafut, or partnership: a Jew and a Gentile who jointly own a business may arrange to operate it on Shabbat by means of a carefully-delineated division of its profits. See SA OC 245.

18 BT Avodah Zarah 21b; Yad, Shabbat 6:15 and Magid Mishneh ad loc; SA OC 243:1 and Mishnah Berurah, introduction to chapter.

19See Numbers 32:22 and M. Shekalim 3:2: we must be blameless in the sight of people just as we must be blameless in the sight of Heaven.

20 On the other hand, this concern might not apply under another set of circumstances. For example, the congregation might determine to operate the store jointly with a non-Jewish organization, making it clear in a public way (as well as through formal legal agreement) that the proceeds of the store’s Saturday operations go to that organization and not to the synagogue. We were not, however asked concerning such an arrangement; the she’elah before us involves a congregation which wishes to keep the proceeds of its Shabbat operation.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5759.4

CCAR RESPONSA

5759.4

Tattooing, Body-Piercing, and Jewish Tradition

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

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

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

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

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

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

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

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

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

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

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

 

 

NOTES

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5758.4

CCAR RESPONSA 

Reproving a Congregation for Violations of Tax Law 

5758.4 

 

She’elah 

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

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

Teshuvah 

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

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

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

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

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

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

 

NOTES 

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

 2. B. Arakhin 16b. 

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

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

 

NYP no. 5759.7

CCAR RESPONSA

5759.7

The Second Festival Day and Reform Judaism

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

NOTES

 

