Conservative Halakha

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Conservative Judaism views Halakha (Jewish law) as normative[1] and binding.[2] However, it takes the position that halakha can and should evolve to meet the changing reality of Jewish life. Conservative Judaism, therefore, views that traditional Jewish legal codes must be viewed through the lens of academic criticism. As Solomon Schechter noted, "however great the literary value of a code may be, it does not invest it with infallibility, nor does it exempt it from the student or the Rabbi who makes use of it from the duty of examining each paragraph on its own merits, and subjecting it to the same rules of interpretation that were always applied to Tradition".[3]

Conservative Judaism believes that its view of Jewish law as evolving and adaptable is indeed consistent with Jewish tradition.(See also, the various positions within contemporary Judaism as regards Halakha and the Talmud.)

Contents

[edit] Difference in methodology from Orthodoxy

A key practical difference between Conservative and Orthodox approaches to halakhah is that Conservative Judaism holds that rabbis in our day and age are empowered to issue takhanot (decrees) modifying Biblical prohibitions, when perceived to be necessary.

The Talmud states that in exceptional cases rabbis have the right to uproot Biblical prohibitions for a variety of reasons; it gives examples of how this was done in practice, e.g. Talmud Bavli, tractate Yevamot 89a-90b, and tractate Nazir 43b.

1. B'shev va'al ta'aseh. Rabbis may rule that a Torah mitzvah should not be performed, e.g. blowing the shofar on Shabbat, or blessing the lulav and etrog on Shabbat. These are not done out of fear that one may carry these items from home to a synagogue, thus inadvertently violating a Sabbath melakha. (Yevamot)

2. B'kum va'seh. When there is emergency measure that needs to be taken, one may violate a Torah mitzvah, in order to maintain the Jewish system as a whole. Arnold Goodman writes "The example cited is Elijah offering a sacrifice on Mt. Carmel in order to turn the people back from idolatry. (Yevamot)

3. B'davar she'b'mammon. The principle of Hefker Bet Din Hefker, a rabbinic court has the power to declare an object, or money, ownerless. (Yevamot)

4. A Kohen may violate the Torah mitzvah ordering Kohanim not to bury the dead. The example given in Nazir 43b is that a Kohen may bury his wife, as her own father is dead and cannot bury her. Arnold Goodman writes: "In a famous tosfot, Rabbi Yitzhak explains that by Biblical law, she is not a Met mitzvah because she has other family. Yet since her relatives and family may have abandoned her, the Rabbis regarded her as a Met mitzvah and even though a Bet Din does not have the authority to uproot a Biblical prohibition, in an instance where there is a panim v'taam l'davr, it is universally accepted that there is authority to uproot."

See the discussion by Rabbi Arnold Goodman in Solemnizing the Marriage Between a Kohen and a Divorcee p.2 (bottom) p. 3 (top.) Goodman notes that "Later authorities were reluctant to assume such unilateral authority... Later authorities thus imposed severe limitations on the conditions and situations where it would be appropriate and necessary to uproot.." but then states on p.3 that "Yet the right to uproot was never completely prohibited. There was often the need for an escape hatch, and the right of Rabbinic authorities to do so was articulated by the Rashba as follows: It was not a matter of the sages deciding on their own to uproot a matter of the Torah, but it is one of the mitzvot in the Torah to obey the 'judges in your day' and anything they see necessary to permit is permissible from the Torah." (Chidushai Rashba, Nedarim, p.90a)

Conservative Jewish philosophy does not allow the use of popular will to overturn Biblical or rabbinic laws. Like Orthodoxy, Conservative Judaism requires responsa citing a full range of precedential authorities as part of any halakhic decision. Changes in halakhah must come about through the halakhic process. For examples of this view see Rabbi David Golinkin's essay "The Whys and Hows of Conservative Halakhah," Elliot N. Dorff's "The Unfolding Tradition" (esp. introduction and chapter 1), Joel Roth "The Halakhic Process" (Chapter 1, but throughout the entire book)

A significant difference with Orthodoxy is that Conservative rabbis have produced a body of research on the history of halakha which, in their view, concludes that rabbis in every age have always included ethical concerns as a major part of the halakhic process. They hold that rabbis in practice viewed both halakhah and aggadah as inter-related domains, and that one could not be used exclusively without the other. See Roth's "The Halakhic Process", Louis Jacobs "A Tree of Life", and Robert Gordis "The Dynamics of Judaism: A Study in Jewish Law" (stressed in introduction and chapters 8, 9)

The CJLS has on a number of occasions accepted teshuvot which include moral and aggadadic reasoning alongside and within a strict precedent-based halakhic framework. As such they sometimes come to conclusions that differ from their Orthodox peers.

[edit] Conservative Jewish observance of Halakhah

Conservative Judaism holds that both the ethical and ritual mitzvot ("biblical commandments") are normative. Conservative Jews therefore are obligated to observe ritual laws including the laws of Shabbat (the Jewish Sabbath); the laws of kashrut (keeping kosher); the practice of praying three times a day; observance of the Jewish holidays and life-cycle events.

