Twelve tribes are deemed a community; eleven tribes are not deemed a community.
The Divine Presence does not rest other than upon a community.
SEDER OLAM RABBAH 15
Torah zivah lanu Mosheh, morashah, kehillat Ya'akov—Moses commanded us the Torah, a legacy unto the community of Jacob" (Deuteronomy 33:4). The concept of a kahal or kehillah far transcends its translation as "community" or "congregation." The concept is at once both inclusive and exclusive. It serves to include all who received the Torah at Sinai, without exclusion or exception, and to exclude all who are not the recipients of that legacy.
The notion of the unity and solidarity of the community of Israel is directly related to this concept. Unity as an ideal is born, not of pragmatic considerations, but is posited upon a metaphysical construct. The Torah is given to the community as an entity. That entity, to be sure, is composed of individual members, but as a construct it resembles a single body comprised of a multiplicity of organs and limbs. Various organs and limbs participate in the fulfillment of the different commandments; similarly, fulfillment of the entire corpus of the commandments is possible only upon the participation and cooperative efforts of all members of the community.
In an aggadic comment recorded in Berakhot 6a, the Sages teach that God binds tefillin upon himself. Man's tefillin contain the verse "Hear O Israel the Lord is our God, the Lord is One" which embodies the concept of divine unity. In a parallel manner, God's tefillin contain the verse "And who is like unto your people Israel, a nation one in the earth" (I Chronicles 17:21). The Hebrew phrase "goy eḥad ba-arez," rendered as "a nation one in the earth," should be understood as conveying a meaning more profound than a reference to Israel as a singular nation. The principle affirmed by God, viz., that the people of Israel constitute a nation "one in the earth" does not mean simply that Jews represent an exemplary or even singular people. Were that the concept embodied in this verse, there would be little to warrant its inclusion in the tefillin of the Deity as a parallel to Israel's proclaimation of the unity of God. The verse inscribed in God's tefillin is a corollary to that incorporated in the tefillin worn by man. In metaphorically donning tefillin that include this verse, God affirms that the people of Israel, imitatio Dei, constitute a "unity in the world." Divine tefillin reflect the unity of Israel, just as man's tefillin testify to the unity of God. The term "goy eḥad," as the expression of a concept analogous to that of divine unity, should be understood as expressing the unitary nature of the people of Israel and an affirmation of the focal nature of that characteristic as an essential attribute of their peoplehood.
To be sure, the unity of the people of Israel is not identical to the unity of God. Klal Yisra'el is the aggregate of individual Jews. But it is an aggregate in which each of the components is endowed with the attributes of the entirety; it constitutes a unity in which every member can attain the spiritual endowment of the genus. God's tefillin demonstrate His pride in the singular capacity of the people of Israel to achieve a high degree of spiritual attainment, a propensity enjoyed by Israel, both as a community and as individuals.
Jews, as a people, are endowed with unique spiritual potential. Over a period of millenia, they have jealously restricted membership in the community of Israel with a tenacity born of an awareness that the unique mission of our people can be fulfilled only by the community as an entirety. Acceptance into the spiritual fellowship of Israel of persons who do not share the same faith-commitments, or of individuals who are not integrated into the halakhic corpus of Israel, can only result in a diminution of the Divine Presence and frustration of the divinely ordained purpose in the election of Israel. Moreover, compromise of principle in the name of unity constitutes a self-contradiction. A unity whose value and very meaning is derived from the sharing and promotion of a common faith-commitment cannot possibly admit of any dilution of that commitment. The entity known as the "community of Jacob" derives its raison d'être from its legacy which consists of the Torah received and transmitted by Moses at Sinai. By the same token, the mission of the people of Israel can be brought to fruition only when all of Israel is united in that common endeavor for, in the words of the Sages, "Twelve tribes are deemed a kahal; eleven tribes are not deemed a kahal."
I. Parameters and Limits of Communal Unity
Among the most pressing needs of the Jewish community in this country—and even more so in Israel—is the need for adequate communication between the various diverse sectors of which it is comprised. Absence of common cause directed toward common concerns, frequent misunderstandings and even acrimonious disputes between ideologically divergent factions of the community are directly attributable to simple lack of communication. The transcendent mandate of ahavat Yisra'el and our sacred obligation to reach out to every Jew with concern and love require that we actively seek areas of ongoing contact and cooperation. Unity within the community is clearly desired by all for reasons which are both ideological and pragmatic in nature.
Unity, not unlike mother love and apple pie, receives the approbation of one and all. Why, then, is the very quest for unity likely to be so divisive? The answer is to be found in the agenda of many—but not all—of the exponents of this utopian ideal.
Tafasta merubah lo tafasta—one's reach ought not to exceed one's grasp. There are matters on which persons of diverse Weltanschauungen can neither agree nor cooperate—and indeed no one who espouses the concept of religious, moral or intellectual pluralism should anticipate either cooperation or agreement in such matters. One to whom the taking of fetal life is anathema cannot be expected to endow an abortion clinic. A pacifist can hardly be expected to participate in war games. A Marxist is an unlikely candidate for the position of Vice-President in Charge of Reducing Workers' Wages. The Jewish community is hardly monolithic, monoprax or monodox. No responsible call for unity has ever been predicated upon a platform calling for the setting aside of all differences. Rather, it has consisted of a call for (1) agreement to respect differences which do indeed exist; and (2) the forging of bonds of cooperation between various sectors within the Jewish community in order to promote goals and ideals to which we are all committed.
Were the agenda to consist of the second item exclusively, the goal would not be unattainable; certainly, there would exist no impediment rooted in principle or ideology. Problems arise with regard to the first item which is—not improperly—regarded by many as a necessary condition for the achievement of the second. Agreement to respect differences which do indeed exist may mean one of two things. Minimally, respect connotes awareness and concomitant abjuration of antagonistic words and deeds. On a different level, respect also entails acceptance. Acceptance is quite different from toleration. Linguistically, "toleration" is a term used to describe a mode of thought and behavior vis-à-vis that which is the subject of disdain. Individuals, each of whom professes to possess absolute truth, may indulge one another and one another's beliefs simply because there exists no other viable modus vivendi. The alternative is mutual abnegation and mutual destruction. Since the negative effects of the alternative are contrary to the self-interest of each of the parties there emerges reciprocal agreement to exercise restraint in interpersonal and intramural relationships.
Acceptance differs from toleration in that acceptance requires the legitimization of pluralism, i.e., acceptance requires not only sensitivity to the fact that others have differing viewpoints and ideologies but also tacit affirmation that espousal of those views and ideologies is endowed with equal validity. This form of acceptance and respect is hardly un-known to Judaism. The dictum elu va-elu divrei Elokim ḥayyim certainly implies transcendental legitimacy for conflicting views even though protagonists engaged in the milḥamtah shel Torah do not and dare not give quarter to conflicting positions. Ravad, Hilkhot Teshuvah 3:7, followed by Duran, Magen Avot, chaps. 8-9, and Albo, Sefer ha-Ikkarim, Book I, chap. 2, was willing to accord precisely the same type of legitimacy even to certain contradictory propositions, each purporting to express theological truth.
Nevertheless, it is the attempt on the part of some to require conferral of legitimacy upon their ideologies and practices as a condition of unity which has made attainment of this goal impossible. It is the fear that cooperation within certain frameworks will constitute de facto acceptance and legitimization which creates an insurmountable barrier to unity in the eyes of that sector of our community which is dedicated to uncompromising adherence to the traditional teachings and practices of Judaism.
Halakhah is remarkably tolerant, nay, accepting, but only within certain rather clearly defined parameters. Those parameters involve matters of dogma primarily. To be sure, there are numerous controversies regarding various articles of faith which have never been resolved in a definitive manner. For the most part, such controversies pertain solely to matters of belief and have little, if any, impact upon how Jews comport themselves. It is presumably for this reason that adjudication between diverse doctrines concerning the nature of Providence or the unfolding of eschatological events was not deemed imperative. However, acceptance of Torah as the revealed word of God and acknowledgment of its immutable nature are matters which are both unbeclouded by controversy in traditional Jewish teaching and which are also of profound significance with regard to virtually every aspect of Jewish life. These principles are fundamental to an axiological system which serves to define the intrinsic nature of Judaism. The distinction between the practices of Ashkenazim and Sephardim, of Hasidim and Mitnagdim, could be accommodated by normative Judaism and ultimately find acceptance rather than mere toleration. Sadducees, Samaritans and Karaites could, at most, anticipate toleration by rabbinic Judaism. The halakhic differences between oriental and western Jews and even the theological differences between Hasidim and Mitnagdim could be accommodated within a single axiological system. The differences between Sadducees and Pharisees, between Karaites and Rabbanites, between Samaritans and Jews could not be accommodated precisely because of the renunciation of the Oral Law, in whole or in part, by these sectarian groups. Indeed, an ideological system based upon acceptance of the revealed and immutable nature of both the Written and the Oral Law could not accommodate such diversity without committing the fallacy of self-contradiction.
