“Maverick Rabbi Breaks Ranks Over Intermarriage” shouts a Times of Israel title. “The Problem With Rabbi Amichai Lau-Lavie’s Intermarriage Proposal,” teases the op-ed in the Forward. “On Marriage and Covenant” comes forth from the Jewish Theological Seminary of America.
Yet again, the Conservative movement thrashes about, trying to figure out what to do about…well, any number of things. Continue reading
Rabbi Jeremy Kalmanofsky has an op-ed piece in the USCJ’s most recent issue of Pravda in The Forward, about his refusal to accept intermarriage. Rabbi Kalmanofsky essentially reiterates the Conservative Movement’s basic line on intermarriage: it weakens Judaism out of misplaced compassion.
Let’s tease this apart, because I don’t think you should buy what he’s selling. (Warning: kind of rant-y.)
(This is the first in a series of posts on my thoughts about pitching–both as a public proposition and in a more musical sense–Humanistic Judaism. This post will discuss what I think the challenge is Humanistic Judaism faces in gaining traction among American Jews. In the coming posts in the series, I’ll think a bit about how we might do that, and how we might pitch Humanistic Judaism outside our own circles–particularly since Americans don’t do doctrine much in their selection of a religious community.)
(Note that while I am a rabbinical student at IISHJ, I’m speaking here for myself–not the school, the Society for Humanistic Judaism, or the Association of Humanistic Rabbis.)
Last November (it seems like ages ago, so much has happened!) I went to a retreat for rabbinical students that was sponsored by Clal‘s Rabbis Without Borders. (Many thanks to Rabbi Chalom at IISHJ for encouraging me to go.) Students from various denominations and seminaries attended–Yeshivat Chovevei Torah (an “Open Orthodox” yeshiva), Jewish Theological Seminary and Ziegler (Conservative-affiliated schools), the Academy of Jewish Religion (nondenominational), HUC-JIR (Reform), RRC (Reconstructionist), ALEPH (Renewal) and IISHJ.
As regular readers have probably figured out, I get a decent amount of my Jewish news from The Jewish Daily Forward. That’s not to say I wholeheartedly endorse every story they run, or every editorial position they take.
And now, I’m going to bite the hand that feeds a bit.
Continue reading
I posted earlier about Professor Joshua Berman’s essay in Mosaic Magazine, “What Is This Thing Called Law?,” about the reduction of flexibility in Jewish law. Mosaic has started (as is its format) to post responses to Berman’s essay, and the first one is from Rabbi Gil Student, entitled “The Art of Halakhah.” Accepting Berman’s common law/statutory law dichotomy, Student argues that the loss of flexibility is a result of both what those adhering to halakhah have actually wanted and the hybrid process by which poskim and dayyanim arrive at their decisions.
I like much of what Student says in response, even though, as I noted in my post on Berman’s essay, I don’t think the common law/statutory law distinction is particularly apt. But I like the response not merely for what it says, but for what I think it lays bare.
Mosaic Magazine, the successor online publication to Jewish Ideas Daily, has published its December 2013 article of the month, “What is This Thing Called Law?” I don’t necessarily love the thrust of Mosaic–it’s published by an affiliate organization of the Tivkah Fund, which has a notably conservative bent to it in terms of religious questions–but this is a pretty interesting article that appeals to both the rabbinics and American law geek in me.
In the article, Rabbi Joshua Berman, a professor of Bible at Bar-Ilan University, assesses the current state of halakhic debate in modern Judaism–focusing on Conservative and “Orthodox” Judaism–by looking at “how we got here.” That is, Professor Berman tracks the move from what he calls a common-law approach to halakhah to a code-based approach to halakhah.
It’s an interesting approach, and one that I think could, from a certain perspective, yield some interesting results. But it needs refinement–particularly as it pertains to what it means to approach things from a common-law perspective as opposed to what Professor Berman calls “common law” but which is probably more properly thought of as simply flexible. Some of this refinement is simply mechanical and is adjusted by understanding better how many common-law systems actually work; other aspects of this refinement stem from basic assumptions and goals of genuine common law legal systems vis-a-vis what is happening in the world of halakhah.
