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

NYP no. 5758.11

CCAR RESPONSA

On Patrilineal Descent, Apostasy, and Synagogue Honors

5758.11

She’elah

This query concerns a young man whose Jewish father and fundamentalist Baptist mother are members of my congregation. The young man, who is now college age, grew up attending our religious school on Saturday mornings and his mother’s church on Sundays. He observed his bar mitzvah in our synagogue, on condition that he not be baptized for a minimum of two years following the ceremony. He continued to attend religious school classes, exceeding our synagogue’s “post-Bar Mitzvah” requirement, and he and his family continue to attend Shabbat services every week. However, the young man eventually chose to be baptized as a Christian some time after his seventeenth birthday. He is now attending a seminary with the intention of becoming a Christian minister.

The father of this young man, who is an active worker for and major donor to our congregation, customarily reads the haftarah at our Yom Kippur minchah service (“maftir Yonah”). This is an honor which we bestow upon the person judged the synagogue’s “star supporter or worker;” hence, the father has read this haftarah for some years. And since the father has no knowledge of Hebrew, his son has for several years recited the benedictions preceding and following the reading. Now that the son has chosen to become a Christian, a congregant has objected to his continued participation in the service. On the other hand, our ritual policy which deals with the participation of non-Jews in our public services does not seem to apply here. The policy states that non-Jews are not permitted publicly to recite benedictions containing the formulae asher kideshanu bemitzvotav (“Who has sanctified us through the mitzvot”) or asher bachar banu (“Who has chosen us”). Since the haftarah benedictions do not contain these formulae, it is not clear to me that we can deny the son the right to participate in this honor without making it clear to his father that this decision is aimed specifically at him.

Should we permit the son, who at any rate is very respectful of his Jewish heritage, to recite the haftarah benedictions?

Teshuvah

Under no circumstances should this young man be permitted to recite the haftarah benedictions. He is not a Jew, and as such he is precluded from participating in the ritual reading of the Torah, of which the haftarah is an inseparable element.

This she’elah raises the issue of how a synagogue determines its rules governing the participation of non-Jews in its worship services. The present congregation has such a policy, and our sho’el suggests that this policy does not clearly apply to the haftarah benedictions. We disagree with this suggestion, for two reasons. First, we would point out that the benediction recited prior to the haftarah reading does contain the words asher bachar…uveyisrael amo, “God, who has chosen…Israel His people,” thereby expressing the very same theological doctrine which according to the policy ought to disqualify a Gentile from participating in this element of the service. Second, even if this doctrine were missing from the text of the benediction, the she’elah proposes that we read the congregation’s rule in such a literal and formalistic way as to render it meaningless.[1] The point of the policy, it seems to us, is not that Gentiles are prohibited from reciting certain “magic words” and combinations of syllables but that it is inappropriate for Gentiles to lead rituals and to read prayers which express the concept of the peoplehood of Israel, the idea that we Jews are a particular community, distinct from all other communities in its unique understanding of how to worship God and to realize the ideal of holiness in our lives. “Chosenness” and “commandment/sanctification” are, to be sure, prominent verbal embodiments of this concept, but a great deal of our liturgy is devoted to the rehearsal of our identity as a particular people “chosen” for the task of sanctifying ourselves and the world through the performance of mitzvot. By that token, there are many parts of the service which a Gentile, who by definition is not a member of this particular people, should not lead for us, even though they do not contain the precise formulae designated explicitly by the congregation’s ritual policy.

In several recent responsa, we identify the concept of community as the proper standard by which to distinguish those elements of our service that Gentiles may not lead or perform from those which they may.[2] Non-Jews may not recite those rubrics of the liturgy, such as the Shema its benedictions and the tefilah, which our tradition defines as chiyuv (obligations), for it is in the recitation of these elements that we constitute ourselves as a particular community and identify ourselves as participants in the ongoing historical experience of the people of Israel. Another way to put this is that a Gentile may not serve as a sheliach tzibur, a leader of congregational prayer, for that person must, as a representative of the people, be of the people, a member of the community. Similarly, a Gentile should not recite on behalf of the community benedictions whose wording expresses the idea that “we, the people of Israel, do this in response to God’s mitzvot.” And a Gentile may not participate in any of the rituals surrounding the reading of the Torah, since this act, which requires a minyan of Jews, is one of the central liturgical means by which the community affirms its existence as a covenant people. Since the haftarah, the “supplement” to the Torah reading, is an integral part of that reading,[3] it is clear that this young man, who is a non-Jew and not a member of the religious community of Israel, may not recite it or its accompanying benedictions.

Patrilineal Descent and Jewish Status.

We have described this young man as a “Gentile” and on that basis find him ineligible to recite the haftarah benedictions. By this, we do not mean that he is a Jew who has converted to another religion; such a person is regarded as an “apostate Jew,” a subject we shall take up later in this responsum.[4] We mean rather that this young man never was a Jew in the first place. To say this is to declare that he never qualified for Jewish status under the terms of the CCAR’s Resolution on Patrilineal Descent, adopted in 1983. The text of that resolution states:[5]

The Central Conference of American Rabbis declares that the child of one Jewish parent is under the presumption of Jewish descent.

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

The resolution goes on to enumerate some of those public and formal acts which might serve to confirm what it terms the child’s “positive and exclusive Jewish identity.” Among these are religious study and participation in a ceremony of Bar or Bat Mitzvah.

One might possibly assume that this young man qualifies as a Jew under the resolution, since he has attended religious school and observed his Bar Mitzvah in the synagogue. This assumption, however, is erroneous. The point of the Resolution on Patrilineal Descent, as it has been interpreted by this Committee and through the accumulated practice of Reform congregations, is that Jewish status is not automatically conferred upon the child of one Jewish and one non-Jewish parent. The child’s Jewishness is a “presumption” which must be established through a pattern of behavior which testifies to the desire of the parent(s) to raise the child exclusively as a Jew. Therefore, the “public and formal acts” of which the resolution speaks can confirm a child’s Jewishness only to the extent that they offer proof that such is indeed the intention of the parent(s).These actions must serve as “meaningful acts of identification” with the Jewish faith and people.[6] As we have written:[7]

These acts of Jewish identification, though “public” and “formal,” are more than mere public formalities. To be “meaningful,” they must offer evidence that the child in fact identifies as a Jew and that the parents are willing and able to transmit a sense of Jewishness to their son or daughter. If they offer no such evidence, then they become meaningless, mere words and empty ceremony that tell us nothing of the depth of a child’s identification or of the parents’ capacity or sincerity in fulfilling their promise to raise the child as a Jew.

In that responsum, we found that a child raised in a “dual-religion” household, one in which Judaism and another religion are actively practiced, does not qualify for Jewish status under the Resolution on Patrilineal Descent, because regardless of the “public and formal acts” they may perform, such a family is incapable of transmitting an “exclusive Jewish identity” to the child. A household in which two religions have a legitimate claim to equal status is not a Jewish household. In such a household, it is as easy to say that the child enjoys a presumption to Gentile status as to a Jewish one. And in such a case, the child’s Jewishness can be established only through conversion.

The case before us is markedly similar. This young man, whose father is an active member of the synagogue and whose mother is a committed Christian, grew up in a dual-religion household. He was intentionally raised in both Judaism and Christianity. The “timely and formal” acts of Jewish identification, such as religious school and Bar Mitzvah, are nullified by his attendance at church, and his choice of Christianity is proof that he never developed an “exclusive Jewish identity.” We would conclude that, although under our 1983 resolution this young man enjoyed a presumption of Jewish status, this presumption was never established. He is, in our eyes, a non-Jew, and he can become a Jew only through the process of conversion.[8]

Judaism as an Exclusive Commitment and a Public Matter

. This conclusion proceeds from Reform Judaism’s categorical rejection of the notion that a child can be raised simultaneously as a Jew and as a member of another religious community. In this regard, we would point out that there is no such thing as a “half-Jew”; one is either a Jew or one is not. That a child receives a Jewish education along with a Christian one does not change this reality. That he “is very respectful of his Jewish heritage,” while admirable, is irrelevant for the purposes of this she’elah. For our community to consider him a Jew, a member of the religious community of Israel, he or his parents must make an exclusive commitment to Judaism, a commitment requiring that he renounce his attachment to any other faith. And as a means of avoiding the confusions and difficulties of which this she’elah is a remarkable example, a mixed-religion family ought to make such a decision for their child as soon as possible in that child’s life.

With this in mind, we find it puzzling in the extreme that the congregation permitted this young man to observe his becoming a bar mitzvah in the synagogue. Our Committee has held that such ceremonies of religious identification as berit milah and bar/bat mitzvah are inappropriate for children who are being raised in two religious traditions.[9] The latter ceremony symbolizes a young person’s acceptance of the mitzvot, the religious responsibilities incumbent upon an adult member of the Jewish community. One of these, obviously, is the responsibility to be a Jew, to identify with this people and with its religious experience and expression. This young man, who was simultaneously attending church services and considering whether to “be” a Jew or a Christian, was most assuredly unready to declare his acceptance of those responsibilities. We are confused, as well, at the “condition” imposed upon him at the time of his Bar Mitzvah ceremony. A promise not to be baptized for two years hardly inspires confidence that we are dealing here with an identified Jew. On the contrary: the fact that such a promise had to be made indicates that he was at the time actively exploring the possibility that he would commit himself to Christianity. This sense of doubt, this lack of exclusive commitment to a Jewish religious identification renders the bar mitzvah ceremony an empty ritual, a contradiction in terms. As we have written elsewhere, “the (bar mitzvah) celebration is a confirmatory act, not a trial run…its observance under present circumstances would be a denial of its essence.”[10]

We take this opportunity to stress a point of critical importance concerning these issues: the definition of Jewishness and the setting of criteria by which an individual’s Jewish status is determined is an emphatically public matter. It is for the community, and not for the individual or the individual’s family, to answer the question “who is a Jew?”, for we are the Jewish people, a collective which bears a common historical identity. In order to maintain its common existence, this people must possess and exercise the right to draw its own parameters and to declare its standards for membership. An individual may regard himself or herself to be a Jew; his or her family may concur. And this sense of identification may be significant for that person and family. But for our purposes, in deciding how we shall set the rules and ritual policies that govern our communal religious life, this person is not a Jew unless and until we, the community of Israel, can accept him or her as one of us.[11]

The Apostate and the Synagogue.

Even were this young man considered a Jew under the doctrine of patrilineal descent, his decision to become a Christian would define him as an apostate. While it is true that mainstream halakhah holds that one cannot successfully convert “out” of the Jewish people,[12] an apostate is nonetheless regarded as having separated him- or herself from the community and therefore ineligible to participate actively in its ritual and public life. On that basis, while we would encourage this young man to attend synagogue, we would certainly not permit him to ascend the bimah or to perform any of the public rituals of our worship services. In a previous teshuvah dealing with a Jew who converted to Episcopalianism and graduated from a Christian theological seminary, we wrote:[13] “we would be sending the most confusing signals to our community if we permitted apostates to assume prominent roles in our synagogues and thereby blur the distinction between those who proudly declare their Jewishness and those who abandon our faith.” That conclusion applies without question to the present case.

Conclusion.

Because he was raised simultaneously in two faiths and because he has declared his attachment to Christianity, the young man who is the subject of this she’elah does not qualify for Jewish status under the CCAR Resolution on Patrilineal Descent. He is therefore not a Jew, and he should not be permitted to recite the haftarah benedictions or to lead any of the elements rubrics of our liturgy whose recitation and performance are restricted to Jews.[14]

One final note. We have approached this question as a matter of standards of religious practice. At the same time, we surely recognize its personal and emotional side. We do not know the father of this young man, yet we know that his must surely have been a most difficult experience. We are unable to agree with his desire that his son continue to recite the haftarah benedictions, for we do not believe that we obtain lasting religious benefit when we abandon the most basic standards of practice and observance that distinguish us as a people. Yet we are also forbidden to ignore the sense of pain and anger, of rejection and loss which quite likely lie behind that request. This is, therefore, a situation that calls not only for judgment but for compassion, for the exercise of midat harachamim alongside midat hadin. It is a situation that clearly demands the utmost in pastoral skill and sensitivity. We are confident that the rabbi of the congregation possesses these in sufficient measure to respond fully to the human needs of its members. We can but offer the rabbi our encouragement and our wishes for success.

 

NOTES

 

  • We doubt whether even this congregation applies its policy so literally. For example, the benediction following the Torah reading does not contain the word bachar in any of its forms, yet no suggestion is made by the congregation that a Gentile for this reason is permitted to recite the blessing after the reading but not the one before it. We think this is because the congregation does not really interpret its rule in such a formalistic sense as implied by the she’elah, especially when such an interpretation would lead to an obviously absurd result.
  • See Teshuvot for the Nineties (TFN), no. 5754.5, and the other responsa cited therein, especially American Reform Responsa (ARR), no. 6. See as well our teshuvah 5758.2.
  • See M. Megilah 4:1 and Yad, Tefilah 12:2. The haftarah is never read when the Torah is not read; hence, it, too, requires a minyan (M. Megilah 4:3; Yad, Tefilah 8:4) and is like the Torah reading an essentially communal ritual.
  • The Jew who renounces Judaism for another religion is regarded as yisrael mumar, an apostate Jew; see below in the text.
  • The text can be found in American Reform Responsa (ARR), 550.
  • Ma`agele Tzedek: Rabbi’s Manual

(CCAR, 1988), 227.