The fact that certain contemporary sectarians may reject these axioms or reinterpret them in a manner which makes it possible for them to claim equal or even exclusive authenticity for their beliefs is entirely irrelevant. The Sadducees proclaimed the Pharisees to be charlatans; the Karaites taught that Rabbanites had falsified the mesorah; the Samaritans asserted that Jews had emended the Pentateuch to serve their own purposes. In each case we are confronted with two conflicting axiological systems which cannot concede one another's validity. Rabbinic Judaism finds itself in an entirely analogous position at present.
Judaism has always distinguished between those who transgress and those who renounce. Transgression is to be deplored, but transgression does not place the transgressor beyond the pale of believers. Renunciation—even without actual transgression—is a matter of an entirely different magnitude. Even misrepresentation of Halakhah is equated in Jewish teaching with falsification of the Torah and hence with denial of the divine nature of the content of revelation.
This position is eloquently expressed in R. Shlomoh Luria's analysis of a narrative recorded in Baba Kamma 38a. The Gemara reports that the Romans sent two officials to the Sages in the Land of Israel to study Torah. The officials expressed satisfaction with what they learned with the exception of one aspect of tort liability in which Jewish law seems to manifest prejudice against non-Jews (viz., the Jewish owner of an ox which gores an ox belonging to a non-Jew is not liable for damages, while the non-Jewish owner of an ox which gores an ox belonging to a Jew must make restitution). Despite their discomfiture with this legal provision, the officials promised that they would not divulge this aspect of Jewish law to the governmental authorities in Rome. R. Shlomoh Luria, Yam shel Shlomoh, Baba Kamma 4:9, raises an obvious question. Imparting this information to the Roman officials could easily have had catastrophic consequences for the entire Jewish people. There was, after all, no guarantee that the officials would be kindly disposed and would not deliver a full report to the government in Rome. Why, then, did the Sages not misrepresent the law by telling the Roman emissaries either that, in the case in question, both a Jew and a non-Jew would be culpable for damages, or that neither would be culpable? Yam shel Shlomoh responds by declaring that Torah may not be falsified even in the face of danger; falsification of even a single detail is tantamount to renunciation of the Torah in its entirety.
It would appear that Yam shel Shlomoh's position is reflected in the well-known narrative related by the Gemara, Gittin 56a. Bar Kamtza determined to betray the Jewish people to the Roman Emperor:
He went and said to the emperor. The Jews are rebelling against you. He said, How can I tell? He said to him: Send them an offering and see whether they will offer it [on the altar]. So he sent with him a fine calf. While on the way he made a blemish on its upper lip, or as some say on the white of its eye, in a place where we [Jews] count it as a blemish but they do not. The Rabbis were inclined to offer it in order not to offend the government. Said R. Zechariah b. Abkulas to them: People will say that blemished animals are offered on the altar. They then proposed to kill [Bar Kamtza] so that he could not go and inform against them, but R. Zechariah b. Abkulas said to them: People will say one who makes a blemish on consecrated animals is to be put to death. R. Yoḥanan thereupon remarked: Through the forbearance [anvatnuto] of R. Zechariah b. Abkulas our house has been destroyed, our Temple burnt and we ourselves exiled from our land.
It is popularly assumed that the Gemara, in describing anvatnuto of R. Zechariah ben Abkulas, is censuring him for misplaced humility and lack of initiative. This understanding is reflected in a note in the Soncino translation (page 225, note 2), which renders this term as "humility." Yet Rashi renders the term "anvatnuto" as "savlanuto," which must be translated as "his forbearance" or "his patience." Forbearance is a matter quite different from humility and does not seem to warrant censure. The Gemara's categorization of R. Zechariah's action is thus a statement of fact and is not a criticism.
The reaction of the Sages was quite predictable. The prohibition against offering an animal with a blemish may certainly be ignored in order to preserve life. Bar Kamtza, who instigated the Roman emperor, was certainly in the category of a rodef, an aggressor who causes the death of innocent victims through his actions. Causing the death of the messenger who had made a blemish in the animal would certainly have been permitted as an act of self-defense. But R. Zechariah ben Abkulas did not respond in the obvious, intuitive manner of his colleagues. His concern was not with any single infraction of Jewish law. He was concerned lest "people will say that blemished animals may be offered on the altar" and lest "people say that one who makes a blemish on consecrated animals is to be put to death." The overriding concern was that the act might not be perceived as an ad hoc emergency measure designed to prevent loss of innocent lives, but that it might be misinterpreted as normative Halakhah. Falsification of Halakhah, opined R. Zechariah b. Abkulas, is not permissible even in the face of the threat of death, destruction of the Temple and exile of the Jewish people. Perversion of the mesorah, even with regard to a single halakhah, is tantamount to denial of the Sinaitic revelation.1See also Contemporary Halakhic Problems, II, 136 ff. Cf., also this writer’s article in Teḥumin, vol. IX.
Religious issues which contribute to divisiveness within our community must be seen against this backdrop. This is not to say that these issues must remain divisive. They are divisive only because the solutions demand conferral of equal legitimacy upon conflicting ideologies. Toleration, if not acceptance, is certainly within the realm of possibility provided that the protagonists are willing to accept neutral pragmatic solutions and do not insist upon scoring points on behalf of denominational interests.
An analysis of some of these issues—and why it is that they are destined to remain divisive—is in order. Among the most divisive issues in the United States is the issur against membership in the Synagogue Council of America and the New York Board of Rabbis promulgated by a group of eleven leading Roshei Yeshivah in 1956.
The question of participation in such umbrella groups has often been portrayed as identical to that of Austritt, a matter that became the subject of controversy between Rabbi Samson Raphael Hirsch and Rabbi Seligman Baer Bamberger. Hirsch demanded that the members of his community resign from the Frankfurt kehillah which was dominated by Reform elements; Bamberger counseled against so divisive a step. However, the issue in the Synagogue Council and the New York Board of Rabbis dispute is not parallel to that involved in the Hirsch-Bamberger controversy. There are no grounds for assuming that even those who did not favor Austritt a century ago would approve participation in rabbinical and synagogal umbrella organizations. On the basis of the voluminous material written by the protagonists in the latter controversy it is clear that a paramount issue was the fear of possible negative influence which might be exercised by the members of the larger and more powerful group. Although Hirsch regarded secession to be mandated on ideological grounds, for many, the primary fear was that with the passage of time religious commitment and observance of the Orthodox might become diminished. Accordingly, so eminent an authority as R. Chaim Ozer Grodzinski2Aḥi‘ezer: Koveẓ Iggerot, ed. Aron Sorasky (Bnei Brak, 5730), I, no. 150. was prompted to declare that Hirsch and Bamberger were in conflict, not over a matter of Halakhah, but over an assessment of socio-religious realia and that, therefore, the question is one which admits of diverse answers in different locales and at different times. The European kehillah system was primarily ethnic in nature; religious groups within the kehillah were, in some cities, permitted to conduct their own affairs in an autonomous manner. Under such circumstances membership in the central kehillah, it was argued, did not imply endorsement of the activities of organizations and institutions subsidised by the kehillah. Even opponents of Austritt refused to sanction such participation when those conditions did not obtain. It is often forgotten that Bamberger himself demanded Austritt in Carlsruhe, Vienna, Wiesbaden, and indeed in Frankfurt as well, at a time when the autonomy of Orthodox institutions was as yet not guaranteed.3See R. Simchah Bamberger, Teshuvot Zekher Simḥah, no. 130.
In contrast, the issue in the United States is not that of possible negative influence but of legitimization. Organizations such as the Synagogue Council of America and the New York Board of Rabbis are, by their very nature, religious organizations; their raison d'etre is to enable diverse religious groups to speak with a common voice. It is precisely a union of synagogal bodies qua synagogue bodies and/or clergymen qua rabbis which confers, or appears to confer, legitimacy and recognition of equal ideological validity.
And it is precisely for this reason that men of goodwill would not find this obstacle to be insurmountable. It would be entirely possible for the Synagogue Council of America to co-opt a number of secular Jewish organizations, to engage in a shinuy ha-shem and to emerge as an organization doing exactly what it does at present but without any implication of mutual recognition of doctrinal legitimacy. The New York Board of Rabbis would find a similar expedient a bit more difficult but by no means impossible.