A number of studies have shown that there is a large gap between what the Conservative movement teaches and what most of its laypeople have incorporated into their daily lives. A primary source of such information is Jewish Identity and Religious Commitment: The North American Study of Conservative Synagogues and Their Members, 1995-96, edited by Jack Wertheimer (1997). In practice, the majority of Jews affiliated with Conservative synagogues do not observe the Conservative interpretation of halakha.[4]

Conservative Jewish practice, however, is significantly stronger than that found in Reform Judaism, such as following Shabbat, Kashrut, life-cycle events and holiday observances.[5][6]

There is a substantial committed core of Conservative Jews, consisting of the lay leadership, rabbis, cantors, educators, and those who have graduated from the movement's religious day schools and summer camps, that do take Jewish law very seriously. Recent studies have shown a marked increase in the observance of members of the movement (Silvestein, ibid.)[7]

[edit] Specific decisions in Jewish law

This section describes how Conservative beliefs and theory have been applied in practice over the last century. Conservative Judaism began with rabbinical practices similar to those of contemporary Modern Orthodoxy and somewhat laxer observance among its laity. Over the years, specific issues and decisions have resulted in increasing divergence from Orthodoxy. Key differences include:

[edit] Homosexuality

Conservative Judaism has long discussed the issue of homosexuality, and whether or not a re-evaulation of the subject is appropriate. The issue had been informally discussed since the 1980s, and became a formal issue studied by the CJLS in the early 1990s. The CJLS consistently refused to pass several proposed takkanot concerning the Levitical prohibitions on male-male anal sex, but also on all forms of homosexual intimacy in general.

A variety of liberal proposals had been brought forth in the non-Orthodox community, including some by Rabbinical Assembly rabbis. Some argued that a change in Jewish understanding and law on this issue must change due to new information about the biology and genetics concerning human sexuality. Others argued that a change was required solely on ethical grounds. No such papers were accepted by the CJLS, as Conservative Judaism sees itself as bound by halakhah.

However, these arguments were soon expanded upon within more formal halakhic responsa, one of the most prominent by Rabbi Bradley Shavit Artson. He used historical, sociological and ethical considerations to argue that homosexuality, as it is now understood today, was not described by the Torah, or understood by traditional rabbis. As such, one would be able to restrict the understanding of the Torah prohibition to cases not being considered today. His views considered important, but they were not accepted, by themselves, as halakhically convincing. A few years later Rabbi Elliot N. Dorff used these arguments in his case for re-evaluating homosexuality, but held that Artson's paper was insufficiently halakhically rigourous. Dorff studied the issue of coercion, arguing that people who were innately homosexual due to biology were not to be regarded as sinning. His early papers on the subject began to gain acceptance among a minority of RA rabbis, but ultimately it was made clear that the CJLS would not accept this argument as sufficient. A later more extensive paper by Rabbi Gordon Tucker had also gained acceptance amongst a minority of Conservative rabbis. Tucker's paper went further than Artson's or Dorff's, stating that it is necessary to expand the definition of the halakhic process. Tucker's paper was so extensive a change that it could not be accepted as a mere changes of Jewish law; it was a takkanah that would uproot a Torah prohibition if passed. The CJLS has considered varying versions of his proposals, but also has never passed them.

On December 6, 2006, the Committee on Jewish Law and Standards adopted diametrically opposed responsa on the issue of homosexuality. The CJLS's action permits each congregational rabbi and rabbinical school to decide which responsum to adopt and hence set its own policy on the subject. The adoption of dual, contradictictory responsa represents a straddling of the contemporary societal divide over sexual matters. It also represents a sharp change from previous Conservative policy, which in 1993 had adopted a consensus position reaffirming a blanket prohibition on homosexual conduct while welcoming homosexuals as members.

[edit] The Dorff, Nevins, and Reisner responsum

One responsum, by Rabbis Elliot N. Dorff, Daniel Nevins and Avram Reisner, lifted traditional restrictions on homosexual conduct, which it stated were rabbinic in character and subject to reconsideration by the CJLS, except for male-male anal sex which it stated was De'oraitha (Biblical) and unalterably forbidden, yet permitted Conservative rabbis to allow homosexual union ceremonies, and gave the option for Conservative rabbinical schools to admit and ordain openly gay and lesbian rabbis.[8]

The responsum begins with a quote from Rabbi Abraham Yitzhak HaKohen Kook,

The light of the Messiah, when it blazes in the heart, teaches one to dignify all people: “It shall be on that day that the root of Jesse will stand as a sign to the nations, and peoples will seek him, and his consolation shall be dignity." (Isaiah 11:10)[9]

After a discussion of contemporary theories of sexuality and a warning against promiscuity, the responsum interprets Leviticus 18:22 and 20:13 as pertaining to male-male anal sex only:

Ancient authors employed euphemism when describing sex, making it difficult to prove exactly what activities they understood to be included within these verses. Is it possible that the biblical prohibition called mishk’vei ishah and later, by the Rabbis, mishkav zakhur, includes actions other than anal intercourse? These verses have been variously translated, but almost all readers conclude that they prohibit anal sex between men, with the first verse addressing only the insertive partner, and the second verse including the receptive partner.[10]
We have demonstrated that only one form of homosexual intimacy, anal intercourse between men, is prohibited at this level as an ervah. We must conclude that any Jew who seeks to fulfill the Torah’s commandments must avoid this forbidden act.[11]

