CCAR RESPONSA

5758.12

Orthodox Minyan in a Reform Synagogue



She’elah.

A few years ago a young man converted to Judaism at our congregation, which is the only one in the city. He subsequently underwent an orthodox conversion, left the community and attended yeshiva in New York. During a recent visit to Jackson he requested the use of our facilities for an “orthodox” minyan. By this he means that women, though they may attend the service, will not count as part of the minyan and will be denied any opportunity to participate in the service.

My initial response to this request was “no,” on the grounds that the minyan would not be egalitarian and therefore contrary to our communal custom (minhag hamakom). On the other hand, I wonder if the Judaic value of hospitality to guests (hakhnasat or’chim) argues in favor of accommodating Orthodox visitors? Does the answer differ when these visitors ask for space for a minyan that meets on a regular or permanent basis? How forthcoming should we be, especially in view of the numerous incidents at the Western Wall, where, to put it mildly, no accommodations are made for liberal practice and “mixed” minyanim? (Rabbi James Egolf, Jackson, MS)

Teshuvah.

A Hard Case. There is an old saying that hard cases make bad law.[1] This may or may not be true;[2] what is clear, however, is that hard cases, questions for which the existing law offers no single clear and obviously “correct” solution, are unavoidable. We confront hard cases all the time, not only in the law but also in the other traditions in which we participate, such as ethics and religion, when the applicable rules, principles, and precedents of that tradition pull in conflicting directions. And when we do, we have no choice but to think our way toward an answer that, while recognizing the ambiguities of the situation, nonetheless represents our best and most coherent understanding of that tradition as a whole.

This she’elah presents just such a hard case. It involves a fundamental tension between two important Reform Jewish principles, both of which we proudly affirm. Each of these principles represents a range of values and commitments which express themselves throughout our personal and communal observance. And each of them would seem to argue for a contradictory response to our question. For the purposes of this teshuvah, we designate these principles by the labels “Jewish pluralism” and “Reform Jewish integrity.”

By “Jewish pluralism,” we mean our recognition as liberals that there are a number of different and even conflicting paths which Jews might legitimately walk in response to the call of Torah.[3] As Reform Jews, we demand the right to make our own religious decisions, and we reject any effort to impose upon our communities an “orthodoxy” which claims that there is but one correct way to believe, to pray, and to practice our faith. And simple fairness requires that, just as we assert this freedom for ourselves, we must grant it to others. We acknowledge that all Jews are entitled to observe their Judaism in a manner that speaks to them and suits their spirit. Accordingly, we do not insist that they adhere to our own version of “the correct way.”

This commitment would lead us to provide this young man and those who would join him with space to worship according to their custom. True, our congregation already offers religious services to which visitors are welcome, and we might think that in making these services available we have fulfilled toward them our duty of hakhnasat or’chim (if, indeed, that mitzvah can be said to apply to our case).[4] Yet by defining themselves as an Orthodox community, these individuals declare that they cannot meet their liturgical needs by participating in our own communal worship. As liberals who affirm Jewish pluralism, we do not wish to compel them to do so. Nor do we wish to bar our doors to them, to tell them that unless they are willing to follow our rules they shall have to assemble elsewhere. To do so smacks of rank intolerance, a narrow-mindedness that ill-befits a liberal movement such as ours. On the contrary: we who affirm the positive value of Jewish religious diversity would prefer that they gather in our synagogue, which might then serve its true purpose as a “house of prayer for all Jews,” a place where Jews of differing religious approaches may worship as they see fit.

By “Reform Jewish integrity,” on the other hand, we express our conviction that Reform Judaism is based upon certain fundamental affirmations which define and distinguish us as a religious community. These affirmations constitute our core values, the irreducible content of our approach to Judaism, a content we cannot compromise without surrendering our integrity, without denying who and what we are. We are prepared, to be sure, to make some adjustments in our practice out of respect to Jewish diversity. In the present case, we would not oppose a request by a group to hold in our building a service at which a traditional siddur is used.[5] We would object, however, when this group identifies itself as an Orthodox community, for Orthodox Judaism espouses fundamental affirmations of its own which are incompatible with ours. One of these is its denial of ritual equality to women; thus, female members of our congregation would not be counted in this minyan and would be excluded from equal participation in its service. Another is Orthodoxy’s refusal to recognize the halakhic validity of conversions supervised by Reform rabbis, on the grounds that our rabbis are incapable of constituting a valid beit din (rabbinical court); thus, the Orthodox group would not accept our Jews-by-choice as Jews at all. Our objection, in other words, is not that Orthodox practice differs from ours but that Orthodoxy disenfranchises well over half our membership and proclaims that Reform is not a legitimate expression of Judaism. To permit this group to assemble in our building is to transmit the message that its theology is somehow acceptable to us. We must not send that message.