On the Israeli scene, giyur ke-Halakhah, the most emotion-laden of problems, is the easiest to resolve. The Law of Return enacted in 19504Sefer ha-Hukkim, no. 51, p. 159. confers automatic Israeli citizenship upon certain classes of people. Other persons are by no means excluded from Israeli citizenship. They must, however, undergo a naturalization process. The provisions of the Law of Return, as they apply to naturally-born Jews, pose no problem whatsoever. However, since the Law of Return confers citizenship in a like manner upon converts to Judaism a problem arises with regard to conversions performed under non-Orthodox auspices.
Halakhic Judaism can never sanction conversion in the absence either of ideological sincerity or of unreserved acceptance of the "yoke of the commandments." Thus no candidate may be accepted for conversion in the absence of a firm commitment to shemirat ha-mizvot. Sincerity of purpose in face of obvious ulterior motivation can be determined only by a competent Bet Din on a case-by-case basis.
Moreover, Halakhah recognizes the validity of a conversion only if performed in the presence of a qualified Bet Din. The qualifications for serving on a Bet Din are carefully spelled out by Halakhah. Conversion, even when accompanied by circumcision, immersion in a mikveh, as well as acceptance of the "yoke of the commandments," is null and void unless performed in the presence of a qualified Bet Din.
A number of proposals have been advanced in an attempt to satisfy the desires and aspirations of the Conservative and Reform movements without doing violence to the principles of the Orthodox.5See, for example, Jakob J. Petuchowski, “Plural Models within the Halachah,” Judaism, vol. 19, no. 2 (Winter, 1970), 77-89. The crux of these proposals is that all conversions be recognized as valid, regardless of the auspices under which performed, provided that the halakhic requirements of immersion and circumcision are properly carried out. Conservative and Reform groups would undertake scrupulously to adhere to these halakhic requirements.
Alas, such proposals, well-meaning as they may be, are unacceptable because they ignore one crucial factor: conversion to Judaism is valid only if performed in the presence of a qualified Bet Din. In both the United States and in Israel—as in most countries—a judge cannot sit on the bench without first being sworn to uphold the laws of the land. In the absence of such a commitment his judicial decisions are legally meaningless—regardless of whether or not they reflect the law correctly. Jewish law does not require an oath—other than the one sworn by each of us at Mount Sinai—but it does state clear requirements for holding judicial office. One need not necessarily be an ordained rabbi in order to serve on a Bet Din for purposes of accepting a convert, but one must be committed to the acceptance of Torah—both the Written and Oral Law—in its entirety. One who refuses to accept the divinity and binding authority of even the most minor detail of Halakhah is, ipso facto, disqualified. Long before the Law of Return became a controversial issue, it was the stated opinion of halakhic authorities that ideological adherents of Reform and Conservatism fall into this category. One of the foremost rabbinic scholars of our generation, R. Moses Feinstein, has written in no less than nine different responsa which appear in his Iggerot Mosheh that all who identify themselves as non-Orthodox clergy must be considered to be in this category.6See Iggerot Mosheh, Even ha-Ezer, I, no. 135; Even ha-Ezer, II, no. 17; Even ha-Ezer, III, no. 3; Even ha-Ezer, IV, no. 13, sec. 3; Even ha-Ezer, IV, no. 78; Yoreh De‘ah; I, no. 160; Yoreh De‘ah, II, nos. 125 and 128; Yoreh De‘ah, III, no. 77. See also Iggerot Mosheh, Even ha-Ezer, I, nos. 76-77 and 82, sec. 11; Yoreh De‘ah, II, nos. 100 and 132; and Even ha-Ezer, IV, no. 77. Cf., also, Iggerot Mosheh, Yoreh De‘ah, III, no. 107.
For this reason, no serious halakhist can be receptive to any proposal which would provide for inclusion of non-Orthodox clergymen as participants in the statutory three-member Bet Din required for conversion. However, proposals have been advanced in some quarters calling for the establishment of a Bet Din composed of at least three qualified Orthodox rabbis with additional participants drawn from non-Orthodox groups. Such proposals are designed to provide the appearance of participation without providing a substantive role for non-Orthodox members of such a body. This proposal, it has been argued, should be acceptable to all. The concern of Orthodox Jews that validity of the conversion not be compromised by the absence of a qualified Bet Din is obviated by assuring that three participants are fully qualified. In effect, the Orthodox members—and the Orthodox members alone—would constitute the Bet Din. Other participants are entirely superfluous and hence, it is argued, from the vantage point of Halakhah they should be viewed as observers whose presence is non-participatory and hence entirely innocuous.**See note end of chapter (p. 113). Non-Orthodox sectors of the community would be able to ignore this salient consideration and to claim participation of their representatives as full-fledged members of the Bet Din.
In point of fact, there does exist a halakhic analogue which provides a paradigmatic distinction between participatory and non-participatory members of a Bet Din. Halizah, which provides for release from the obligations of levirate marriage, must be performed in the presence of a Bet Din. The Bet Din for ḥalizah is not composed of the usual three-man complement but consists of five persons. However, the additional two members of this body play no substantive role whatsoever. Since they are assigned no function other than that fulfilled by their mere presence, they are known in rabbinic parlance as "die shtume dayyanim," i.e., "the mute judges." The proposed Bet Din for conversion would be entirely similar to the Bet Din recognized by Halakhah for purposes of ḥalizah. Non-Orthodox participants would in fact be "shtume dayyanim."
Establishment of a Bet Din of this nature is not acceptable to large sectors of the Orthodox community for reasons which, not surprisingly, find expression in the regulations governing the composition of the five-member Bet Din required for purposes of ḥalizah.
Although ḥalizah, in order to be efficacious, must be performed in the presence of a Bet Din, there is nothing intrinsic to that ritual which requires a five-member judicial body. The basic requirement for the presence of a Bet Din could be discharged by a three-man body; the enlarged bench is required solely for purposes of publicization of the ritual—either to assure that the woman's status be known to the public at large so that she will not subsequently marry a kohen, or in order that prospective suitors be aware that there is no longer an impediment to seeking her hand. The unusual presence of additional members, even though they are assigned no participatory function, serves to publicize the proceedings.
The non-participatory nature of the additional two members is reflected in the seating arrangements employed. According to some authorities, the two additional members are assigned seats opposite the three members who constitute the Bet Din proper; others maintain that it is the practice for the additional members not to be seated opposite the three-man panel but at the side of the bench or row of seats occupied by the three-member Bet Din.
Logically, since the additional two members are not participants in the Bet Din, there is no intrinsic reason why they must be qualified to serve as judges. For example, Jewish law provides that members of a Bet Din may not be related to each other or to those appearing before them. This restriction clearly applies to the three persons sitting together as the Bet Din for ḥalizah. But does it apply to the two non-participating members who are co-opted solely for purposes of publicization? This issue is the subject of controversy among early authorities. Ritva, cited by Nemukei Yosef, Yevamot 101a, maintains that restrictions governing qualifications of members of a Bet Din do not apply to these additional two members. Nemukei Yosef further infers from the phraseology employed by Rambam, Hilkhot Yivum ve-Halizah 4:6, that the latter disagrees and rules that all five should be required to satisfy the identical requirements; Tur Shulḥan Arukh, Even ha-Ezer 169, and Rema, Even ha-Ezer 169:3 espouse the position of Rambam.
The analysis of this controversy presented by Bet Shmu'el, Even ha-Ezer 169:4, is quite instructive. Bet Shmu'el notes that Shulḥan Arukh and Rema record divergent practices regarding seating arrangements for the additional two members: Shulḥan Arukh 169, Seder Halizah, sec. 12, records the earlier practice which provides for the two co-opted members to be seated opposite the first three; Rema announces the modified practice of adjacent seating.
Bet Shmu'el proceeds to explain that when the additional two members sit opposite the Bet Din it is apparent to all that the co-opted individuals are in fact not members of the bench; hence the authorities who propose opposite seating for the co-opted participants would find no reason for them to meet the qualifications established for fullfledged participants. However, explains Bet Shmu'el, an onlooker finding a seating arrangement such as that described by Rema might well be unable to discern the essential distinction between the two groups. Accordingly, were unqualified persons permitted to occupy the two additional seats on the five-man panel, the uninformed bystander might conclude that the same relaxation of requirements applies to all members of the Bet Din. In order to prevent such error, concludes Bet Shmu'el, even the two non-participating members of the Bet Din must meet the requirements for participatory members of the Bet Din. Accordingly, declares Bet Shmu'el, those authorities whose practice did not require separate seating required that all five participants be fully qualified. Thus Rema, for example, adopts an entirely consistent position with regard to both matters.
It is thus evident that all who are perceived by the public as members of a Bet Din must be qualified for service on that body even though, in actuality, they are not members of the Bet Din. Surely, the same principle applies to a Bet Din which sits for purposes of accepting converts to Judaism. Halakhah forbids even the appearance of participation in such a judicial body by any person not fully qualified for actual participation.