The responsum also insisted that Jewish law could not be interpreted any more permissively:

In contrast, our colleagues Rabbis David Fine, Robert Fine and Myron Geller have argued that the verses in Leviticus should be understood to prohibit only those sexual relationships that offer no possibility of marriage. In an age when gay marriage is permitted by some jurisdictions, they argue, the Torah’s ban is no longer universal. Although they present their reading as “the p’shat,” there is nothing simple or contextual about this interpretation. Nowhere does the passage mention marriage. The list of forbidden sexual relations includes menstrual sex, which can occur within a marital context. It is hard to accept that the Torah forbids bestiality only because it offers no opportunity for marriage. This reading, too, is sui generis — unsupported by either ancient or modern commentaries.[12]

The responsum described rabbinic prohibitions on sexual relations as mere fences, many of which, it said, the Conservative movement had already lifted. It compared Rabbinic prohibitions on homosexual conduct to strictures on approaching or touching ones wife during the Niddah (post-menstrual) period:

However, our community does not enforce, and indeed does not accept, these severe prohibitions. We do not hold, as a matter of fact, that the laws of ”approach” are biblically mandated, but rather that they are in the category of rabbinic fences and borders that are all ultimately intended to protect against transgression of the fundamental biblical rules about sexual conduct. Just as the Sages of old exempted themselves from some of the severity of the laws against contact between the sexes between relatives,45 so have we concluded that average people can be trusted to maintain appropriate relations despite social kissing and hugging and moments alone together, even behind locked doors.

This teshuvah makes a distinction between a Torah mitzvah and later rabbinical fence laws. It argues (page 8) that:

"We conclude that there is only one prohibited sexual relation of arayot among homosexual behaviors, which is anal sex between men, and that other restrictions have no basis in biblical legislation. ...While some readers might conclude from the texts reviewed above that Jewish law imposes a universal and undifferentiated ban on all homosexual intimacy, we must emphasize the nuances found in this literature. ...The Torah’s most severe sexual prohibitions are identified as ervah (plural: arayot). In antiquity, these were punishable by death as well as by the severe divine penalty known as karet. Of these sexual prohibitions alone did the rabbis teach, yeihareig v’al ya’avor, that one should die rather than transgress. We have demonstrated that only one form of homosexual intimacy, anal intercourse between men, is prohibited at this level as an ervah..."

The responsum questioned whether requiring celibacy for homosexuals was feasible, quoting Deutoronomy 30:11-14:

For this mitzvah which I command you today is not too grand for you, nor is it far away. It is not in heaven, that it be said, ‘who will ascend to heaven to get it for us, and teach us how to do it?’ It is not across the sea,...

The responsum invoked and extensively commented on the concept of Kevod HaBriyot, "human dignity," noting that the concept is traditionally limited to Rabbinic enactments:

So great is human dignity that it supersedes a negative commandment of the Torah. Yet no sooner is this potentially radical principle enunciated than it islimited specifically to the commandment that establishes rabbinic authority, , לא תסור “do not stray from the law they [i.e., the rabbis] teach you right or left.” This concern for human dignity is cited in both Talmuds to override certain injunctions, but it is not considered capable of overturning an explicit biblical rule.[13]

After an extensive discussion of this principle, the responsum applies it to declare all rabbinic prohibitions on homosexual conduct overridden, leaving only what it finds to be the biblical one:

It is not possible to set aside the explicit biblical prohibition on anal sex that is stated twice in Leviticus and frequently reaffirmed by the Rabbis. As we have shown, the kvod habriot principle supersedes rabbinic, not biblical law. Of course, there is a theoretical way to overturn biblical law via the legislative mechanism of takkanah (decree). We do not find this mechanism to be appropriate in our case, because takkanah requires the consent of the majority of the population, and this subject remains quite controversial in the observant Jewish community.
However, the rabbinic restrictions upon gay men and lesbian women that result in a total ban on all sexual expression throughout life are in direct conflict with the ability of these Jews to live in dignity as members of the people of Israel. For this reason, the halakhic principle of gadol k’vod habriot must be invoked by the CJLS to relieve their intolerable humiliation. We must make open and rigorous efforts to include gay and lesbian Jews in our communities, to provide a proper welcome and a legal framework for the normalization of their status in our congregations.

In conclusion, the responsum declined to rule on the status of homosexual relationships, but declared that "the celebration of such a union is appropriate."

We are not prepared at this juncture to rule upon the halakhic status of gay and lesbian relationships. To do so would require establishing an entirely new institution in Jewish law that treats not only the ceremonies and legal instruments appropriate for creating homosexual unions but also the norms for the dissolution of such unions. This responsum does not provide kiddushin for same-sex couples. Nonetheless, we consider stable, committed, Jewish relationships to be as necessary and beneficial for homosexuals and their families as they are for heterosexuals. Promiscuity is not acceptable for either homosexual or heterosexual relationships. Such relationships should be conducted in consonance with the values set out in the RA pastoral letter on intimate relationships, “This Is My Beloved, This Is My Friend”: A Rabbinic Letter on Human Intimacy. The celebration of such a union is appropriate.