Although we affirm Jewish religious pluralism as a great value, it is not our only value. Acceptance of diversity can never be allowed to call our other basic Judaic commitments into question. Put simply, there are limits to our pluralism. These limits are set by those standards which form the essence of our Jewish outlook, standards which can be violated only at the cost of our Reform Jewish integrity. For all our tolerance, we would never permit a group of Jews for Jesus or other apostates to hold their worship services in our facility. Nor would we allow a group to organize an “alternative” Jewish service which denies as a matter of religious principle the right of participation to any Jew on the basis of gender. No religious community, no matter how liberal, could possibly exist if it were unable to draw lines, to set boundaries, and to agree upon at least the most minimal definitions of what it does and does not believe.[6] Our commitment to gender equality and our affirmation of our own Jewish religious legitimacy are examples of such boundaries; indeed, they are in the category of minimal standards, values without which “Reform Judaism” as we know it could scarcely exist. Our congregations dedicate themselves to the furtherance of these values and to the observance of these standards. To allow space to groups which repudiate them is to act in contradiction of our very purpose as a religious community.

A Halakhic Precedent. We cannot resolve this issue, therefore, simply by invoking “Reform religious principles,” because more than one such principle speaks to it and because those principles draw us in contradictory directions. How then shall we proceed in this situation, in which Jews deeply divided over matters of religious outlook and practice seek to live together within the same institutional framework?

Our tradition offers us guidance in the form of a helpful precedent. We refer to the Talmud’s discussion of one of the halakhic conflicts which divided the early rabbinical “schools” of Hillel and Shammai.[7] The question arises: although the halakhah generally follows the view of the school of Hillel,[8] did the school of Shammai ever put its theoretical viewpoint into concrete practice? Some, the Talmud suggests, answer this question in the affirmative. Yet to say this raises a problem: would not such an act violate the prohibition, derived from Deuteronomy 14:1, “do not divide yourselves into separate sects”?[9] This rule, if applied literally, seems to demand that those holding the minority or rejected legal viewpoint yield in practice to the majority or accepted opinion. The Talmud responds that the rule “do not divide yourselves” applies only to the context of a single beit din (rabbinical court), so that once a decision is rendered its judges do not express public dissent over it; however, “in a case of two separate rabbinical courts within the same community, the rule does not apply.”[10] Each “court” is a distinct religious institution which enjoys its own halakhic integrity and is entitled to practice as it sees fit. The schools of Hillel and Shammai are equivalent to two separate “courts” within the same community; thus, each may practice according to its own understanding of the halakhah.

This passage reminds us of two important points. It teaches us, first of all, that the rabbinic tradition indeed places a high value upon unity in religious practice. We are, after all, one people, in possession of one Torah, who ought to be united in service to the one God. Divisiveness in practice should be discouraged, for it suggests that we have failed to study the Torah properly and are therefore unable to agree on its message for us; such disagreement makes it appear that we are following “two Torahs” instead of the one.[11]

Yet the existence of conflicting “schools” of Jewish thought and practice reminds us that diversity is inevitable. We Jews have never agreed on all questions of belief and observance, nor is it likely that we ever will. “Majority” and “minority” views will always exist among us; we cannot enforce a unity of religious life that, however ideal, is illusory in reality.[12][i] Our text therefore suggests a compromise which pays allegiance to both these goals. Opposing viewpoints (“courts”; “schools”) may coexist within the same institutional framework (“city”), so that each “court,” while accepting the existence of the other, possesses a distinct identity. Unity is preserved both as a theoretical goal and because each “school” retains the practical authority to determine its own standards. Diversity is acknowledged because each “school” is granted Jewish legitimacy within its own realm.

Our case, we believe, closely resembles the situation that obtained between the “schools” of Hillel and Shammai. We Reform Jews define our religious outlook in a particular way, and we want our synagogues and other institutions to reflect this definition. For this reason, we might well insist upon the rule “do not divide yourselves into separate sects” and require that those who meet to worship in our facilities do so according to our own standards of liturgical practice. Yet so long as the nascent Orthodox minyan enjoys a separate organizational identity from our own, there is no need to enforce this artificial unity. Like the school of Shammai, the Orthodox minyan is and can be seen by all to be a distinct entity–a beit din, “court”or “school”–whose practices and doctrines are not to be confused with those of the larger Reform congregation. This group can coexist within our “city,” alongside our Reform “court,” so long as the separate existence of each group is acknowledged and made clearly visible to all. By facilitating this coexistence, we most certainly do not endorse the religious views of the Orthodox minyan, any more than the coexistence of the schools of Hillel and Shammai meant that either beit din endorsed the conflicting decisions of the other. Our Reform Jewish integrity therefore remains intact. We say rather that Jewish unity and diversity–integrity and pluralism— are equally worthy goals and that our tradition would have us make room for both.