  • Teshuvot for the Nineties (TFN)

, no. 5755.17, at 254-255.

  • Our Reform responsa tradition has consistently ruled that the presumption of Jewish status under the doctrine of patrilineal descent does not apply in cases where the parents have chosen to raise their child in more than one religious tradition. See Contemporary American Reform Responsa (CARR), no. 61; Questions and Reform Jewish Answers (QRJA), nos. 88, 109, and 110.
  • On berit milah, see QRJA, nos. 108 and 109; on bar mitzvah, see CARR, no. 61 and TFN, no. 5754.3, 263-264.
  • TFN

, no. 5754.3, at 264.

  • This point is not altered in any way by the disagreements between Reform Judaism and other Jews over such matters as patrilineal (better: “one-parent”) descent. We may dispute the details of the definition of Jewishness, but we have never disputed that this definition is a public matter, to be set by the community. The Resolution on Patrilineal Descent is just such a communal standard: adopted by the Conference and interpreted by the Conference and its constituent bodies. Reform Judaism has never suggested that an individual is Jewish merely on the grounds that he or she “feels” Jewish or regards him- or herself as such.
  • “A Jew, even though he sins, remains a Jew”; BT Sanhedrin 44a, according to the interpretation advanced in Teshuvot Rashi, no. 173.
  • TFN

, no.5753.13; the citation is at p. 83. We add there that “were we to honor an apostate who, to boot, is a scholar of theology, the community would be confronted with a man who was born and raised a Jew, but determined after much study that Judaism is inferior to another religion. We must be careful to avoid conveying any message which may weaken the Jewish community.” See that responsum for texts and sources on the status of the apostate in Jewish law and tradition.

  • We should add, parenthetically, that although the she’elah takes note of this young man’s ability to pronounce the blessings in Hebrew, the haftarah benedictions may be recited in the vernacular: M. Sotah 7:1; BT Sotah 32a, and Tosafot ad loc., s.v. keri’at shema utefilah; BT Berakhot 40b; Yad, Berakhot 1:6 and Kesef Mishnah ad loc.; SA OC 185:1. To be sure, the tradition prefers that the berakhot be recited in Hebrew; see both the Mishnah Berurah and the Arukh Hashulchan to OC 185:1. And while the words of both of these late-19th and early-20th century authorities are influenced by their anti-Reform zealotry, we Reform Jews for good reasons of our own have come to encourage the use of the Hebrew language in our synagogue and home rituals. Still, in the absence of any absolute requirement that the haftarah benedictions be recited in Hebrew, there can be no practical justification (let alone a religious one) for permitting this young man to recite them.

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5756.15

CCAR RESPONSA

Divorce of an Incapacitated Spouse

5756.15

She’elah

A couple in their thirties has been married for some years. The wife has contracted a debilitating and terminal disease, which by this point has left her bedridden and robbed her of the power of speech and communication. She is not comatose. She is aware of her surroundings, but she is unable to respond effectively to them. Her disease will inevitably lead to her death, but this is not imminent; the situation can continue for an extended period of time. The husband wishes to divorce his wife, on the grounds that she is no longer capable of fulfilling her role as a spouse. He stresses that he does not intend to abandon her; he will visit her on a regular basis, provide her with “emotional support,” and pay her medical expenses. He insists, however, that his marriage is for all practical purposes at an end, and he wants to be free to marry again.

Does Jewish teaching support or oppose his desire for divorce? (Rabbi Richard A. Block, Los Altos Hills, CA)

Teshuvah

1. Reform Judaism and Divorce.

Like all she’elot posed to us, this one requests that we provide an answer from the resources of “Jewish teaching.” As such, some might think it strange that we, a committee of Reform rabbis, should entertain such an inquiry. It is well known, after all, that the Reform movement in North America recognizes civil divorce as a valid dissolution of marriage and does not require a get (or get piturin, a document of divorce at Jewish law) in order for either the wife or the husband to remarry.[1] It might therefore be argued that Reform Judaism defines divorce as a purely secular matter and would have little to say about the subject from a particularly religious perspective. In our view, this is a mistaken conclusion. Reform Judaism continues to regard divorce, as it regards marriage, a matter of religious concern and a legitimate object of “Jewish teaching.”

The definition of divorce as a “secular” matter was adopted by the Philadelphia Conference of 1869, which resolved that “the dissolution of marriage is, on Mosaic and rabbinical grounds, a civil act only which never received religious consecration. It is to be recognized, therefore, as an act emanating altogether from the judicial authorities of the state. The so-called ritual Get is in all cases declared null and void.”[2] The theory was that as a civil act, divorce belongs to the traditional jurisprudential category of dinei mamonot, “monetary law,” to which the rabbis have long applied the rule dina demalkhuta dina, “the law of the land is the law.”[3] This view, put forth by R. Samuel Holdheim in Germany some two decades earlier,[4] was championed at the Conference by R. David Einhorn, who noted that “the Bible does not mention the bill of divorce (Deut. 24:1) as a subject of positive command, but only incidentally as a written instrument which the husband has to execute and deliver to the wife he intends to dismiss.” Rabbinic Judaism, too, he continued, prescribes no benediction for the act of divorce as it does for marriage. Indeed:

When two persons unite in community for life, it is the function of religion to offer consecration, sanctification, and blessing… But if the holy bonds are severed, religion can only tolerate the act in sorrow and silence; it may offer consolation to the innocent sufferer or rebuke the conscience of the guilty, but certainly can not invest the act with its consecration.[5]

As an interpretation of Jewish law, the Holdheim-Einhorn theory is hardly free of difficulty. It is highly debatable that the halakhah considers divorce an aspect of monetary rather than of ritual law (isur veheter; isura).[6] The opposite is more likely the case, since divorce, like marriage, determines the personal status of the individuals involved and establishes such ritual prohibitions as forbidden marriage, adultery, incest, and illegitimacy. The 1869 resolution remains, nonetheless, the policy of the CCAR in theory as well as practice. With that, however, we stress that Reform Judaism has never been oblivious to the religious implications of divorce. For one thing, the Philadelphia Conference qualified its acceptance of civil divorce by stating that rabbis should refuse to remarry individuals divorced at civil law until they have studied the grounds upon which the divorces were granted: “Judaism recognizes the validity of divorce then only if the cause assigned is sufficient in conformity with the spirit of Jewish religion.” One leading Reform scholar went so far as to suggest that “a body of three rabbis should attest to the correctness from the Jewish point of view of the findings of the court in matters of divorce, and attach their signature to the bill of divorce issued by the court.”[7] In other words, we as a religious body retain the power of supervision over divorce. While we have handed its administration over to the civil authorities, we have reserved to ourselves the right to judge whether their work is done “in a manner which is acceptable to us.”[8] The Holdheim-Einhorn theory, moreover, may no longer strike us as persuasive on religious grounds. Today, we might argue that divorce, no less than marriage, warrants a religious response; that a union which originated in a religious ceremony demands some form of religious closure at the time of its dissolution; and that for Judaism to respond with mere “sorrow and silence” to such a fateful experience in the lives of couples and their children is an abdication of its religious responsibility. In recognition of these facts our movement has created a “Ritual of Release” which, though it does not take the place of the traditional get, serves as “a form of religious divorce” for couples who desire it[9] and “may eventually lead us to reopen the matter of a Reform get.”[10]

Divorce, then, has never ceased to be a matter of religious concern to Reform Judaism. When we consider questions and problems relating to divorce, therefore, we do so not simply as counselors or pastors but as rabbis, scholars of Torah who draw their guidance from the sacred texts of our tradition. In the case before us, we shall need to consult the detailed halakhic discussions on the subject of grounds for divorce: would the husband in our she’elah be entitled, from the standpoint of Jewish law, to divorce his wife? We shall read these texts as Reform rabbis. This means that we seek to understand them in accordance with our commitment to gender equality and with the standards of justice and fairness to which we aspire in our personal and communal lives.

2. Grounds for Divorce.

One way to think about this she’elah is to compare it to those cases in which our tradition recognizes the existence of valid grounds for divorce. Judaism holds divorce, like marriage, to be a private act, effected by the parties and not decreed by the court (beit din) or other legal agency. If both husband and wife agree to the divorce,[11] the role of the beit din is limited to supervising the details of the writing and delivery of the get. In cases where only one spouse seeks a divorce, however, the court is empowered to determine whether legitimate grounds exist to grant that request and to require the other spouse to acquiesce.

Our analysis assumes that the husband and his wife entered into no prior agreement authorizing divorce under circumstances such as these.[12] We shall inquire whether this situation is a valid grounds for divorce in the absence of explicit consent from either spouse.

The grounds for divorce in Jewish law can be classified into two categories: those based upon “objective” factors and those stemming from the inappropriate behavior of the other spouse. Among the “objective” factors are “defects” (mumim) in the spouse which render conjugal relations impossible.[13] Since the wife has a Toraitic right to conjugal relations,[14] certain blemishes, diseases, or occupations of her husband which cause her disgust and revulsion, to the point that she cannot bear to have sexual relations with him, can justify a finding for divorce.[15] In the case of the husband, traditional halakhah allows him to divorce his wife when she is afflicted with certain “defects” particular to women that preclude the possibility of conjugal relations.[16] Another “objective” factor is the husband’s sexual impotence: if he cannot fulfill the mitzvah of conjugal relations, his wife is entitled to a divorce.[17]

Now to the present case. If we approach the question in this way, as an issue of “grounds for divorce,” the husband would appear to have a strong claim. His wife, who as a result of her illness “is no longer capable of fulfilling her role as a spouse,” cannot provide him with a functional “marital life” (chayei ishut). Jewish law regards the impossibility of conjugal relations, to which in our egalitarian reading of the tradition the husband and the wife are equally entitled,[18] as a legitimate warrant for the dissolution of a marriage. Based upon these considerations, we would be inclined to respond positively to the husband’s argument.

3. Marriage, Disease, and Healing.

There is, however, another way to understand this case from a traditional perspective. The halakhah declares that the husband is obligated under the terms of the marriage to provide his wife’s medical expenses (refu’ah). Yet the mishnah which speaks of this requirement also offers a device whereby the husband can free himself of it: he is entitled to say “here is her get and her ketubah; let her heal herself.”[19] He can, in other words, divorce his wife, thus limiting his liability for her medical treatment to the amount specified in the ketubah as the indemnity for divorce. This doctrine is extremely controversial in the law. While the leading codifiers adopt the mishnah’s rule as authoritative, they add that “it is unethical” for the husband to divorce his wife under these circumstances.[20] Other authorities go farther, ruling on the basis of a passage in the Sifre that the husband does not enjoy this power at all and that he is not permitted to divorce his wife on account of her illness.[21] And in the opinion of R. Shelomo Luria (Maharshal, an outstanding posek of 16th-century Poland), even if the husband has that power in theory he no longer enjoys it in practice. Today, under the edict of R. Gershom, a husband is prohibited from divorcing his wife without her consent. Therefore, under no circumstances may a husband use divorce to free himself of the requirement to provide her medical care.[22]

Seen in this light, our she’elah demands a negative response. The husband wishes to end his marriage due to his wife’s illness. The sources, however, either condemn or explicitly prohibit divorce under such circumstances. The duty to provide for the healing of one’s spouse[23] is part and parcel of the commitment of marriage and cannot be separated from the existence of the marital bond. It is therefore wrong to divorce one’s spouse on account of the latter’s illness.

4. Analysis.

Our tradition therefore offers us two different approaches for thinking about our she’elah. Is the case before us one pertaining to “grounds for divorce”? Or should we perceive it as an instance of refu’ah, the duty to care for a spouse who is ill? We think that the latter of these two concepts affords the better understanding of the religious and moral aspects of the question.

In our view, the language of “defect” or “blemish” is inappropriate here. When the tradition speaks of mumim that are grounds for divorce, it refers to particular physical afflictions or particular occupations which are so loathsome or dangerous that the spouse is not expected to attempt to build a marital life with him or her. Such “defects” are understood as exceptional situations and are in no sense the norm in the population. Not every imaginable “defect” falls into this category;[24] those which do affect such a small proportion of the community that it can plausibly be argued that one is “entitled” to marry a spouse who is free of them. Disease, by contrast, including serious and even terminal disease, is an inescapable and universal element of the human condition. If a “defect” is unusual and unacceptable departure from the norm or the average, disease is the norm for all creatures of flesh and blood. It is by no means an exceptional circumstance that one is “entitled” to avoid.[25]

 

The same can be said for “impotence,” which we interpret as the physical or psychological inability of either spouse to engage in conjugal relations. The impotence which Jewish law recognizes as grounds for divorce was seen as a defect, the exception rather than the rule in human life.[26] The wife in this she’elah does not carry a “blemish.” She is incapable of “fulfilling her role as a spouse” not because she suffers from the female equivalent of impotence but because she has become ill. Every single one of us becomes ill; we are all of us subject to diseases that may leave us unable to fulfill our marital and other responsibilities. And any one of us, prior to our death, may experience a protracted illness that renders us incapacitated for an extended period of time. These are unhappy realities, but they are realities, an inevitable part of the package called life. To say that we are somehow “entitled” to avoid these facts of human existence is tantamount to a claim that we are entitled to avoid marrying a spouse who will grow old and die. And that is patently absurd.

