The Conversion Psak: Some Comments and One Observation
I am at a loss to explain how much of the much-touted recent psak was lost on so many who have taken vocal positions about it. Let no one construe this piece as taking a stand one way or another. Reading the psak and gaining some additional context from others, suffice it to say that I was rather disturbed by aspects on both sides. The evidence regarding shoddy (to put it mildly) standards by the “special conversion courts” is persuasive; on the other hand, some of the arguments used by Rabbi Shirman seemed to me to require greater support than was offered in the psak, given the gravity of the consequences. Certain elements of the case, however, are much clearer than the general public seems to think:
1) It is a real stretch to see this as part of a haredi war against the dati-leumi camp. The whistleblower did not hail from Bnei Brak. He is Rabbi Yisrael Rozen, former head of the special conversion court, editor of Techumin, a leader of Tzohar, and very identified with the dati-leumi world. He was the one who in 2000 discovered that gerus documents were signed by people who were not even in the country when they said they witnessed the conversion. He did the necessary investigation and found a pattern of abuse. He confronted the perpetrator and received no explanation. He wrote to both Chief Rabbis asking them what to do. Are conversions suspect if they are attested to by fraudulent documents? Are the two rabbis who affixed their signatures (in over two hundred cases) fit to oversee conversions in the future? Unfortunately, the psak does not let us know what response, if any, Rabbi Rozen got.
2) On the other hand, even though two of the three signatures on many documents were fraudulent, there were three dayanim present at the conversions wrongly attested to. The validity of those conversions will draw from those three dayanim and their procedures, not from the signatories on the false documents. Rabbi Shirman says as much. (Of course, even those conversions will now be subject to scrutiny, case by case. Since the cat is out of the bag that the “Special Conversion Court” stands accused of accepting converts who would make a pro forma declaration of intent to observe the mitzvos, even when it was never accompanied by real intent, the majority of the Torah world – haredi and centrist – that does not accept such conversions will question all converts coming from that court. No statement by Rav Amar shlit”a repudiating Rabbi Shirman’s psak will change that in the slightest.)
3) The roles of both Rabbi Attiya and Rabbi Shirman have been overstated. Neither invalidated twenty years worth of converts – although the arguments they raise do have that potential. That is not what either set out to do. Rabbi Attiya decided on the validity of a single get that came before him. He argued that the get had no standing, because the woman was not Jewish, having converted without intent to observe mitzvos. The case was appealed to a higher rabbinical court. Rabbi Shirman’s job was to uphold or overrule on review. To that end, he amassed evidence to sustain Rabbi Attiya’s decision. It was not his job to try the case de novo, but simply to pass on Rabbi Attiya’s sources and judgment. He cannot be faulted for failing to try the case from the ground up
4) Rabbi Shirman has a reputation for being a fine talmid chacham, of temperate and modest disposition. He spent some months of a sabbatical at YU. His decision was not his alone, but shared with two other dayanim of his court, one of whom learned in Kerem B’Yavneh
5) Rabbi Druckman was indeed called a vile name. This, however, as not part of a plot to defame him, but to consider whether he should be consigned to a long-recognized halachic category. The question was whether the evidence of wrongdoing rose to the bar of invalidating him from courtroom testimony and sitting on a judicial panel. One who violates one through deed one of the Torah’s proscriptions becomes a rasha halachically who can no longer testify. Part of Rabbi Shirman’s court’s job was to determine whether any alleged wrongdoing on the part of Rabbi Druckman placed him in that category. That was his job. Calling Rabbi Shirman names amounts to shooting the messenger. Those who wish to defend Rabbi Druckman can and should do so by countering Rabbi Shirman’s halachic arguments.
6) The argument raised by so many that this psak wreaks havoc with the lives of thousands of people and their children and future generations, etc. – and therefore cannot be valid – is entirely specious. I am not aware of any legal system in which errors cannot be discovered and decisions overturned, contracts voided, etc. (A Gemara in Bava Basra 31B cites an opinion that an erroneous psak is sometimes not overturned to protect the reputation of the beis din. The gemara rejects this opinion. Moreover, even had it been accepted, it would not work in a case in which the original, erroneous psak would lead to an issur d’orayso. See Pnei Yehoshua, Kesubos 22B). A famous perek at the end of Yevamos deals with the heartbreaking consequences of a psak that needs to be reversed, in the case of a woman who was allowed to remarry on the assumption that her husband perished, and it is later discovered that he was alive. If the conversions – one or a thousand – were indeed invalid, the consequences will be far-reaching but inevitable. In such situations, oker hadin es hehar. Poskim should, and hopefully will, do whatever they can in a bad situation, but there are situations that cannot be remedied. No one who knows anything about halacha believes that “where there is a rabbinic will there is a rabbinic way.” (Even the author of those words later repudiated them.)