The Mechanical Bits First
The mechanical aspects of my critique are easier to set out, and explain in part why I would characterize what Professor Berman calls “common law” as more properly flexible, improvisational, or simply case-by-case.
Pointing to the Code of Hammurabi, incidences of specific cases of adjudication in the Bible, and differences in specific legal texts on similar topics within the Bible, Professor Berman argues that what these texts show us is the recording of the results of specific adjudications or, more broadly, adjustment of a general rule to fit a somewhat new circumstance. For example, he points to the difference between Exodus 21:37’s penalty for someone who takes an ox or sheep from another person and disposes of it through sale or slaughter (that is–commits the common law tort of conversion) and the penalty King David would have imposed upon the hypothetical thief of a sheep in the story of Nathan’s prophecy concerning David’s treatment of Bathsheba in II Samuel. Exodus would impose a repayment of four sheep for the one taken; David would impose the same fine and would also have the thief put to death. Professor Berman points to this difference and argues that we are seeing common-law adjudication at work: recognition that one case (the theft of an animal by one presumably hungry or penniless) is different from another (the theft of an animal by someone who could easily have used an animal that already belonged to him).
I think this reads both too much and too little into the differences between the texts. Too much, because the text of Exodus doesn’t specify its rationale. Too little, because it assumes that David simply knew the rule in Exodus and applied something different–that is, it assumes the priority of the laws in Exodus to the story of David, and for that matter perhaps also the historicity of David as having had such a matter posed to him and having rendered a decision on it. In other words, Professor Berman fails to set out his assumption that the biblical texts are true enough to be relied upon for the historical proposition he advances.
Beyond all that, Professor Berman’s characterization of common-law decisions as not binding precedent is too simple. As common-law systems presently function, the decisions of higher courts bind the subsequent adjudications of lower courts at least to the extent those higher-court decisions squarely encompass the circumstances of the cases before the lower courts. Precedent is, contrary to Professor Berman’s characterization of it, often binding–particularly in American common-law jurisprudence. (See here for an interesting exploration of the role of precedent in British common-law court. Beware–it’s an academic work.)
This makes Professor Berman’s comparison of common-law adjudication to, say, the talmudic/gaonic mode of case-by-case adjudication somewhat inapposite, at least as he describes it, because the concept of binding precedent as we have it in common law simply wasn’t a factor. Yet this may simply be because, unlike a common-law system, there were not (at least after the dissolution of the Sanhedrin in the fourth century C.E.) multiple levels of subsidiary courts. Nevertheless, precedent is at least persuasive in the Talmud, where specific rulings are introduced in argument, with authority ascribed based upon the speaker of the precedent. That’s true on the very first page of the Talmud, Berakhot 2a, where even in the Mishnah a story is relayed concerning Rabban Gamliel’s instructions to his sons concerning the recitation of the evening Shema and how this established the outer limits of the law (so long as the first rays of the morning sun have not appeared, he tells them to recite), but not the “best practice,” which per the Sages is that the evening Shema should be recited no later than midnight.
Assumptions and Goals
More crucial, I think, to what is happening than any shortcomings in Professor Berman’s description of a common-law system and the application of that paradigm to what happened historically in the development of halakhah is that this
description doesn’t lay bare the assumptions driving the common law compared to those driving halakhic jurisprudence.
The purpose of binding precedent in common law is, these days, simply to establish predictable, uniform rules by which individuals and organizations can arrange and organize their behavior and understand the likely consequences for action in one or another manner. For the most part, judges engaged in the day-to-day adjudication of cases don’t understand themselves as engaging in a great metaphysical, epistemic, or revelatory pursuit. (At least, not since legal positivism came to hold sway in English and American law schools at right about the time codification of laws came into vogue in the Western world. The primary exception to this is, perhaps, jurisprudence undertaken on constitutional issues with an eye toward natural rights or natural law theories.)
But that’s not what is happening in halakhah. This is something that goes somewhat under the radar in Professor Berman’s article, for halakhic jurisprudence isn’t about just setting predictable rules and consequences for behavior. Halakhah is the working out of the implications of divine revelation at Sinai; it is, then, a spiritual pursuit, not merely an exercise in setting the laws and evaluating, independently of an ultimately reality, their merit.
