Roberta Kwall

Introduction

It is well known that a “slide to the right” emerged in the American Orthodox community by the latter part of the twentieth century, a trend that continues to gain traction. However, it has also been shown that in recent years, a noticeable shift has emerged in the stance of Orthodox leaders, especially among the more Haredi camp, toward the liberal Jewish denominations. This surprising change in attitude toward liberal Judaism might be explained by the relative strength and security of American Orthodoxy, and the reality that engaging with a broader Jewish community can be economically advantageous for many Orthodox Jews. Another reason for this softer stance toward liberal Judaism may be the perception by some Haredi authorities that Orthodoxy is no longer seen as competing with the more liberal movements, and therefore a spirit of cooperation, and even limited admiration, is now possible.

This essay offers deeper insight into this shift by examining the relationship between how Jewish law is interpreted by the various denominations, and the trends in secular law and culture in the United States. Using gay marriage as a model, I will demonstrate that the liberal movements interpret Jewish tradition through the lens of the cultural milieu of modern American society. In contrast, Orthodox Jewish authorities understand Jewish law to be countercultural and therefore decide matters involving delicate topics of social importance based on Jewish legal precedent without reference to the cultural trends of our surrounding majority culture.

My argument is that this critical difference in the manner of legal interpretation between Orthodox and liberal halakhic authorities plays a vitally important, even if often unrecognized, role in bolstering the confidence of the Haredi world that the liberal movements represent a very different perspective and model of Judaism. Given this radical difference, the resulting paths have become so distinct that competition and enmity are understandably reduced, even if not completely eliminated. I also argue that the equilibrium resulting from these differences contributes toward a mutually beneficial environment in which a greater sense of Jewish unity—absent uniformity—can be achieved.

In his compelling book Beyond Sectarianism: The Realignment of American Orthodox Judaism,[1] Professor Adam Ferziger documents the shifting ideologies that have characterized what he calls Haredi and Modern Orthodoxy. Decades ago, the Haredi camp was largely insular and hostile to more liberal streams of Judaism. In contrast, those who identified with Modern Orthodoxy were more likely to promote cooperation with other denominations in circumstances deemed appropriate. Today, the situation is somewhat reversed. Due to the significant kiruv movement that began with Chabad–Lubavitch and has since been adopted by other Haredi communities, segments of Haredi leadership have become more comfortable engaging with non-Orthodox Jews. In contrast, the primary efforts of Modern Orthodoxy, which constitutes a numerically small sector of the Orthodox movement despite its relative economic strength, are now primarily directed toward concerns internal to their own community.

Ferziger’s fascinating concluding chapter highlights an essay written by Rabbi Moshe Hauer, a respected Haredi voice, which appeared in Klal Perspectives in 2013. This essay advocated a posture of tolerance, cooperation and a “live-and let-live” attitude between Orthodox and liberal movements, even incorporating an expression of appreciation for the positive contributions of the non-Orthodox. Ferziger clarifies that Hauer’s comments were made outside of the kiruv context, suggesting that his perspective was “no longer predicated purely on instrumental motivations.” In Ferziger’s view, Hauer’s articulated vision is a significant emblem of the realignment of American Orthodoxy that is the focus of his study.

The Relevance of Cultural Norms and Secular Law on Denominational Stances Involving Key Social Issues: The Example of Same-Sex Marriage

Scholars who study law through a cultural lens believe any legal system cannot be separated from its surrounding culture. In other words, law and culture are completely intertwined rather than distinct entities developed in isolation from one another. This perspective understands both law and culture as products of social context and historically specific circumstances. It also sees law as the product of discourse and debate, shaped in response to the push and pull of social forces.

For more than fifty years, significant issues involving race, gender, sexual orientation, and more recently sexual identity, have occupied a prominent place in American popular and legal discourse. If anyone doubts that public opinion influences decision-making in the judiciary, one need look no further than the 2015 United States Supreme Court opinion Obergefell v. Hodges, requiring all states to authorize same-sex marriage and recognize such marriages performed in other states.