  1. Alexander Guttmann, “The Jewish Calendar,” in Peter S. Knobel, ed., Gates of the Seasons: A Guide to the Jewish Year (New York: Central Conference of American Rabbis, 1983), 10.
  2. The sources are gathered by W. Gunther Plaut in The Rise of Reform Judaism: A Sourcebook of its European Origins (New York: World Union for Progressive Judaism, 1963), 195-199, from Protokolle der dritten Versammlung deutscher Rabbiner, Breslau, 1846, 208ff.
  3. R. Solomon B. Freehof, Reform Jewish Practice and Its Rabbinic Background (Cincinnati: Hebrew Union College Press, 1963), 1:16, 19.
  4. Michael Meyer, Response to Modernity: A History of the Reform Movement in Judaism (New York: Oxford U. Press, 1988), 373.
  5. See the discussion by Lawrence A. Hoffman in Gates of Understanding 2: Appreciating the Days of Awe (New York: Central Conference of American Rabbis, 1984), 56-62.
  6. See the meditations and blessings “For those who wear the Tallit” and “For those who wear Tefillin” in Gates of Prayer, 48-49.
  7. Compare the fourth principle of the Pittsburgh Platform (Meyer, 388) with the language of Gates of Mitzvah, ed. Simeon J. Maslin (New York: Central Conference of American Rabbis, 1979), 40 (E-6) and 130-133.
  8. For the way things were, see Freehof, Reform Jewish Practice 1:89 (the chupah is omitted from many Reform weddings), 96 (the kiddushin and nisu’in blessings are combined and only one glass of wine is used), and 98 (“the breaking of the glass is entirely omitted from Reform marriage ceremonies”). For the differences today, see Rabbi’s Manual (New York: Central Conference of American Rabbis, 1988), 50-59 and 239.
  9. In 1893, the CCAR adopted a resolution which formally did away with the requirement for circumcision (milah) and ritual immersion (tevilah) in the conversion process; see American Reform Responsa (ARR), no. 68. Compare, however, Rabbi’s Manual, 210-215, which makes provisions for milah and tevilah, and 232, which offers an explanation for the use of the traditional rituals in Reform Judaism. See also Teshuvot for the Nineties (TFN), no. 5752.1, at 244-246, and the sources it cites, as well as our responsa no. 5756.6 (on the use of the mikveh for conversion) and 5756.13 (which provides a detailed critique of the scholarship employed in justification of the 1893 resolution).
  10. See the fourth principle of the Pittsburgh Platform (Meyer, 388). This follows upon the third principle, which rejects the binding character of the Torah’s ceremonial legislation; “to-day we accept as binding only the moral laws.”
  11. We say “roughly” because the term mikra kodesh is applied to Shabbat in Lev. 23:3, as is the term mo`ed, “appointed season.” The Sifra (perishta 9:1, cited by Rashi to the verse) notes this apparent discrepancy, asking: “what has Shabbat to do with the ‘appointed seasons’?” It answers that this comparison is brought as a means of strengthening the observance of the festivals: “when one desecrates a festival, it is as though he has desecrated the Sabbath.” The term is also applied to Yom Kippur (Lev. 23:27), even though the rules for abstaining from work on that day are equivalent to those for Shabbat and more stringent than those for the yamim tovim.
  12. The term is melekhet avodah, translated variously as “servile work” or “working at one’s occupation.” Maimonides (Yad, Yom Tov 1:4) gives the traditional halakhic understanding of the term: melekhet avodah includes all the labors prohibited on Shabbat (melakhah; cf. M. Shabbat 7:2) with the exception of transferring fire (as opposed to kindling, which remains forbidden), carrying objects in the public thoroughfare and from one “domain” to another, and the activities involved in the preparation of food (to be consumed on the holiday itself; 1:9).
  13. Both conditions are necessary in order for a day to be regarded as a yom tov; thus, Rosh Chodesh, on which additional sacrifices (musafin) were offered, is not a yom tov because labor is not biblically prohibited on that day. Similarly, the intermediate festival days of Sukkot and Pesach (chol hamo`ed) are not considered yamim tovim, even though they were the occasion for musaf sacrifices in the Temple. Although “unnecessary” sorts of work are prohibited on those days, one is traditionally permitted to undertake labor in order to avoid a substantial monetary loss, so long as the effort involved is not deemed “excessive.” See Yad, Yom Tov 7:1ff.
  14. So Rambam (Yad, Yom Tov 1:1), after Lev. 23:36, even though Shemini Atzeret is regarded as a festival in its own right.
  15. See Exodus 12:2, “this month (hachodesh hazeh) shall be for you (lakhem) the beginning of the months.” The Rabbis understand this to mean that God points out the form of the new moon (the demonstrative hazeh, or “this”) to Moses and Aaron (BT Menachot 29a), instructing them that the task of declaring the new month and setting the calendar shall be the exclusive responsibility of the beit din (lakhem, “for you,” i.e., the determination of the new moon shall be for you, Moses and Aaron and all your judicial successors, to accomplish; BT Rosh Hashanah 22a).
  16. M. Rosh Hashanah 2:8. See also Devarim Rabah, parashah 2, no. 14: when the angels gather to ask God when Rosh Hashanah will occur, God tells them to consult the earthly beit din, which has the authority, under Lev. 23:4, to determine the dates of the festivals.
  17. Since Exodus 12:2 is understood to require that the new moon be physically seen and identified. In the absence of such testimony on the thirtieth day of the month, the first of the two days on which the new moon might appear, the court would declare the new month on the following day; see M. Rosh Hashanah 2:7.
  18. See M. Rosh Hashanah 1:3: messengers were sent out following the new moons of Nisan, Av, Elul, Tishri, Kislev, and Adar, in order that the communities may know of the upcoming holidays and fasts. During the days of the Temple, messengers were also dispatched in Iyar, to inform the communities of Pesach Katan (Sheni; 15 Iyar).
  19. BT Beitzah 4b and Rashi ad loc., s.v. shel galuyot.
  20. Yad, Kiddush Hachodesh 5:5-6, and Yom Tov 1:21.
  21. See Chidushey HaRitva, Rosh Hashanah 18a.
  22. Yad, Kiddush Hachodesh 5:8, based upon BT Beitzah 4b-5a and the ruling of Alfasi, fol. 3a. On the other hand, the talmudic discussion there suggests the possibility that Jerusalem and the land of Israel may have reverted to a one-day observance of Rosh Hashanah following the destruction of the Temple and the disappearance of the old eyewitness-based calculation of the new moon. There is evidence that this was indeed the case. See R. Zerachyah Halevy’s comment, in Sefer Hama’or Hakatan, to Alfasi, ad loc.: the requirement to observe two days of Rosh Hashanah in the land of Israel applied only during the time when the calendar was fixed by eyewitness testimony. Thereafter, “all the land of Israel took on the status of the Great Court” in this regard and observed one day. This situation held until “sages of Provence arrived and established there the custom of observing two days, according to the ruling of Alfasi.” R. Zerachya’s description of the practice in Eretz Yisrael is confirmed by paetanic, geonic, and later halakhic sources; for discussion of these see Charles L. Arian and Clifford E. Librach, “The ‘Second Day’ of Rosh haShana: History, Law and Practice,” Journal of Reform Judaism 32:3 (1985), 70-83, and Yosef Tabory, Mo`adey yisrael betekufat hamishnah vehatalmud (Jerusalem: Magnes, 1995), 231-232. Rabbi Solomon Freehof (Modern Reform Responsa, no. 51) concludes that Rosh Hashanah was observed for only one day in the land of Israel until the eleventh century. Yet there is also evidence for the opposite custom, namely that two days of Rosh Hashanah were observed in some places in Eretz Yisrael during the immediate post-talmudic period, possibly as a result of Babylonian influence; see the remarks of Ezra Fleischer in Tarbitz 53 (1984), 293-295.
  23. BT Beitzah 4b.
  24. See Magen Avraham, OC 624, end: since we know how to determine the month by means of mathematical calculation, and since our ancestors themselves did not institute a second day of Yom Kippur, why should we do it? According to Isserles, OC 624:5, the physical danger involved in a two-day fast is the reason we fast for only one day. On the other hand, we do have reports of at least some talmudic sages who fasted for two days; see BT Rosh Hashanah 21a. See Questions and Reform Jewish Answers, no. 66.
  25. See Rashi, BT Beitzah 4b, s.v. veleima kasavar rav asi. According to a geonic tradition, the institution of yom tov sheni was an ordinance of the prophets; “thus did Ezekiel; thus did Daniel.” See Otzar Hageonim, Yom Tov, 3-9.
  26. BT Beitzah 4b, according to Rashi, s.v. degazrey. The Yershalmi version is found in PT Eruvin 3:9 (21c), end, the statement of R. Yose; see Peney Moshe and Korban Ha`edah ad loc.
  27. See the argument of S. Herxheimer, Protokolle, 211.
  28. Yad, Kiddush Hachodesh 5:5. See also Yom Tov 1:21.
  29. Yad, Mamrim 2:2.
  30. Hasagat HaRabad, Mamrim 2:2. The case is that of neta reva`i, the produce of the fourth year of fruit-bearing trees, which is sanctified to God (Lev. 19:24). The Rabbis likened this to the “second tithe” (ma`aser sheni; Deut. 14:22ff), which was to be transported to Jerusalem and consumed there or, alternately, redeemed for money to be spent in Jerusalem (BT Kiddushin 54b; PT Ma`aser Sheni 5:2). An old takanah prohibited landowners living in close proximity to Jerusalem from redeeming their fruit. Instead, they were to carry the produce itself to Jerusalem, in order to adorn the city with the produce of the land (M. Ma`aser Sheni 5:2 and Bartenura ad loc.). Rabban Yochanan ben Zakai annulled this takanah, on the sensible ground that, following the destruction of the Temple, there was no longer any city to adorn (BT Beitzah 5a-b; Rashi 5b, s.v. ta`ama).
  31. R. Yosef Karo (Kesef Mishneh to Mamrim 2:2) responds that perhaps Rabban Yochanan was actually “superior” to his predecessors and therefore had the legal power to depart from their takanah. This is an interesting departure from the general theory that the earlier authorities (rishonim) always enjoy greater stature than the later authorities (acharonim), and it is little wonder that Rambam’s other commentators (see Radbaz and Lechem Mishneh ad loc.) do not adopt it. But suppose that Karo has a point: could it not be that other generations than that of R. Yochanan ben Zakai are to be regarded as enjoying equal or superior stature to that of their predecessors?
  32. See R. Eliezer Berkovits, Halakhah: kochah vetafkidah (Jerusalem: Mosad Harav Kook, 1981), 173, and Herxheimer, 212.
  33. Tosafot, Beitzah 6a, s.v. ha’idana; Hil. HaRosh, Beitzah 1:5.
  34. Commentary of R. David ibn Zimra (Radbaz), Mamrim 2:2. The difference is that in some cases, we may be aware of the reason for the takanah even if the sources do not state it explicitly. In those cases, one may conclude that the takanah was meant to last even in the absence of that reason. When, however, the rabbis declare that “we are doing this on account of X,” they are telling us that their ordinance lasts only so long as X does. Note, too, that Radbaz does not contend that the later court “annuls” (mevatel) the words of its predecessor; rather, the earlier takanah loses its own force (nitbatlah), regardless of the lesser authority of the later court as compared to the earlier one. On all this, see Berkovits, 171-174.
  35. Berkovits, 175.
  36. “A decree is not imposed upon the community unless the majority of the community is able to abide by it”; BT Avodah Zarah 36a and parallels. And see Yad, Mamrim 2:7: a gezerah that was mistakenly thought to have been accepted by “all Israel” can be annulled by a subsequent court. The problem here, of course, is that the decree establishing yom tov sheni was in fact accepted by all Israel for hundreds of years prior to the nineteenth century. We would respond that the economic and social conditions of Western society following the Emancipation were of a fundamentally different nature than those facing the Jews prior to that era. As such, the Jews of modernity could not have been included in the original gezerah, and their inability to abide by it must be taken as a serious challenge to its applicability in their communities.
  37. See Herxheimer in Protokolle, 214-215.
  38. See Daniel Freelander, Robin Hirsch, and Sanford Seltzer, Emerging Worship and Music Trends in UAHC Congregations (New York: UAHC, 1994), 1: 206 Reform congregations, or 38 percent of those responding to a survey on ritual practice, noted that they observed two days of Rosh Hashanah. Anecdotal evidence suggests to us that the figure is higher today.
  39. See note 16.
  40. “All that is forbidden on the first day of yom tov is similarly forbidden on the second… There is no distinction between the first and second days of yom tov, except for burying the dead and painting the eye (for medical purposes)”; SA OC 496:1-2, and see OC 526 for the rules concerning preparations for burial on the festival.
  41. Gates of the Seasons, 133, n. 174.
  42. Current Reform Responsa, no. 10.
  43. See Gates of Understanding (New York: CCAR, 1977), 271.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5757.1