The difficulty of this project is not lost upon the tradition, of course. From the basic mechanics of talmudic dialectic (I’m sure someone has counted the number of times stammaim or saboraim used the phrase, “then let him/the Mishnah say X” to argue that a specific text or interpretation is simply incorrect, and it’s got to be a LOT), to the self-critical observations about the faint connection of certain rabbinic rules to underlying biblical texts, to the self-aware story of Aknai’s oven where the rabbis reject a heavenly voice that presumes to tell them the correct interpretation of a case, there is clearly an understanding that the project of working out what exactly is in Torah mi-Sinai is a fraught process. (Rabbi Abraham Joshua Heschel’s Heavenly Torah, translated relatively recently into English from its original Hebrew, is focused on working out how the rabbis of the Talmudic period understood the project of the Oral Torah. It’s a dense work; you’ve been warned.)
Yet there is no sense that this is not the purpose of the process, at least in most Orthodox circles. Indeed, as much as disputes are enshrined in the core rabbinic texts, so too is the sense that the halakhic process is the working out of Torah mi-Sinai: it’s in Pirkei Avot, and it’s in Rambam’s introductions both to the Mishneh Torah and the introduction to his commentary on the Mishnah itself. And it is this purpose that goes without substantive mention in Professor Berman’s article.
Implications of the Purpose of Halakhic Interpretation
So, where does this all lead us? Accepting as binding and engaging in interpretation of halakhah carries with it at least some notion that halakhah is divine. Perhaps it is the underlying Torah text that one thinks is most closely divine, with subsequent interpretations less so. I imagine there are numerous variations on how this could go. But Professor Berman’s approach to his subject belies the purpose of the exercise.
This has its own consequences. For example, while Reform, Reconstructionist, Humanist, etc., rabbis largely don’t view themselves as poskim or dayanim–rabbinic interpreters or judges–they nevertheless engage these issues to varying degrees, because determining what to observe or not, what texts to use or not, what beliefs to preserve or not are all within the realm of determining what is at the core of Judaism. But Professor Berman largely writes all but Conservative and Orthodox Jews out of this process with mostly a wave of the hand, and speculates that even Conservative Judaism may have rejected the idea of the unity of the Jewish people.
And this, at bottom, is the problem with Professor Berman’s piece. He wants us to draw normative conclusions from the move to codification in both secular legal and halakhic realms. He wants us to be more flexible in our approach to halakhic problems (though without much more guidance than simply saying that–but then again, an essay isn’t enough space to work out that problem). But he also adopts a now-common trope in Orthodox halakhic reasoning that sees as identical Judaism and halakhah, and Jewishness and halakhah.
I do not think that approach will do anything to grow Judaism–certainly not in the United States, and likely not in Israel over the long run. In response to Professor Berman’s article, then, I think we need to continue to work out what it is that makes Judaism what it is–and to recognize that it is entirely possible that, as liberal Jews, we may find ourselves less and less connected to Orthodox Jews both by practice and, increasingly, by rationale, as we accept their Jewish identity while they do not accept ours.
How unfortunate.
Michah Gottlieb, a professor at NYU, has an article on the Forward’s website titled, “How Conservative Judaism Lost Me.” In it, he discusses how his commitment to what he thought were the Conservative movement’s principles–devotion to halakhah with a more modern and secular-scholarly approach to issues–led him to leave the Conservative fold.
He argues that it was exactly people like him that the Conservative movement should have been courting as new leaders, but it failed to do so, and thus lost people to modern Orthodoxy.
I suppose there is something to this in the sense of leadership and purpose. But I’m not persuaded that this problem is really what caused the diminution of the Conservative movement from its prior place as the largest of the modern American movements.
I understand Gottlieb’s frustration (and it’s nice to see a fellow IU Bloomington alum do good), but JTS (the flagship seminary for the Conservative movement) had long been described as a group of Orthodox faculty teaching Conservative rabbis who would be spiritual leaders for Reform congregants. People like Gottlieb–and, at one point, me–haven’t really been the Conservative movement’s major problem over the last twenty years.
