Free Market Judaism and Conversion Standards
Rabbi Michael Broyde and I have been friends for years, maintaining the relationship despite both of us being cognizant of how often and how much we disagree. I respect and admire how much time he is able to spend each day learning; more than that, I am aware of how well he is able to communicate Torah values to Jews on the left who would never give me the time of day. And he puts up with me. Maybe that is the way it should be.
Not unexpectedly, we disagree about attempts to liberalize conversion in Israel to accommodate the Russian population that has thoroughly mixed into Israeli society with very little interest in observance. I am thoroughly committed to what I believe to be the majority position, which is that the acceptance of the full yoke of mitzvos is absolutely critical to geirus, and that the converting court has an obligation to restrict conversion to those people (and their minor children) whom they see every probability of leading lives of observance. My bias is easy to read: I am a member of a geirus beis din with unusually high standards. I have also seen too often the heartache of people who believed that their conversions were fully kosher and acceptable, only to learn years later that they would be treated as halachically non-Jewish when they or their children approached marriage. (I also have a hard time escaping the “memory” of our last attempt at converting a large group of people who had insinuated themselves into the fabric of Jewish society. That adventure gave us the Idumeans and Herod.)
Nonetheless, it would be dishonest to claim that my view is the only one with halachic basis. There were and are those eminent poskim who believe that conversion is an absolute benefit to the recipient, even if the convert does not lead an observant life. This view leaves room for its supporters to look for minimal ways of accepting mitzvos that would allow for many, many more conversions that will be rejected by what I believe to be the majority of those in a position to judge.
Is it reasonable to expect the minority (let’s call it that for the sake of argument, even as Rav Moshe used the position as a snif at times for minors) to refrain from what they see as a needed mend in a torn social fabric? Rabbi Broyde offers what I think is a good, dispassionate analysis, and comes to no conclusion. We offer it as food for thought.
Historically, there have never been uniform standards in matters of Kashrut: The Chief Rabbinate of Israel itself supervises at least two standards (actually many more, since local city rabbinates have a great deal of discretion), America has five major kashrut agencies with moderately diverse standards as well as dozens of smaller agencies, some with noticeably lower or higher standards and Europe has yet many more agencies with yet different standards. This is all fine and wonderful, since we recognize that there is little intuitive need for universal norms in Kashrut. (I would not even want the state to interfere with non-Orthodox Kashrut standards.) Consumers are empowered to make reasonable choices, each with their own local flavor: chalav yisrael or not; glatt or not; heter mechira or not and many more. The same is true for many other matters of halacha: marriages are performed by rabbis right out of yeshiva or who are otherwise with uncertain halachic credentials exactly because the consequences of an invalid marriage are local and containable. The same is true for the pre-pesach sale of chametz and many other areas of halacha in many diverse areas.
The exact opposite is true for matters of Jewish divorce. Standards are universal; only a few rabbinical courts issue gittin worldwide and all of them recognize the validity of divorces issued by each other, with only rare and very unusual exceptions. The reasons for this are clear to anyone who studies Jewish law. In matters of divorce, mamzerut likely develops after a woman is given a divorce that is valid according to a minority view but not according to the dominant view and such possible illegitimacy is essentially uncorrectable. No one benefits from this illegitimacy and the custom and practice has developed over many centuries that only those who are well recognized experts issue gittin. In matters of divorce the halachic tradition rejects the free market and favors uniformity and consensus. Other areas of halacha are the same; the builders of mikvaot are limited to universal experts and are universally accepted: the costs of having mikvaot – used by many different people of many different flavors over many ages – is too high to allow local deviation reasonably. Sefrei Torah are also written to common standards as another example.
What determines whether the custom is to favor universal standards or local variety? I suspect that the answer is not simple but is a mixture of a few factors, seven of which readily come to mind: (1) Is the area of halacha local or universal in application? (2) Are the consequences of dispute irreversible? (3) Are the consequences of dispute very important? (4) Is this an item or object or status used by many diverse communities over many different times? (5) Is the cost of universalism or localism very high? (7) Is the cost of upgrading or downgrading standards high?