CCAR RESPONSA

Loyalty to One’s Company Versus Love for Israel

5751.1

She’elah
A congregant works for a company which is developing some technology systems with military applications for Arab countries which do not have peace treaties with Israel. He is torn between loyalty to the company for which he works and his devotion to the Jewish people and the State of Israel. He would like to inform discreetly someone in the Israeli consulate, but he is also concerned about his job security: he has a wife and three children, and he would clearly lose his job were it discovered that he leaked information.

Teshuvah
Our sho’el seeks to draw a proper balance between conflicting loyalties and loves. In his concern for the State of Israel, he expresses a feeling that is central to our religious consciousness as Jews and as Reform Jews. The history of modern Zionism in general and of our own movement’s relation to it has been a complex one, but there is no question of our love for the State of Israel and of our full acceptance of its essential and pivotal role in the life of the Jewish people and in the minds and hearts of its members.[1]The issue is whether this love for Israel enjoys a kind of absolute status in the life of the Jew, taking precedence over other legitimate commitments.

 

Our she’elah suggests at least two of these “other commitments.”

1. Citizenship and The Law of the Land. The sho’el wishes to “inform discreetly someone in the Israeli consulate” about his employer’s business dealings. Since it is not illegal under normal circumstances to do business with countries with which one’s government maintains diplomatic relations, we presume that the company is acting within the limits of American law. On the other hand, it is possible that the sho’el himself would violate the law of the United States or of his local jurisdiction by revealing company secrets. This possibility raises the element of our duty to obey the laws of the land in which we live. Does this duty supersede or give way to our obligation to care for Israel?

Both the Bible (“seek the peace of the city to which I have exiled you”)[2] and the rabbis (“pray for the welfare of the government, since but for the fear of it people would swallow each other alive”)[3] discuss the need to show respect to the state within which we live. Yet these statements do not take us very far. The “city” and the “government” of which they speak refer to the Babylonian and Roman conquerors of the Jewish state, and the attitude they recommend is one of prudence, a recognition of the realities of power, rather than that sense of positive loyalty which the citizen is supposed to feel toward his or her political community. The more appropriate citation for our context is the classic talmudic principle dina demalkhuta dina, “the law of the state is the law,” binding upon us as well as upon its non-Jewish inhabitants.[4] Whatever its specific historical origin,[5] this principle asserts the legal validity, under Jewish law, of a wide range of acts taken by a Gentile government in the field of civil or monetary law (dinim or diney mamonot). At first glance, this notion is somewhat surprising. Jews, after all, have their own legal system, whose integrity and autonomy they are forbidden to undermine by submitting their disputes to Gentile jurisdiction.[6] For this reason, although the Talmud does not offer a legal theory to justify the principle, we find several explanations of it among the medieval authorities. The most important of these are the following:

1. Rashi writes that since Gentiles are obligated, under the doctrine of the “Noachide laws,” to establish courts and to administer justice, our own courts can recognize as valid the legal acts undertaken by non-Jewish authorities in fulfillment of this duty.[7]

2. Several Ashkenazic scholars advance the theory that the land is the personal property of the king or prince, who is therefore empowered to make whatever laws he wishes.[8]

3. Sages of the “Nachmanidean school” in northern Spain, 13th-14th centuries, draw a comparison between Gentile kings and the king of Israel. Just as the latter are bestowed by God with certain powers necessary for the proper functioning of the state, so too do the former exercise all appropriate royal authority.[9]

4. R. Shmuel ben Meir (Rashbam), a grandson of Rashi, holds that the law of the state is valid in our eyes because “all those who dwell in the kingdom willingly accept the king’s laws and statutes.”[10]

This latter explanation accords with the political theory, current in early medieval Europe, that the power of the ruler emanates from the people and is effectively controlled and limited by their agreement to recognize him as ruler.[11] It also corresponds quite closely to our own understanding of our contemporary political situation. Those of us who live in democratic states in the Diaspora[12] regard ourselves as citizens, as fully participating members of the political community. We, together with our fellow citizens, constitute the state; the government is our agent, put in place to give effect to our political will. The law of the state is therefore a law of our own making, because in contracting together with our fellow citizens we imply our acceptance of that law and its binding authority. This does not mean, of course, that we are in agreement with every decision made by our governments or that we believe that every law enacted is a good one. It means rather that the malkhut itself is legitimate and its law is law, not because these have been imposed upon us against our will but because we ourselves, the citizens of the state, are the malkhut and the legislators who make our political decisions through a process upon which we have agreed beforehand. Our consent to the outcome of this process–that is, to the laws duly enacted by the state–is thereby implied in advance.

Our sho’el is a citizen of the United States. As such, according to our understanding of the principle dina demalkhuta dina, the laws concerning espionage are laws of his own making; he is bound to obey them because in theory he has enacted them through his participation in the political life of his country. In other words, if by “discreetly informing” the Israeli consulate he would violate American law, he would also transgress against Jewish legal teaching concerning the law of the state.

 

2. Limitations On the Validity of the Law of the State. The principle dina demalkhuta dina does not confer absolute recognition upon any and every “law of the state.” In order to count as legitimate under the halakhah, the “law” must be a legitimate one: that is, it must apply equally to all, drawing no unfair distinctions among the residents of that political community,[13] and it must be accepted as flowing from the established, previously recognized powers of the regime.[14] In addition, Jewish law traditionally limits the application of this principle to monetary law and does not accept as valid state legislation touching upon the realm of ritual practice (issur veheter).[15]

None of these limitations are applicable to our case. Laws which prohibit the unauthorized transfer of confidential information to representatives of foreign governments are not inherently unfair or discriminatory. They are not unjustly and specifically directed against Jews or the state of Israel. They are based upon the desire of a state to protect itself, its people and its institutions from external threat. Since this desire is surely a legitimate one, expressing the “established, previously recognized powers” reserved to all governments, then so long as it has been enacted through the accepted and recognized legislative processes the citizens of the state can be said to acquiesce in the adoption of such laws. To be sure, one might well criticize the wisdom of any particular law or governmental act. It might arguably be better to exempt the government of Israel or of other friendly states from anti-espionage statutes. Yet this is beside the point. The fact that a state might have enacted a better law does not necessarily mean that the law it has enacted is “invalid” from the viewpoint of the Jewish legal tradition. Laws banning espionage, should they be involved in this case, are indeed a legitimate exercise of a state’s authority, and the halakhah would therefore regard them as binding upon Jews as they are upon all other citizens.[16]

3. Concern for Israel vs. Concern for One’s Family. Let us suppose, however, that the sho’el would violate no laws by informing the Israeli consulate of his company’s business activities. At this point, he must draw a balance between his concern for the State of Israel and his duty to provide for his family, since to reveal this information would likely cost him his job.

Clearly, the balance here depends upon a precise measurement of the facts (how threatening are these military applications to Israel’s security? to what degree is one’s job in jeopardy?), a measurement that we are in no position to make. The sho’el can, however, find some guidance in the traditional order of priorities for the distribution of tzedakah, which teach that when one must choose between otherwise equally-deserving recipients, one’s own relatives take precedence over all others.[17] We might observe, too, that while the sho’el‘s failure to transmit this information may or may not pose a significant degree of danger to Israel, the loss of his job and the fear of poverty constitute real and concrete risks to himself and his family. In this instance, we are on solid ground when we grant priority to real danger (vada’i sakanah) over potential or uncertain danger (safek sakanah),[18] thus permitting concern for the family’s welfare to come first.

Conclusion. One’s love for the State of Israel does not necessarily outweigh other vital religious moral responsibilities. As is always the case when our responsibilities conflict, we must arrive at a balance among the priorities they set for us. In this case, the sho’el is under no religious or moral obligation to risk his job and the welfare of his family by informing Israeli government officials of his company’s business activities with Arab states. And, should such informing violate a statute of American law, his action would transgress the principle of dina demalkhuta dina. He is an American citizen, and Jewish tradition permits and expects him to act as such.

Yet nothing we write here should be construed to mean that we hold love for Israel to be a trivial or an insignificant thing. Far from it: the attachment we feel to the State of Israel and its people is one of the most powerful motivating factors in our Jewish religious lives. The Platform on Reform Religious Zionism, adopted by the CCAR on June 24, 1997, is but the latest in a series of official expressions of Reform Judaism’s devotion to Israel,[19] to the security and well-being of its citizens, and to the hope that the building of a just and righteous society in the land of Israel will allow the Jewish state to continue to serves “as the spiritual and cultural focal point of world Jewry.” Because “we stand firm in our love of Zion,” we should seek ways to express that love that are consonant with our other deeply-held religious and moral commitments. The Platform suggests some of these ways:[20]

1. Lending Israel our continued political support and financial assistance.

2. Promoting the knowledge of Hebrew in all our communal institutions.

3. Implementing educational programs and religious practices that reflect and reinforce the bond between Reform Judaism and Zionism.