I understand how this could seem to be the case to Gottlieb. He mentions coming of age at a time when the ordination of women was the big controversy roiling the Conservative movement, and it’s easy to see a kind of “post hoc ergo propter hoc” thing happening: Conservative Judaism compromised halakhically on this issue, lost members and scholars to either the Union for Traditional Judaism (which was initially kind of Conservative Judaism without womens’ ordination) or the OU, and decline followed.
I don’t think the numbers necessarily bear that out, however. When you look at the Pew survey results, you would have expected Modern Orthodox Judaism to have grown proportionally, and it hasn’t.
I think, instead, what likely happened is that some people fell away from Reform affiliation and refugees from an adrift Conservative movement backfilled the ranks. Other Conservative Jews likely left affiliation altogether, and some–but a more limited number–likely took Gottlieb’s path. (His contention that his path is the more common one is not based on broad evidence, but rather is anecdotal and particular to what is possible in areas like New York. There’s nothing like what Gottlieb has here in Indianapolis, where the Orthodox synagogues have pushed farther to the right and alienated the folks who had come over from the Conservative movement in the past.)
I think Gottlieb’s article is important because, while I disagree with his conclusions about how the Conservative movement should have gone about retaining its place, I do agree with his observation about the movement itself–that it is ideologically adrift. Unfortunately, so is much of American Judaism.
That said, I don’t think that the Conservative movement’s new emphasis–expressed by one rabbi as Kadsheinu B’mitzvotekha (sanctify us with your commandments)–is going to appeal to anyone outside its present ranks and perhaps some on the conservative edges of Reform and the liberal edges of the Orthodox world. What It may do, however, is staunch the flow and preserve some kind of “middle,” which Gottlieb argues is important for the continued vitality of American Jewish life.
And even the new approach advanced by the United Synagogue is a bit schizoid. Kadsheinu b’mitzvotekha–but also be more welcoming to the non-Jewish family of Jewish members.
I suspect the bigger problem for the Conservative movement is that the membership of the Reform movement is starting to look more like most Conservative Jews, while retaining enough of a liberal edge to keep some–but not all–of its present membership profile. Meanwhile, Conservative rabbis talk enough like Orthodox rabbis to alienate liberal members while more conservative members will dislike the influx of LGB(T?) clergy and more favorable treatment of non-Jewish spouses.
All of this bodes ill for the continued vitality of JTS and the American Jewish University, which grew in response to the movement’s growth but will now inevitably shrink. This is particularly sad, I think, for JTS, which has in the past produced some very important scholarship and very important scholars. (Not that–as Gottlieb observes–this justifies its continued approach. And I find that realization especially disappointing because I’ve personally benefited from studying with some of its alumni.)
And all of this is wrapped up in the general lack of mission and direction. For example, the JTA article on the United Synagogue 100th anniversary convention shows that there is still navel-gazing on whether independent and alternative minyanim are harmful to synagogues–focused on the institution, not the needs of Jews themselves.
The question all movements should be asking–at the movement level, and within individual congregations–is, “What are we about?” After that, we can figure out where we are and where we should go. Unfortunately, the Conservative movement’s eternal compromise position likely puts it in the worst place of the large modern movements; it’s got a big hole to dig out of.
Prolonging our collective misery, The Forward (kind of late to the game, no?) published an editorial on its website decrying the results of the Pew study.
Among The Forward’s worries?
The survey shows, conclusively, that intermarried families are less connected to Jewish life in myriad ways, have fewer children and are less likely to raise those children as Jews. It may offend liberal sensibilities to say that this is a problem, but this is a problem. It’s a problem for anyone who believes in a distinctive American Judaism that is egalitarian, tolerant and engages with the modern world.
It continues:
The Pew survey shows a remarkable dilution of Jewish identity, where “having a good sense of humor” is more than twice as essential to those surveyed as “observing Jewish law.” Among Jews of no religion — a growing cohort — only 10% said that “being part of a Jewish community” was essential to them.
Where is the good news in these numbers? Jewish identity is being reimagined, and in some select, creative hubs, that is happening in extraordinary and exciting ways. But elsewhere, this identity is being diluted beyond recognition and sustainability.