Participation of non-Orthodox clergymen in such bodies even as non-participatory "shtume dayyanim" is cause for even more serious concern since it serves to legitimize the credentials of such participants and of the ideologies they represent. The considerations giving rise to opposition to joint participation in umbrella bodies such as the Synagogue Council of America and the New York Board of Rabbis certainly apply with even greater cogency and force to establishment of a common Bet Din for purposes of acceptance of converts.
There is nothing in this position which should be a cause for animus directed against the Orthodox rabbinate. The Orthodox posture on this matter is based upon objective criteria of Jewish law and in no way reflects political, partisan, or personal considerations. Those who differ ideologically may disagree, and even deplore, this position; but intellectual honesty should compel them to recognize that it is a sincerely held view which is the product of a firm commitment to Halakhah in all its guises.
Nevertheless, a solution does exist. The objection is based upon implicit State recognition of the validity of such conversions, not upon conferral of citizenship per se. since no one has ever argued that non-Jews should not be granted citizenship by the State of Israel, there could hardly be an objection to bestowing citizenship upon a person who remains a gentile because of an invalid conversion procedure. The solution is as obvious as it is simple: restrict the Law of Return to naturally-born Jews and allow converts to apply for naturalization in the usual manner. Non-Jews affirming loyalty to the State are granted naturalization as a matter of course at the discretion of the Minister of the Interior in accordance with section 5 of the Nationality Law of 5712 (1952).7Sefer ha-Ḥukkim, no. 95, p. 146. Surely, no one will object if State officials, without in any way passing on matters of Halakhah, use objective judgment in considering even technically invalid conversion as evidence of an applicant's sincere desire to identify with the aspirations and common destiny of the citizens of the State of Israel.8There is even a biblical precedent for treating naturally-born Jews and proselytes differently in terms of their relationship to Ereẓ Yisra’el: A convert has no claim to yerushat ha-areẓ. Similarly, it is not at all anomalous to accept the claim of a Jew to citizenship automatically but to subject the bona fides of a convert to at least cursory scrutiny via the naturalization process. It must be remembered that the present law provides that economic and social benefits associated with citizenship are automatically conferred upon even non-Jewish spouses and children of Jews claiming citizenship under the Law of Return as amended on 2 Adar II 5730.9Sefer ha-Ḥukkim, no. 586, p. 34. The relevant section states:
The rights of a Jew under this Law and the rights of an oleh under the Nationality Law, (5712-1952), as well as the rights of an oleh under any other enactment, are also vested in a child and a grandchild of a Jew, the spouse of a Jew, the spouse of a child of a Jew and the spouse of a grandchild of a Jew, except for a person who has been a Jew and has voluntarily changed his religion.
No demurrer has been heard with regard to these provisions of the law.
Unity requires neither legitimization nor acceptance, but it does require tolerance. Tolerance, without which co-existence becomes impossible, at times demands that ideological issues be skirted rather than solved. Removal of the "Who is a Jew?" issue from the political agenda would serve as an ideological victory for no one, but would constitute a definite victory for the cause of unity.
Recognition of non-Orthodox clergymen and the question of solemnization of marriages proscribed by Halakhah are problems which do not readily lend themselves to a facile solution. The State of Israel has, in effect, preserved the millet system which granted autonomy to each religious community in matters of marriage and divorce. The Samaritans and the Karaites have been granted recognition as autonomous religious communities. In effect, such autonomy implies recognition that the beliefs espoused by these groups are significantly different from those of Judaism with the result that these groups must be regarded as separate religious faith-communities. Orthodox Judaism cannot recognize other trends as legitimate expressions of Judaism. This, however, does not prevent the State of Israel from extending recognition to such groups as distinct and autonomous faith-communities. If the goal is to secure redress of grievances and civil liberties such a procedure would produce the desired effect. If, however, the goal is recognition of the legitimacy of those trends as different but nevertheless authentic expressions of Judaism, recognition as distinct faith-communities would be counterproductive.
Most significantly, a solution of this nature is antithetical to the fostering of unity. The danger of a new Karaite schism born of rejection of matrimonial law, as was the original Karaite schism, is a very real one. Conferment of autonomy in matters of marriage and divorce upon non-Orthodox groups can only hasten the process. The threat to genealogical purity which existed in only an incipient form in the early days of the Reform movement prompted personages such as R. Moses Sofer, Teshuvot Hatam Sofer, VI, no. 89, and, much later, R. Chaim Ozer Grodzinski, Aḥi'ezer, Kovez Iggerot, I, no. 150, to propose a call for such a schism. Orthodox Judaism has made its stand very clear. It is regretfully willing to accept schism rather than enter into ideological compromise. The ball is in the other court. Others must ask themselves: Does there exist any ideologically compelling reason which requires them to destroy Jewish unity? Assuming a negative answer to this query, the sole remaining question to be asked is: Is a measure of denominational pride an unreasonable price to pay for preservation of some vestige of communal unity?
The Patrilineal Principle: The Crucial Concern
It is certainly no secret that the resolution adopted by the Reform movement's Central Conference of America Rabbis accepting the principle of patrilineal identity was predicated upon sociological and institutional concerns rather than upon either historical or halakhic considerations. Nevertheless, in the wake of that resolution, there has been considerable effort to provide post factum justification for that principle. In a fundamental sense, the effort is an exercise in futility since even were historical and/or rabbinic sources uncovered which would support that position they would be essentially irrelevant insofar as normative Jewish law is concerned. The rule establishing identity as a Jew on the basis of matrilineal succession is unequivocally established by the Gemara, Kiddushin 68b, and is accepted by all codifiers of Jewish law. It is highly unlikely that in any legal system a basic principle of law based upon precedents dating from antiquity and reaffirmed so frequently and so authoritatively would be reversed by judicial process.
There was, to be sure, one talmudic Sage who did, on one occasion, advocate that patrilineal succession be adopted as the norm. But even he reversed his opinion. The following discussion appears in the Palestinian Talmud, Kiddushin 3:12:
Jacob of the city of Naburaya went to Tyre. They came and asked him, "What [is the law with regard to] circumcising the son of a gentile woman [born of a Jewish father] on the Sabbath?" [Jacob] thought to permit them [to do so] on the basis of this [verse]: "And they declared their pedigrees after their families, by their fathers' houses" (Numbers 1:18). R. Haggi heard [and] said, "Let him come and be flogged." [Jacob] said to [R. Haggi], "On what basis do you flog me?" [R. Haggi said to him, "From this [verse]: 'And now let us make a covenant to put away all the foreign wives and such as are born of them' (Ezra 10:3)." [Jacob] said to [R. Haggi], "And would you flog me on the basis of the [prophetic] tradition?" [R. Haggi] said to him, " '… and let it be done according to the Torah' (Ezra 10:3.)" [Jacob] said to [R. Haggi], "From which law?" [ R. Haggi] said to him, "From that which R. Yoḥanan declared in the name of R. Simeon ben Yoḥai, 'Thou shalt not make marriage with them…. nor his daughter shalt thou take unto thy son. For he will turn thy son from following Me, that they may serve other gods.' (Deuteronomy 7:3-4)." [Jacob] said to R. Haggi, "Flog me with your lashes for that is better than death."
Rabbinic exegesis regards the phrase "For he will turn thy son from following Me" as descriptive rather than predictive. The verse serves to establish a legal principle rather than as a biblical prognostication. The child of a Jewish male born of the daughter of a gentile is ipso facto turned from "following Me" because his status is that of a gentile who is not obliged to serve God by observing the commandments of the Torah. This interpretation is not simply an Oral Law tradition recorded by the Sages of the Talmud; it was known to, and accepted by, Ezra. In demanding that children of such unions be excluded from the Jewish faith-community Ezra declared, "And let it be done according to the Torah." Clearly, Ezra recognized the principle of matrilineal identity as being firmly rooted in the verses of the Pentateuch. It is noteworthy that when this was pointed out to Jacob of Naburaya he candidly conceded the argument and expressed relief at being preserved from causing others to accept an errant view and to commit the serious transgression involved in the circumcision of a gentile child on the Sabbath. A similar narrative, identical in all salient points, is found in Midrash Rabbah, Numbers 19:3.
The doctrine of matrilineal succession and the exclusion of the principle of patrilineal identity as a sufficient criterion of Jewish identity is Sinaitic in origin. Whether or not, historically, a different principle pertained prior to the Sinaitic covenant is entirely irrelevant. Insofar as the community of Israel is concerned, innumerable provisions of the Noachide Code which were binding upon all people prior to Sinai were supplanted by the Sinaitic covenant. With regard to the giving of the Torah at Mount Sinai, Scripture declares, "This day thou art become a people unto the Lord thy God" (Deuteronomy 27:9). Prior to Sinai there existed no community of Israel. Even as the concept of the peoplehood of Israel and the sanctity of Israel date from Sinai, so also are the criteria of membership in the community of Israel prescribed by the covenant entered into at Sinai.