4. Studying in Israel and visiting there when we can

5. Facilitating aliyah (immigration to Israel).

This is a list, clearly not an exhaustive one, of means by which we can contribute to Israel’s strength and insure that the bonds linking us to the Jewish state will never be broken. We encourage the sho’el, as we would encourage all Jews, to turn his energies and his Jewish devotion to the fulfillment of these goals.

NOTES

1. This is not the proper venue to rehearse the this history, summarized quite well by David Polish, Renew Our Days: The Zionist Issue in Reform Judaism (Jerusalem: World Zionist Organization, 1976). Suffice it here to note the language of the great doctrinal statements of our movement. While the Pittsburgh Platform of 1885 renounced any vestige of Jewish nationhood or desire to restore the Jewish state, the Columbus Platform of 1937 affirmed “the obligation of all Jewry to aid in [Palestine’s] upbuilding as a Jewish homeland…”. The “Centenary Perspective” of 1976 noted that “we are bound to…the newly reborn State of Israel by innumerable religious and ethnic ties…we have both a stake and a responsibility in building the State of Israel, assuring its security and defining its Jewish character.” Finally, the document known as “Reform Judaism and Zionism: A Centenary Platform,” which will be voted upon by the CCAR but which at this writing exists in draft form, declares that “the restoration of Am Yisrael to its ancestral homeland after nearly two thousand years of statelessness and powerlessness represents an historic triumph of the Jewish people, providing a physical refuge, the possibility of religious and cultural renewal on its own soil, and the realization of God’s promise to Abram (Gen. 12:7)…From that distant moment until today, the intense love between Am Yisrael and Eretz Yisrael has never subsided.”

2. Jeremiah29:7.

3. M. Avot 3:2.

4. This principle, enunciated by the amora Shmuel, is found four times in the Babylonian Talmud (BT Nedarim 28a; Gitin 10b; Bava Kama 113a-b; Bava Batra 54b-55a). A similar concept is found as well in tanaitic literature, although it is given no explicit legal formulation there; see M. Gitin 1:5.

5. Shmuel flourished during the rule of the Sassanian King Shapur I (242 C.E.), who relaxed his government’s strictures against the Jews and granted legal and cultural autonomy to the Jewish community. Shmuel was on friendly terms with the king, and his position that dina demalkhuta dina may have been part of his attempt to persuade the Jews to come to terms with the regime. See Jacob Neusner, A History of the Jews in Babylonia (Leiden: Brill, 1965-1967) 2:16, 27, 30; S. Shilo, Dina demalkhuta dina (Jerusalem: Defus Akademi Yerushalayim, 1975), 4-5.

6. BT Gitin 88b, from a midrash upon Ex. 21:1; Yad, Sanhedrin 26:7; SA CM 26:1. On the other hand, Jewish law does not ignore the realities of our political powerlessness. A litigant is permitted to resort to the Gentile authorities when, due to the defendant’s refusal to obey the orders of the beit din, justice cannot be achieved justice in the Jewish court (Yad loc. cit.; SA CM 26:2).

7. Rashi, BT Gitin 9b, s.v. kesherin and chutz migitey nashim. The latter statement makes clear as well that the principle dina demalkhuta dina applies only to dinim and not to the realm of Jewish ritual law; see below, in our discussion of the limitations upon the scope of the principle.

8. R. Eliezer of Metz, cited in Or Zaru`a, Bava Batra, ch. 447; Resp. Maharam Mirotenburg, Prague ed., no. 1001; Lemberg ed., no. 313; Hil. Harosh, Nedarim 3:11; R. Nissim Gerondi to Nedarim 28a, s.v. bemokhes ha`omed me`alav, quoting “Tosafot.

9. See the novellae (chidushim) of Ramban, Rashba, Ritva, and Ran (R. Nissim Gerondi) to Bava Batra 55a; Resp. Rashba 2:134 and 3:109; and Derashot Haran, no. 11. See BT Sanhedrin 20b, where Shmuel declares that “everything mentioned in the description of the king’s powers (parashat melekh; I Samuel 8:11-17) is permitted to him”, and Yad, Melakhim 4:1.

10. Rashbam, Bava Batra 54b, s.v. veha’amar shmuel dina demalkhuta dina. Compare to Rambam (Yad, Gezeilah 5:18), who also attributes the validity of the laws to the fact that the people have willingly accepted (hiskimu alav) the king’s jurisdiction. His language differs from that of Rashbam in that he refers to the people’s agreement that “he will be their master (adoneyhem) and they will be his servants (avadav).”

11. See Walter Ullmann, A History of Political Thought: The Middle Ages (Baltimore: Penguin, 1965), 12-13, who contrasts this conception of law, which he terms the “ascending theory,” with the competing “descending theory” which posits that all political power originates “at the top” and is bestowed by its possessors upon their chosen representatives. The second of the rabbinic explanations, which describes the king as the “owner” of the kingdom, corresponds quite closely to the “descending theory.”

12. Although the principle dina demalkhuta dina originally addressed the reality of a Gentile government in the golah, there is some controversy in the literature as to whether that conception can serve as the theoretical basis for the powers of a Jewish government in the land of Israel. For examples of recent rabbinical scholars who answer “yes” to this question, see the journal Hatorah vehamedinah 1 (1949) 20-26, 27-41,42-45; 5-6 (1953-1954) 306-330; and 9-10 (1958-1959), 36-44. In general, see Shilo, 99-108.