 

The question we should ask when confronting a situation such as this is not whether we enjoy the “right” to escape from it. We should rather inquire as to how our religious heritage and our most deeply-rooted moral values would have us respond to a spouse who lies on his or her deathbed. That responsibility, according to Jewish teaching, is not divorce but refu’ah, not abandonment but care and compassion. It is true that the husband in this instance promises to provide financial and emotional support to his wife following their divorce, and such good intentions are commendable. But we are not talking here about good intentions but about moral and ethical duty. Our tradition holds that it is marriage itself which creates this duty: this man is obligated to offer monetary and personal support to this woman precisely because they are united in a covenant of marriage which imposes responsibilities upon each spouse at the same time that it entitles them to “rights.” Nowhere does Jewish law recognize “disease,” even serious and incapacitating disease, as grounds for divorce. As befits a tradition which deplores divorce even though it allows it,[27] Judaism instead expects us to continue to fulfill the duties we accepted upon ourselves at the moment of kidushin and nisu’in.

 

This is a teaching we fell called upon to affirm. As liberals, participants in a culture that proclaims the rights and dignity of the individual person, we most certainly recognize the “right” to divorce. We understand that divorce can be an entirely proper alternative when a marriage has irrevocably broken down. But we also believe in marriage. We hold that the marital union remains a sacred commitment, a bond that ought to be broken only on valid “grounds,” for the gravest of causes. And we cannot define the circumstances of this case as “grounds for divorce.” On the contrary: precisely because the difficulty stems from the wife’s illness, the correct response to it is refu’ah, a response which rules out divorce and which demands her husband’s care, compassion, and continuing presence with her.

 

A final note. We are not unmindful of the anguish that this husband must be suffering. It is a painful thing to confront the decline and death of a loved one, and our teshuvah must not be read as an effort to minimize or belittle that pain. Our role in this question, however, is that of teachers of Torah, and the counsel we offer must reflect our best understanding of what Torah, the accumulated religious and moral experience of our people, would have us do when faced with this situation. And what Torah would have us do, we think, is to act in such a way that we leave no doubt as to our faithfulness to the values and to the commitments by which we measure the moral worth of our lives. To adhere to this standard may demand a high degree of personal sacrifice from us. Yet it is without question the best choice we can make.

 

Conclusion.

Jewish tradition, as we understand and interpret it, does not recognize this husband’s claim as sufficient grounds for divorce. Instead, it calls upon him to accept his responsibility to provide refu’ah, material and spiritual care, to his ailing wife.

NOTES

 

1. See Ma`agalei Tzedek: Rabbi’s Manual (New York: CCAR, 1988), historical notes by W. Gunther Plaut, 244-246. We stress that this statement applies in general but not to every specific case. Suppose, for example, that a couple were married under the auspices of traditional Jewish law. In the event that their marriage ends in civil divorce, the husband’s refusal to issue a get to his wife would render her an agunah and prevent her from remarrying according to halakhah. While we would recognize both parties as divorced and permitted to remarry, the husband’s act is one of blatant injustice to his wife and a violation of his implicit promise, made at the time of kidushin, to accept the injunction of rabbinic law to execute a religious divorce when and if such is demanded. In such a circumstance, the husband should not be allowed to remarry in a Reform ceremony unless and until he executes the religious divorce. See our responsum 5754.6, Teshuvot for the Nineties, 209-215.

 

2. In R. Solomon B. Freehof, Reform Jewish Practice I (New York: UAHC Press, 1963), 107. Freehof, 99-110, provides a full discussion of the history of Reform thinking on the validity of civil divorce. See also R. Moses Mielziner, The Jewish Law of Marriage and Divorce (Cincinnati: Bloch, 1901), 130-137.

 

3. Freehof, 106. On the rule dina demalkhuta dina see our responsum 5757.1.

 

4. R. Samuel Holdheim, Ueber die Autonomie der Rabbinen und das Princip der juedischen Ehe (Schwerin/Berlin, 1843), 143ff.

 

5. Freehof, 106-107; Mielziner, 132-133.

 

6. See Mielziner, 131, citing R. Zechariah Frankel’s critique of Holdheim’s theory in Zeitschrift fuer die religioesen Interessen des Judenthums, 1:277ff (1844).

 

7. Freehof, 108. The leading Reform scholar was R. Kaufmann Kohler; see Freehof loc. cit. and CCARY 25 (1915), 377.

 

8. R. Walter Jacob, Questions and Reform Jewish Answers, no. 233, at 373.

 

9. For the “Ritual of Release” see Rabbi’s Manual, 97-104. The citation “a form of religious divorce” appears at p. 245.

 

10. QRJA, no. 233, at 374.

 

11. The foregoing is a necessarily brief and incomplete description of the traditional Jewish law of divorce. In reality, while divorce is technically effected by both husband and wife, it is the husband who is the active party. It is he who writes or issues the get to the wife, whose role in the process is but to receive it. Thus, “the husband may divorce only with his consent; the wife can be divorced with or without her consent” (BT Gitin 49b; see Deut. 24:1 and Yad, Gerushin 1:2). The wife cannot divorce the husband. On the other hand, much of the history of the Jewish law of divorce has consisted of an effort to redress this imbalance. Rabbinic law permits the wife to “sue” for divorce on a variety of grounds and authorizes coercion of the husband, “with whips” if necessary, in order that he may “consent” to issue the get (M. Ketubot 7:10; BT Ketubot 77a-b; on the question of eliciting “consent” by means of force, see Yad, Gerushin 2:20). On all this, see further in the text. Moreover, the famous enactment (cherem) of Rabbenu Gershom b. Yehudah, “the Light of the Exile” (10th-11th cent., Mainz) forbids the husband from utilizing his Toraitic authority to divorce his wife without her consent (see Isserles, EHE 119:6). This enactment is accepted by Ashkenazim and by a number of other communities. It serves, writes one leading medieval authority, “to equate the power of the wife with that of the husband” in matters of divorce law (Resp. R. Asher b. Yechiel 42:1). While this estimate, sadly, is an exaggeration–the power to issue the get still rests exclusively with the husband, who can exploit that power to tragic effect–it does underline the tendency of the halakhah toward improving the legal status of the wife with respect to divorce. We Reform rabbis, committed to the principle of gender equality, simply propose to follow this tendency to the conclusion demanded by its inner logic and morality. Our analysis will assume as a matter of course that husband and wife shall function as equals throughout the divorce process.

 

12. Such an agreement would resemble the “conditional get” (get al tena’i), which takes effect only upon the meeting of certain specified stipulations; see SA EHE 143. Another possible analog is the “living will” in which individuals their instructions to physicians and family members concerning their desires regarding medical treatment during the last stages of terminal illness. We mention these legal devices for purposes of comarison only; this is not the place for an extended discussion concerning either of them.

 

13. See Benzion Schereschewsky, Dinei Mishpachah, Third Edition (Jerusalem: Rubin Mass, 1984), 373ff.

 

14. Exodus 21:10; BT Ketubot 47b; Yad, Ishut 12:2.

 

15. The classic list of these mumim is preserved in M. Ketubot 7:10. In BT Ketubot 77a we read that the sign of some of these diseases is “a foul odor of the mouth or nose”; hence, the halakhah determines that the presence of “disgusting” symptoms (“so strong that one cannot bear them”; Resp. R. Eliyahu Mizrachi 2:19) justifies divorce. See Yad, Ishut 25:11-12 and SA EHE 154:1.

 

16. For example, a woman whose menstrual cycle is irregular to the point that she is never certain as to when she is a nidah (BT Nidah 12b; Yad, Ishut 25:7-9).

 

17. BT Yevamot 65a. The details of this issue are spelled out in SA EHE 154:6-7.

 

18. The sources do not speak of an “obligation” on the part of the wife to provide sexual relations to the husband, but rather of his obligation to so for her. For us, this gender-based distinction carries no relevance. We would regard both parties to the marriage as equally entitled and equally obligated in the realm of chayei ishut.

 

19. M. Ketubot 4:9. See Bartenura ad loc.: he is entitled to do this because “a man is not obligated to provide maintenance (mezonot) to his divorcee,” and the duty of refu’ah is considered a subset of mezonot. See BT Ketubot 52b.

 

20. Yad, Ishut 14:7; SA EHE 79:3. See Magid Mishneh to Yad ad loc.: it is “obvious” that for the husband to use this power is an affront to ethical standards.

 

21. This view is found in the chidushim of Rashba and Ritva to BT Ketubot 52b and is attributed to R. Avraham b. David of Posquierres (Rabad). See also Meiri ad loc. The Sifre passage is ch. 214 (to Deut. 21:14), which states that the Israelite soldier may not send away his female captive of war (eshet yefat to’ar) while she is ill. The midrash reasons that if this is the case with the captive, whom the Torah with great reluctance permits one to marry (see BT Kidushin 21b and Rashi to Deut. 21:11), then it is certainly true of one’s wife. Rabad, noting the contradiction between this passage and M. Ketubot 4:9, suggests that the mishnah’s rule applies only when the wife is not seriously ill.

 

22. Maharshal’s ruling is cited in Bayit Chadash to Tur, EHE 79, fol. 102a, and in Beit Shmuel to SA EHE 79, no. 4. On the edict (cherem) of R. Gershom, see note 11, above.

 

23. Again, we stress our egalitarian reading of the tradition. In our view the duty of refu’ah is as incumbent upon the wife as it is upon the husband.

 

24. For example, should a husband become blind or lose a limb his wife is not entitled by that reason to a divorce, even though such conditions are described as “serious defects” (mumim gedolim). See M. Ketubot 7:9; BT Ketubot 77a; Yad, Ishut 25:11; SA EHE 154:4.

 

25. Indeed, we are not always entitled to avoid even those mumim that are accepted as grounds for divorce. For example, if a wife knew about the “defect” prior to marriage or continued to live with her husband following its discovery, some authorities rule that “she thought about it and accepted it” (savrah vekiblah), thus waiving her right to divorce (BT Ketubot 76a; Yad, Ishut 25:11; Isserles, EHE 154:1). With respect to mumim in the wife, the tradition holds that should these “defects” develop subsequent to marriage the husband has no claim to divorce. The principle is nistachfah sadehu (literally, “his field has flooded,” an occurrence which Western legal tradition would call “an act of God”): it is the husband’s fate that this has happened, and there is nothing he can do to remedy the situation. See BT Ketubot 75a; Yad, Ishut 25:9-10; SA EHE 117:1.

 

26. The use of the past tense in this sentence is indicative of today’s awareness that “impotence” is a condition that can be treated with medical or psychological therapies. “Impotence,” in this regard, may not be an automatic grounds for divorce; see SA EHE 76, the glosses of Chelkat Mechokek, no. 18, and Beit Shmuel, no. 17.

 

27. See M. Gitin 9:10. The talmudic discussion (BT Gitin 90a-b) leads to the conclusion that “a man should not divorce his first wife unless she has acted as a harlot” (Yad, Gerushin 10:21; SA EHE 119:3). Moreover, “when a man divorces his first wife, even the altar sheds tears on his account” (BT Gitin 90b).

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5758.7

CCAR RESPONSA

Conversion of a Person Suffering from Mental Illness

5758.7

She’elah

A woman in my congregation, married to a Jewish man, has been coming to me to study for conversion to Judaism. Her own religious background is quite mixed, and she feels

no particular attachment to any other faith. She has some knowledge of Judaism, and has been reading and studying with me for about six months. I believe she is sincere about wanting to convert to Judaism, although some of the motivation undoubtedly comes from her in-laws. In my opinion, however, she is not mentally stable.

The first thing she told me when we met was that she was a borderline personality who had been sexually abused by both of her parents. In the fairly brief time I have known her she has been on the verge of divorce twice, stated that her husband was abusing her, changed therapists, and asked if she could bring her dog into the sanctuary with her for emotional solace in a new environment. She often makes very dramatic statements, only to back away from them later. From everything I have been able to learn, she is quite clearly a borderline personality, a well-recognized diagnosis of significant mental illness. She is not, however, insane or incapable of making decisions for herself.

May I reject her as a candidate for conversion on grounds of her mental illness?

Teshuvah

1. Mental Competence and Mental Illness.

The possession of mental competence (da`at or de`ah) is one of the principal requirements for conversion to Judaism. This is because conversion is understood as the acceptance by a Gentile of the mitzvot, the obligations of Jewish life.[1] One who is mentally incompetent is not judged legally accountable for his or her actions;[2] therefore, a Jew who lacks da`at is exempt from the duty to perform the mitzvot.[3] Accordingly, the Jew-by-choice who seeks to enter the community of mitzvot must be able understand the nature of the duties he or she is accepting and to be held responsible for them. As our Committee has written in a similar case:[4] “conversion to Judaism is a major religious step which cannot be taken lightly; this act has legal (halachic) implications… (since) a complete understanding of Judaism is necessary for a sincere and complete conversion, such prospective converts must be of sound mind and mentally competent. We cannot accept individuals who do not meet these prerequisites.”

For these reasons, it is clear that we are entitled and even required to reject a candidate for conversion should we find that he or she does not possess the necessary mental competence. The question we face here is whether this prospective proselyte fits that concept. Does she, on account of her emotional disturbance, lack the “sound mind” necessary to make the responsible choice to enter the covenant of Israel?