Based on these factors, one can see where the minhag to have only universally recognized divorces, mikvaot and sifrei torah comes from, and where the minhag to have local kashrut, siddur kiddushin, eruvin and many other matters comes from as well.
And one can see why conversion is somewhere in between and a hard case: One’s first intuition is that conversion matters, like divorce matters, are core status matters which thus demand a consensus. At second thought, however, one could claim that conversion is not at all like divorce but much closer to marriage: A person who converts according to one understanding of halacha (which is rejected by other poskim) might not be Jewish according to all, but the process of correcting that problem is relatively simple if the parties wish to correct it (like a kiddushin that some consider invalid). On third thought, as Jews – like everyone else – become more global and less local, converts are enormously harmed by idiosyncratic local standards, since their conversion will not be recognized in other locations, and they are likely relocate. On fourth thought, however, high standards for conversion deny people who cannot reach those high standards the ability to become Jewish, which can have enormous societal consequences when dealing with people who already think of themselves as socially Jewish. On the fifth thought, low standards cause terrible heart ache when people discover — frequently just as they seek to marry –that not all (and not the person they wish to marry) consider them Jewish. On the sixth thought, that problem is frequently fixable, but on the seventh thought, such fixing causes terrible grief. And so on.
Historically, in America, there has been no firm rabbinic tradition of universal conversion – and in the last decade that has changed somewhat – and recently in Israel there has been a move to cease the universal standards in place for decades. I understand both sides to this dispute and encourage others to also. The halachic calculus here is very hard.
Rabbi Michael Broyde is a Law Professor at Emory University and a Senior Fellow in its Center for the Study of Law and Religion.
Rabi Adlerstein: Your column is thoughtful and Rabbi Broyde’s response encapsulates neatly the various issues involved. My problem with your approach however, is , that it basically accepts the most stringent conditions for “geirus”, a situation that has only evolved in recent times. The “geirus” of minors is a perfect example. I have yet to find any possek in shulchan aruch that accepts your view about “zechus”. The closest that any possek comes to your approach- in denying that conversion for a minor is a “zechus”- are the Bach and the Shach who adopt that view only, and only, when the minor actively rejects the geirus. They emphasize active rejection. Hence, conversion of a baby should bear no objection, regardless whether the family is a practicing one. Without any dissent that I know of, conversion is a “zechus” to all. And, by the way, by rejecting such a child, you eliminate the real possibility that he/she will find his/her way back to real Judaism.
Similar analysis can be made on the matter of “kabolas mitzvos”.
Clearly, for reasons that are unfathomable to me, we have rushed headlong in espousing “chumros’ for virtually every aspect of Judaism- to the ultimate
detriment of the Jewish people as a whole.
[YA – While Cross-Currents is not the place for detailed halachic analysis, I must take strong exception to your remarks, although I understand the good place from which they come. Rav Rabinovitz begins his teshuva (the basis for the policy of the new beis din) with these words, “I will be brief and consider only what appears to be necessary to analyze about the present circumstances, which are new circumstances that never existed before.” Rav Rabinovitz notes the need to look at how old halacha applies to new situations. What’s good for the goose is good for the gantz, or whatever. The silence of earlier poskim to define what zechus there was for a katan is irrelevant to the “present circumstances, which are new circumstances that never existed before.” Without taking sides, there is a huge issue as to what the zechus was, and whether it has changed from earlier times when internal and external pressures predicted that anyone joining the community would act as halachically as anyone else. Some see the zechus as absolute and unchangeable. It is a good thing to be Jewish, even if a person will commit lots of aveiros. Rav Rabinovitz takes this position, emphasizing that the child growing up in a household with non-Jewish Russian parents will be considered an anus for his lack of observance as an adult . It is not a new one; he is in the company of earlier authorities. But it is simply incorrect to imply that this is the only view. Many others find it more cogent to see the zechus as related to future performance of mitzvos. According to this view, it would be silly not to take into account how life has changed from the times of the Bach and Shach, when people who joined the Jewish community took on the behavioral norms of that community. Those norms simply don’t exist today. You only approximate them when a child converts into a family of observance, and parents pledge to send children to day school. Additionally, there is the position of R Shlomo Zalman Auerbach zt”l whom no one alive approaches as a posek, that converting anyone to a life in which aveiros will be committed in abundance is forbidden as a violation of lifnei iveir. There is no reason to regard either of these approaches as intrinsically a kula or a chumra. They are different, and produce different consequences.]