13. See Yad, Gezeilah ve’aveidah 5:14: “a law enacted by the king that applies to all and not for one particular person is not to be regarded as theft (i.e., illegal confiscation of property).” See also Or Zaru`a, Bava Batra, ch. 447, in the name of Rabbenu Tam.

14. See Hagahat Mordekhai, Bava Batra, ch. 659 (fol. 57, col. b, bottom), in the name of R. Tam and R. Yitzchak of Dampierre: “anything instituted by the rulers that is in accordance with the accepted law (al pi din kedumim) is valid law (din gamur hu).” The point is not that the act of legislation itself must be old or that the legislator is forbidden to enact new statutes. Rather, the enactment must be generally accepted as a legitimate exercise of powers that already enjoy “constitutional” recognition (as measured by din kedumim) in that political community. Compare to Yad, Gezeilah ve’aveidah 5:14. And see, in general, Shilo, 191ff.

15. See Shilo, 115ff. For this reason, traditional halakhic authorities have not applied the principle dina demalkhuta dina to the area of marital law (one of issur veheter) in order to accept the validity of civil divorce. The Reform movement in the United States has indeed accepted civil divorce, but precisely on the grounds that divorce has always been regarded in the halakhah as a matter of monetary, rather than ritual law. This argument can be contested, but it does show that Reform thinking on the subject of divorce has followed the lines of the traditional halakhic structure. On the history of Reform and the divorce question see ARR, no. 162; Moses Mielziner, The Jewish Law of Marriage and Divorce in Ancient and Modern Times (Cincinnati: Bloch, 1884); and R. Solomon Freehof, Reform Jewish Practice I, 99-110.

16. This responsum does not discuss the issue of civil disobedience, the right (as justified by appeal to morality, natural law, “higher” law, etc.) to refuse to obey a particular law enacted by the state. The reason is that in this particular case, there appear to be no grounds for “conscientious objection” to a law that would forbid the revelation of business secrets: such a law would not be unfair or discriminatory; it represents an exercise of legitimate (i.e., recognized and accepted) state power; and as it does not violate a fundamental tenet of Jewish ritual law it does not violate a Jew’s freedom of religion. For this reason, the sho’el as a citizen can be said to have acquiesced in its enactment, thus stipulating his obligation to obey it.

Having said this, we would point out that the subject of civil disobedience in general is worthy of careful consideration. In this context we would note simply that, based on the theory that a Jew is a citizen like all others, there can be no distinctions between Jews and Gentiles in this regard. That is, if civil disobedience is ever justified, it is justified for all citizens. The principle dina demalkhuta dina cannot be interpreted so as to discriminate against the Jewish citizens of the state, denying to them any right, such as that of civil disobedience, that is enjoyed by all other citizens.

17. BT Bava Metzi`a 71a; Yad, Matanot Aniyim 7:13; SA YD 251:3.

18. See R. Yosef Teomim, Peri Megadim, Mishbetzot Hazahav (OC 328, near the beginning): when confronted with two patients, one of whom is in mortal danger (yesh bo sakanah) while the other is not, and we have but enough medicine to treat one of them, we treat first the patient who is in greater danger.

19. “The Platform on Reform Religious Zionism,” along with its Hebrew text (Hayahadut hareformit vehatziyonut) is published in CCAR Yearbook 106 (1997), 49-57. The Preamble to the Platform (Hebrew, p. 49; English, p. 54) notes that this is hardly the first official statement by the Conference on the subject of Zionism and Israel. The rigidly anti-Zionist stance of the Pittsburgh Platform of 1885 was decisively rejected in the Columbus Platform of 1937 and the Centenary Perspective of 1976.

20. “Platform,” p. 51 (Hebrew) and p. 56 (English).

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5758.1

CCAR RESPONSA

The Reform Rabbi’s Obligations Toward the UAHC

5758.1

She’elah

During the past year, there has been significant controversy concerning how the Union of American Hebrew Congregations (UAHC or the Union) shall raise its monies. Are Reform rabbis ethically obligated to support the Maintenance of Union Membership (MUM) program of the UAHC? Is the rabbi of a Reform synagogue ethically obliged to take a leadership role in his or her congregation to urge its leaders to fulfill their financial obligations toward the UAHC? (Rabbi James Simon, Worcester, MA)

Teshuvah

This question poses a special challenge to the members of this Committee. We are all Reform rabbis. The vast majority of us are ordinees of the Hebrew Union College-Jewish Institute of Religion (HUC-JIR), the North American yeshivah of the Reform movement which derives a large portion of its budget from the MUM dues collected by the UAHC. The chair of this Committee, moreover, is a faculty member at HUC-JIR. We therefore owe our rabbinical educations and our livelihoods in no small measure to the UAHC and to the funding it raises for our rabbinical school. At the same time, many of us are rabbis of synagogues affiliated with the UAHC, congregations whose fiscal health is never a sure thing and which struggle to balance their own budgets. Since MUM dues make up a significant proportion of a Reform congregation’s annual appropriations, the synagogue’s members and leadership, including its rabbinical leadership, understandably question the value that this particular expenditure offers to their institution. None of us, in other words, qualifies as a purely “objective” observer in this matter.

Yet as rabbis we cannot evade this question, despite our clear professional or financial stake in the answer we give to it. This she’elah, at its core, asks that we think about the nature of our religious community, to define its structure and circumference. It requires that we explain with some precision our understanding of Reform Judaism as a “movement,” as an institutional phenomenon whose existence and fiscal health depends upon the contributions of its members. In addition, it demands that we consider our proper role as rabbis, as teachers and scholars who work within the context of our particular Jewish community. These issues are not new ones, inventions of our own time. They have been the subject of Jewish communal discussion for many centuries. More than that: they have been the subject of rabbinical analysis, of debates and decisions carried on by rabbis in the language of sacred text, recorded in the halakhic literature of codes, commentaries and responsa. The record of Jewish tradition, that is to say, teaches us that this question is not the exclusive province of the “laity”. We therefore consider it our duty to take up this she’elah, even though we cannot claim some sort of dispassionate objectivity as to its teshuvah.