To ask this question is to ask whether, in the terms of our tradition, this woman exhibits the characteristics of the shoteh/ah, the “insane” person, who by definition does not possess da`at and is thereby exempted from any and all responsibility to uphold the mitzvot.[5] The talmudic sources identify the shoteh as one who wanders alone at night, who sleeps in the cemetery, who rips his or her clothing, or who loses everything that is given to him or her.[6] The halakhic consensus holds that a person need not exhibit all of these behaviors to be defined as a shoteh; one of them alone is sufficient, provided that the action is performed regularly and in such a way that it offers evidence of insanity.[7] There is considerable disagreement in the literature as to whether insanity (shetut) is to be identified by these actions in particular or whether they are to be seen as examples of a more general condition. Some authorities regard the list in talmudic sources as exhaustive; “we have nothing to rely upon except the words of our Sages.”[8] Maimonides, on the other hand, takes the opposite view. The shoteh of whom we speak is only the one “who walks about naked, breaking things and throwing stones,” but rather “one who has lost his mind and whose mind is consistently disturbed with respect to any matter, even though he speaks rationally on all other matters.”[9]

This position surely strikes us as the more reasonable one, since it is difficult to imagine a plausible definition of insanity that restricts itself to but three or four specific actions out of a host of others that are clearly symptomatic of serious mental disturbance. As noted above, even a person who exhibits those behaviors is not judged insane by talmudic standards unless they are performed in a manner that indicates insanity (derekh shetut);[10] thus, “insanity” is better understood as a manner of behavior, a state of mental disturbance which can express itself in any number of ways, rather than as a catalogue of several specific acts.[11] Although contemporary Orthodox halakhists tend not to decide between the two sides of this legal dispute,[12] they are capable of recognizing that judgments in this area are necessarily complex. As one puts it: “it is impossible to define with precision just who is called a ‘shoteh’ in our time, or more properly, at which stage (of an illness) a person is defined as ‘insane’ and exempt from the mitzvot… On account of the wide variety of psychiatric ailments along with the many specific forms of behavior, which can change from time to time due to natural causes or as a result of treatment, we are required to judge each case separately, in accordance with the opinion of experts and the judgment of the rabbinic authority or beit din.”[13] For our part, we hold that the definition of mental illness is to be made by observation a matter of medicine and psychology, properly determined by the accepted procedures of those disciplines. As we have written, “given our positive attitude as liberal Jews toward modernity in general, it is surely appropriate to rely upon the findings of modern science, rather than upon tenuous analogies from traditional sources, in order to render what we must consider to be scientific judgments.”[14] We think that this position accurately reflects the view of Maimonides, applied in the context of the scientific and cultural realities of our time.

None of this, of course, renders the answer to this she’elah a simple one. Even if we accept this woman’s testimony that she suffers from an emotional disorder, we may not be in a position to declare that she does not possess the requisite mental competence we demand of a person who chooses Judaism. To be sure, borderline personality disorder (BPD) is a serious condition, and those afflicted with it “present a variety of neurotic symptoms and character defects.”[15] They may, we are told, fail to establish their own identities. They may be emotionally unbalanced and impulsive, display multiple phobias, obsessive thoughts and behaviors, and paranoid traits. They may be constantly angry and frequently depressed, sexually promiscuous, and have a pronounced tendency toward drug and alcohol abuse. They are unable to develop lasting relationships in marriage and career, They are quite difficult as patients, often attempting to manipulate their therapists in order to gain needed gratification. Many of them threaten suicide, and some of them are indeed suicidal. All of this may be true of BPD individuals in general and of this woman in particular, yet this is still not enough to say that she, the individual whose case we are addressing here, is a shotah, lacking the da`at or capacity to make rational decisions and judgments about herself and her life. We should not forget that a medical term such as “borderline personality disorder” is simply a name given to a particular constellation of “neurotic symptoms and character defects.” It is a category utilized by the mental health professions as a means of classifying data and determining courses of treatment. It is a description of a general phenomenon which in and of itself does not tell us that this woman is “insane.” Put another way, while this woman may be “mentally ill,” we do not know by that token that she is mentally incompetent. The diagnosis, assuming it is an accurate one, cannot serve as a substitute for a careful examination of her character, her strengths and weaknesses, her “defects” and her resiliency in overcoming or compensating for them.

This is merely another way of saying that “general principles do not decide concrete cases;”[16] or, as Maimonides remarks in his discussion of mental competence, “since it is impossible to define ‘da`at’ with full precision in writing, the matter must be decided by the judge in the particular instance.”[17] To translate this insight into the terms of the present she’elah, we cannot say this individual is unfit for conversion based upon a diagnosis that she suffers from a general syndrome known as “borderline personality disorder.” Such a determination can be based only upon a finding that this person, this individual human being, lacks the mental competence we think necessary to make an informed and rational choice for Judaism.

2. Proper and Improper Motivations for Conversion.

Yet the definition of “insanity” is not the only issue here. Our case turns as well upon the question of proper motivations for conversion to Judaism, which the Talmud discusses in two places. In the first, which describes what we must call the ideal state, the prospective proselyte is warned of all the hardships and dangers that await him should he become a Jew; if he says, “would that I merit to participate in their suffering!,” he is accepted forthwith.[18] The second text speaks not of the pure religious motivations of the ideal candidate but of those that inspire other sorts of individuals. It tells us that, in principle (lekhatchilah), we should not accept proselytes who wish to convert in order to marry a Jew, or who seek to join us out of a desire to share in our good fortune, or who come to Judaism in response to fear or threats, real or imagined, although should such persons undergo a valid process of conversion they are nonetheless considered proselytes.[19] The medieval commentators raised a difficulty against this “in principle” standard, noting several examples of Talmudic sages who accepted as proselytes individuals who came before them with evidently improper motives. They resolved the difficulty by suggesting that in those cases the sages were confident that the proselytes who came originally out of ulterior motivations would ultimately accept the Torah “for the sake of Heaven.”[20] And on the basis of that resolution, later authorities declare: “we learn from this that (with respect to conversion) the entire matter is left to the judgment of the beit din.”[21]

This, as far as we are concerned, is a chief guiding principle in our thinking about conversion. It is for the beit din, the religious tribunal under the supervision of the presiding rabbi, to determine in each and every case whether the person who comes before us for conversion does so for reasons that are appropriate. Occasionally, Orthodox authorities will rely upon this discretionary power in order to accept proselytes who wish to become Jews for reasons that fall far short of the ideal standard of pure religious conviction.[22] Yet whether for leniency or stringency, the decision is in any event for the authorities to make. On this point we are in full agreement with Orthodox halakhic thinking. Conversion, for us no less than for other Jews, is not a decision left to the heart and mind of the proselyte but a formal and public matter. One who seeks to convert seeks to join our community as a full and participating “citizen” thereof. It is accordingly for the Jewish community, acting through its acknowledged rabbinical representatives, to determine in each and every case whether an individual who wishes to convert is in fact ready to do so, for reasons that we find persuasive and compelling.

Let us turn this insight to the present case. If the rabbi under whose guidance this woman is studying believes that she is ready for conversion, that she fully understands the fateful nature of this step and is preparing to undertake it out of motivations that strike him as credible and appropriate, then he is entitled (and perhaps even obligated)[23] to accept her as a Jew-by-choice. On the other hand, should the rabbi find that there is significant doubt as to this woman’s mental and emotional readiness to make a thoughtful, careful and responsible decision to convert to Judaism, he is entitled (and perhaps required) to reject her candidacy. The burden of proof, that is to say, is upon the candidate to demonstrate her readiness and not upon the rabbi to demonstrate the opposite. His decision need not be based upon preponderant evidence that she is “insane” and lacking in da`at. He may even find, as he tells us in his she’elah, that she is “sincere” in her desire to convert. Yet so long as he is not convinced that she is ready to take this step, so long as he has good reason to believe that her desire to convert is reflective of an emotional pathology rather than what can be defined as a reasonable and responsible choice, he is definitely under no obligation to accept her.

Conclusion.

The rabbi may indeed reject this woman as a candidate for conversion, although not simply on the grounds of mental illness. A finding that she is “mentally ill” or even that she displays a condition as serious as borderline personality disorder does not necessarily in and of itself prove that she is lacking in da`at, the ability to make responsible and appropriate choices. The term “mental illness” is a broad descriptive category and not a diagnosis of the fitness of the individual person; we should beware of taking any step which suggests that those who suffer from “mental illness” are to be labelled as “insane.” He may reject her rather on the grounds that this decision, in his carefully considered opinion, is motivated by factors that call its rationality and appropriateness into serious question. In any event, “the entire matter is left to the discretion of the beit din.”

NOTES

 

  • On the process of kabalat hamitzvot by a proselyte, see BT Yevamot 47a-b; Yad, Isurey Bi’ah 14:1-5; SA YD 268:2-3. Conversion is commonly portrayed in the sources as the ritual and spiritual equivalent of the acceptance of the Torah by our ancestors at Sinai; see BT Keritot 9a and Yad, Isurey Bi’ah 13:1-5, along with BT Yevamot 46a, and Rashi, s.v. be’avoteinu shemalu.
  • M.

Bava Kama 8:4; Yad, Chovel Umazik 4:20; SA CM 424:8.

  • BT

Chagigah 2b and Rashi, 2a, s.v. chutz: the deaf-mute (cheresh), the insane person (shoteh), and the minor (katan) are exempt from the obligation to perform the mitzvot on the ground that “they do not possess de`ah.” See also M. Rosh Hashanah 3:8: these same individuals cannot sound the shofar on behalf of others because they themselves are not “obligated with respect to this act.” See Yad, Edut 9:9: the shoteh is not qualified to serve as a witness because “he is not subject to the mitzvot”; and Yad, Chametz Umatzah 6:4 (based upon BT Rosh Hashanah 28a): one who performs a mitzvah during a moment of insanity has not fulfilled his obligation, for at that moment he was “exempt from all the mitzvot.”

  • American Reform Responsa

(ARR), no. 67. The she’elah there dealt with a prospective convert described as “mentally unbalanced (paranoid).”

  • See M. Arakhin 1:1 and the sources cited in note 3.
  • Tosefta

Terumot 1:3; BT Chagigah 3b-4a; PT Terumot 1:1 (40b) and parallels.

  • Hil. HaRosh

, Chulin 1:4, following the view of R. Yochanan and the setam talmud in BT Chagigah 3b-4a; SA Yore De`ah 1:5; R. Shelomo Luria, Yam Shel Shelomo, Chulin 1:4.

  • R. Yosef Kolon (15th-cent. Italy), Resp. Maharik Hachadashot, no. 20, quotes R. Avigdor Hakohen (13th-cent. Germany) in a teshuvah to R. Meir of Rothenburg: “one who is not judged a shoteh by the actions mentioned in the first chapter of Chagigah [3b] must be declared mentally competent in all respects.” R. Yitzchak b. Sheshet, it would seem, also reads the talmudic list as exhaustive; Resp. Rivash, nos. 20 and 468. And R. Yosef Karo, in SA YD 1:5, defines the shoteh as one who exhibits the behaviors mentioned in the Talmud. See, however, note 9.
  • Yad

, Edut 9:9-10. See R. Yosef Karo’s discussion in Beit Yosef, EHE 121. Karo adopts Maimonides’ definition of the shoteh in SA CM 35:8, thereby creating a difficulty against his ruling in YD 1:5.

  • BT

Chagigah 3b.

  • We might echo in this regard the rhetorical question posed by R. Ya`akov Weil (15th-cent. Germany, Responsa, no. 52): “consider the one who does not rend his garments, does not sleep in the cemetery and does not wander alone at night and yet acts in an insane manner in all other respects. Is he not to be judged insane?” Other poskim suggest that the “symptoms” mentioned in BT Chagigah do not define insanity but are rather standards by which to measure insanity in its most obvious and extreme manifestation. Thus, R. Yosef Kolon (see note 8), who does not decide the machloket between Maimonides and the opposing view, writes that “if one agrees that the ‘signs’ of insanity mentioned in Chagigah are not exhaustive and that the Sages were simply giving examples… (this means that) one should examine to see whether a person has reached an extreme level of shetut such as evidenced by these behaviors.” This position is accepted explicitly by R. Yechezkel Landau (18th-cent. Prague), in a responsum included in the book Or Hayashar (ch. 30), an 18th-century work containing rabbinical responsa over the validity of a get issued by a husband who may or may not have been “insane.”
  • See R. A.S. Avraham, Nishmat Avraham 3:181, who recites the machloket but does not attempt to resolve it directly.
  • Ibid

., 181-182.

  • Responsum no. 5757.2.
  • A.M. Freedman, MD, Harold I. Kaplan, MD, and P.J. Sadock, MD, eds., Comprehensive Textbook of Psychiatry, Second Edition (Baltimore: Williams and Wilkins Co., 1975), 550. The medical information in this paragraph is taken from that source and from Benjamin B. Wolman, editor-in-chief, The Encyclopedia of Psychiatry, Psychology, and Psychoanalysis (New York: Henry Holt, 1996), 83.
  • The quotation is taken from the famous dissent of U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. in Lochner v. New York, 198 U.S. 45, 74 (1905). Holmes continued that “the decision will depend on a judgment or intuition more subtle than any articulate major premise.” This notion is a key to the understanding of legal reasoning, no less applicable to the halakhic tradition than to any other system of law.
  • Yad, Edut 9:10.
  • BT

Yevamot 47a and Rashi, s.v. ve’eini kedai; Yad, Isurey Bi’ah 14:1; SA YD 268:2.

  • BT

Yevamot 24b, including the mishnah (M. Yevamot 2:8); Yad, Isurey Bi’ah 13:14-17; SA YD 268:12.