a late reply: Even you admit that there are no early poskim that deny that “zechus’ is based on being Jewish,regardless of the religiosity of the subject. Only in very recent times has that principle been assailed. This was the essence of my words. I will try to read Rav Rabinovtich’ teshuva. And, you will have to explain to me why being a goy is better than being an “avaryan” but Jewish. There are innumerable spiritual and mystical advantages of being Jewish.
[YA – As my kids used to say, Zeh lo fair! Early poskim didn’t speak about Shabbos timers. That doesn’t mean that we can’t determine their halacha. The issue of unvarnished zechus, absent expectation of halachic compliance, simply did not come up, as I explained in my comment. And while it is true that that are spiritual advantages to being Jewish, there are practical disadvantages. The usual definition of zechus (not 100% sure that it applies here, but it is the default position) in all other applications of acting on behalf of someone without his consent calls for zechus gamur, meaning no down side whatsoever. That is not an easy case to make.]
There are several important considerations to keep in mind:
(1) The situation in Israel is much different than in the US. In Israel, many of the “half-Jews” in Israel, largely from the old USSR view themselves as Jews, are immersed in Israeli/Jewish culture, have at least some idea what the holidays are, see religious Jews and have some knowledge about Judaism. Much different situation that in in the US.
(2) Jewish observance is not a binary situation…yes or no. There are many gradations in between. Many “secular” Jews have religious feelings, are aware that it is a major mitzvah to live in Eretz Israel and to defend it, but they may view the mitzvot that we Orthodox/religious as “humrot” which are option, in their eyes, without degrading what they may view as their belief in G-d, due to the fact that most Israelis are not Orthodox/religious. These people are generally eating kosher food because that is what is generally available., they know Shabbat is a “day of rest” even if they are not aware of the 39 melachot, etc and they know something about the holidays, particularly Pesach and Rosh HaShana which are major holidays in which most Israelis have family gatherings. A very different situation than in the US. Thus, many of these converts do view themselves as at least partially observant and view their conversions as something real.
(3) In any synagogue, the membership decides who is the Rabbi. THAT IS NOT THE CASE IN THE STATE OF ISRAEL AS A WHOLE. The population has NO say in who its Chief Rabbis are because the Chief Rabbinate has become a political football in which the non-religious leaders of both the Likud and Labor parties have found it easier to turn control of the Rabbinate over to the Haredim who are actually only something like 10% of the population. This is because the Haredim don’t make demands in other areas such as security and foreign policy which the RZ party (Bayit Yehudi) takes great interest in as well as religious issues, and the non-religious political leaders are apathetic about the religious issues with which the Chief Rabbinate deals. Had the public, as a whole had a say, they would have wanted Rav Stav to be the Chief Rabbi instead of the current holders of that position.The irony is that the Haredim don’t even grant any legitimacy to the Chief Rabbinate and originally opposed its very existence. Thus people can’t understand why they now suddenly are so concerned about increasing the power of the Chief Rabbinate, seeing this fight over the independent Beit Din as merely a power play and not a “matter of religious principle”. In event the BADATZ of Jerusalem is also an independent Rabbinate yet the Haredim don’t protest its existence so we see that it is NOT the honor of the Chief Rabbinate that really concerns them.
Thus, those who support the proposal for the independent Beit Din for conversions are speaking for the majority of the population as well as for the majority of the Orthodox/religious community. It would have been preferable that the situation not reach this point, but the Haredi insistence on controlling the Chief Rabbinate against the wishes of the majority of the population has brought it about.
[YA All points worthy of consideration. Not sure that any of them are relevant to the issue at hand, which is conversion ONLY of minor children, which can be done through the substituted daas of a beis din. There is no indication (yet) that the matirim have any solution for the vast majority of the problem, which is adult Russians. They are NOT saying that they are willing to perform giyur without a considerable kabbolas mitzvos – which the Russians are just not interested in.]