We should note at the outset one important point. As of this writing, much of the controversy surrounding MUM contributions (a controversy which may well have produced this she’elah) concerns the precise level of a congregation’s membership dues to the UAHC and the financial basis upon which these dues are calculated. Our sho’el does not ask us to consider these problems, and at any rate, they lie outside the boundaries of our competence as rabbis. Our task, instead, is to discuss the broader parameters of this issue: how does our understanding of Jewish tradition inform our perception of the obligations of Reform synagogues and rabbis toward the institutions of the wider Reform movement?

1. The UAHC As Our Community. In 1986, this Committee issued a responsum which concluded that the member congregations of the UAHC “are obligated to support this national organization at the level set by duly elected representative delegates.”[1] The teshuvah justifies this conclusion, in part, by citing as precedents a number of historical examples of financial contributions made by Jews to regional, national, or world-wide bodies. These include the half-shekel donated to the Temple in Jerusalem and the communal structures established in medieval Europe to collect taxes on behalf of the general government. These “precedents”, of course, do not correspond to our own communal situation. The Temple was an institution quite different from any other in Jewish history, and the medieval governments, unlike our own, considered us an alien element within the state, in which we did not exercise the rights of citizenship. The duties we owed to these institutions were imposed upon us by “superior” authority, either by the Torah itself[2] or by the government exercising its inherent powers;[3] we had no choice but to meet them. The UAHC by contrast is a democratic organization controlled by its members, who accept their financial obligations toward it voluntarily. The past, in these cases, may not offer us much in the way of useful guidance.

The 1986 responsum, however, does cite a third historical example which speaks more directly to our contemporary circumstances: the takanot hakahal, legislative enactments made by a community for the maintenance of its vital institutions and the governance of its public affairs. These ordinances defined the very nature of the kahal, the “community,” as a political institution, determined its constitutional structure and regulated a wide array of activities such as taxation, commercial transactions, enforcement of community mores, marital law, and many others. Given the wide and frequent use of this legislative power, it is somewhat ironic that the classical talmudic literature, the source of Jewish law, says relatively little about it. Simply put, it is not certain that talmudic halakhah, which speaks of the legislative power of kings and rabbinical courts, recognizes the authority of the “community” to adopt laws and to enforce them upon recalcitrant citizens. Halakhic scholars have therefore struggled to find a theory which would justify the takanot hakahal according to the basic premises of Jewish law. Some argue that these enactments are but a logical extension of the ancient right of the “townspeople” (beney ha`ir) to make rules concerning the control of wages and prices, the requirement to build a synagogue, the collection and appropriation of tzedakah monies and other matters.[4] Others assert that the community is the legal equivalent of the beit din, especially the ancient Sanhedrin, the rabbinical court which under talmudic theory does enjoy the power to enforce its decrees upon the people.[5] Still others locate the source of the community’s legislative power in valid and long-standing local custom (minhag hamedinah), in itself a valid “source” of Jewish law.[6] Finally, there are those who hold that the community by its very nature is endowed with the power to make its own determinations in matters of legitimate public concern, even if those determinations run afoul of some technical requirements of the halakhah.[7]

Whichever of these theories may be the “correct” one, they are united in their assumption that the kahal exists as a legitimate corporate entity and that it possesses the powers necessary to the successful function of such an entity. To put it differently: once the Jews have defined themselves as a community rather than merely a collection of individuals, they have created thereby a mechanism by which this political body can chart its common course and enforce the decisions that it has the right to make. And this serves, ultimately, as the basic argument in support of our 1986 decision on the responsibility of member congregations to support the UAHC. The Union, that is to say, is our community. In establishing the Union and in ratifying its By-Laws, our Reform congregations have indicated that they define themselves in large part as affiliates of an international community of progressive Jewish congregations.[8] Under Jewish law this community, like all others, is endowed with the power of “taxation,” which means the power to set membership dues in accordance with the procedures described in its By-Laws and regulations. As members of such a community, congregations are obligated to pay those dues.

The Reform rabbi is therefore equally obligated to call upon congregations to support the Union by meeting their agreed-upon financial obligations toward it. This is true of all Reform rabbis, but perhaps especially the case for those who serve UAHC member congregations. These obligations, remember, are not only accepted freely by the congregation when it joined the Union; they carry the full sanction of centuries of Jewish tradition. As the teacher of that tradition, the congregation’s rabbi must assume a “leadership role” in advocating the fulfillment of its legitimate responsibilities toward the larger community of which it is a part.

2. The Reform Rabbi and “Kevod Harav”. The principle of kevod harav, the duty to render honor and respect to one’s teacher, serves as an additional argument in favor of the Reform rabbi’s moral obligation to support the UAHC. We discuss this principle in a teshuvah concerning the question of “private ordination,” of whether a rabbi ordained at HUC-JIR may ordain as a rabbi any person who has not been approved for ordination by the College-Institute.[9] We decide that question in the negative: a rabbinic graduate of HUC-JIR may not participate in such an ordination, in large part because the concept of kevod harav means that in an important sense we rabbis remain subject to the authority of the rabbis who ordain us. “To act otherwise is detrimental to the kavod (honor) of one’s teacher and, by extension, of the rabbinate as an institution.” This limitation, to be sure, does not mean that we are prohibited from disagreeing with our teachers on matters of Torah and theology; both Jewish tradition at its best[10] and our own Reform Jewish tradition proclaim our individual intellectual freedom in these matters. On the other hand,

…we feel just as surely a sense of obligation to render honor to our rabbis, those who instilled Torah in us and prepared us for the momentous task of transmitting it to our people. We, too, recognize the principle of kevod harav. And this principle, if it means anything at all…implies that we have a duty to promote the welfare of the College-Institute in any way that we can. It demands at the very least that we avoid taking actions which would undermine the centrality and integrity of the College-Institute as the agency by which North American Reform Jewry has chosen to train its rabbinic leadership… Our semikhah, whatever powers it confers, cannot entitle us to undermine the school which granted it to us.