7) I was disturbed that Rabbi Shirman described the position that a conversion without proper intent is still valid as running counter “to all poskim.” I don’t know why he did not mention the psak, discussed here some months ago, of Rav Uziel zt”l, who does make a case for allowing such conversions. Although there do not seem to be any other important names associated with this position, it does potentially have a bearing on the status of those who choose to follow him.
8 ) Many have been vocally proclaiming that courts take into account only what is expressed to them, and not what thoughts people secretly harbor. They are missing the boat. That very point is what is contested, and what Rabbi Shirman argues (I believe correctly) is almost universally rejected by talmidei chachamim, based especially on the Ritva in Yevamos. In the case of conversion, intent is everything, argue contemporary poskim, basing themselves on rishonim.
If and when the dust settles, one consequence will remain. The status of every convert over the last decades is potentially in jeopardy. No one can change this – not after the passing of Rav Moshe zt”l and Rav Shlomo Zalman Auerbach zt”l, when we lost the last figures whose piskei halacha would be accepted by all parts of the Torah world. Today, what one authority says will be rejected by another. This is what makes gerus different from a psak in hilchos muktzah or giving a hechsher on a restaurant. If someone disagrees with the muktzah psak or finds the resturant’s standards wanting, he doesn’t have to move the object or patronize the eatery. If the decision is objectionable, the consequences are mostly local and circumscribed. Gerus is different. Its effects are felt for all time, and in a plethora of applications. It doesn’t matter if objections are valid or not. If there is room to question a gerus, it will be questioned, and there is no objective way to quiet the questioners. Some – many – people will treat the conversion with suspicion.
The only way to safeguard against this is to operate conversion courts according to standards acceptable to all. Many will strain against this. It is not fair, they say, to limit the discretion of the rav who follows some different standard. Perhaps. But it is less fair and exceedingly cruel to imply to a conversion candidate that his/her gerus is in order, knowing that many people will question it. It is foolish and naïve to think that a court employing the standard of some daas yachid will somehow “get away with it” unnoticed.
For decades, all of us in the Orthodox community pointed fingers at the other denominations. We castigated the Reform for accepting a patrilineal definition of Jewishness. We argued that to keep our people together, there was no choice but to follow a definition agreeable to all. We accused Conservative rabbis of compromising the well being of their congregants, because they converted people without letting them know that their conversion would be held as meaningless by the Orthodox, that their weddings and divorces would be held by the Orthodox to be of no effect. (They claimed that they were just as halachic as the Orthodox, and that the objections to their procedures were merely “political.” In doing so, they either showed woeful ignorance of halachah, or deliberately misled people.) We indeed saw much heartache as the children of many of those people faced huge obstacles regarding their personal status when they became halachically observant.
Ironically, it develops that many in the Orthodox were guilty of the same. They accepted converts based on a minority (to be generous) understanding of halachah, without coming clean about the acceptability of their assumptions to others. There are no state-run rabbinic courts in America, and yet the fall-out is the same. People are beginning to panic, to seek reaffirmation of their gerus, after finding out that the rabbi who converted them used assumptions not accepted by other parts of the community. Twenty years later, they find themselves insecure, worried about shidduchim for their kids, clamoring to be “redunked” in a mikvah. All it takes is for a rabbi’s conversions to be questionable in 10% of the cases he presided over, and the other 90% are rushing to be “reconverted,” to avoid all questions.
Halachic decisions whose consequences ramify into the broader community and into the future cannot be left to a free for all.
The RCA deserves much credit for swallowing the pride of some of its members, and worrying about the good of the many. It is working hard to develop protocols that will be above reproach. Rabbis on the left who talk about starting their own rabbinic organization may make their egos feel better, but one day will have to deal with their consciences, as the converts they convert will live in limbo, no longer non-Jewish, but not accepted as Jewish by the center and right. They will succeed in creating two tiers of Jews, exactly what we told the Reform not to do.
The rest of us have a role in this as well. In many locations, multiple batei din function without oversight or restraint. I know of kiruv rabbis who, when they feel that the “better” beis din takes too long, will send the significant other of a kiruv candidate to a court that deals more expeditiously, so as not to impose too much of a burden on the candidate. They are not doing anyone a favor, if down the line people will question the scholarship, integrity, and procedures of that beis din.
If you needed to find a surgeon for a friend, you would not recommend the one closest to home, or the one with the most attractive pricing schedule. You would choose the surgeon who could do the best job for the patient. Gerus is no different.
Choosing the independent operator may seem attractive at the moment, but heartache lurks ahead. Before recommending a beis din, make sure that its standards are beyond cavil.