We are aware of the irony of this position. We know that, were the situation of our she’elah to be reversed, an Orthodox congregation would not likely grant permission to a Reform group to hold services in its synagogue building. This is because Orthodox Judaism is not a liberal creed. It proclaims that there is but one correct version of Jewish practice, and that Reform Jewish worship is not an acceptable variation of that correct version. They do not regard our disagreements as similar to the conflict between the schools of Hillel and Shammai, two legitimate if conflicting interpretations of the same Torah. On the contrary: they condemn us as heretics, they cast us outside the pale, they deny the Jewish validity of our practice. It may be tempting to respond in kind, to reject them in return, to deny them space within our precincts as they would surely deny it to us. Yet our religious principles forbid us the path of retaliation. The conduct of the Orthodox Jews who drive us from our rightful place at the Western Wall cannot serve as a model for our own behavior. If they are not liberals, we are; if their conception of Judaism cannot make room for diversity, ours does and must. We look upon Orthodox Jews not as enemies but as friends. We greet them not as aliens and heretics but as our brothers and sisters. And whether or not they would do the same for us, our liberal Jewish faith demands that we reach out to them in a spirit of fellowship and generosity.

Conclusion. A Reform congregation may provide space within its facility for an Orthodox congregation to worship, provided that the latter maintains a separate and distinct identity. In this way, all will know clearly that our synagogue, while reaching out in friendship to our fellow Jews, in no way endorses those aspects of their religious practice that are offensive to us.

How might we best maintain this “separateness” as we host the Orthodox congregation? On this point, the members of the Committee differ.

Some of us feel that the necessary separation can be maintained only by insisting that this arrangement be temporary. They are willing to provide space to the Orthodox minyan for a strictly limited period, to enable them to find suitable quarters of their own; should this prove impossible, it would be evidence that the community as a whole cannot support a separate Orthodox congregation. In any case, we will have done our duty to assist them.

Others are willing to allow the Orthodox minyan to meet in our building on a permanent basis, provided that they do not assemble for worship in our sanctuary. The sanctuary has been dedicated to Reform Jewish worship, in which all members of our congregation are accepted as equals. An Orthodox minyan would exclude many of us from equal participation. To permit them to assemble in our sacred space would amount to an insult, a lessening of its sanctity.

The majority of us, however, would permit the Orthodox group to meet on a permanent basis in our building, including the sanctuary; we do not agree that the worship service of any legtimately Jewish congregation affects the holiness of that space. We would place two provisos upon our permission. First, the Reform congregation must be acknowledged as the ba`al habayit, the owner of the building. This means that the Orthodox group may use our facilities only so long as their usage does not conflict with our own services and other events. A clear and binding written agreement specifying the restrictions placed upon their usage of our facilities is a necessity. Second, it is best that this Orthodox group formally and legally constitute itself as an independent congregation, so that it not appear to be a chavurah or sub-group of our own. Moreover, we should charge them rent for the use of our facilities, although this rent might well be set at a purely symbolic amount. In this fashion, it will be evident to all that the two groups, their congregation and ours, are separate and distinct entities, so that each may pursue–together yet independently of the other–its chosen path to Judaism and Torah.