[edit] The Roth responsum

The CJLS also adopted two restrictive responsa, one as a majority and one as a minority opinion. The majority responsum, by Rabbi Joel Roth,[14] was also adopted by 13 votes. It maintained traditional prohibitions on homosexual conduct and forbade Conservative rabbis from blessing homosexual unions and rabbinical schools from ordaining gay and lesbian clergy.[15] On December 10, Rabbi Roth published an editorial in the Jewish Theological Seminary's newsletter JTS News providing some of the reasoning behind his responsum and explaining why he resigned following the CJLS's vote."[16]

According to Rabbi Roth, the central problem with the permissive responsum is that it adopted a claim that the Biblical prohibition on homosexual conduct is limited to anal sex only based on insufficient support in precedent, the view of only "one sage". Rabbi Roth argued that it is impermissible to adapt such a minority view:

What divided us was the question of our right to adopt a legal stance attributed to one sage that the prohibitions against sexual behavior other than male intercourse are rabbinic in status, d’rabbanan, and not biblical, which attribution is itself open to serious question and is denied by most decisors.

Rabbi Roth also said that "Even if the prohibition against sexual behavior other than male intercourse is rabbinic in authority and not biblical, what justifies our abrogating that prohibition?" He argued that the Talmudic concept of Kavod HaBriyot, which the permissive responsum used as justification for doing so, is simply not the same thing as the idea of "human dignity" in contemporary liberalism:

In almost all of the cases in which the category is invoked, the claim is that X may violate the law out of deference to the honor of Y. In the case under discussion, X is to be entitled to violate the law out of deference to his own honor, for which claim there is no real precedent.
What’s more, such a claim is theologically weak, since no law-abiding Jew would ever entertain the possibility that his honor would supersede that of God. And in the few cases of application of the category which can possibly be understood to imply that X may violate the law out of deference to his own honor, X is always literally in a social context and in the presence of others.

Rabbi Roth stated that in his perception, the supporters of the permissive responsum were blinded by their predisposition to rule favorably and were unable to view the issue with a dispassionate legal mind.

How halachically defensible does an argument have to be before it can be considered within the halachic ballpark? We all understand and agree that decisors of Jewish law often approach the subject before them with a predisposition to give a specific answer. There’s nothing wrong with that, in my opinion. What, then, distinguishes a good decisor from a poor one? The good decisor is able to judge his decision with enough dispassion to see whether his predisposition has blinded him to the indefensibility of his answer, and the poor one is not. It is my opinion that my colleagues have here been blinded to the indefensibility of their conclusion. ."[17]

Rabbi Roth argued that the halakhic legitimacy of the Conservative movement was at stake:

What is at stake here, for me, and I believe for the Committee on Jewish Law and Standards as a body, is whether the Law Committee can continue to be seen as an halakhic decision-making body. For all of the breadth I believe that there is for pluralism within halakhah, some decisions are outside those boundaries. If we make such a decision, we are no longer legitimate halakhists, we undermine our authority as the interpreters of God’s will, and we render the Law Committee halakhically irrelevant.[18]

Rabbi Roth ended by articulating what he regarded as the fundamental difference between the traditionalist and the liberal wings of the Conservative movement. From the traditionalist point of view, acceptance of the hypothesis that the Torah was transmitted through multiple manuscripts and redactors in no way changes its status as a Divine, "legally infallible" document, a "given" reality to which any theological theory must conform:

That, then, brings us to the following issue: Assuming that the type of biblical scholarship we have all been taught is correct, does that mean that the Torah is, in fact, not Divine and legally infallible? I believe that it does not mean that. The argument here is over the following issue: Is theology the dog which wags the tail called halakhah, or is halakhah the dog which wags the tail called theology? It cannot be both ways.
There can be no real doubt that normatively speaking the halakhic tradition is the given, and theology is required to fall into place behind it. Theology can, indeed, should, provide the narrative which makes the halakhic tradition intellectually persuasive and emotionally acceptable and satisfying, and that narrative can change as needed, and it need not be the same narrative for everyone. Narratives, after all, are aggadic, and thus, neither normative nor binding. That claim, incidentally, in no way diminishes their importance. Whatever narrative works is fine,so long as the narrative does not reverse which is the dog and which is the tail. In this enterprise we are again in a long chain: Sa’adia Ga’on did it, Yehuda ha-Levi did it, Maimonides did it, Samson Rafael Hirsch did it, David Zevi Hoffman did it, and Joseph Hertz did it. Our movement’s thinkers and theologians are as competent to provide a modern and persuasive theology of halakhah as were the thinkers of the past. But, we, like they, cannot undo the foundational premise of the entire halakhic system – that the Torah is Divine and legally infallible.[19]

[edit] The Levy responsum

Rabby Leonard Levy's responsum, adopted as a minority opinion by six votes, argued that homosexuality was a potentially treatable condition that was not necessarily genetically determined. It urged homosexuals interested in living an observant Jewish life to seek treatment.[20]