  • Tosafot

, Yevamot 24b, s.v. lo. The exceptional cases are those involving Hillel (BT Shabbat 31a) and R. Chiya (BT Menachot 44a).

  • Beit Yosef

, YD 268; Siftey Kohen, YD 268, no. 23.

  • Among the examples: R. Shelomo Kluger, Resp. Tuv ta`am veda`at, no. 230; R. David Zvi Hoffmann, Resp. Melamed leho`il 2:83, 85; R. Benzion Ouziel, Resp. Mishpetey ouziel, YD, no. 14, and EHE, no. 18.
  • See BT Yevamot 47b: once a candidate has demonstrated his full and informed acceptance of the mitzvot, “he is circumcised immediately.” Why, asks the Gemara, do we do this immediately? Because “we do not delay the performance of a mitzvah.”

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5758.8

CCAR RESPONSA

Medical Experimentation: Testing Drugs Made of Pork By-Products

5758.8

She’elah

I am a member of the Ethics Committee at the University of Ottawa Heart Institute. At a recent meeting, the committee discussed a protocol for testing a new cardiac drug for which the researchers plan to recruit volunteers from among heart patients. The protocol indicated that a pork by-product was present in the drug. May Jews who observe kashrut participate in this test? I realize that it is permissible to accept pork or pork by-products when these are instrumental in saving one’s life. Yet this is an experiment, and it is uncertain whether this drug will offer any life-saving benefit to these or to future heart patients. Indeed, the researchers inform the volunteers at the time of their recruitment that while the drug may prove useful, it may also turn out to be of no medical consequence at all. (Rabbi Steven H. Garten, Ottawa, Ontario)

Teshuvah

A Jew who observes kashrut may participate in the experiment described in our she’elah. We base this conclusion upon two primary arguments. The first has to do with the laws concerning the manner in which one consumes forbidden foods; the second derives from the definition of medicine, which our tradition regards as a mitzvah of the highest order.

1. The Use of Prohibited Substances for Medicinal Purposes.

The Talmud cites the following statement in the name of Rabbi Yochanan: “We are permitted to use anything for healing, with the exception of idolatry, prohibited sexual relations, and murder.”[1] Rashi explains that the word “anything” in this statement refers to isurey hana’ah, substances from which we are prohibited to derive benefit. From here, the halakhic tradition learns that “in a situation of serious illness, we may use for healing any of the substances prohibited in the Torah” outside of those three exceptions.[2] This rule is in accordance with the teaching that the saving of life (pikuach nefesh) is of the highest importance in the Torah and that it takes precedence over virtually all other commandments and prohibitions.[3] From it, we conclude that there is no objection to the use of forbidden foods and their by-products for medicinal purposes, provided that the patient suffers from a serious illness (choleh sheyesh bo sakanah).[4]

The rule in the case of a person whose illness is not a serious one (choleh she’ein bo sakanah) is somewhat more complex. In theory, the prohibition against the forbidden substance still applies. In practice, however, the prohibition can be lifted. The Talmud reports an incident in which Ravina made an ointment for his daughter’s skin out of unripened grapes that were forbidden as orlah.[5] When challenged-“did the Rabbis permit one to do this for a patient whose illness is not a serious one?”-he responded: “have I used these grapes in their normal manner?”[6] This episode serves as a precedent for the codifiers:[7] since as a matter of formal definition the prohibition against eating a forbidden substance applies only to the act technically defined as “eating” or “drinking,” an individual who is not seriously ill may take a forbidden substance for medicinal purposes provided it is administered in an “unusual” manner which differs from the way in which people ordinarily consume it (shelo kederekh akhilatan) or derive benefit from it (shelo kederekh hana’atan). Thus, it is clearly permissible to inject a patient with a drug containing animal blood, because injection is not defined as “eating” and because it does not confer the benefit or enjoyment (hana’ah) normally associated with the ingestion of food.[8] Whether this permit allows a patient not seriously ill to take such drugs orally is the subject of some controversy. Some authorities hold that the patient may swallow the medication, since swallowing is not the normal way of “eating;” others reject this distinction on the grounds that the person at any rate derives some hana’ah from swallowing.[9] Yet here, too, the objection can be met by mixing the forbidden item with “a bitter substance” which removes the possibility of “enjoyment” (hana’ah). Ingesting the forbidden matter in pill or capsule form, or in a liquid mixed with other chemicals, is therefore permitted.[10]

It should also be noted that a forbidden substance might be permitted when it has undergone a physical alteration so extensive that it can be seen as a “new substance.”[11] These considerations play a central role in rabbinic discussions of the kashrut of cheeses and gelatin.[12]

These considerations are brought together in a responsum by the 18th-century R. Ya`akov Reischer on the practice of prescribing a liquid containing dried ram’s blood (bocksblut) as a medication for persons reporting certain symptoms that were not considered life-threatening. Reischer notes that this practice is apparently forbidden, since dried blood is nonetheless “blood” and is explicitly prohibited in the talmudic sources.[13] On the other hand, since the medication was in widespread use among Jews, he decides to apply the dictum “Jewish religious custom has the force of Torah” and to defend the practice. This he does on the grounds that the blood has undergone a substantial physical alteration and that, as an ingredient in the medicinal solution, it is ingested in an “unusual” manner.[14]

In the present case, we must presume that a patient would take the experimental drug in pill or capsule form; hence, the pork byproducts it contains are not consumed in a manner that resembles the halakhic definition of “eating.” These ingredients, moreover, have been subjected to various chemical processes that alter their original form. For these reasons, traditional Jewish law does not prohibit any patient, including one who is not seriously ill, from taking this drug.

2. Medical Experimentation as “Medicine.”

A serious difficulty, however, can be raised against our analysis. While the participants in this experiment are called “heart patients,” it is far from clear that the experimental drug they are to test can be called “medicine.” We do not know that this product is of therapeutic value; indeed, our sho’el reports, it may quite possibly turn out to be of “no medical consequence at all.” If so, then the considerations we have discussed might not apply in our case, since our sources permit the consumption of prohibited substances, albeit in an “unusual” manner, solely for legitimate medical purposes (refu’ah). To permit a Jew who observes kashrut to participate in this experiment, we would have to determine that medical experimentation is to be defined as “medicine,” even though the experimental procedures and findings may not prove therapeutic for the individuals who participate in the test.

How then does our tradition define and understand the practice of medicine? While the Talmud itself is ambivalent, containing both negative[15] and positive[16] remarks about physicians and the healing arts, it does regard medicine as reshut,[17] a permitted activity, and later scholars raise this “permission” to the level of mitzvah, the commandment to save life.[18] This commandment, as we have seen, stands at the summit of Toraitic values; virtually every prohibition in the Torah is set aside for the sake of refu’ah. And refu’ah, moreover, is viewed as a “science,” an organized body of learning that is mastered by those specially trained in its accepted standards and procedures.[19] Like all science, medicine as we understand it today is an experimental enterprise. The many wonderful life-saving tools of contemporary medicine, the drugs and surgeries and therapies, could scarcely have been developed had they not been tested in accordance with the rigorous standards demanded by the scientific community. These tests, to be sure, do not always lead directly to the discovery or perfection of new drugs and therapies. It is in the nature of experimental science that hypotheses may be disproved, that theories may be challenged for lack of confirming evidence, and that practitioners determine that a particular direction of research is not a fruitful one. Yet precisely because these “failures” are part and parcel of the scientific method, they are an integral element of science itself. In our case, the science we call medicine requires experimentation of the sort described in our she’elah, whether or not that experiment succeeds in establishing the effectiveness of the cardiac drug. In the absence of such experimentation, the practice-that is to say, the science–of refu’ah could scarcely be conceived.

For this reason, too, we today cannot conceive of the mitzvah, the religious obligation of medicine, apart from the scientific approaches which structure and govern the practice.[20] Just as the science of medicine cannot exist apart from the experimental methods by which therapies are tested and perfected, so too would it be impossible to fulfill the mitzvah of refu’ah without them. We do not distinguish between the therapies of medicine on the one hand and the legitimate scientific procedures necessary to develop those therapies on the other. The term “medicine” includes both the application of life-saving measures and the development of those tools in accordance with the methods of experimental science.[21] Those patients who serve as subjects in this experiment are therefore participating in a legitimate medical procedure. Whether the tests succeed or fail to develop a new cardiac drug, the patients contribute toward the fulfillment of the goal of medicine as the Torah conceives it: the mitzvah of pikuach nefesh, the saving of life.[22]

Jews who observe kashrut may participate in the test described in our she’elah. Indeed, it is a mitzvah for them to do so.

NOTES

 

  • BT

Pesachim 25a-b. R. Yochanan’s declaration is part of the famous discussion (with partial parallels in Yoma 82a-b, Sanhedrin 74a, and Avodah Zarah 27a-b) of the sins that must never be committed, even for the sake of saving life. Idolatry is not to be practiced because one is commanded to “love Adonai your God…with all your life (bekhol nafshekha; Deut. 6:5)”, even at the cost of one’s life. Forbidden sexual relations (i.e., the list of the arayot in Leviticus 18) are to be avoided at all costs since the Torah compares them to murder (Deut. 22:26). And murder itself may never be resorted to, even to save one’s life, because it is possible that “the other man’s blood is redder”: one is in no position to determine that one’s own life is more valuable in God’s sight than that of one’s intended victim, and it is only such a judgment that would permit a murder in order to save one’s life.

  • Yad

, Yesodey Hatorah 5:6; SA YD 155:3.

  • BT

Yoma 85b, on Lev. 18:5.

  • See M. Yoma 8:5-6; Yad, Ma’akhalot Asurot 14:14-16; and SA OC 618. These passages deal with feeding a sick person on Yom Kippur, and they make clear that the permit for feeding includes foodstuffs normally prohibited as tamey (impure).
  • See Lev. 19:23-25.
  • BT

Pesachim 25b.

  • Yad

, Yesodey Hatorah 5:8; Sefer Hamordekhai, Pesachim, ch. 645, in the name of R. Eliezer b. Yoel Halevy (Ra’avyah); SA YD 155:3; Siftey Kohen ad loc., nos. 13-14; Resp. Ketav Sofer, OC, no. 111.

  • R. Yechiel Ya`akov Weinberg, Resp. Seridey Esh 2:59.
  • These positions are discussed by R. Yechezkel Landau (18th cent.) in Resp. Noda Bihudah 1:35.
  • Resp. Seridey Esh

2:59, end. On the “bitter substance” issue, see Yad, Yesodey Hatorah 5:8.

  • See Isserles, SA YD 87:10 and Arukh Hashulchan, YD 87, par. 43. On “new substance,” see R. Chaim Ozer Grodzinsky, Resp. Achiezer 4:11.
  • The best summary is that of R. Isaac Klein, Responsa and Halakhic Studies (New York: Ktav, 1975), 43-74. The issue with respect to cheese concerns rennet, a curdling agent drawn from the stomach wall of the animal. Gelatin is a problem because it might be made from the bones and skins of non-kosher animals.
  • See BT Menachot 21a and Chulin 120a.
  • Resp. Shevut Ya`akov

2:70. Reischer adds another argument in favor of his permit: the specific complaint for which the bocksblut is prescribed is “pain experienced in the internal organs,” which might easily be defined as a serious illness even if the physicians do not so regard it.

  • After Ex. 15:26, which describes God-and presumably not the physician-as the source of healing. The rabbis were also influenced by the biblical author’s condemnation of King Asa in II Chr. 16:12 (“in his illness he sought not God but rather physicians”). See BT Berakhot 10b and Pesachim 56a, where King Hezekiah is praised for hiding away a medical book so that people would learn to pray for healing rather than seek medical help. See also the prayer recorded in BT Berakhot 60a, bottom, and Rashi ad loc. s.v. she’ein darkan shel beney adam. For a concise statement of this position, one could hardly do better than M. Kiddushin 4:14: “the best physician is deserving of hell,” which Rashi (BT Kiddushin 82a, s.v. tov shebarof’im) explains in that the physician arrogantly regards himself, rather than God, as the author of the patient’s healing. It is Nachmanides, in his commentary to Lev. 26:11, who presents what may be the classic formulation of this perspective. God’s people, he writes, were never intended to be subject to the laws of the physical universe; rather, they were to be judged solely according to their moral deserts. The Israelites, however, rejected this arrangement by consulting physicians during time of illness; as a result of this lack of trust, God has left us to our desires and made us subject to natural law. While we now have no alternative but to engage in natural medicine as a response to illness, therefore, this fact constitutes a spiritual defeat for us.
  • See BT Bava Kama 46b (“one who is in pain should go to the physician”) and Sanhedrin 17b (“A Torah scholar should not live in a city that does not have these ten things…”), one of which is a physician (rofe). Rashi, along with R. Menachem Hameiri (Beit Habechirah, Sanhedrin 17b) define this rofe as a mohel, one who practices the art of ritual circumcision, rather than a “physician.” Maimonides, on the other hand, does not make this qualification (Yad, De`ot 4:23).
  • BT

Bava Kama 85a, from Ex. 21:19.