Rabbi Broyde’s salient points show very clearly why this problem is not going to go away no matter how earnestly the different rabbis and rabbinical authorities try to standardize, open or close the criteria. In Israel, the concern is that having a large non-Jewish population in our midst which interacts with Jewish society, primarily descendents of unconverted Russians who speak Hebrew and serve in the army, is going to create a social problem. The problem is that no matter how much certain rabbis or groups of rabbis seek to find halachic means to relax the standards of admission to Am Yisrael, most of those people are not going to be interested in conversion. They are not interested in conversion because they are not interested in religion and do not define themselves in religious terms. Some of their descendents may at some point be interested and if so will seriously want to convert. The problem will not go away. QED.
Where is the halachically valid middle ground between total global uniformity in applying standards and total local (communal or individual) discretion? I’m excluding cases where the rabbis involved are unqualified to deal with conversion. There is far more mobility and faster long-range communication today, so that past considerations revolving around isolation may now have less force.
This issue isn’t merely about allowing people to choose conversion standards within a free market. It’s also about whether someone who chooses one standard should be able to force someone who prefers a different standard to recognize his conversion.
I believe that Yehoshua Friedman understates the scope of the proposal on the table. The proposal in Israel is to do large numbers of ger katan based on the view of Rabbi Nachum Rabinovitch in Siach Nachum 68 which permits ger katan of almost anyone (which is also endorsed as an in the alternative argument in Iggrot Moshe EH 4:26(3) even if they do not intend to be religious at all. This idea is that the large number of Russians actually do want to be ethnically Jewish and to fit into the general Jewish culture (as opposed to the Muslims who do not) and that if there is such a halachic mechanism, one ought to use it. The thinking is that adult Russians can not convert al pe din since kabbalat hamitzvot is needed, but their children can convert, since no kabbalat hamitzvot is needed.
Julie Kahan’s objection seems misplaced. This group is not seeking recognition. The Chief Rabbinate is arguing that their conduct is illegal (which it is) and needs to be suppressed (which one can debate). I think all agree (but maybe I am wrong) that no one is seeking to force anyone to recognize the validity of these conversions.
They’re most definitely seeking to force the Rabbanut to validate these conversions. Here is a recent conversation with someone in the DL world. “[A]t the end of the article it does mention that they need to work out things with the rabbinate. [S]ooner or later the rabbinate’s arrangements w/ badatzim will go to court, w/ the plaintiffs demanding either equal recognition…”
Most definitely, the same people who claimed at one point that there can be only one Rabbanut, now want to create their own, relying on minority opinions, and will run to the Bagatz to impose it on everyone else. Similar to when after they joined hands with Conservative’s over Diaspora battie din.
I think that this crisis will expand dramatically as subsequent generations of Russian olim absorb into Israeli society and increasingly intermarry with (secular and religious) Israelis. Beyond (halakhic) consideration due to their unique history, it would seem that halakhists would view stringency as inviting calamity that would endanger a growing segment of Israelis, well beyond the few hundred thousand Russians. My concern is less about those who will not respect these conversions, but the impact on secular Israeli society if nothing is done. Being stringent about individuals is one matter; consciously allowing a growing split in the fabric of the Jewish nation is quite another.
Given this bleak really, ideally, some great Posek with universal acceptance would endorse some variant of what Tzohar is attempting. There has not been such an individual for centuries (or perhaps even longer); even RMF ztl and RSZA ztl faced opposition. But absent that, some set of (non-universally acknowledged) poskim will have to rise to the occasion. I am hesitant to name names, but a set of 3-4 additional poskim (ideally not from Tzohar) will need to come off the sidelines. A broader consensus will likely delimit the geirut process further, but so be it. (Sadly, since many have no desire to convert, regardless of efforts like that by Tzohar and some programs in the IDF, the problem will continue for many generations. But the inability for a complete solution should not encourage complacency.)
If poskim do not perceive the danger, I can understand their reluctance to be anything but strict; but I fear that for many poskim, the danger is seen as being outside their area of concern. For that view, I have little tolerance.