[edit] The Tucker dissent

The CJLS rejected a proposed responsum by Rabbi Gordon Tucker which would have lifted all restrictions on homosexual conduct. Although it gained seven votes, the minimum to accept a responsum, it was classified as a takkanah (legislative decree) rather than a judicial interpretation. By CJLS procedural rules a takkanah requires 13 votes to pass. Accordingly, it was published as a dissenting opinion with a note that "concurring and dissenting opinions are not official positions of the Committee on Jewish Law and Standards".[21] The fundamental premise of the dissenting opinion was that the Torah is not infallible, legally or otherwise, but is subject to reconsideration based on subsequent knowledge:

When someone says, “What can we do? The Torah is clear on the subject!”, what is being said amounts to a claim of infallibility and irrefutability for the text of the Torah. And that claim ultimately rests on the assumption that the words of Leviticus (and, of course, those of the other four books of the Pentateuch) express directly and completely the will of God. (Indeed, treating a text as infallible on any basis other than on such an assumption would surely count as a form of idolatry.) But that assumption (that the Torah is the direct and complete expression of God’s will) is one that, for all its currency in parts of the Jewish world, is not accepted in our Conservative Jewish world.[22]
No, the time has come for a movement that has finally published a Humash commentary that reflects the theology our masters have taught us to “come out of the closet”. It is past time for us to be, in the prophet Elijah’s words, “hopping between two opinions”. If the axiom behind this theological argument is to be accepted, then let us forthrightly admit that we have been misled by the teachers at whose feet we have sat. But if we confess that we do not accept the axiom of biblical infallibility, then let us honor our teachers by abandoning this theological argument, and by no longer permitting ourselves to say, when the matter of gays and lesbians comes up, “What can we do? The Torah is clear on the subject!” Could it perhaps be that critical study itself was given to us precisely so that we would not let the text of the Torah stand as an impediment to the acceptance, fulfillment,andnormalization of God’s creatures?[23]

[edit] Shabbat

In the 1950s and 1960s the Conservative movement permitted limited circumstances regarding driving to a synagogue on Shabbat.

  • The CJLS accepted a responsa which holds that if a person rides to synagogue on Shabbat, with the intention of fulfilling Shabbat mitzvot, and that if no other driving on Shabbat is done, then that person will not be held as being in violation of halakhah. The decision about driving was in the nature of an emergency decree, overriding what the authors saw as rabbinic law. The reason was that a tremendous number of American Jews were now living far from synagogues as an unavoidable consequence of modern life, and unless Jews were permitted to drive to synagogue, they most American Jews would lose their connection to Jewish life ("Responsum on the Sabbath" by Rabbis Morris Adler, Jacob Argus and Theodore Friedman.)
This teshuvah became somewhat infamous within the observant Conservative Jewish community, and the CJLS was forced to issue a clarification some years later, as the laity came to believe that driving on Shabbat was now generally permitted. (It was not so permitted.) A clarification of these teshuvot was issued in "Travel on the Sabbath", a statement unanimously adopted by the CJLS on 2/17/60.
A vigorous debate on the controversy that these responsa sparked, and how they should be viewed today, arose in the late 1990s and continues today. Modern Conservative views may be found in "Reflections on the Driving Teshuvah" by Avram Hein in the Spring 2004 issue of "Conservative Judaism, along with responses by Rabbis David Fine, Susskind Goldberg, Kassel Abelson, and Ismar Schorsch), Conservative Judaism Vol. 56(3), pp. 21-50.
  • The CJLS allowed some use of electricity on Shabbat, so long as the use of this electricity did not violate any melakha, Shabbat-prohibited activity. This decision was based on an argument that the nature of electricity more resembled running water in a faucet, which can be turned on and off on Shabbat, than fire, which cannot be ignited on Shabbat. ("Responsum on the Sabbath" by Rabbis Morris Adler, Jacob Argus and Theodore Friedman.)
  • In 1989 the Conservative movement allowed rabbis to permit videotaping bar and bat mitzvahs on Shabbat, on grounds that a videotape is not a form of writing (which is prohibited on Shabbat). This permission operates under the restriction that such videotaping is set up before Shabbat, and that no Jewish person operates said equipment during Shabbat.[24]