  • The authorities differ as to the biblical source of this mitzvah. Nachmanides (Torat Ha’adam, Chavel ed., Jerusalem, 1964, 41-42) classifies medicine under the heading of pikuach nefesh (and see Tur and SA YD 336:1) , while Maimonides derives the commandment from Deut. 22:2, the obligation to restore lost objects, which the Rabbis (BT Sanhedrin 73a) extend to the saving of life (Maimonides, Commentary to M. Nedarim 4:4).
  • See SA YD 336:1: while each of us is responsible to fulfill the mitzvah of pikuach nefesh, none should practice medicine who is not an expert (baki) in its procedures and who is not licensed by the proper authorities.
  • To be sure, it was not always this way. Prior to the modern period, medicine was a traditional science; much like law, theology, and similar disciplines, one learned it through the reading of the authoritative texts of such luminaries as Hippocrates and Galen, combined with a period of apprenticeship to a master. It is this version of medical study which R. Moshe Feinstein (see note 22) cites approvingly in explaining how kohanim in former times could train to become physicians. Obviously, the science of medicine has progressed (a term which, in this context, we do not think is pejorative) to the point that it can no longer be taught in this manner.
  • We should note that many halakhic authorities do seem to draw such a distinction. While they define medicine as pikuach nefesh, they limit it strictly to the application of therapies to patients while excluding from its purview many of the procedures that are indispensable to the practice of medicine. For example, while Jewish law does not prohibit a kohen from practicing medicine, most Orthodox halakhists do forbid him to study medicine should this study require contact with cadavers, since the priest is not to defile himself by contact with corpses other than those of his close relatives (Lev. 21:1-3). See Kol Bo `al Aveilut, 81-84, Gesher Hachayim I, ch. 6, par. 1, note 4, and R. Moshe Feinstein, Resp. Igerot Moshe YD 3:155.
  • On a related issue, see Teshuvot for the Nineties, 381-389, no. 5755.11.

 

If needed, please consult Abbreviations used in CCAR Responsa.

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. 5757.4

CCAR RESPONSA

Proper Disposal of a Worn Sefer Torah

5757.4

She’elah
Our congregation owns a sefer torah which a local sofer has declared pasul and irreparable. It will never be fit for public reading, and my congregation is considering burying the scroll in our cemetery. There is, meanwhile, a woman in our community who conducts Jewish classes in her home and from time to time directs a small prayer group on Shabbat, also in her home. She has asked that we give her the sefer torah so that she might keep it in the room she uses for her study and prayer-group activities to help establish an appropriate religious atmosphere. She promises that she will keep the scroll in a place of respect and that she will not use it for public reading, although she may open the scroll for educational purposes as there are some columns that are in good condition.

Rabbi Solomon B. Freehof (Contemporary Reform Responsa, no. 24) has ruled that a Torah scroll unfit for public reading (sefer torah pasul) may be kept in the Ark, but his ruling does not address the uses suggested here. Is it permissible to use a worn sefer torah for the purposes described? (Rabbi Ira L. Korinow, Haverhill, Massachusetts)

Teshuvah
This question actually combines two separate concepts which, for the sake of clarity, ought to be kept distinct. The first of these is the sefer torah pasul, a Torah scroll unfit for public reading due to a scribal error in its text. The second is the sefer torah shebalah, “a Torah scroll that has become worn” and is unfit for public reading or any other normal use due to its physical deterioration.

A Torah scroll is pasul when it is found to violate one of the twenty rules which Maimonides lists in his Mishneh Torah. Such a scroll, he writes, “enjoys none of the sanctity of a sefer torah. It is like a chumash which is used in teaching children, and it is not read in public.”1

Should an error be discovered during the reading of the Torah, the reading from that scroll is halted and is continued from a second scroll.2 The customary berakhot are not recited over a sefer torah pasul. The scroll should be repaired by an expert sofer if this is possible.3

A Torah scroll “which has become worn” is considered to have deteriorated beyond the point of repair. It is placed in an earthen vessel and buried in a cemetery, preferably next to the grave of a Torah scholar.4 We find in the literature two primary explanations for this requirement. The one has to do with the proper honor that we must show to a Torah scroll: we store it in an earthen vessel (cf. Jeremiah 32:14) and bury it because we seek to preserve its writing for as long as possible.5 The other6 stems from the prohibition against destroying sacred texts, particularly those containing the name of God. We learn this prohibition from a midrash on Deuteronomy 12:4: that is, while we are bidden to destroy the places and implements of idolatry in the land of Canaan/Israel, “you shall not do that to Adonai, your God.”7 Thus, when we find the need to dispose of worn-out texts, we must not burn them, for this is how we should destroy objects of idolatry, but bury them.

The sho’el’s description of the Torah scroll in question (“irreparable”; “there are some columns that are in good condition”) suggests that it is a sefer torah shebalah rather than simply “unfit”. That is, the scroll is pasul not because of an error or errors in its text but because it has deteriorated to the point that it cannot be restored to a condition of kashrut. Were this a case of a pasul but reparable Torah scroll, the congregation would have to refuse the teacher’s request. To be sure, there is no objection to using a pasul scroll for educational purposes on a temporary basis, until it is repaired. As Rambam says in the passage cited above, such a scroll has lost its inherent sanctity and is now akin to a chumash “which is used in teaching children.” On the other hand, we would not want to maintain the scroll in its unfit condition.8 The essential function of the sefer torah is precisely that we use it for public reading rather than as a study text, let alone as an object for educational display.9 It would be most inappropriate to leave the scroll in a condition in which it could not fulfill its primary purpose.

Yet this is a question concerning a worn Torah scroll, which will never again be read in public. Is burial the only proper thing to do with this scroll? Or may we follow the teacher’s suggestion to use it as a tool for Jewish education?

A good argument could be made that her suggestion has merit. That argument would note that neither of the two explanations for the custom to bury a worn sefer torah applies in this case. If we bury sacred texts, first of all, out of a desire to spare them from burning, we might respond that no Jew would ever suggest that a deteriorated Torah scroll be consigned to flames. The very thought of such a thing conjures horrific images from our recent history, and there is not the slightest possibility that we would do to our sifrei torah, no matter how worn, what the Nazis did to them. There is no longer any reason to insist upon burial of the scrolls as a precautionary measure against something that, in any event, will not happen. And if the reason we bury our scrolls in order to preserve their sacred texts for as long as possible, it could be said that we better serve the cause of preservation when we “seal the Torah in our students” (cf. Isaiah 8:16) rather than in the ground. That is, in our religious tradition, which holds the study of Torah to be the supreme mitzvah,10 it makes more sense to use a worn Torah scroll as a means of Jewish education than to bury it away forever.

We think, however, that a better argument can be made against the teacher’s request. For the one element that is missing from this suggestion is that of reverence, the proper attitude we assume toward objects which possess sanctity (kedushah). The very definition of reverence, of a sense that we stand in the presence of that which is kadosh, is that we cannot use that thing for our own purposes, no matter how exalted we think those purposes to be. The rules by which we use a holy object are by this definition not rules of our own device but rather those which we have inherited from tradition, from the religious experience of our community, a people in covenant with its God. And in that experience, the proper expression of reverence toward a sacred text which can no longer serve its intended purpose is to bury it. To the objection “what good does it do there in the ground, when we could make better use of it in other ways?”, the answer is clear: we are not to make use of it in other ways, for the essence of reverence is that we do not manipulate holy objects for our own ends. Thus, the texts of a worn sefer torah may not be cut out and used in tefillin and mezuzot, nor may the parchment of a worn sefer torah be used for the writing of tefillin and mezuzot. Even though one could say that to use the scroll for these purposes is to perform mitzvot and that the doing of mitzvot is a more useful way of disposing of a worn Torah scroll than is burial, the tradition declares that “we do not allow the Torah scroll to be brought down to a lower level of sanctity” (i.e., from that of a sefer torah to that of tefillin and mezuzot).11 The very sanctity of a worn sefer torah, in other words, precludes its use as a tool to achieve other ends, even worthy ones.

We see no good reason for us to abandon this traditional understanding of reverence in favor of one that is more “pragmatic” or “useful.” On the contrary: an attitude of reverence and a sense of the holy are precisely the right values for us to inculcate in ourselves and in our children. If one were to ask “should not this demand for reverence give way before the mitzvah of Torah study and Jewish education?”, we would respond quite simply that one of the goals of talmud torah is to teach us reverence, to lead us to just such an appreciation of the kedushah that we believe inheres in the Torah scroll. Jewish education is indeed important: for this reason, therefore, we should make sure that in educating our people, we teach them the correct ways of Jewish religious behavior.

We do applaud the motivations of this teacher, and we agree that it would serve the purposes of Jewish education for her students to see an open Torah scroll. Yet she and they need not acquire a worn-out scroll in order to do this. It would be much better, we think, for her to bring her students to a synagogue, where the rabbi or a suitable designate may open for them a sefer torah that is not in fragile condition.12 We would urge her to do this especially on a Shabbat or a festival or some other time when the Torah is actually read. In this way, they fulfill not only the mitzvah of Torah study but also join together with the congregation in fulfillment of an additional mitzvah: that of keri’at hatorah, the public reading of the Torah.

We therefore urge the congregation to adhere to its original plan and bury the worn sefer torah in its cemetery.

NOTES

1 Yad, Sefer Torah 10:1. A chumash in traditional terminology is not a printed book as we conceive of it today but any one of the five books of Moses written individually on a separate scroll. It was used for study but not for the fulfillment of the requirement of keri’at hatorah, the public Torah reading.

2This is a complex issue in the halakhah. Essentially, the issue is whether that portion of the reading that was done prior to the discovery of the error counts toward the fulfillment of the requirement of keri’at hatorah. Many authorities hold that since a sefer torah pasul should not be read in public, the verses already read in it should be disregarded, and the entire reading should be repeated from a fit scroll (see, for example, Resp. Harosh 3:5; Resp. Rashba 1:230). On the other hand, at least one authority rules that it is permissible to read in public from a sefer torah pasul and even to recite the benedictions over it, since the blessings refer not to the unfit scroll but to the words that are read, which are fit; Resp. Rambam, ed. Freimann, no. 43 (and how this opinion squares with the position stated in Yad, Sefer Torah 10:1 is an issue treated at length in Beit Yosef, Orach Chayim 43). The procedures suggested by Karo and Isserles in Shulchan Arukh Orach Chayim 143:4 can be seen as efforts to compromise between these two views. See Mishnah Berurah 143, no. 13.

3 The standard for this: a sefer torah which contains three textual errors on every sheet may be repaired; if it contains four errors on every sheet it must be stored away. This has to do specifically with words written chaser, into which the missing letters must be inserted. To do this more than three times per page, the sages say, would make the scroll appear “speckled” and hence is a disrespectful thing. If the majority of the scroll is properly written, then so long as one sheet from the “spoiled” section (the section that has not been checked for errors) is found to be correctly written, the scroll may be repaired. See BT Menachot 29b; Yad, Sefer Torah 7:12; Shulchan Arukh Yore De`ah 279:4.

4 BT Megillah 26b; Yad, Sefer Torah 10:3; Shulchan Arukh Orach Chayim 154:5 and Yore De`ah 282:10.

5 See Beit Yosef, Yore De`ah 282.

6 Cited by Magen Avraham, Orach Chayim 154, no. 9.

7 Sifre and Rashi to Deut. 12:4; BT Makkot 22a; Yad, Yesodei Hatorah 6:1.

8 See BT Ketubot 19b (Yad, Sefer Torah 7:12; Shulchan Arukh Yoreh De’ah 279:1): an unfit sefer torah must either be repaired or stored away in thirty days.

9 See R. Asher b. Yechiel at the beginning of his Hilkhot Sefer Torah, which follows immediately upon the conclusion of tractate Menachot in the printed editions of BT. It is generally considered a positive mitzvah for a person to write his own sefer torah (BT Sanhedrin 21b, from a midrash on Deut. 31:19; Yad, Sefer Torah 7:1; Shulchan Arukh Yoreh De`ah 270:1). R. Asher, however, writes that “nowadays, Torah scrolls are written and placed in synagogues to be read in public. Therefore, it is a positive commandment for each person to write chumashim and books of Mishnah, Talmud, and commentaries so that he and his sons may study them. For the mitzvah to write a sefer torah was so that one might study from it.” Later authorities question whether R. Asher means to exempt the individual from the requirement to write a Torah scroll (or have one written for him by a scribe) or whether his words come to expand the original requirement to include other books; see Beit Yosef and Bach to Tur, Yoreh De`ah 270. Yet none of them contest his point that we no longer use Torah scrolls primarily for purposes of study and that “nowadays,” their function is to be read in public during synagogue services.

10 Talmud torah keneged kulam (M. Peah 1:1; Yad, Talmud Torah 3:3).

11 BT Menachot 32a; Yad, Sefer Torah 5:1; Shulchan Arukh Yoreh De`ah 290.

12This sort of educational display is quite customary in our congregations and schools. It can be seen as a logical extension of the minhag of displaying the scroll to congregation at the time of its public reading and declaring: vezot hatorah, “this is the Torah,” etc.

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5758.2

CCAR RESPONSA

Baby Naming for a Religiously-Mixed Lesbian Couple

5758.2

She’elah

A lesbian in my congregation is pregnant through artificial insemination. The sperm donor is Jewish. This woman has a permanent, committed relationship and is living with a woman who is not Jewish. The non-Jewish partner intends to pursue formal adoption proceedings, so that both partners will be the legal parents of the child. At this point, the non-Jewish partner has indicated no intention of converting to Judaism. The Jewish partner wishes to arrange a

formal naming ceremony for the baby (ultrasound indicates that the child will be a girl), but she wants her partner to be included in some way in the ceremony. To what extent may the non-Jewish partner be involved in the naming ritual? Would it be possible to give her a Hebrew name for purposes of the ceremony and to include that name on the child’s naming certificate? (Rabbi Benjamin Lefkowitz, Warwick, RI)

Teshuvah

As the sho’el’s wording indicates, the issue we confront here is the participation of a Gentile parent in a Jewish life-cycle ritual involving her child.