Massachusetts was the first state to recognize same-sex marriage in 2004, but by 2015 well over half of the states followed suit. The Court’s majority opinion, delivered by Justice Kennedy, manifests a considerable amount of language that reflects a culturally nuanced view of the law. For example, the Court displays sensitivity to the public’s changing perception of marriage by emphasizing the considerable “referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books and other popular and scholarly writings,” which the Court claimed “has led to an enhanced understanding of the issue.” Further, on matters involving the identification and protection of a fundamental right, “history and tradition guide and discipline this inquiry but do not set its outer boundaries,” so that we can respect and learn from our history “without allowing the past alone to rule the present.”

This opinion heartily embraces a culturally nuanced approach to lawmaking given the Court’s overt embrace of cultural norms in its decisional calculus. Yet, in attempting to clarify that its views are limited to the realm of the secular and do not impact religious doctrine, the Court drew a bright line in the sand: “It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”

Still, there is no doubt that the secular discourse surrounding same-sex marriage has impacted how many religions, including Judaism, have responded to the changing social norms on this issue. Of course, within the confines of mainstream Orthodox Judaism, there is likely little wiggle room given the rather stark language on this subject in two distinct verses in Leviticus and the longstanding interpretative rabbinic tradition. Even so, in 2012, Rabbi Dr. Aharon Lichtenstein acknowledged the very public nature of the discourse on this issue when he argued for a greater level of honesty on the part of the Orthodox community in dealing with homosexuality.[2] He seemed to be saying that people who engage in homosexual acts should not be singled out for different treatment than other violators of Halakhah, such as those who desecrate Shabbat. Within Orthodoxy, however, the debates surrounding homosexuality have, until very recently, largely been confined to the extent to which a Torah-observant community can be inclusive of gay individuals.

In contrast, the trajectory of the discourse about same-sex marriage in the liberal movements beginning in the late twentieth century reveals a trend toward modifying and ultimately overturning Jewish tradition in favor of an approach mirroring the cultural norms of the surrounding American culture. This history helps to illuminate why today, Orthodoxy can afford to be generous in its view of liberal Judaism. Simply put, liberal Judaism is so distinct in its approach to Jewish tradition from Orthodox Judaism that there is no cause for concern in terms of blurred boundaries.

As late as 1973, Reform’s Central Conference of American Rabbis (“CCAR”) issued a responsum concluding that it is not in accord with the Jewish tradition to encourage the establishment of gay synagogues.[3] The language of this responsum is completely out of step with today’s social discourse in liberal circles to the extent it reflects caution about isolating homosexuals and increasing their “mutual availability” to one another. Significantly, the opinion explicitly reaffirmed that homosexuality is “deemed a sin in Jewish tradition” as well as “in Jewish life practice” but also highlighted that homosexuals still should not be excluded from the worship community.

Although the CCAR subsequently supported the civil liberties of homosexuals, in 1985 it concluded that Reform rabbis could not officiate at gay commitment ceremonies,[4] a position reaffirmed in 1996 in a lengthy responsum resulting from a very contested discussion.[5] But in 2000, a large majority of the voting members of the CCAR passed a resolution recognizing the diversity of opinion on this issue and supporting the decision of individual rabbis to officiate at same-sex ceremonies.[6]

The trajectory of the Conservative movement’s deliberations is even more complex. The lawmaking body of the Conservative movement is currently called “The Committee on Jewish Law and Standards” (“CJLS”). Originally, however, it was known as “The Committee on Jewish Law.” The name change occurred in 1949 to recognize explicitly that Conservative lawmaking should incorporate not only Halakhah but also extralegal factors.[7] With the adoption of this standard, the propriety of considering extralegal factors in addition to the classical Jewish law authorities became the norm for halakhic decisions of the CJLS. In this way, Conservative lawmaking differs vastly from the Orthodox norm, and on hot button social issues such as gay marriage and ordination, this distinction took on a huge significance.

The CJLS initially took up the issues of rabbis officiating at same-sex commitment ceremonies and admission to the movement’s schools in 1992, disallowing both.[8] The CJLS was asked to revisit these issues again in 2003, and in 2006, it issued numerous opinions, reflecting different points of view.[9] The five opinions (including two dissents) issued by the CJLS touched on somewhat different issues, but the overriding question seems to be whether homosexuality is a halakhically valid lifestyle choice.

