Photograph of a long wall, at least three times as tall as the people walking next to it, trailing as far as the eye can see, with Jerusalem on one side and the Palestinian town of Abu Dis on the other.

Marking the Boundaries

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

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Why I Will Simply Accept Intermarriage

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.)

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Constructing a Pitch for Humanistic Judaism – Part I – Rationalism and Mysticism

(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.

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Moving (The) Forward

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.
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A broadside at the halakhic process

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.

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Crazy little thing called law

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.

How Conservative Judaism Lost Everyone Else

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.

Procedural vs. declarative Judaism

If you don’t listen to the New Books Network podcasts, you are really missing out. Get thee to thy preferred podcast app and subscribe!

One of my favorites from the network (and I subscribe to a bunch of these) is the New Books in Big Ideas podcast. The most recent of these is a conversation with A. David Redish, author of The Mind within the Brain, which discusses the various kinds of memory and cognition, decision-making processes, and the problems that may arise with all these.

During the podcast, he and the host, Marshall Poe, discussed procedural vs. deliberative (also known as declarative) cognition and how these affect decision-making processes and human behavior generally. Prof. Redish mentioned that you learn to do new things–basketball was the example, but there are others–through a process that initially engages the deliberative/declarative systems but then moves toward ingraining those things into the procedural systems of the mind.

It was a fascinating discussion, especially because I really have very little background in psychology. (Come on–I went to grad school for religion, law school, and worked in IT. Something had to give! I also know very little about art, for what it’s worth.) And it got me to thinking about what my misgivings and comfort levels are with traditional prayer in a less traditional Jewish context, and why halakhic observance (or heck, remembering that I don’t actually want to eat very much meat) is so difficult for newcomers.

One of the tricks of procedural memory/cognition is that it engages the dopamine feed into our brains, which is why athletes talk about disengaging your conscious thinking and talk about being “in the zone.” My experience with the traditional prayer services is like this–I can get “in the zone” where I’m executing (in a technical manner) and feel really comfortable. But that doesn’t happen when I stop and read the words.

Actually, it does–but it engages the “in the zone” feeling for reading and translating Hebrew, rather than the “in the zone” feeling for reciting the prayers. The problem, of course, is that when I’m in the Hebrew zone, I remember that I don’t actually agree with the contents of the prayers. And I think this explains why I and others sometimes feel uncomfortable with the different liturgical approach of Secular Humanistic Judaism. (In my rabbinical school class a couple of weeks ago, Rabbi Chalom explained this as we’re damned if we do and damned if we don’t–people don’t actually agree often with the content of the prayers, but they refuse to allow change.)

This actually has me feeling pretty optimistic about my own ability to adjust out of the unease I feel with some of the liturgical challenges of Humanistic Judaism. Eventually, I realize, I’ll “get there.” The challenge will be making myself practice differently until what is deliberative becomes procedural.

I think many of us approach Judaism this way generally. “Why do we do it this way?” “We’re used to it.” “That’s absurd, don’t you think?” “Sure, but it’s how we do it!”

That covers a wide range of issues; in the liberal Jewish movements, we all “know” that many of the biblical texts aren’t literally true. Yet Rabbi David Wolpe (a Conservative rabbi) got in some trouble at a Passover seder when he said something like, “The Exodus didn’t really happen,” and was upbraided not because the audience disagreed, but because they just didn’t want to hear it in context–like that’s dirty laundry we ignore in public.

So the challenge for many of us will be, in the future, shaking up that procedural memory. Seems like it will be an interesting challenge.

The sky is falling, or, The Forward looks backward

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.

You people with the hand-wringing! (cont.)

Just a quick update from the prior post.

Rabbi Jeffrey Falick of the Bloomington Temple has this post on his blog, the Atheist Rabbi, responding to the Pew survey and responses to it. It’s far more extensive than mine. Tzei u’lmad: go and study.