This implies, and correctly so, that the sexual orientation of the couple is irrelevant to our she’elah. As far as we or anybody should be concerned, we deal here not with a “lesbian couple” but with a household, one of “the nuclear social and family units that compose our communities and whose strength and stability are primary Jewish religious concerns.” This statement is included in our recent teshuvah “On Homosexual Marriage.”[1] While we were deeply divided in that responsum on the question of rabbinic officiation at same-sex commitment ceremonies,[2] we noted that there is no reason why a gay or lesbian couple, like any other Jewish household, should not observe the significant moments of their religious lives through accepted Jewish rituals performed in the midst of their people. It is also irrelevant to our she’elah that the mother’s partner shall be the adoptive rather than the biological parent of the child. As we have written, the best interpretation of Jewish law erases all invidious distinctions between biological and adopted children; adoptive parents are therefore in every respect the “real”parents of their children.[3]

The question rather is one of community and of our membership in it. We stress here that a baby-naming ceremony is not a private matter but a public Jewish act, a ritual performance by which we as Jews assert our identity as a particular religious community and declare our determination to uphold the terms of that community’s special covenant with God. It is the moment at which Jewish parents accept their obligations toward both the Jewish past and the Jewish future, affirming their readiness to transmit the Torah and the heritage of Israel to the next generation of our people. We surely do not wish to exclude the non-Jewish parent from taking part in this ceremony. Nonetheless, the conferral of a Jewish name upon a newborn is not simply a family simchah but the setting for communal identification; it is a Jewish service, one that should be conducted in a manner coherent with our understanding of Jewish history, destiny, and purpose.

How can the rabbi best balance the Jewish requirements of this service with the family’s desires? We think that our responsum “Gentile Participation in Synagogue Ritual”[4] provides a helpful model. In that teshuvah,[5] we distinguish between the “essential elements” of the synagogue service and all other parts of the service. The essential elements include such rubrics as the recitation of the Shema and its accompanying benedictions, the tefilah, the rituals surrounding the reading of the Torah, and any berakhah, a blessing which begins with the barukh atta formula. Our tradition understands these as liturgical obligations (chiyuvim) deriving from the covenant relationship between God and Israel. Through the performance of these rubrics, the individual reaffirms his or her membership in that covenant, and the congregation constitutes itself as a Jewish religious community.[6] One who recites them in a Jewish religious setting thereby declares him- or herself to be a Jew. It is therefore inappropriate for a Gentile to do so, since the Gentile cannot become a Jew until he or she chooses to do so through the process of conversion. On the other hand, a non-Jew may recite before the congregation a special prayer added to the service, one which is not part of the liturgy’s “essential elements,” so long as the text of that prayer does not entail or imply that the individual who recites it is a Jew.

We might define the “essential elements” of a baby-naming ceremony as those benedictions or texts which reflect the specifically Jewish nature of this event or which emphasize our existence as a Jewish community. Let us take, for example, the “Covenant Service for a Daughter” (hakhnasat bat laberit) which is included in the 1988 edition of the CCAR Rabbi’s Manual, pp. 16-24. In that liturgy, the parents recite the benediction asher kideshanu bemitzvotav vetzivanu lehakhnisah beverit am yisrael ( “who hallows us with mitzvot and commands us to bring our daughter into the Covenant of our people Israel”; p. 20), derived from the blessing traditionally recited at the circumcision of a boy.[7] It is inappropriate for a non-Jewish parent to recite this benediction, since he or she is not a member of the people of Israel, the community that is constituted by God’s mitzvot, and therefore does not share in the obligation to raise his or her child as a Jew. At the same time, the Gentile parent may certainly read another text or make remarks suitable to the occasion. Our point is simply that she ought not to participate as a Jew in this ritual. Those aspects of our liturgy which declare and affirm our Jewish identity should be recited and performed by Jews.

From this, it follows that we would not assign a Hebrew name to the non-Jewish parent for purposes of this ceremony or for inclusion on the certificate of naming. As our Committee has written, “it would, therefore, be appropriate that the name of the Jewish partner be used, and that name alone.” To do otherwise “would further blur the lines of identity. If, of course, the non-Jewish partner converts, then a Hebrew name can be inserted into any existing document.”[8]

The presence of the rabbi at this ceremony should remove any and all doubt that it is a Jewish service. The boundaries upon which we insist, although they are absolutely necessary if we are to insure our distinct identity as a people and a religious community, are not meant to raise the barriers of exclusion against “outsiders.” The rabbi will of course convey this message to the non-Jewish parent, along with our hope that she will one day make the choice for Judaism, traversing the boundaries to join us as a bat yisrael.

NOTES

 

  • Responsa Committee 5756.8, published in CCAR Journal, Winter, 1998, 5-35. The citation is at p. 28.
  • The majority of our Committee sided against rabbinic officiation. The responsum presents the argumentation for both the majority and the minority viewpoints.
  • Teshuvot for the Nineties

(TFN), no. 5753.12, 201-207. See at 206: “Parents of adoptive children, who love them as their own, care for them, and guide them, who stand by them during the crises and the joys of their lives, who raise them to adulthood, who teach them Torah and worldly wisdom thereby become the real parents of these children.”

  • TFN

, no. 5754.5, 55-75.

  • As well as in others that served us as precedents. See, for example, American Reform Responsa (ARR), no. 6, 21-24, and R. Solomon B. Freehof, New Reform Responsa (NRR), no. 7, 33-36.
  • One way in which the tradition expresses the concept of chiyuv is through the rule that one who is not subject to a particular obligation cannot help another person fulfill that obligation for him- or herself (M. Rosh Hashanah 3:8; SA OC 589:1). The sheliach tzibur, the one who leads the worship service, falls into this category, since the members of the community can fulfill their liturgical obligations by responding “amen” to the benedictions recited by the worship leader. A Gentile, who bears no “obligation” to affirm his or her Jewish identity, therefore cannot serve as sheliach tzibur.
  • Rabbi’s Manual

, 11. Other benedictions in the service include borey peri hagafen and shehechiyanu (p. 23), which according to the printed directions are recited either by the rabbi or by all those present.

  • Contemporary American Reform Responsa

, no. 34. See also TFN, no. 5755.2, 249.

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5756.2

CCAR RESPONSA COMMITTEE

5756.2

Privacy and the Disclosure of Personal Medical Information

She’elah.

I am in my late twenties and about to be ordained as a rabbi. My father has Huntington’s Disease, a genetically transmitted condition that begins to show itself when a person reaches his or her thirties or forties. If I test positive for the disease, am I obligated to inform my congregation and the Placement Commission? Would the Placement Commission be obligated to share this information with any prospective congregation that would be interested in hiring me? Given that I fear employment discrimination should I test positive, am I obliged to be tested at all?

Teshuvah.

Huntington’s Disease is an inherited, chronic, and progressive disorder of the nervous system, the onset of which generally occurs in midlife. It is characterized by involuntary movements, cognitive decline, and emotional disturbance. Those afflicted exhibit what physicians term “movement disorder,” which may include facial twitching, unsteadiness in gait, and spasticity. The disease severely affects the patient’s speech, to the point that he or she will ultimately become unintelligible. Other manifestations include poor impulse control, depression, delusions, and even psychosis. Although some experimental treatments appear promising, no therapy currently known can halt this disease.[1]1

As the foregoing medical description makes abundantly clear, Huntington’s Disease is a debilitating condition, the symptoms of which would render it impossible for you to discharge the duties of a congregational rabbi. You are not presently diagnosed with this disease, nor have you taken the genetic test which would reveal whether you are “at risk” of contracting it.2 Still, you are rightly concerned that should you test positive, the sharing of these results would adversely affect the prospects for your employment. Your question, then, is most sensitive and difficult on religious as well as personal grounds: does Jewish tradition require you to reveal this damaging information to a congregation or to any other institution at which you are employed or with which you may be interested in contracting for your rabbinical services?

  1. Personal Integrity and the Prohibition against Deception. Judaism, as we know, places a great emphasis upon honesty in human conduct. The Torah cautions us against lying (Leviticus 19:11) and bearing false witness (Exodus 20:13; Deuteronomy 5:17)3 and admonishes us to “keep far from falsehood” (Exodus 23:7).4 The rabbis teach that truth is the very seal of God, the signature of the divine;5 it follows that we, who are instructed to imitate God’s ways in our own lives,6 must comport ourselves with the highest respect for the truth.7 As Maimonides puts it: “one should not say one thing and mean another. Rather, let one’s outer expression reflect the person within, so that one speaks what is truly in one’s heart.”8 Expressed in negative language, this emphasis upon truth becomes a prohibition against the practice of deception, or geneivat da`at.9 This Hebrew term is taken from the word (geneivah) which expresses the idea of “theft”; hence, one who deliberately creates a false impression in the mind of another is guilty of an act of trespass, of quite literally “robbing the mind” of that person.10 Geneivat da`at occurs frequently in connection with deceptive business practices, which our tradition expressly forbids.11 Significantly, however, the prohibition applies even when the act of deception does not result in any monetary loss to the buyer.12  

    These texts and teachings, to which more could easily be added, establish a strong prima facie case in favor of full disclosure of your personal medical history. First of all, the very act of concealing these facts suggests a transgression against the standards of personal honesty and integrity which our tradition demands from us in our everyday social conduct. In addition, this concealment would form an integral part of a business transaction, the process by which you will seek employment as a rabbi. The possibility that you may one day develop Huntington’s Disease and be rendered unable to fulfill your duties as a congregational rabbi is unquestionably a matter of great relevance to the Placement Commission and to the communities you might serve. To withhold this pertinent information from them is quite possibly an act of geneivat da`at, especially since, as you note in your she’elah, knowledge of your medical history is likely to be a critical factor in a congregation’s decision as to your employment.You could, of course, argue that inasmuch as you have not yet tested positively for the Huntington’s gene, you have no “pertinent” medical information to reveal. Even in the worst case, moreover, the onset of the disease is some years away. The congregation would therefore suffer no harm by offering you a contract now, since in all probability you will be able to fulfill your duties as their rabbi. These arguments fail, however, because in the final analysis they are offered in defense of deception, of geneivat da`at. Deceptive behavior is, in and of itself, the negation of integrity and a transgression against morality, quite apart from the damage it may or may not cause. And we have seen that Jewish tradition prohibits us from creating a false impression in the minds of others even when to do so causes them no financial harm.

    Then, too, the fact that you are about to become a rabbi should play a crucial role in your thinking. We do not claim that a rabbi is a “special case” when it comes to morality; surely the Torah demands the same standard of ethical behavior from all of us, rabbis and laypersons alike. Yet those who would present themselves as spiritual leaders of the Jewish community must recognize that they are expected to exemplify that standard in their personal and professional lives. For you to secure your first congregational position by withholding relevant information from your employer–that is to say, for you to begin your rabbinical career on a falsehood–would do severe damage to your own reputation should the truth later be revealed. In a wider context, it would adversely affect the standing of the rabbinate as a whole. Our ability to serve the Jewish people as rabbis rests in large part upon their perception of us as men and women of character and integrity. And that perception is called into doubt each time a rabbi is found to have violated the canons of truth and honesty in his or her dealings with the community.

  2. Jewish Tradition and the “Right to Privacy.” All of this, however, must be balanced against the concern which our tradition voices for the privacy of the individual, the right to be shielded against the prying eyes of other individuals and of the community as a whole. Although Jewish law does not formally recognize a “right to privacy”—indeed, Judaism does not speak the language of “rights” in general—it does know of certain obligations whose observance would guarantee protections which other legal systems classify under this heading.One of these obligations involves the prohibition against the unwarranted transgression of a person’s private domain. The Torah states explicitly that “when you make a loan of any sort to your neighbor, you must not enter his house to take his pledge. You must remain outside, while the man to whom you made the loan brings the pledge out to you” (Deuteronomy 24:10-11). This prohibition applies to the bailiff of the court (shaliach beit din) as well as to the lender.13 Mention should also be made of the concept hezek re’iyah, harm caused by the prying eyes of neighbors, which the halakhah defines as an actionable tort: “When neighbors own jointly a courtyard that is large enough to be divided, any one of them may require the others to erect a partition in the middle of it so that each one may use his portion of the courtyard without being seen by the others. We hold that damage resulting from sight (hezek re’iyah) is real damage.”14 For this reason, a neighbor who wishes to install a window in his wall that opens upon another’s property, or upon a jointly-owned courtyard can be prevented from doing so.15

    Another privacy protection is guaranteed in the medieval enactment (takanah), attributed to Rabbenu Gershom (Me’or Hagolah, “the light of the exile,” 10th-century Rhineland) forbidding one to read a letter written and sent by another person without that person’s consent.16 One who violated this takanah was subject to excommunication.17

    Especially important to our discussion are the various kinds of prohibited speech. The Torah cautions us against gossip or “talebearing” (Leviticus 19:16), which is also understood as a violation of the personal domain of the individual.18 Maimonides divides this law into three categories:19

     

    1. one who gossips about another person (holekh rakhil; hameragel bechavero), even if his words are true and are not meant to harm the other. “ Who is a gossiper? One who carries words from person to person, saying ‘thus said so-and-so’ or ‘this is what I heard about so-and-so’. Even if what he says is true, he is a destroyer of the world.” One who does this violates the commandment against tale-bearing (Leviticus 19:16);
    2. one who practices lashon hara, who speaks negatively about another person even if what is said is true;
    3. one who is motzi shem ra, who spreads falsehood and slander to damage another person’s reputation.