Two of these opinions are the most significant for purposes of this discussion. The first, written by Jewish Theological Seminary professor Rabbi Joel Roth, argued that the tradition’s view of same-sex sexual relations should be maintained. This opinion garnered 13 affirmative votes, 8 in opposition, and 4 abstentions.[10] Although Roth, true to the lawmaking process of CJLS, considered extralegal factors in his decision, he concluded that they do not favor a change of policy in this case.

The second opinion, co-authored by Rabbis Elliot Dorff, Daniel Nevins, and Avram Reisner, concluded that it is permissible to ordain openly gay rabbis and for Conservative clergy to perform commitment ceremonies for homosexuals if they are so inclined. The opinion also instructed gay men to avoid anal sex given the biblical prohibition.[11] Significantly, one member of the 25 person CJLS voted for both the Roth and the co-authored opinion, ensuring that each would receive the requisite thirteen votes for majority status. Twelve committee members opposed this opinion.

Since 2006, it has become palpably clear that the dominant norms on these matters in Conservative Judaism mirror those of liberal America. In 2012, the authors of the joint opinion issued an appendix to their earlier opinion titled Rituals and Documents of Marriage and Divorce for Same-Sex Couples that was passed by the CJLS with 15 affirmative votes and one abstention.[12] Jewish Theological Seminary professor Jack Wertheimer, in his recent book The New American Judaism,[13] comments in a footnote that “with openly LGBTQ students enrolled in the Conservative rabbinical seminaries, that position is now the only tenable one, and the two more restrictive opinions approved …are dead letters.” Regarding marriage, I was told a few years ago by a Conservative rabbi that virtually all Conservative rabbis under the age of 40 have no problem with officiating at same-sex ceremonies.

Although the issue of sexual identity is completely different from sexual orientation, it is also worth noting that in 2017, the CJLS issued a teshuvah titled “Transgender Jews and Halakhah” with 11 affirmative votes and 8 abstentions. This opinion held that transgender Jews are “to be recognized as their publicly declared gender” regardless of whether their process of transition includes medical procedures or treatments.[14]

The 2013 Pew Report[15] furnishes ample evidence for the proposition that American Jews tend to be disproportionately politically liberal, and that as one moves toward the right end of the religious spectrum, there is an increased tendency toward conservative social opinions. Pew revealed that American Jews are among the most liberal, Democratic groups in the population, although among Orthodox Jews there is more of a tendency to identify with or lean toward the Republican Party. This political split was also mirrored on the specific issue of social acceptance of homosexuality, with Pew revealing a marked difference between Orthodox Jews, especially in the Haredi community, and liberal Jews.

Thus, it is not surprising that the bodies responsible for advising and determining halakhic matters for the two major liberal movements would reach conclusions mirroring the discourse in the general liberal population. On the contrary, it is hard to imagine that a majority of Orthodox Jews, even those who favor social acceptance of homosexuality (including 50% of Modern Orthodox), would advocate for recognition of a Jewish ceremony mirroring marriage.

The story of lawmaking concerning issues pertaining to homosexuality in liberal Judaism is a paradigmatic example of why mainstream Orthodoxy has nothing to be concerned about when it comes to the blurring of boundaries with the liberal movements. Significantly, as the following section argues, this trend affords net gains for Jews from both camps.

Is it Good for the Jews? Absolutely!

When it comes to the relevance of Jewish law to their lives, the 2013 Pew Report and anecdotal experience indicate that most non-Orthodox Jews have a very different perspective from the majority of Jews who self-denominate as Orthodox. For example, generally speaking non-Orthodox Jews do not believe that Jewish law represents binding authority. For liberal Jews, the idea of observance based on any sort of command is foreign. As a result, the concept of faithfully following Jewish law in its entirety, because God commanded that we do so, just does not resonate with most non-Orthodox Jews, even those who profess a strong faith in God.