[edit] The role of women

Main article: Role of women in Judaism
  • Early in its history, Conservative Judaism determined that a mechitza separating men and women was not required in services, and that women could be called to the Torah if permitted by the synagogue rabbi. Both decisions were based on arguments from Jewish sources.
  • The CJLS passed a takkanah which allowed Jewish women to count in the prayer minyan. Throughout 1973 the CJLS debated various responsa on this subject. In August 1973 a vote was taken. Instead of voting for or against a particular responsa, the commmittee voted on accepting the conclusions of the teshuvot. A motion was passed which stated that "Men and women should be counted equally for a minyan.", with nine in favor and four opposed. According to Rabbi David Fine (Women and Minyan, 2002, p.3) this was because those voting disagreed about the reasoning; no one teshuvah's reasoning was totally satisfactory to all members. Some rabbis agreed with the reasoning, but thought that the change was inadvisable because of possible negative effects on the structure of the Jewish family, or the strength of the Conservative movement. (ibid, p.3)
Rabbi Philip Sigal and his supporters held that Jewish law did not actually prevent women from being counted in a minyan. (Fine, p.4) Sigal holds that the Mishneh Torah and Shulkhan Arukh do not state that ten males must make up a minyan; rather these sources only say that ten are required. His views were later disputed by some other Conservative rabbis, most prominently David Feldman. (Woman's Role and Jewish Law in Siegel, ed., Conservative Judaism and Jewish Law, p. 300.) Around this same time, Rabbi Sigal later reported that many CJLS rabbis did not agree with the reasoning in his paper, even if they happened to agree with his conclusion. He concluded that counting women in a minyan was justifiable within the halakhic system, but could no longer be viewed as a change in minhag; it was a change in halakhah as established by precedent, and thus and should be viewed as a takkanah. (Fine, p.4) This is also the view accepted in Fine's 2002 CJLS paper.
  • In 1983 a number of Conservative rabbis issued responsa on the same subject, arguing that women can and should be counted in the prayer minyan. These papers were written as part of the process of JTS deciding on whether or not to admit women to its rabbinic and cantorial programs. However, the Chancellor of JTS at the time took this process out of the hands of the CJLS, and made the process an affair of the JTS faculty, a move that caused strong controversy, and several resignations of TAlmud faculty from JTS. The decision to allow women to become rabbinical and cantorial candidates was then based on a vote of JTS faculty, in principle based on their readings of these responsa and their own understanding of the relevant texts.
The anger generated by this controversy affects JTS to this day. The sensitivity over this issue causied future JTS Chancellors Ismar Schorsch, and then Arnold Eisen to avoid making future halakhic decisions, and insisting that such issues be resolved by the CJLS, e.g. the issue of homosexuality. This was especially apparent as Schorsch was a strong proponent of not changing the movement's views on homosexuality, while Eisen was a proponent of making such changes. Despite their personal views, each felt it would be improper to overrule the CJLS.
  • In 2002, long after the Conservative movement had adopted complete de facto egalitarianism, it offered its first responsum on the subject, the Fine responsum, holding that Jewish women as a corporate entity could agree to assume the same obligations as men and be bound by them corporately, without any individual woman having to do so personally.[25]

The CJLS effectively passed a takkanah ruling that women may be counted as witnesses in all areas of Jewish law. This change is viewed as a lifting of a rabbinical prohibition that were rooted in social dynamics. See Myron S. Geller, "Woman is Eligible to Testify"; Susan Grossman, "Edut Nashim k'Edut Anashim: The Testimony of Women is as the Testimony of Men" and Joseph H. Prouser, "On Women Serving as Witnesses–A Dissent".[26]

[edit] Kashrut - Keeping Kosher

The Conservative movement's understanding of kashrut is generally the same as that within Orthodox Judaism. However, on issues where leniency is possible its Committee on Jewish Law and Standards consistently allows the lenient views as an acceptable option. For instance, it is permissible to view all gelatin as kosher, milk does not have to be cholov yisrael, and red meat does not have to be glatt.

The one significant difference between Orthodox and conservative interpretations of halakha is that the CJLS accepted a responsum which states that all American wines may be viewed as kosher. This issue is discussed more fully here: Kosher wine#According to Conservative Judaism

See[27]

[edit] Restrictions on marriages by Kohanim

Conservative Judaism affirms the belief in a rebuilt Temple in Jerusalem, in which Kohanim may bring offerings. However, Conservative Jews generally reject the idea that animal sacrifices will be a part of these services. The movement has no official position on what will or should occur in a future Temple.

In 1968 Rabbi Isaac Klein wrote a responsa accepted by the CJLS that allowed a Kohen to marry a convert. (Responsa and Halakhic Studies, Ktav) The reasoning behind this responsa was that:

  • Since the Temple in Jerusalem no longer extant, kohanim are no longer needed to perform Temple services in a state of ritual purity.
  • The priestly status of most modern-day kohanim is doubtful at best. The frequent persecutions and expulsions of Jews throughout history have caused kohanim to lose track of their genealogy.
  • Because the intermarriage crisis among American Jewry is an extreme situation, the Conservative movement feels it must support the decision of two Jews to marry. The responsa puts this forth as an emergency situation. Any marriage between two Jews should be encouraged.

As the rate of intermarriage among American Jews increased, the issue was revisted again in the 1990s. In 1996 the CJLS issued two emergency takkanot effectively lifting biblical restrictions on Kohen marriages. This was done given the high rate of intermarriage in the USA, and the need to keep two Jews who marry within the Jewish community. Rabbi Goodman details the Talmud's ruling that rabbis have the right to uproot Biblical prohibitions in three cases, and examples of how this was done in practice (Solemnizing the Marriage Between a Kohen and a Divorcee) p.2 (bottom) p. 3 (top)