The duty of rabbis “to promote the welfare of the College-Institute in any way that we can” would certainly imply that we are required to speak out in support of the MUM program. Our seminary draws a significant percentage of its budget from the proceeds of that program, which are divided equally between the UAHC and HUC-JIR. When a member synagogue fails to meet its financial obligations to the Union, the College-Institute suffers thereby. Ordinees of HUC-JIR should not remain silent; they should indeed assume “a leadership role” on behalf of the Union and, through that means, on behalf of the school which taught them Torah.

Conclusion

. We therefore respond to this she’elah in the affirmative. Reform rabbis are ethically obligated to support the Maintenance of Union Membership program. This is because our movement defines and understands itself as an international community made up of member congregations, and like all Jewish communities ours has the right to set membership fees and dues through its authorized procedures. Rabbis ordained at HUC-JIR must also support the MUM program because, as rabbis, they owe a special debt of obligation to the school which ordained them, a school which receives a great deal of its funding from congregations who pay their share of Union dues.

We repeat that this teshuvah in no way deals with the proper level of MUM dues, a question which cannot be answered by way of text and tradition but which must be settled by the congregations themselves, speaking through their duly-elected representatives to the Union. With regard to the more fundamental issue, however, our understanding of our tradition and of our nature as a community leaves us in no doubt whatsoever: Reform congregations are obligated to support the Union which they have created, and Reform rabbis, as the teachers of Torah they claim to be, must assume a leadership role in assuring that their synagogues fulfill that obligation.

NOTES

 

  • Contemporary American Reform Responsa

(CARR), no. 139.

  • Exodus 30:11ff.
  • The principle indicated here is dina demalkhuta dina, “the law of the state is the law.” For a detailed discussion, see our responsum 5757.1.
  • R. Chananiah bar R. Yehudah Gaon, in the collection of geonic responsa known as Sha`arey Tzedek 4:4(16). The rabbinic sources concerning the beney ha`ir include M. Megilah 3:1, Tosefta Bava Metzi`a 11:23, BT Bava Batra 8b, and BT Megilah 27a. R. Chananiah also applies to the community the rule hefker beit din hefker, derived from Ezra 10:8, according to which the court is empowered to confiscate the property of all citizens who disobey its decrees; see BT Gitin 36b. A similar line is adopted by Rabbenu Gershom ben Yehudah, the “Light of the Exile,” Responsa, no. 67, and by R. Yitzchak b. Sheshet (14th cent.), Resp. Rivash, no. 399.
  • This is notably the case with R. Shelomo b. Adret (Rashba; d. 1310) of Barcelona, the source of much of the halakhic theory concerning takanot hakahal. See his Responsa 5:126: “the relationship of the majority of the city to the minority is that of the Great Sanhedrin (beit din hagadol) to the Jewish people in ancient times: their decrees are binding, and the one who transgresses them is to be punished.” See as well Resp. Rashba 1:729, 3:411 and 417 and others. This theory, however, is not universally accepted. R. Ya`akov Tam, in particular, rejects the analogy of the community council to the rabbinical court; accordingly, he rules that the majority of the community may not enforce its will upon those who dissent. See Sefer HaMordekhai, Bava Batra 1:480.
  • Resp. R. Meir of Rothenburg

, no. 106 (Prague ed.) and 371 (Lvov ed.). This may be the strongest theoretical argument, in that it accommodates R. Tam’s objections to the beit din analogy (see note 5) by injecting a note of pragmatism. See Resp. Chatam Sofer, Choshen Mishpat, no. 116: the minhag is to follow the majority decision in all community matters, for “were we to wait until unanimity is achieved, no public business would ever be concluded.”

  • R. Chaim Ya’ir Bachrach (Germany, 17th cent.), Resp. Chavat Ya’ir, no. 57.
  • The process of ratification is important here, since it means that this community was created in the form of an explicit agreement among its members, who imposed its authority upon themselves. The outlines of such a democratic theory already exist in Jewish law, which speaks of the “ratification” of the Torah by the Israelite people (Ex. 24:7) and of a subsequent “re-acceptance” during the days of Esther and Mordekhai (see BT Shabbat 88a on Ex. 19:17 and Esther 9:27; the rabbis were concerned over the seemingly coercive elements of the Mount Sinai narrative). See as well Maimonides’ Introduction to the Mishneh Torah, which explains the legal authority of the Babylonian Talmud in terms of its “acceptance” by the Jewish people (hiskimu…kol yisrael). This is not to say that this theory fully corresponds to the notion of representative democracy as it operates in modern political culture. We mean to suggest rather that some of the opposition to the authority of the community, particularly that of Rabbenu Tam (see note 5), can be allayed when we remember that our own communities are based explicitly upon “popular acceptance” of the governing rules, which are not imposed by a body which claims the powers of a beit din to enforce its decrees against the will of the people.
  • Teshuvot for the Nineties

, no. 5753.4, particularly at pp. 136-138. See the accompanying notes to that teshuvah for source material.

  • For example, R. Ya`akov Emden (18th cent.), Resp. She’elat Ya`avetz 1:5: “on matters of halakhic judgment, it is not sufficient to say that the student is entitled to argue in favor of his own opinion against that of his teacher; rather, he is obligated to do so. He should not remain silent due to the honor of his teacher (kevod rabo), for the honor of the Torah takes precedence (kevod torah adif).”

 

If needed, please consult Abbreviations used in CCAR Responsa.

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