Additionally, we live in an age in which many people do not respect the authority of contemporary religious figures, let alone the rabbis who shaped Jewish law hundreds of years ago. This increasingly secularized perspective is not unique to Judaism but rather plays a part in the overall secularization of American society. Our greater society prizes autonomy and customization. We pick and choose that which we feel is meaningful and have no second thoughts about discarding everything else. The same cultural norms of the larger society that play a part in the halakhic determinations by the liberal rabbinic authorities also impact how liberal Jews think about their individual patterns of observance.

Still, both Ferziger and Wertheimer document how today, engaged, liberal Jews exhibit a large degree of fluidity in their personal practices and denominational loyalties, findings that were also confirmed by a 2016 study of the Tucson Jewish community.[16] Typical patterns include multiple affiliations and a mixture of Jewish engagement, including with Orthodox forums. Wertheimer estimates that in the United States “the collective impact of Orthodox outreach may touch between six and seven hundred thousand Jews each year, rivaling the impact of the Conservative and Reform movements, and in the majority of cases complementing and enhancing the work of those movements.” Wertheimer also reveals that his off-record interviews with kiruv workers from various Orthodox backgrounds demonstrate that they often see success as strengthening Jewish activity in Reform, Conservative, and even Federation circles, as well as a willingness to marry Jewish and raise “a Jewish family of any kind.” One can make a strong argument that the impact of the relationships between kiruv workers and their constituents represent a considerable benefit to liberal Jews and the state of American Judaism generally.

Kiruv, and exposure to Orthodoxy, benefits liberal Jews in another way because it provides them with a type of authentic spiritual nourishment that also may be driven by the surrounding American cultural norms. To get at this issue, one must ponder why it is that people who are not conventionally religious still are attracted, even sometimes, to Orthodox outreach? What is the perceived value of kiruv to non-Orthodox Jews who likely have no intention of ever adhering to the letter of Jewish law?

One answer that is obvious to anyone who has ever participated in a kiruv event is that many people are drawn to the warm, charismatic, and encouraging personalities of those who do this type of work. But magnetism aside, I believe a large part of what attracts non-Orthodox people to kiruv workers is the perception that these individuals represent a sense of authenticity when it comes to Judaism. And in American cultural discourse, authenticity has become a prized quality.[17] Kiruv represents a readily available outlet for liberal Jews who seek—at least to some degree—a perceived sense of authenticity in their religious practice.

On the flip side, there are benefits that accrue to the Orthodox as a result of more substantial and positive connections with liberal Jews. Of course, economic gains cannot be dismissed. A thriving, and more engaged, liberal Jewish community in the United States has instrumental advantages for the Orthodox extending beyond support for kiruv. Liberal synagogues can, and do, hire Orthodox teachers and other professionals. Kosher restaurants and caterers do better when liberal Jews also use their services, even if they are not routine consumers.

It is also a known fact that liberal Jews represent a substantial percentage of those who are active in Jewish organizational work such as the Federation system. Jewish Federations support all Jewish denominations, including the Orthodox, and therefore Orthodox Jews clearly benefit from the generosity of liberal Jews. Support for Israel, an issue of tremendous importance to the greater Orthodox community, also is relevant to this discussion. Although there is reason to believe that for many Jews caring about Israel still is a marker of American Jewish identity, the positive nature of Israel’s influence on this identity is diminishing, particularly among younger Jews. The current political situation plays a role in this decline, but so does decreasing Jewish engagement in general among the non-Orthodox. This is another reason why Orthodox Jews have a major stake in facilitating more engagement on the part of liberal Jews on their own terms.

In short, the benefits of this emerging synergy between Orthodox and liberal Jews are important for both groups. Although Jewish practice will never look the same in liberal circles as it does in Orthodox communities, those who live within the halakhic system have a vested interest in helping liberal Jews strengthen their ties to Jewish tradition and practice in a way that is viable for them. The preservation of a rich and vibrant Jewish tradition for a greater number of Jews is critical for a flourishing Jewish future in the United States.