The resolution adopted by the CCAR contains a further provision which has a far stronger basis in Jewish law. The resolution grants recognition as a Jew to the progeny of an intermarriage only if the child is reared as a member of the Jewish faith. There is some precedent for the position that even the child of a Jewish mother and a gentile father is regarded as a Jew only if the child conducts himself as a Jew.
From the purely scholarly perspective, it is intriguing to note that a number of halakhic authorities maintain that, even according to the accepted view that the child of a Jewish mother and a non-Jewish father is deemed to be a Jew of legitimate birth, the Jewishness of the mother does not, in and of itself, automatically guarantee that the child is to be deemed a Jew in the eyes of Halakhah. These authorities adopt a most unusual stance. They maintain that in cases in which the father is a non-Jew the child is accorded the status of a Jew only if he "conducts himself as a Jew;" otherwise, he is deemed to be a non-Jew. In effect, the child of a Jewish mother and a non-Jewish father may elect to acquire the halakhic status of a Jew and is deemed to have done so if he is raised as a Jew and conducts himself accordingly. If the child is raised as a Jew he is not required to undergo a conversion ceremony, as is the case with the issue of a union between a Jewish man and a non-Jewish woman. However, according to this view, the child of a Jewish mother and a non-Jewish father who is not raised as a Jew is deemed to have renounced his option to acquire the status of a Jew by virtue of birth and would subsequently require a formal conversion ceremony to be considered a Jew. Here, according to these authorities, is an isolated instance in which birth does not confer automatic status as a Jew, but merely provides the option for acquiring Jewish identity. This anomalous thesis is advanced by the sixteenth-century authority. R. Shlomoh Luria (Maharshal), in his commentary on Yevamot 16b. A view similar to that advanced by Maharshal is formulated in greater detail by Rit Algazi in his commentary on Bekhorot 47a.
Maharsha, Yevamot 16b, sharply contests Maharshal's view and advances the obvious argument that, axiomatically, matters of personal status are contingent upon parentage alone and cannot be prejudiced by subsequent deportment; a change in status can be effected only by means of formal conversion. Indeed, the overwhelming majority of halakhic authorities including Pitḥei Teshuvah, Yoreh De'ah 266:14; Hemdat Shlomoh, Even ha-Ezer, no. 3; Avnei Nezer, Even ha-Ezer, I, no. 16; Maharam Shik, Even ha-Ezer, no. 20; Naḥal Eshkol, III, p. 133; as well as Dovev Mesharim, I, no. 7, clearly and definitively rule that the child of a Jewish mother and a non-Jewish father is, in all instances, deemed to be a Jew.10For a fuller discussion of this question, see Contemporary Halakhic Problems, II, 103-107.
Adoption by the Reform movement of the position that a child of a mixed marriage is to be considered a member of the Jewish faith-community only if reared as a Jew is not only incorrect as a normative principle of Jewish law but, when coupled with adoption of the principle of patrilineal succession, this innovation raises serious questions with regard to why it is at all necessary for that movement to adopt a policy of patrilineal succession and with regard to what is, indeed, the underlying motivation.
The Reform movement has long since renounced milah and tevilah as the sine qua non of conversion and, in essence, asks for little more than a declaration affirming a desire to become a member of the community of Israel. Since, from the Reform perspective, a child born of two gentile parents and a child born of a Jewish father and a non-Jewish mother are both required to affirm their Jewishness in a positive matter and need do nothing more to be accepted as Jews, why, then, the need for a principle of patrilineal succession? Since, in both cases, such affirmation is required, what practical difference is there whether the person is accorded status as a Jew by virtue of birth or by virtue of conversion?
Precisely the same question may be raised with regard to the vehement disapproval which adoption of this policy has aroused in Orthodox circles. Heretofore, within the Reform movement, children of a Jewish father and a non-Jewish mother were routinely accepted as converts to Judaism. Those conversions, however, were never regarded by adherents of normative Judaism as valid in the eyes of Jewish law.
As has been stated earlier,11Supra, p. 90. halakhic Judaism can never sanction conversion in the absence of either ideological sincerity or of unreserved acceptance of the "yoke of the commandments." Thus, no candidate may be accepted for conversion in the absence of a firm commitment to shemirat ha-mizvot. Sincerity of purpose in the face of obvious ulterior motivation can be determined only by a competent Bet Din on a case-by-case basis. Moreover, Halakhah recognizes the validity of a conversion only if performed in the presence of a qualified Bet Din. The requirements for serving on such a Bet Din are carefully spelled out by Halakhah. Conversion, even when accompanied by circumcision, immersion in a mikveh and acceptance of the "yoke of the commandments," is null and void unless performed in the presence of a qualified Bet Din.
One need not necessarily be an ordained rabbi in order to serve on a Bet Din for purposes of accepting a convert, but one must be committed to the acceptance of Torah—both the Written and Oral Law—in its entirety. One who refuses to accept the divinity and binding authority of even the most minor detail of Halakhah is, ipso facto, disqualified. It has long been the stated opinion of halakhic authorities that ideological adherents of Reform and Conservatism fall into this category.12See supra, p. 91.
The selfsame persons now claiming recognition as Jews on the basis of patrilineal succession were heretofore routinely accepted as converts by the Reform movement. The claim of such individuals to be identified as Jews on the basis of conversion had no greater validity in the eyes of normative Judaism than does their claim to Jewishness by virtue of patrilineal succession. Why, then, the current furor?
To be sure, the number of individuals who will be regarded as Jews in some circles by virtue of the patrilineal principle is bound to rise at least marginally since not all such persons would otherwise undergo Reform conversion. Certainly, recognition as Jews accorded by the Reform movement to individuals who are regarded by normative Judaism as non-Jews will create difficulties in relation to future possible marriages between adherents of normative Judaism and the progeny of Reform Jews. But such concerns already exist. Indeed, it is the concern that all persons accepted as Jews be able freely to enter into marriage with one another—and not unseemly institutional jealousies—which is the basis of the demand that only conversions which are valid in the eyes of Halakhah be accepted by the State of Israel for purposes of the Law of Return.
Certainly no one wishes a schism to occur between adherents of normative Judaism and adherents of the Reform movement similar to that which occurred in days gone by between the Karaites and the Rabbanites. However, the schism occurred, not because of invalid conversions performed by the Karaite community, but because of their disregard for essential provisions of Jewish law in the execution of a get. There is no remedy which would permit the progeny of a woman who has contracted a second marriage without benefit of a valid get to marry Jews of legitimate birth. The Reform movement has similarly rejected the requirement for a religious divorce as a necessary condition of remarriage and, for that reason, the spectre of a modern-day schism has, indeed, arisen. As noted earlier, the threat to genealogical purity which existed only in an incipient form in the early days of the Reform movement prompted R. Moses Sofer and, much later, R. Chaim Ozer Grodzinski to propose a call for such a schism.13Supra, p. 96.
Such a schism has not occurred—but for reasons which can give heart to no one. There have, indeed, been cases involving children of such marriages who have contemplated marriage with observant Jews only to discover that they were born of an adulterous union and, hence, their contemplated marriages are precluded by Jewish law. With the growing number of ba'alei teshuvah and children drawn from all sectors of the Jewish community enrolled in Day Schools and yeshivot, the incidence of such heartrending tragedies is increasing. But a formal schism has been averted only because it is still possible to investigate the genealogy of descendants of Reform Jews in order to determine that there exists no barrier to marriage. Unfortunately, there are very few Reform Jews who identify themselves as Jews beyond the third or, perhaps, the fourth generation. The Karaite community maintained its own identity and observances over a period of centuries so that, with the passing of time, genealogical investigation became impossible. Unfortunately, the ravages of assimilation have thus far made that issue academic insofar as the Reform community is concerned. Little comfort may be found in the fact that a schism has been avoided only because of the unhappy phenomenon of assimilation.
If abolition of the get did not lead to a schism, a fortiori, the issue of patrilineal identity should not lead to such sorrowful consequences. Certainly, invalid conversions have not led to a schism. The remedy of undergoing a valid conversion remains readily available.
The crucial concern in the present controversy is of a different nature entirely. Adoption of the policy of patrilineal succession, coupled with formal affirmation of Jewish identity, is manifestly unnecessary for a movement which accepts conversion on the basis of such a declaration alone. The Reform movement can persist in accepting a policy of patrilineal succession as a sufficient criterion of Jewish identity only if such a policy is born of a determination to flout two thousand years of Jewish tradition. That is tantamount to renunciation of the already tenuous ties which bind Reform Jews to other members of the Jewish faith-community. Adoption of the patrilineal principle is an eloquent statement of disassociation. In light of the existing policy regarding conversion, adoption of the principle of patrilineal identity may well be only a matter of form. But, at times, form becomes substance. It is precisely this flagrant disregard of the elemental formal ties which unite all Jews which has aroused the concern of Jews who cherish their separated brethren and recoil at the prospect of further alienation and divisiveness.