NOTES

A legal maxim of uncertain origin. The definition of “hard cases” here follows that of the legal philosopher Ronald Dworkin; see his Law’s Empire (Cambridge, MA: Belknap/Harvard Press, 1986), 255-256. As such, it represents a change from the original understanding of the term: “judicial decisions which, to meet a case of hardship to a party, are not entirely consonant with the true principle of the law. It is said of such: ‘hard cases make bad law’”; J.R. Nolan and J.M. Nolan-Haley, eds., Black’s Law Dictionary, 6th ed. (St. Paul: West Publishing Co., 1990), 717, taken from Corpus Juris 29:213 (1922). It is this definition that Justice Oliver Wendell Holmes, Jr. had in mind when he wrote: “Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend”; Northern Sec. Co. v. United States, 193 U.S. 197, 400; 24 S. Ct. 436, 468, 48 L. Ed. 679 (1904) (Holmes, J., dissenting). On the difference between the “new” and “old” definitions, see note 2, below. Actually, the maxim makes sense only if we accept the original definition of a “hard case” as one in which law and equity, conceived of as two separate realms not to be mixed, are at loggerheads. In such an instance, it might be claimed that an equitable decision makes “bad law” by introducing non-legal considerations into the legal system. The definition adopted by Dworkin better refers to what we might call a “difficult case,” and as Richard A. Posner points out, “only difficult cases make law, good or bad. Cases that are easy to decide are so by virtue of being controlled by existing law”; see his The Problems of Jurisprudence (Cambridge, MA: Harvard U. Press, 1990), 161, n. 1. Note the phrase “a number of different and even conflicting paths.” By this, we mean a not-unlimited “number.” No plausible interpretation of Jewish pluralism requires us to recognize every conceivable version of “Judaism” as legitimate. None of us, for example, would dissent from the thoughts expressed below concerning the Jews for Jesus. On the source of the mitzvah of hospitality, see BT Shabbat 127a-b, where it is listed among the things “whose fruits one consumes in this world and whose principal remains available for one in the world-to-come,” an example of gemilut chasadim (acts of lovingkindness). Maimonides classifies such acts under the rubric of “love your neighbor as yourself” (Lev. 19:18; Yad, Avel 14:1). This obligation, however, is traditionally understood in the more literal sense as hospitality to travelers, hosting and feeding them in one’s home or in some other suitable location. We know of no interpretation of this mitzvah that calls a congregation to modify its liturgical practice in order to accommodate a visiting group within its midst. On the contrary: normative practice is for the visitors to accommodate themselves to the minhag of the host synagogue. If there are objections as to the content of the siddur, we might respond that those passages which offend our religious sensibilities can either be reinterpreted or, if necessary, excised from the service. For a fuller version of this point, see Teshuvot for the Nineties, Introduction, especially at xvii-xxi. M. T’vamot 1:1-3 and B. Y’vamot 13a-14a. This particular dispute centers upon the institution of levirate marriage (yibum), the requirement that the widow of a childless man be married to her brother-in-law in order that she might raise up a child in the name of her deceased husband (Deuteronomy 25:5-10). Both schools agree that should the widow be forbidden to her brother-in-law as an ervah, one of the sexual unions prohibited in Leviticus 18, she is exempt from both the requirement of yibum and the legal ceremony of chalitzah which releases that requirement. The school of Hillel go farther, holding that if the deceased had two wives then both of them were equally forbidden as an ervah to the brother of the deceased. The school of Shammai disagreed; they held that the “second” wife in such a case had to submit to yibum or chalitzah if she were not actually an ervah. According to the school of Hillel, the child born of that union–permitted and required by the school of Shammai–is a mamzer. As we can see, therefore, this dispute was hardly a matter of superficial importance. By virtue of the decision of the bat kol, the heavenly voice, which proclaimed that “the views of both schools are in accord with divine teaching (eilu ve’eilu divery elohim chayim hem), but the halakhah follows the school of Hillel”; B. Eruvin 13b. From the phrase lo titgodedu. The literal meaning of these words, of course, is a prohibition against making gashes in one’s body with sharp instruments (Rashi to Deut. 14:1; Yad, Avodat Kokhavim 12:13). The Talmud here resorts to a fanciful midrash and reads the words as: lo te`asu agudot agudot, “do not divide yourselves into separate sects.” As the discussion in B. Y’vamot 13b-14a makes clear, the “separateness” referred to here is not a purely theological matter but one of separate standards of halakhic observance. This is according to the opinion of Rava in B. Eruvin 14a, which is cited as halakhah in Hil. HaRosh, Yevamot 1:9 (see also R. Menachem Hameiri, Beit Habechirah, Y’vamot 14a). It differs from the opinion of Abaye, who declares that the prohibition does not apply in the case of two courts in two separate cities but does apply to two courts in the same city. Maimonides (Yad, Avodat Kokhavim 12:14) follows Abaye, a ruling which puzzles his commentators, since according to the normal rules of halakhic decision making the law follows Rava in virtually all cases when he is disputed by Abaye. Rava’s position, moreover, is presented by the Talmud as the conclusion of the sugya, another fact which indicates its predominance. And his view is clearly superior to that of Abaye, for it more effectively answers the difficulty raised against those who argue that the school of Shammai actually practiced according to their “incorrect” opinion. It has been suggested that Maimonides gives evidence here of his distaste for machloket: he thus decides according to Abaye because Rava’s view is the more lenient and tolerant of dispute. See R. David ibn Zimra, Resp. Radbaz, no. 1384. Thus Rashi (Y’vamot 13b, s.v. lo te`asu) explains the prohibition against dividing into “separate sects”: “denir’in kenohagin shtei torot.” See the remark of R. Menachem Hameiri, Beit Habechirah, Y’vamot 14a: “So long as we are dealing with two separate courts, even though they reside in the same city, each one holding to its own understanding of the law, they do not violate the rule ‘do not divide yourselves.’ For it is impossible that everyone should always agree to follow the same opinion.”

[i] See the remark of R. Menachem Hameiri, Beit Habechirah, Yevamot 14a: “So long as we are dealing with two separate courts, even though they reside in the same city, each one holding to its own understanding of the law, they do not violate the rule ‘do not divide yourselves.’ For it is impossible that everyone should always agree to follow the same opinion.”

If needed, please consult Abbreviations used in CCAR Responsa.