I often reflect on two comments made to me several years ago by two different students, both Orthodox. One student told me that he believes only Orthodox Judaism will survive and thrive in the United States. If he is correct about this, this is not good for the Jews. Realistically, only a relatively small percentage of American Jews will ever be interested and able to live an Orthodox lifestyle. There is strength in numbers, and especially in our current environment of increasing anti-Semitism, numbers matter more than ever. Moreover, Jewish tradition belongs to all Jews and it cannot, and should not, represent the property of any one sector. The development of a multitude of public Jewish voices is critically important today, even if those voices are not always in agreement with one another. Orthodoxy has a strong interest in helping liberal Jews strengthen their attachment to tradition and lead distinct but meaningful Jewish lives

My other student told me that his grandfather used to tell him that the Jewish people are like a symphony, and therefore, all parts are needed for the whole to function well. The Pew report demonstrates that American Jews generally are proud to be Jewish, see being Jewish as important, and have a strong sense of belonging to the Jewish people. When all denominations accept the inevitability of differences and appreciate the good faith function of each space on the Jewish religious spectrum, the Jewish people are at their strongest. The possibility of closer ties between Orthodox and liberal Jews represents a vital means of achieving the optimal Jewish community.

[1] Adam S. Ferziger, Beyond Sectarianism: The Realignment of American Orthodox Judaism (Detroit: Wayne State University Press, 2015).

[2] Aharon Lichtenstein, Perspective on Homosexuals, (Dec. 2, 2012)

[3] Cent. Conference of Am. Rabbis, Responsa, Judaism and Homosexuality (1973).

[4] Cent. Conference of Am. Rabbis, Responsa, Homosexual Marriage (1985).

[5] Reform Responsa for the Twenty-First Century (New York: CCAR, 2010), vol. 1, no. 5756.8, “On Homosexual Marriage,” pp. 213-256.

[6] Cent. Conference of Am. Rabbis, Resolution on Same Gender Officiation (2000).

[7] Moshe David Herr & Theodore Friedman, Oral Law, in 14 THE ENCYCLOPEDIA JUDAICA 454, 457 (Michael Berenbaum & Fred Skolnik eds., 2d edition, 2007).

[8] Joel Roth, Homosexuality (1992).

[9] Joel Roth, Homosexuality Revisited (2006); Elliot N. Dorff, Daniel S. Nevins & Avram I. Reisner, Homosexuality, Human Dignity & Halakhah: A Combined Responsum for the Committee on Jewish Law and Standards, (2006); Leonard Levy, Same-Sex Attraction and Halakhah (2006); Myron S. Geller, Robert E. Fine & David J. Fine, The Halakhah of Same-Sex Relations in a New Context, (2006); Gordon Tucker, Halakhic and Metahalakhic Arguments concerning Judaism and Homosexuality (2006).

[10] Joel Roth, Homosexuality Revisited (2006).

[11] Elliot N. Dorff, Daniel S. Nevins & Avram I. Reisner, Homosexuality, Human Dignity & Halakhah: A Combined Responsum for the Committee on Jewish Law and Standards, 19 (2006).

[12] Elliot N. Dorff, Daniel S. Nevins & Avram I. Reisner, Rituals and Documents of Marriage and Divorce for Same-Sex Couples (2012).

[13] Jack Wertheimer, The New American Judaism: How Jews Practice their Religion Today (Princeton: Princeton University Press, 2018).

[14] Leonard A. Sharzer, Transgender Jews and Halakhah.

[15] See A Portrait of Jewish Americans–Pew Research Religion and Public Life Project (2013).

[16] Gila Silverman, “’I’ll Say a Mi Sheberach for You’: Prayer, Healing and Identity Among Liberal American Jews,” Contemporary Jewry 36, no. 2 (March 2016): 175;

Gila S. Silverman, Kathryn A. Johnson, and Adam B. Cohen, “To Believe or Not to Believe, That is Not the Question: The Complexity of Jewish Beliefs About God,”Psychology of Religion and Spirituality 8, no. 2 (May 1, 2016): 119-20.

[17] For a forthcoming study on the impact of the search for authenticity in the development and self-image of American Orthodoxy, see the forthcoming Authentically Orthodox: A Tradition-Bound Faith in American Life.