Okay, look. Intermarriage presents a challenge to Jewish continuity. But decrying the results of intermarriage along with much of the rest of the Jewish establishment, then complaining that the disengagement of intermarried families from Judaism is harmful to Judaism is not exactly a helpful stance to take. To then complain that you don’t recognize where Judaism is going makes you look like a darned fuddy-duddy–especially if you worry that egalitarianism and social action will suffer from the reduction of Jewish engagement and, specifically, population (which is really what The Forward is concerned about–that fewer Jews that practice what The Forward’s editorial board appears willing to call Judaism.)
Over at Failed Messiah, there’s commentary on the existential crisis of the Conservative Movement at its 100th anniversary. The author notes that young Jews are “less tribal.” I think that’s exactly right. And that’s an important insight into what’s wrong with The Forward’s response to the Pew survey, which is among the less rational responses I’ve showcased on this blog. (I’ve been selective. I know there’s a lot of hair-pulling going on out there.)
If you want younger, less tribal Jews to remain Jewishly connected, you’re going to have to be less tribal and less critical of intermarriage and its results. Complaining, as The Forward does, that intermarriage results in the dilution of Judaism–in any sense–blames those you want to retain.
Just. Bloody. Stop. It. Already. IT IS NOT HELPING.
Should (non-Orthodox) rabbis perform intermarriages? YES!–because when you refuse to do the wedding, guess who’s never going to come back? And because you can’t talk about egalitarianism and acceptance and then refuse to engage in the corresponding behavior. Even modern Orthodox rabbis like Joseph Telushkin have come to recognize the problems with the swat-away of couples who seek intermarriage (though I imagine he’s not in the business of performing such ceremonies).
And your pulpit talks, dear rabbis, should not decry intermarriage. There are intermarried families in your pews. Don’t shame those who come to you–they won’t be back. (This is among the reasons that those of us associated with the Society for Humanistic Judaism are expressly NOT against intermarriage–and also because we recognize that the Jewish people have grown over time through marriages between Jews and non-Jews. As a rabbinical student, I was asked about this during the admissions process. Guess what my answer was?)
When you shame those who are intermarried or considering it, you sound like The Forward. And The Forward is now looking backward.
So I read about TheTorah.org on Tablet Magazine’s website just now.
On the one hand, I want to be impressed and happy. Really, I do. The idea that modern critical analysis of the Tanakh might finally be bubbling its way through more than just the more secular-academic inclined pieces of the “orthodox” Jewish world is exciting.
But, as the article points out (though in slightly saltier language), talking ain’t doing.
Will this be just talk? Or will this have practical, “normative” results? If the effect of this is to have verbal acknowledgement that the Tanakh has been people all along, but we see no changes in “orthodox” practice and belief, then I’m concerned that it’s empty talk.
The article’s discussion of David Weiss Halivni’s work is, I think, a point to consider. Halivni was a professor for quite a long time at JTS–until JTS decided to ordain women. Why was that the dividing line if the Oral and Written Law are the results of human understanding?
Clearly, of course, I’m not going to agree that there is divine inspiration in our tradition’s core canon; I’m a humanist Jew, after all. But it’s not unreasonable to expect to see change along with the adoption of a new approach, and I think the proof will have to be in the pudding.
One of the things that, when I was in a more “mainstream” movement Jewish setting, frustrated me was the language of prayer. What I mean by that is the translations in most of the “liberal” are also themselves quite, erm, liberal vis-a-vis the original Hebrew; once I actually learned Hebrew, the highly artistic-ish English translations of say, Siddur Sim Shalom became very, very suspect because they are really not accurate.
Last night, I thought I would take a look at the (it’s the old one from 1972) Conservative mahzor on my bookcase (prosaically titled “Mahzor for Rosh Hashanah and Yom Kippur” in English, and Mahzor L’Yamim Noraim” in Hebrew) to see if I could find anything interesting/inspiring/appropriate for setting a course on thoughts for Yom Kippur. After taking a quick spin though the Kol Nidre prayer and not really finding great inspiration there (it is, after all, a preemptive mulligan on vows for the coming year–nice, legal stuff), I went to the beginning of the Yom Kippur evening service.
Boy, did I find something. But, as is so often the case, it’s not what I hoped it would be. It was something way, way better.