Goodman offers sources which admit that "Later authorities were reluctant to assume such unilateral authority... Later authorities thus imposed severe limitations on the conditions and situations where it would be appropriate and necessary to uproot.." but then gives sources that state "Yet the right to uproot. was never completely prohibited. There was often the need for an escape hatch, and the right of Rabbinic authorities to do so was articulated by the Rashba..." (p.3)
Goodman's paper argues that the high rate of intermarriage and need to keep married Jews in the Jewish community meets traditional rabbinic standards for such actions, and notes "Should the current rate of intermarriage be reversed, a future Law Committee may well decide to review this issue. At this time, however, we face a crisis of such proportion that we dare not, in good conscience, stand between the marriage of two Jews whose union as forbidden by virtue of his being a Kohen and she a divorcee. Our steadfast refusal to solemnize their marriage, or even to agree to do this only after seeking to dissuade them, may well lead the couple to be married either in a civil ceremony or in a ceremony without full chuppah and kiddushin. ..." (p.4)
Arnold M. Goodman, "Solemnizing the Marriage Between a Kohen and a Divorcee" EH 6:1.1996
Arnold M. Goodman, "Solemnizing the Marriage Between a Kohen and a Convert" EH 6:8.1996

Unlike some Orthodox authorities, which will solemnize such marriages on condition that the parties and their descendents no longer perform Priestly functions, the Conservative movement regards participants and offspring of biblically prohibitted marriages as Kohanim in good standing.[28]

[edit] Giving Kohanim precedence in reading from the Torah

The CJLS accepted a responsum concluding that synagogues are not required to call a Kohen to the first aliyah (reading) at a Torah reading, although traditionalist synagogues may choose to continue to do so out of custom.[29] The CJLS has also determined that a Bat Kohen (female Kohen) can perform priestly functions including the Priestly Blessing[30]

[edit] Mamzerut

The CJLS issued a ruling, which, while not abolishing the Torah category of mamzerut (children born of an incestuous or adulterous union), effectively ended the category's application to Conservative Judaism. The CJLS accepted a responsa which instructs Conservative rabbis to refuse to accept evidence on this subject, thus preventing anyone from being declared a mamzer by a Conservative rabbi. The responsa explained that its approach was based on "morality... of our tradition":

We cannot conceive of God sanctioning undeserved suffering… When a law of Torah conflicts with morality, when the law is ‘unpleasant,’ we are committed to find a way to address the problem… We are willing to do explicitly what was largely implicit in the past, namely, to make changes when needed on moral grounds. It is our desire to strengthen Torah that forces us to recognize, explicitly the overriding importance of morality, a morality which we learn from the larger, unfolding narrative of our tradition[31]
In Rabbi Elie Kaplan Spitz's responsum effectively making the Biblical category of mamzerut (basturdy) inoperative, he writes how the "morality which we learn through the unfolding narrative of our tradition" can override traditional understandings of Jewish law.

Orthodox Jewish approaches had recognized the difficulty of maintaining such a category under circumstances where it has become common to divorce civilly and remarry without obtaining a Jewish get (bill of divorce). Orthodoxy thus devised strict rules of evidence rendering it all but impossible to prove the existence of such cases, but had kept the category as a theoretical possibility and enforced it in a very small number of controversial modern cases. In declaring its willingness to "do explicitly what was largely implicit in the past" and get rid of the applicability of the category entirely, the CJLS expressly declared that it did not consider classical rabbinic understanding of this subject to be "the final word" regarding the Divine will, and that "Aggadah", its evolving conception of morality, can and should override Biblical injunctions when the two come into conflict:

While Conservative Judaism would affirm that the Torah is Divine in its origin, the revelation at Sinai is seen as the beginning of a relationship and not the final word. Interpretation is understood as our communal attempt to understand the will of a compassionate Divine partner. As we mature we are able to understand God's will for us more clearly. If a law appears unconscionable, we would say that the shortcoming is either our previous understanding or that circumstances have so changed that the rule no longer meets its intended result...The Conservative movement maintains that the purpose of the law in the first place is largely to concretize moral values, and so the specific form of the law can and should be changed if it is not effectively doing that. In other words, the Aggadah should control the Halakha.[32]
When a law of Torah conflicts with morality, when the law is 'unpleasant', we are committed to finding a way to address the problem. As a halakhic movement we look to precedent to find the tools with which to shape the Torah. For the most part, we rely on the strategies of old. At the same time, we are willing to do explicitly what was largely implicit in the past, namely, to make changes on moral grounds.[33]

[edit] Debate over Halakhic Foundations

There has recently been debate within Conservative Judaism as to whether and to what extent the movement should continue to base, or claim to base, its practices on halakha. In the keynote address to the December 2005 Biennial convention, JTS philosophy professor Neil Gillman urged Conservative Judaism to “abandon its claim that we are a halachic movement,” which he called “irrelevant to the vast majority of our lay people.”[1]. This speech was strongly criticised.

Rabbi David Golinkin, head of the Schechter Institute in Jerusalem, subsequently replied that "If the Conservative movement abandons its claim that it is a halachic movement, it really has no reason to exist." [2]

[edit] Differences from Orthodox theology

Both Conservative Judaism and Orthodox Judaism view Rabbinic decrees and interpretations as open to some re-evaluation. However, whereas according to the Thirteen Principles of Faith of Orthodox Judaism the Halakha contains a core reflecting a direct Divine revelation that represents God's final and alterable word to the Jewish people on these matters, Conservative Judaism does not necessarily consider portions of the halakha, and even Biblical law, as a direct record of Divine revelation. The CJLS has written that the Torah represents merely "the beginining of a relationship" rather than a final word and can be superseded by new understanding and new circumstances "as we mature".[34]

This more liberal approach to revelation has resulted in a view that Conservative Judaism's rabbinate can overrule Biblical as well as rabbinic law believed to be inconsistent with modern requirements. The CJLS has issued a number of Rabbinic decrees, or takhanot (plural of takhanah), that lift biblically-derived prohibitions - prohibitions which Orthodox Judaism universally regards as sacrosanct.