Sectors of our community so separated in matters of theology and observance have heretofore remained united in terms of basic identity and identification. That is a precious heritage which no observant Jew seeks to put asunder. But, as Ezra proclaimed centuries ago, if a common Jewish identity is to continue to be acknowledged by all, "ve-kha-Torah ye'aseh," it must, of necessity, be on the basis of the identity demanded by the Torah itself.
Permitting Use of a Mikveh for Non-Orthodox Conversions
With the possible exception of a small number of mikva'ot housed in Jewish Community Centers, virtually all—if not all—mikva'ot in this country were constructed and continue to be maintained under Orthodox auspices. Since other facilities are seldom available, Conservative clergymen and the few Reform clergymen who demand immersion in a mikveh as part of their conversion rituals must perforce utilize those mikva'ot. Many years ago, the late Rabbi Moses Feinstein was asked whether it is proper for Orthodox rabbis and communal leaders to permit the use of their facilities for this purpose. In a brief response published in Iggerot Mosheh, Yoreh De'ah, II, no. 125, Rabbi Feinstein draws a distinction between officiants who have contributed financially (presumably, either personally or through their Temples) to the construction of the mikva'ot they are desirous of using and those who have not. Rabbi Feinstein counsels that non-Orthodox clergymen who have not participated financially in the building of the mikveh should not be permitted the use of such facilities for purposes of conversions that are invalid in the eyes of Jewish law. Regarding those who have provided material support for the construction of a mikveh, Rabbi Feinstein writes, "… it is impossible to prevent them [from utilizing the mikveh] and the administrators of the mikveh have no responsibility for [the] acts [of such persons]." Rabbi Feinstein advises that, in order to avoid friction and to dispell ill will, it be explained that the mikveh is intended for, and made available as a community service to women, without exception, for post-menstrual immersion, but that the mikveh is available for other purposes only to those who have participated in its construction. A second responsum by Rabbi Feinstein confirming the basic nature of this ruling is included in the last volume of Iggerot Mosheh, Hoshen Mishpat, II, no. 24.14In the latter responsum, written in the form of a brief letter addressed to the administrators of a mikveh erected, at least in part, with funds contributed by members of a Conservative congregation, Rabbi Feinstein advises against an attempt to forbid use of the mikveh in conjunction with conversion ceremonies performed under non-Orthodox auspices. Rabbi Feinstein deems such an attempt to be inadvisable and notes two considerations: (1) In the general area in which the mikveh was located other facilities would have been made available for such purposes. Hence, maintains Rabbi Feinstein, permitting candidates for non-Orthodox to utilize the mikveh involves no transgression of “placing a stumbling-block before the blind.” (2) Denying them the use of existing facilities might prompt the Conservative congregation to construct its own mikveh. In all likelihood such a mikveh would not satisfy the requirements of Jewish law and would be used by women for purposes of their monthly immersion. The net result would be an increase in inadvertent transgressions. Nevertheless, Rabbi Feinstein, by means of a reference incorporating Iggerot Mosheh, Yoreh De‘ah, II, no. 125, reaffirms his earlier position and thereby reiterates that the mikveh facilities be made available for conversions performed under Conservative auspices only when funds for construction of the mikveh have been derived from such sources.
The point made by Rabbi Feinstein regarding the absence of the prohibition concerning “placing a stumbling-block before the blind” in situations in which others are quite prepared to facilitate the same transgression is a matter of controversy among latter-day authorities. See infra, note 16 and accompanying text. Rabbi Feinstein’s concern regarding the ability of the Conservative congregation to construct its own mikveh does not appear to be at all germane. Such construction would certainly require time and, if other facilities were not made available, would occasion a considerable delay in carrying out the conversion ceremony. Assuming that the “stumbling-block” in question is facilitating what is, in effect, an intermarriage and illicit cohabitation consequent thereupon, it follows that facilitating early conversion ipso facto facilitates additional acts of forbidden intercourse and hence constitutes the placing of a “stumbling-block before the blind.” Rabbi Feinstein’s point regarding the possibility that construction of a mikveh by a Conservative congregation might also lead to its use by women for their monthly immersion is cogent only upon an assumption that no transgression of “placing a stumbling-block before the blind” is attendant upon making the facility available for an invalid conversion. Moreover, the concern does not appear to be rooted in fact: Observant women would no more rely upon Conservative supervision of a mikveh than they would rely upon Conservative supervision of food products used in their kitchens. Regrettably, the number of Conservative women who avail themselves of a mikveh on a regular basis is quite small.
Although, to this writer's knowledge, no article or halakhic responsum taking issue with Rabbi Feinstein's position has appeared either in the periodical literature or in scholarly works, the de facto policy adopted in many communities has been at variance with this ruling. In at least one city the matter recently became an issue of contention within the Orthodox community. A number of rabbinic authorities were approached for a definitive ruling with regard to this question. The response of Rabbi Nathan Gestetner of Bnei Brak appeared in Am ha-Torah, second series, no. 11 (5746), and that of Rabbi Aaron Soloveichik was published in the Elul 5746 issue of Ha-Darom.
Despite impressions in many circles to the contrary, the concerns underlying this question—as well as those underlying the analogous controversial "Who is a Jew?" issue—are not predicated upon institutional or denominational rivalries. Totally absent from the discussions of rabbinic scholars who have addressed this issue is any consideration of preserving a monopoly of power or privilege. Nor are the concerns expressed intended in any way to diminish the fraternal bonds which unite all Jews and which render every Jew responsible for the spiritual as well as the material welfare of each of his fellow Jews.
The specific halakhic problem arises from the fact that conversions performed under non-Orthodox auspices are ipso facto invalid for two reasons: (1) a proper "acceptance of the yoke of the commandments" is lacking; and (2) non-Orthodox clergymen are disqualified from serving as members of the Bet Din required for the acceptance of proselytes.
The earliest discussion of the question of "acceptance of the yoke of the commandments" in this context is that of R. Chaim Ozer Grodzinski, Teshuvot Aḥi'ezer, III, no. 26, dated Winter, 1912. The Gemara, Bekhorot 30b, and the Mekhilta, Parshat Kedoshim 19:34, stipulate that a prospective convert must accept all commandments without reservation or exclusion. Acceptance of the commandments "with the exception of one thing" renders the conversion null and void. Aḥi'ezer asserts that this condition is not met in conversions supervised by non-Orthodox officiants. Aḥi'ezer reasons that since their knowledge of the commandments is obtained "from the interpretation of reformers in accordance with their false ideologies" the candidates' acceptance of mizvot is deficient and "is comparable to [acceptance] 'with the exception of one thing.' " As early as 1929, and reiterated in 1950, Rabbi Feinstein, Iggerot Mosheh, Yoreh De'ah, I, nos. 157 and 160, declared that in his opinion, even a conversion carried out before an Orthodox Bet Din is a nullity when it is evident that the candidate for conversion is insincere in acceptance of mizvot and such lack of sincerity is evidenced by subsequent non-observance of the commandments. Conservative conversions, rules Rabbi Feinstein, are a fortiori invalid because (a) no attempt is made to examine the candidate's seriousness of intent with regard to scrupulous observance of the entire corpus of mizvot, and (b) the members of the Bet Din themselves "do not observe many of the laws of the Torah and will not demand of converts that [the converts] observe more than they themselves observe."
Even more fundamental is the question of the qualification of non-Orthodox clergymen to serve as members of a Bet Din. Failure to accept the divinity and the binding authority of the Oral as well as of the Written Law in and of itself constitutes a disqualification from serving as a member of a Bet Din, as does the absence of a commitment to be bound by the commandments in their entirety. Such a requirement is not at all surprising. As noted earlier, in most countries a judge cannot sit on the bench without first being sworn to uphold the laws of the land. Jewish law does not require an oath—other than the one sworn by every Jew at Mount Sinai—but it does posit unequivocal acceptance of the teachings of the Torah as a precondition for holding judicial office. In a host of responsa spanning many decades Rabbi Feinstein has repeatedly and unequivocally declared that non-Orthodox clergymen do not meet this requirement.15See above, note 6. In a number of these responsa Rabbi Feinstein makes it absolutely clear that Conservative as well as Reform clergymen are disqualified on these grounds. Thus, even if the requirements of Halakhah were to be scrupulously followed in performance of the formalities of the conversion ritual itself, the conversion is void by virture of the disqualification of the officiants. Rabbis Feinstein, Soloveichik and Gestetner are unanimous and firm in their opinion that candidates converted under Reform or Conservative auspices remain non-Jews in the eyes of Jewish law.