After setting forth Deuteronomy 30:15 & 19 in Hebrew with a pretty decent English translation on the opposite page, we get this gem (my translation from the Hebrew):
Master of the Universe, Merciful and Forgiving Father whose right hand is extended to accept those who return, I have conducted myself according to the will of my inclination toward evil; I have rejected the good and chosen the bad. And not only have I not sanctified my limbs, but I have also made them unclean.
I will admit, it’s a rough translation, not great in the details and not artfully done (it’s early and my son is running around jabbering about VeggieTales). It is, however, something the Conservative mahzor is not; basically literal. The English on the facing page of the mahzor doesn’t even attempt a literal translation, instead including paraphrases like “Is there a person anywhere altogether righteous…? I am but flesh and blood, often yielding to temptation,” and “The struggle is ceaseless, the choice is ours.” (Mazhor for Rosh Hashanah and Yom Kippur, p. 347)
The next few paragraphs all begin the same way: “barata bi”–“You [God] have created in me” various characteristics–a mind and heart to contemplate the good and to discern holy things, eyes that can see the universe’s beauty, etc. Several of them conclude similarly, too: “oi li ki”–woe unto me, for “I have followed my eyes and made them impure,” or “I have made my ears too impure to hear words of prayer.”
The English? “I have been created with eyes” or “ears” or “a mind,” but always passive, deemphasizing the clearly active voice of the underlying Hebrew. And the conclusion does not include the “woe unto me,” but rather says, “Often I squander God’s gift and look without seeing,” or “hear without listening.” (p. 347)
The problem–and it’s like this throughout the mahzor–is that the English is gussied up, sanitized a bit, and presented as if what we’re saying in Hebrew is what we’re saying in English. (Yes, it’s the older mahzor. Guess what? The Conservative movement’s approach hasn’t really changed much on translation over the last few decades.)
It is not. And if you care about the integrity of public liturgy–whether you want to call it prayer, shared ritual, or something else–that’s a problem. It’s a problem that the mainstream liberal Jewish movements don’t really deal with well, because they live in a strange world where the “sancta” of Judaism (Mordechai Kaplan’s terms) are largely preserved and retained in use, put into the mouth of the average congregant (or at least recited on her or his behalf), and yet are clearly not what the leadership of those movements understand their members as willing to affirm or have affirmed for them.
Yet on the High Holidays, when synagogue attendance quadruples (or more!), those most important of days in the calendar, shouldn’t we say what we mean? And for those of us who will or have taken leadership roles, shouldn’t we provide our fellow Jews with the ability to say what they mean?
This is a hard thing, without question, because it presents us with a challenge: how much do we preserve? What do we set aside? How do we do so in a way that respects a wide range of beliefs? And how do we do so for ourselves?
I think the place to start is by acting for ourselves. And so that is what I plan to do this year. As we move through the calendar, I will try to use or craft language that reflects what I actually think.
I recognize that this will be a challenge for me. It already has been, and we’re not through Yom Kippur yet. I still find awkward–because they are unfamiliar–the blessings for Shabbat and Havdalah that are in the Society for Humanistic Judaism materials. But I can’t in good conscience recite the traditional blessings, because I don’t believe in a god that directly created the universe or acts in history; and that is so regardless of how comfortable or nostalgic I find the traditional texts.
I am comforted, however, by a reminder that this isn’t the first time I have had to adjust to the new. In that timely way they have, Tablet Magazine published an article this week, “Learning Judaism as a Native Language Requires More Than Synagogue Once a Year.” It reminded me that I learned to play guitar awkwardly, at first, but became more natural over time. So, too, with Hebrew (and I’m still learning there). So, too, with the traditional prayers I know so well.
So, too, will this be. And it will be an adventure.
I’ll keep you posted. Hopefully, you will have or have had an easy fast, if you fasted. I wish my Jewish readers all the best in the coming year. (To my non-Jewish readers, too, but you’re likely not so preoccupied by Yom Kippur.)
And now, here in Indianapolis, the sky is a clear blue, the temperature is wonderful, and after this morning, we will be headed out to be in the world a bit to cap off the High Holidays.
L’shanah tovah u’metukah.
A Humanistic Jew Goes to Washington 