Examples of such Conservative decrees are:

  • a 1961 decree permitting driving to synagogue on Shabbat, overriding the Biblical injunction on the use of fire on Shabbat (based on the rejection of the view that driving equates with making fire.) Responsum on the Sabbath by Rabbis Morris Adler, Jacob Argus and Theodore Friedman.[35][36]
  • a 1998 decree permitting Kohanim to marry divorced women without losing the privileges of Kohen status
  • a 2000 decree abolishing investigations into Mamzer status

Despite these decrees, Conservative Judaism's theories of halakha incorporate a broad spectrum of views, including Orthodox views on some issues.

[edit] See also

[edit] References

  1. ^ The Indispensability of Halakhah, Emet Ve-Emunah: Statements of Principles of Conservative Judaism, 1990
  2. ^ Rabbi Elliot Dorff, Medieval And Modern Theories Of Revelation, Etz Hayim, 2001
  3. ^ Solomon Schechter, Studies in Judaism, First Series, 1896, Jewish Publication Society of America
  4. ^ Jewish Identity and Religious Commitment: The North American Study of Conservative Synagogues and Their Members, 1995-96, edited by Jack Wertheimer, 1997, Ratner Center for the Study of Conservative Judaism
  5. ^ Encouraging Trends Among Conservative Synagogue Members, Alan Silverstein, USCJ Website http://www.uscj.org/intmar/trends.html
  6. ^ The Jews in the Center: Conservative Synagogues and Their Members, edited by Jack Wertheimer, 2000
  7. ^ The Conservative Movement in Judaism: Dilemmas and Opportunities, Daniel J. Elazar, Rela M. Geffen, SUNY Press, 2000
  8. ^ Elliott N. Dorff, Daniel Nevins, and Avram Reisner. Homosexuality, Human Dignity, and Halakha. Committee on Jewish Law and Standards, Rabbinical Assembly, December 6, 2006
  9. ^ ibid.
  10. ^ ibid.
  11. ^ ibid.
  12. ^ ibid.
  13. ^ ibid.
  14. ^ Rabbi Joel Roth, Homosexuality Revisited, Rabbinical Assembly, December 6, 2006. Retrieved on 2007-01-23.
  15. ^ The Forward - Conservative Panel Votes to Permit Gay Rabbis. Retrieved on 2006-12-10.
  16. ^ Rabbi Joel Roth, "Op-Ed: Law committee in its gay ruling stepped outside halachic framework", JTS News, December 10, 2006
  17. ^ Rabbi Joel Roth, "Op-Ed: Law committee in its gay ruling stepped outside halachic framework", JTS News, December 10, 2006
  18. ^ Rabbi Joel Roth, Homosexuality Revisited, Rabbinical Assembly, December 6, 2006. Retrieved on 2007-02-12.
  19. ^ Rabbi Joel Roth, Homosexuality Revisited, Rabbinical Assembly, December 6, 2006. Retrieved on 2007-02-12.
  20. ^ Same Sex Attraction and Halacha. Retrieved on 2007-02-12.
  21. ^ Rabbi Gordon Tucker, Halakhic and Metahalakhic Arguments Concerning Judaism and Homosexuality. The Rabbinical Assembly, December 6, 2006
  22. ^ Rabbi Gordon Tucker, Halakhic and Metahalakhic Arguments Concerning Judaism and Homosexuality. The Rabbinical Assembly, December 6, 2006
  23. ^ Rabbi Gordon Tucker, Halakhic and Metahalakhic Arguments Concerning Judaism and Homosexuality. The Rabbinical Assembly, December 6, 2006
  24. ^ RA Teshuva on videotaping on Shabbat. Retrieved on 2006-12-10.
  25. ^ RA Teshuva on "Women and the Minyan". Retrieved on 2006-12-10.
  26. ^ RA Teshuva on "Women is Eligible to Testify". Retrieved on 2006-12-10.
  27. ^ RA Teshuva on "The Use of All Wines". Retrieved on 2006-12-10.
  28. ^ RA Teshuva on"Solemnizing the Marriage Between a Kohen and Divorcee". Retrieved on 2006-12-10.
  29. ^ RA Teshuva on "May a Non-Kohen be Called to the Torah in the Presence of a Kohen". Retrieved on 2006-12-10.
  30. ^ RA Teshuva on "Women Raise Your Hands". Retrieved on 2006-12-10.
  31. ^ Rabbi Elie Kaplan Spitz, Mamzerut, Committee on Jewish Law and Standards, EH 4.200a, pp. 558-586
  32. ^ ibid., at p. 575
  33. ^ ibid., at p. 585
  34. ^ Spitz, at p. 575
  35. ^ Proceedings of the Committee on Jewish Law and Standards 1927-1970: Volume III", p.1109-1190, The Rabbinical Assembly, Ed. David Golinkin
  36. ^ http://leventhal.com/shabbat/

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