In a separate responsum addressing another matter, appearing in Ha-Pardes, Heshvan 5747, Rabbi Aaron Soloveichik argues that even a Conservative clergyman who is not only scrupulously observant but also "believes with absolute faith in the Written Law and the Oral Law … and is highly knowledgeable, proficient in Talmud and Codes" is disqualified from serving on a Bet Din. The Gemara, Sanhedrin 26a, relates that Resh Lakish sought to disqualify R. Hiyya bar Zarnuki and R. Shimon ben Yehozadak from serving on a Bet Din convened to add an intercalary month to the year. Resh Lakish criticized a number of individuals whom he observed performing acts which, ostensibly, were violations of restrictions pertaining to the observance of the sabbatical year. R. Hiyya bar Zarnuki and R. Shimon ben Yehotzadak attempted to defend the actions of those persons. Thereupon Resh Lakish sought to disqualify those scholars from serving on the Bet Din on the grounds that, in defending sinners, they had entered into a "kesher resha'im," a confederacy of transgressors. Rabbi Soloveichik opines that the Gemara herein posits an otherwise unidentified disqualification from holding judicial office, viz., defense of, and hence identification with, transgressors. Accordingly, concludes Rabbi Soloveichik, even assuming the Conservative clergyman in question to be a person of exemplary faith and piety, he is disqualified on the grounds that his identification with the Conservative movement and its ideology constitutes participation in a "kesher resha'im." However, since none of the codifiers of the Halakhah cite identification with transgressors per se as a disqualification for holding judicial office, Rabbi Soloveichik's interpretation must be regarded as novel. Resh Lakish may well be understood as contending that one who defends a violator of the laws of the sabbatical year is himself suspect with regard to such matters and is disqualified from serving as a member of a Bet Din because he himself is suspected of having committed similar infractions. Insofar as Conservative clergymen are concerned, the point is entirely academic since, as stated by Rabbi Feinstein, Iggerot Mosheh, Yoreh De'ah, I, no. 160, "Whosoever bears the … appellation 'Conservative' must be presumed to be wantonly unconcerned with regard to many prohibitions and to deny many principles [of faith]" (be-ḥezkat mufkar le-harbeh issurim u-le-kefirah be-harbeh ikkarim). Rabbi Gestetner echoes those sentiments in writing "… for if they were believers and fulfilled all the commandments they would then not adhere to the aforementioned sects, but to the fearers of God. Their very membership in the aforementioned sects indicates that they have excluded themselves from the category of God-fearers and that they do not fulfill all the commandments of God and do not believe in all the commandments of the Torah in accordance with the manner in which it has been transmitted to us by the Sages of blessed memory. Accordingly, they are disqualified from giving testimony and judging."
Rabbi Gestetner argues that, since the conversions in question are null and void, any person assisting in such a conversion ceremony transgresses the prohibition "and before a blind man you shall not place a stumbling-block" (Leviticus 19:14). It might well be assumed that the "stumbling-block" in the situation under discussion lies in the fact that the non-Jew will be inadvertently accepted by the community at large as a Jew for all halakhic purposes, including eligibility to marry a person of Jewish birth. According to such an analysis, it is the members of the community at large who are "blind" and who may stumble. Rabbi Gestetner, however, argues that the "stumbling" is of a nature which is both immediate and certain, viz., making the mikveh available for the act of immersion constitutes a stumbling-block placed before the officiants at the conversion. Rambam, Guide of the Perplexed, Book III, chapter 41, states that every transgression which assumes the form of a denial of the veracity of the Torah constitutes a transgression of a prohibition couched in the words "the Lord does he blaspheme" (Numbers 15:30). Acceptance of converts without proper commitment on their part to observance of the commandments, argues Rabbi Gestetner, constitutes denial of one of the principles of the Oral Law. Since immersion of such a candidate by the Bet Din is ipso facto a denial of a principle of the Oral Law involving a transgression of "the Lord does he blaspheme" any assistance rendered in performing such an act, rules Rabbi Gestetner, constitutes the placing of a stumbling-block before the blind.
The more obvious "stumbling-block" in such situations lies, of course, in the fact that an invalid conversion ceremony will in all likelihood lead to intermarriage. Rabbi Soloveichik presents the counterargument that no infraction of this prohibition is incurred in circumstances in which the untoward result will occur in any event, i.e., in situations in which there are others who are prepared to proffer the requisite assistance. Although this is indeed the view of R. Abraham Samuel Benjamin Sofer, Teshuvot, Ketav Sofer, Yoreh De'ah, no. 83,16See also R. Shlomoh Kluger, Teshuvot Tuv Ta‘am va-Da‘at, Mahadura Telita’a, part 2, no. 32. an earlier authority, Mishneh le-Melekh, Hilkhot Malveh ve-Loveh 4:2, demonstrates that when such aid can be provided only by a Jew, the Jew who in fact provides the assistance incurs the transgression. Mishneh le-Melekh's position finds support in the comments of Tosafot, Hagigah 13a, and Tosafot, Baba Mezi'a 75b. In point of fact, this consideration is not always germane with regard to making a mikveh available for invalid conversions since in many locales no other facility is available.
Another mitigating consideration is that the transgression of placing a stumbling-block is incurred only when the "stumbling-block" provided constitutes a proximate cause of the ensuing transgression. When, however, a supervening event is required in order to commit the transgression (lifnei de-lifnei) no biblical infraction is incurred in the placement of the stumbling-block. Rabbi Soloveichik, however, cites the comments of Tosefot Rid, Avodah Zarah 14a, which are significant with regard to this point. The Gemara, Avodah Zarah 14a, declares that incense used in idol worship may be sold to a non-Jew for purposes of resale. No infraction of the prohibition against "placing a stumbling-block before a blind man" is incurred in the original sale since the incense will not be used by the immediate purchaser. Yet, the Gemara, Niddah 61b, declares, that it is forbidden, under all circumstances, to sell a garment containing a concealed mixture of linen and wool to a Jew. In light of the ruling formulated in Avodah Zarah 14a, it would be anticipated that selling a garment containing a mixture of wool and linen for purposes of resale should not be regarded as involving a transgression of "placing a stumbling-block before the blind." Tosefot Rid distinguishes between the two cases by pointing to the fact that the sale of incense involves no misrepresentation by the first purchaser to the second, whereas a wool garment containing a concealed linen thread is not identified to the second purchaser as a garment which may not be donned. Rabbi Soloveichik cogently explains this distinction as predicated upon the bifurcated nature of the prohibition against placing a stumbling-block before the blind. As clearly stated by Rambam, Hilkhot Rozeaḥ 12:14-15, the prohibition enjoins two distinct forms of conduct: (1) offering ill-advised counsel; and (2) facilitating a transgression. Only with regard to the latter is a distinction drawn between lifnei and lifnei de-lifnei, i.e., only with regard to facilitating a transgression is the infraction limited to rendering assistance with regard to the proximate cause of the transgression. Offering infelicitous advice is forbidden even when the advice is only remotely associated with the untoward outcome. Merely providing the opportunity for transgression to a person who recognizes the forbidden nature of the deed does not constitute encouragement. When the illicit nature of the act is known, providing the opportunity is not construed as an attempt to overcome constraint. However, according a person the opportunity for committing an inadvertent transgression is tantamount to advising him to commit the transgression. Since the person is unaware of the forbidden nature of the contemplated act the opportunity serves as encouragement. Hence, merely providing the opportunity constitutes the placing of a "stumbling-block" of the genre of offering infelicitous counsel and is biblically forbidden under all circumstances. Similarly, R. Betzalel of Orlow, Teshuvot Rabbenu Bezalel, no. 3, rules that although no biblical transgression is incurred in proffering a glass of wine to a Nazarite when both parties are positioned on the same bank of a river (and the situation is such that the Nazarite could have obtained the wine without assistance), nevertheless, an infraction is incurred if the Nazarite is unaware of the fact that the cup contains wine. Offering the cup is tantamount to encouraging consumption of its contents and hence constitutes a stumbling-block in the form of ill-advised counsel rather than simply a stumbling-block in the form of assisting in a transgression. Thus, assistance in performance of an invalid conversion constitutes "placing a stumbling-block" in the sense of offering unsound counsel. Since the candidate for conversion is frequently unaware of the inefficacy of the procedure, any assistance offered constitutes "ill-advised counsel" and is forbidden.
Moreover, points out Rabbi Soloveichik, genevat da'at, i.e., misleading an individual, even a non-Jew, is a violation of the prohibition "Thou shalt not steal" (Exodus 20:13). Accordingly, assistance in misleading a gullible individual constitutes the placing of a stumbling-block before the perpetrator of the fraud. Furthermore, Targum Yonatan, Leviticus 20:3, regards all such assistance as intrinsically proscribed by the prohibition "Thou shall not steal." According to Targum Yonatan the prohibition encompasses, not only the act of theft per se, but also any action from which theft results.