Our tradition severely condemns these sins of speech; the ancient rabbis went so far as to compare slander with leprosy.20 In recent times, R. Yisrael Meir Hakohen Kagan devoted his famous Chafetz Chayim, one of the outstanding “mussar” texts in Jewish history,21 to the sins of gossip and slander, which he declares violate the negative commandment “do not hate your brother in your heart” (Leviticus 19:17) and the positive commandment to “love your neighbor as yourself” (Leviticus 19:18).22 “Gossip” as a prohibited activity includes “tales carried from one person to another,” even if the information transmitted is truthful, even if it is not meant disparagingly, and even if the person who is the object of the gossip would not deny the report were he or she asked about it.23

What do we learn from these facts of Jewish law, from the prohibitions against trespassing or spying upon a neighbor’s abode, against reading another’s private correspondence, and against engaging in gossip and slander? We learn, first and foremost, that Judaism guarantees a significant range of protection to our private lives. This, to repeat, does not imply that Jewish tradition knows of such a thing as a right to privacy, for Rabbinic Judaism is not a libertarian philosophy. On the contrary: in addition to the prohibitions just described, it includes doctrines such as the duty to “rebuke your neighbor” (hokheach tokhiach et amitekha; Leviticus 19:17)24 and the assertion that “all Jews are responsible for one another,”25 teachings which express the idea that each one of us has at some point the obligation to intervene into the “private life” of a fellow Jew, to be informed as to his or her personal behavior and, if possible, to set that person back on the path of Torah and mitzvot. Nonetheless, the halakhic proscriptions of hezek re’iyah and rekhilut come to teach us that reasonable limits must be placed upon this sort of intervention. Our “right” to take an active interest in the affairs of others is to be balanced against the halakhic demand that one’s home be shielded from the gaze of neighbors and that one’s name and reputation be protected from violation by others, however well-meaning they may be. There are aspects of our existence which are and must remain off-limits to the eyes and tongues of those among whom we live, and we are therefore under no moral or religious obligation to share with them information about ourselves that they have no legitimate reason to know. This conclusion drawn from our law may not be the exact equivalent of the “right to privacy” in other legal systems. But it does express, in language too clear to permit of misunderstanding, a commitment to the proposition that all of us, created in the divine image, are possessed of a dignity which at some critical point requires that all others leave us be and let us alone.

This means, in practical terms, that our lives are not an open book. We have a duty to be truthful in our dealings with others, including our employers, but this duty must be measured against our justifiable desire, endorsed by the halakhah, to keep our private lives private. With respect to economic life, it means that our employers rightfully demand that we reveal to them information about ourselves which has a legitimate bearing upon our performance of the job for which we have contracted. They are not, however, entitled to know everything about us that they might wish to know. In the case at hand, the task you face is to determine just where to draw the line between these two conflicting obligations.

 

  1. Fixing the Balance: To Disclose or To Conceal? At what point does the demand for truth override our legitimate concern for privacy and the prohibition against gossip? We might begin our analysis with the observation that danger to life quite obviously outweighs any expectation of privacy and confidentiality. The rule that “no consideration takes precedence over the preservation of life”26 would certainly require that one who possesses information concerning a threat to the life of another must reveal that knowledge. This obligation is generally true even if one has taken an oath of confidentiality with respect to the person who is the source of that information.27 In this context, “the preservation of life” has been broadened by our tradition to include rescuing another person from various kinds of danger or unfortunate circumstances.28 

    On the other hand, in cases where mortal danger is not clearly involved, the rule that we refrain from violating the dignity of others can preclude us from taking actions that would otherwise seem well intentioned. This Committee, for example, has ruled that the presence in the general population of HIV, the virus which causes AIDS, does not warrant the institution of compulsory testing for that virus unless and until it poses a significant health risk to that population. To require testing in the absence of a greater degree of danger was seen as an unjustified intrusion into the private domain of the individual.29 We have also found that lashon hara and gossip are inappropriate even when they are shared between husband and wife and are ostensibly aimed at improving the marital relationship.30 From these decisions and from their supporting argumentation we would derive the following rule-of-thumb for cases such as this: respect for privacy takes precedence over the sharing of personal information in most cases. Those who seek to acquire and to make use of information concerning other persons must meet a fairly rigorous burden of proof in order to be permitted to do so.

    In the case before us, we do not believe that either the Placement Commission or any potential employer at this time meets that burden of proof. You are obliged to share with them only that personal or family medical information which is relevant to your employment, and at present, no such information exists. You do not at this time suffer from Huntington’s Disease. That your father has the illness does not indicate with certainty that you are a carrier of the Huntington’s gene, and even if you were a carrier it is not certain that you would develop the disease.31 The ethical duty to reveal the truth to your potential employers refers specifically to truth, to matters of fact; it does not entail an obligation to reveal matters of conjecture, possibility, and “what-if”. You need not inform them that you might at some unspecified future time develop Huntington’s, for this is hardly news; at some point any person might develop a debilitating or terminal disease. You need only be able to assure them that, barring circumstances that cannot reasonably be foreseen, you are confident that no physical impairment will prevent you from fulfilling the obligations of your service during the period of your contract. The question is whether you can provide that assurance now. It seems to us that you can in all sincerity answer “yes” to this question, for even if you were to test positive for the gene it is by no means certain that you would develop the disease. Given your age, moreover, you would have good reason to believe that you were not likely to contract Huntington’s Disease during your initial term of employment.

    This implies that you have no obligation to have yourself tested for the gene, although for personal reasons you may wish to do so. Nor is there any obligation on your part to share the results of that test with the Placement Commission or with potential employers, since those results cannot predict with certainty that you will develop the disease. In addition, should the Placement Commission possess that information, it would not be entitled to share it with potential employers, since it is not clear that even a “positive” test for the gene constitutes relevant medical information. The report in that instance would amount to gossip and the spreading of an evil report, the unwarranted revelation of details that ought to remain secret.32

    On the other hand, should there arise a real and concrete indication that you may not be able to fulfill your rabbinical responsibilities–should you begin to exhibit the early signs of Huntington’s Disease–you are morally obliged to share this information with your employer. It is at that point that information concerning your medical condition ceases to be a purely private matter and becomes an issue that your employer is entitled to know.

    Ultimately, you are the only person who can decide if and when that point has arrived. You and you alone can determine whether the time has come to reveal the facts of your personal medical situation to your employer. We trust that you will make the correct decision. And we pray that God grant you health, vigor, and many long years of service as a rabbi to your people.

NOTES

  1. See J. Willis Hurst, general editor, Medicine for the Practicing Physician, Fourth Edition. (Stamford, CT, 1996), 1764-1768.
  2. Ibid. The test is administered to an individual whose parent suffered from the disease. A “positive” result on this test means that the person carries the gene which causes Huntington’s and therefore is “at risk” of developing the condition.
  3. We use the term “Jewish law” advisedly. In actuality, your relationship with a potential employer may be governed by the civil law in force within the relevant jurisdiction. You are therefore well advised to consult competent legal counsel prior to your interview.
  4. Much rabbinic commentary on this verse (see B. Shevuot 30b-31a) connects it expressly to conduct demanded of the dayan, the rabbinic judge. Hence, we might say that this verse is particularly relevant to issues involving a rabbi’s dealings with his or her community.
  5. Much rabbinic commentary on this verse (see B. Shevuot 30b-31a) connects it expressly to conduct demanded of the dayan, the rabbinic judge. Hence, we might say that this verse is particularly relevant to issues involving a rabbi’s dealings with his or her community.
  6. See B. Sotah 14a, on Deut. 13:5: how is it possible to “follow after Adonai your God”? By adopting His ways. Thus, just as God clothes the naked, so should you clothe the naked, etc. See also Rambam, Sefer Hamitzvot, pos. comm. No. 8.
  7. See B. Yoma 86a: “You shall love Adonai your God” (Deut. 6:5): act so that God’s name will be beloved because of you” make sure that your business dealings are conducted honestly”.
  8. Yad, De`ot 2:6.
  9. See Gen. 31:26 and II Sam. 15:6, where the root ganav signifies the act of deceiving others.
  10. B. Chulin 94a; Yad, De`ot 2:6. Some authorities hold that the prohibition of genevat da`at is a Toraitic one, derived from Lev.19:11, which prohibits both robbery (lo tignovu) and lying; see Chidushey Haritva to Chulin 94a. Since there is no midrashic evidence that the Rabbis read Lev. 19:11 in this way, this interpretation represents a significant expansion of the legal content of the biblical verse by post-talmudic tradition.
  11. The general prohibitory statements are found in Yad, Mekhirah 18:1 and SA CM 228:6. The texts cite numerous examples of deceptive commercial practices. One is forbidden to remove the chaff from the top of the storage-bin, for this creates a false impression that the chaff has been removed from the entire bin. Similarly, one is forbidden to paint or ornament objects for sale in such a way as to create the impression that these are newer–and hence more valuable–than they really are. See M. Bava Metzi`a 4:12; Yad, Mekhirah 18:2, 4; SA CM 228:9, 17.
  12. Sefer Mei’irat Einayim to SA CM 228, no. 7; Arukh Hashulchan, CM 228, par. 3. A transaction involving financial loss falls under the rubric of mekach ta`ut and can be annulled. See Yad, Mekhirah 15:1ff.
  13. B. Bava Metzi`a 113a-b; Yad, Malveh veLoveh 2:2; SA CM 97:6. Over time, this principle was modified in order to combat fraud on the part of the borrower. On the other hand, the principle remains in force when it is clear that the borrower is a poor person. See Menachem Elon, Cherut haperat bedarkhey gevi’at hachov bamishpat ha`ivri (Jerusalem, 1964).
  14. The citation is Maimonides (Yad, Shekhenim 2:14). See M. Bava Batra 1:1 and the Talmud ad loc.
  15. M. Bava Batra 3:7; B. Bava Batra 59b-60a; Yad, Shekhenim 5:6 and 7:1ff.; SA CM 154 and 160:1, 3.
  16. The attribution is found in Resp. R. Meir of Rothenburg (ed. Prague), no. 1022.
  17. See in general Shiltey Giborim to Alfasi, Shevu`ot, fol. 17a, end.
  18. See Rashi ad loc.: the talebearer (holekh rakhil) is a kind of spy (holekh regilah) who enters the home of another to steal private information for use in gossip.
  19. Yad, De`ot 7:1ff.
  20. See Leviticus Rabah 16, which expands the biblical word metzora (leper) to motzi shem ra (slanderer).
  21. Vilna, 1873. The book’s title is suggested by Psalms 34:13-14, in which the one who “desires life” (hechafetz chayim) is counseled to “keep your tongue from evil.” See also Lev. Rabah 16:2. In fact, the word “mussar” does not entirely do the book justice: its arrangement into sections, chapters and halakhot, much like Rambam’s Mishneh Torah, suggests that its author takes his subject with all seriousness, seeing the topic as one of law as well as social propriety.
  22. Chafetz Chayim, Introduction.
  23. Chafetz Chayim, Hilkhot Rekhilut 1:1-3.
  24. For the details of this mitzvah see B. Bava Metzi`a 31a and Yad, De`ot 6:7-9.
  25. B. Shevuot 39a-b.
  26. Ein lekha davar she`omed bifney pikuach nefesh; B. Ketubot 19a. See Yad, Yesodey Hatorah 5:1 and SA YD 157:1.
  27. See our responsum 5750.3 in Teshuvot for the Nineties (TFN), 283-288, and R. Eliezer Waldenberg, Resp. Tzitz Eliezer 13:81, part 2, for analysis of the question whether a vow that requires one to violate a mitzvah (in this case, the duty to save life) is valid under Jewish law.
  28. See Resp. Chelkat Mechokek 3:136 (Even Ha`ezer 79), who rules that a physician is obligated to reveal to a woman the fact that her fiancee suffers from cancer. And see Chafetz Chayim, Hilkhot Rekhilut 9:1ff: to reveal information that spares a person from physical or monetary damage does not violate the prohibition against gossip.
  29. TFN, no. 5750.1. This conclusion is modified by two conditions. First, its validity is very much a matter of empirical evidence: should the incidence of AIDS in the general population grow to significant proportions, compulsory testing might well be warranted. Second, an individual who has engaged in behavior that places him/her at risk of being a carrier of HIV is indeed morally obligated to be tested or to reveal the facts of his/her sexual history to potential sexual partners.
  30. Teshuvot for the Nineties, no. 5750.4, 187-190.
  31. We would add that, according to an established principle of Jewish law (safek safeka lekula; B. Kiddushin 75a and elsewhere), the presence of two elements of uncertainty in the facts of a case is held to warrant a lenient ruling:. In the present instance, “leniency” means that you would not be required to reveal this information
  32. Based upon Proverbs 25:9, the Rabbis deduced a prohibition against the revelation of secrets; see M. Sanhedrin 3:7. The discussion there centers upon courtroom procedure (see Yad, Sanhedrin 22:7), but the analogy applies well to our case: the Placement Commission functions as an administrative (and hence quasi-legal) agency, governed by formal rules, whose decisions have a concrete impact upon the lives of those who fall under its jurisdiction. The members of the Placement Commission, like the judges of a court, have no business revealing secret information.
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