On the basis of a somewhat different line of argument, Rabbi Gestetner similarly rules that it is forbidden to permit use of a mikveh for invalid conversions because of the likelihood of subsequent infractions of Jewish law. The Gemara, Gittin 61a, permits a woman to lend utensils used in the preparation of flour to a neighbor even though the neighbor is suspect with regard to observance of the restrictions of the sabbatical year. The stated reason is "because of the ways of peace" (mipnei darkei shalom), i.e., in order not to disrupt harmonious relationships. Despite consideration of "the ways of peace" the Gemara prohibits the same woman from personally assisting in the actual preparation of the flour. Rabbenu Shimshon and Tosefot Yom Tov, in their respective commentaries on the Mishnah, Shevi'it 5:9, demonstrate that the lending of utensils to suspected transgressors is permitted "because of the ways of peace" only when there is at least some possibility that they are to be utilized for a legitimate purpose. Similarly, Magen Avraham, Oraḥ Hayyim 346:4, forbids the lending of implements which may be used for activities forbidden on the Sabbath to a person suspected of being a Sabbath violator unless the implements are also commonly used for permissible activities. When considerations of darkei shalom pertain, Magen Avraham permits the lending of such implements even when they are not commonly used for permissible activities, provided, however, that there is at least the possibility that the implements will be put to a legitimate use.
In situations in which such a loan is forbidden the prohibition is predicated upon the consideration that "one dare not strengthen the hands of transgressors" (ein maḥazikin yedei ovrei aveirah). The prohibition against performing acts included in this category is generally regarded as rabbinic in nature. The prohibition is designed to proscribe certain activities which are excluded from the ambit of the biblical prohibition against "placing a stumbling-block before the blind" by virtue of the absence of an intrinsic cause-and-effect relationship between the assistance rendered and the resultant transgression. Rabbi Gestetner, however, cites the statement of Rambam, Commentary on the Mishnah, Terumot 6:3, to the effect that the prohibition against such action is rooted in the biblical admonition, "Do not put your hand with the wicked" (Exodus 23:1).
Granting permission for the use of a mikveh when such use will ultimately result in intermarriage, argues Rabbi Gestetner, is entirely analogous to lending utensils for purposes of preparation of forbidden produce or for use on the Sabbath in a proscribed manner. Rabbi Gestetner rules that, since the immersion in question serves no legitimate purpose, facilitating such immersion is forbidden even for considerations of darkei shalom, just as lending utensils for use in association with forbidden activities is prohibited even on grounds of darkei shalom when it is known with certainty that the utensils will not be used for a legitimate purpose. Granting permission for such use, argues Rabbi Gestetner, is forbidden even though immersion in the mikveh is not an intrinsically unlawful act but serves only to facilitate subsequent intermarriage. Assistance in preparing the flour, which is prohibited by the Gemara, Gittin 61a, is also not intrinsically unlawful; it is only the subsequent consumption of the foodstuff under improper conditions which constitutes the infraction. Nevertheless, even acts preparatory to the transgression are forbidden when no legitimate purpose can be ascribed to such acts.17Cf., however, Teshuvot Ketav Sofer, Yoreh De‘ah, no. 83, s.v., ve-yesh siyu‘a la-zeh; Teshuvot Bnei Ẓion, no. 15; and Teshuvot Aḥi‘ezer, IV, (Bnei Brak, 5746), no. 5, who maintain that the rabbinic prohibition applies only to assistance rendered at the time of actual transgression. Ketav Sofer, citing Rashi, Gittin 61a, describes assistance in the actual preparation of flour as assistance at the time of transgresssion while Aḥi‘ezer acknowledges the difficulty of explaining that prohibition. The earlier cited ruling of Magen Avraham also appears to contradict that distinction. Of course, if granting permission to use the mikveh constitutes a violation of the biblical prohibition against placing a stumbling-block before the blind because it is tantamount to counseling intermarriage, as Rabbi Soloveichik asserts, considerations of darkei shalom are entirely irrelevant. Such considerations, when applicable, serve to obviate a rabbinic prohibition but are irrelevant insofar as a biblical prohibition is concerned.
Rabbi Soloveichik further argues that permitting the use of a mikveh for invalid conversions constitutes the violation of yet other biblical prohibitions. Ramban, in his Commentary on the Bible, Leviticus 19:29 and Deuteronomy 23:18, as well as in his glosses on Rambam's Sefer ha-Mizvot, shoresh 5, and mizvot lo ta'aseh, no. 355, declares that the verse, "There shall not be a prostitute from among the daughters of Israel, nor shall there be a prostitute from among the sons of Israel" (Deuteronomy 23:18), and the verse, "and the land shall not be filled with licentiousness" (Leviticus 19:29), constitute admonitions to the Bet Din forbidding it to allow liaisons between persons who cannot contract a valid marriage. Rabbi Soloveichik asserts that, according to Ramban, the prohibitions are not addressed solely to the members of the Bet Din, but devolve upon any person capable of preventing the acts in question. Hence, any person who facilitates a forbidden liaison of such nature is guilty of violating these two prohibitions. Permitting use of a mikveh for an invalid conversion serves to provide sanction for a conjugal relationship between a Jew and a person who, in reality, is a non-Jew and hence, concludes Rabbi Soloveichik, constitutes a violation of these prohibitions.
It appears to this writer that there are two additional considerations which would bar permitting a mikveh to be used for purposes of an invalid conversion:
(1) The issue in question poses concerns which are identical with those that led to the issur against membership in the Synagogue Council of America and the New York Board of Rabbis promulgated by a group of eleven leading Roshei Yeshivah in 1956. Membership in such organizations, it was contended, confers, or appears to confer, legitimacy upon groups and individuals who misrepresent the teachings of Judaism and implies recognition of the equal validity of sectarian ideologies. Any such recognition or legitimization constitutes a negation of the authenticity of the Sinaitic nature of both the Written Law and Oral Law in their entirety. Even those who fail to adhere to that issur do not dispute the premise that any such conferral of legitimacy is prohibited; their sole contention is that membership in such organizations is not to be construed in such a manner.
Granting permission for use of a mikveh for purposes of conversions performed by non-Orthodox clergyman certainly constitutes a more obvious conferral of legitimacy upon the "Bet Din" convened for that purpose than mere admission to membership in a professional or communal organization. Surely, the observer will not assume that religious authorities have consented to the use of their facilities for a procedure that is a mere charade. As Rabbi Soloveichik notes in a different context, the same authorities would assuredly not make mikveh facilities under their control available to non-Jewish groups for religious purposes. Hence the impression conveyed is that full faith and credit is being extended to the acts—and ideology—of a non-Orthodox Bet Din. Granting such legitimacy is, in and of itself, a negation of fundamental principles of Jewish belief.
(2) Fees are commonly charged for use of a mikveh. In cases of conversion, the fee is paid by the candidate for conversion or, not infrequently, by the prospective Jewish marriage partner. Certainly, were the mikveh itself to be halakhically defective, acceptance of a fee for its use would constitute fraud. The concerned parties are frequently unaware of the fact that a conversion performed under Conservative auspices will not be recognized by Orthodox Jewry. Were the candidate to be aware of this fact, it is quite likely that he or she would not undergo such a procedure. Hence, although Rabbi Soloveichik dismisses this contention without elaboration, acceptance of a fee for use of the mikveh without informing the concerned parties of the lack of efficacy of the contemplated immersion may, at least in some circumstances, constitute an act of fraud.
*For a discussion of whether the presence of unqualified participants in addition to the requisite number of qualified participants renders the actions of the Bet Din null and void (nimza eḥad me-hem karov o pasul), see sources cited by Mishneh le-Melekh, Hilkhot Edut 16:5; Birkei Yosef, Hoshen Mishpat 7:31; Urim ve-Tumim 46:28; Sha'ar Mishpat 7:5; Kezot ha-Hoshen 36:7; Sho'el u-Meshiv, Muhadurah Tinyana, II, no. 84; Margaliyot ha-Yam, Sanhedrin 3a, sec. 15; Yabi'a Omer, II, Hoshen Mishpat, no. 2; Sedei Hemed, Kelalim, ma'arekhet haayin, no. 49; and Encyclopedia Talmudit, XV, 690. Although the participation of a person disqualified from acting as a dayyan may disqualify the entire Bet Din, his presence does not disqualify the entire Bet Din if the qualified members of the Bet Din decline to accept the disqualified individual as a participant. See Pitḥei Teshuvah, Hoshen Mishpat 7:22, and Yabi'a Omer, II, Hoshen Mishpat, no. 2.