Yishar Koach on the derekh eretz and sekhel yashar demonstrated in this post by rabbis Adlerstein and Broyde.
For an incredible experience on this same topic, which discusses the very same issues (even down to debating the distinction between the kashrut of food and the kashrut of mikvaot), it is worth listening to this passionate yet honorable debate between Rav Yaakov Meidan (Rosh Yeshivat Har Etzion who serves as a dayyan on the new non-Rabbanut bein din) and Rav Shlomoh Levi (a rosh kollel at Har Etzion who opposes the new batei din. The debate is in Hebrew at this link:
Excellent analysis and post. Conversion is an area which many laymen have little involvement with, and thus can analyze free of the instinctive prejudices that we ALL have, to the left or to the right, in most other areas of halacha and life. R. Broyde makes some very good points, and has one of today’s super heavyweight scholars – R.N. Rabinowitz – to back him up. On the other hand, RA also makes some excellent points (in the one short paragraph he allows himself) in the other direction, as does R.S. Pruzansky on his website. And of course, all of these are simply summaries of larger discussions.
Because there are such compelling arguments on both sides, I think the fallback position, or the הכרעה, should be one of conservatism. Stated in the language of psak: שב ואל תעשה. Urging the creation of new courts is essentially a “liberal” position – i.e., undercutting the establishment rabbinate. All of us have seen the mischief that has been unleashed on society in the name of liberal causes, especially in the last fifty years. In the vast preponderance of cases the benefits of the “new” (there is always some good in everything) are outweighed by the harm, and as a rule, always lead simply to different problems. In the case of giyur, the foreseeable problems include not only converts and marriage, but also the erosion of the institution of the rabbinate. That’s too big a problem to ignore, and, in my opinion, is the decisive factor.
There is indeed a sad irony in this latter point, because so many of the “conservative” side on this particular issue have, in fact, undermined the rabbinate on so many other issues, like shmittah and kashrus. However, we cant let something so important fail just so we can say, “I told you so.” To the contrary, this is what the kids call a “teachable moment.” This is a perfect example of why the Rabbinate is so important, warts and all. We should unite around it here, and perhaps some of our more conservative brethren will learn that their opposition to it in other areas is misplaced.
DF proposes a general approach, which I understand and even sometimes sympathize with. But, I do not think that this addresses the question here. DF agrees that Rabbi Nachum Raninowitz is a posek mefursam quite capable of having a view and engaging in a hachra. Furthermore, Rabbi Raninowitz is the leading name on this bet din. So, the better question is what arguments can be made after a gadol has made his hachra in terms of the halacha, that that same gadol and his students should still nonetheless not act as he thinks the halacha truly is, for the sake of unity. That is the real question and I think hard. Those of us who are uncertain as to what the halacha is, or are certain that Rabbi Rabinowitz is wrong, have an easy time. But that is not important.
The video that Seth (Avi) Kadish points us to is excellent. Worth watching.
Dr. Bill has explained part of the logic of those who see acting as centrally important. As RMF notes in Iggrot Moshe YD 1:101 crisis generates a duty upon even average poskim to act, when they have a reasonable solution.
Samuel Sarvc does not, I think, prove his point by quoting an anonymous source for an agenda.
Rabbi Broyde provides a useful framework for analyzing whether on a given issue communities ought to follow their own standards or would be better served to follow universal standards. Of course, one would be left with follow-up question of who gets to set those uniform standards.
I wonder though whether the historical analysis is correct: have gittin and mikva’ot truly followed universal standards? Today, there may be few who organize gittin, with experts willing to fly to small communities as necessary. But was that the case 75 years ago? 250 years ago? Even in recent years we have seen disputes over the kashrut of mikva’ot. One prominent suburban community comes to mind, where one shul and its rabbi sponsor the local mikvah, while the other local shuls and their rabbis only endorse its use on Shabbat, when driving three miles to a different mikvah isn’t an option, and even then only grudgingly. In Washington, DC, when the local mikvah was out of service, women were advised to use a suburban mikvah rather than a closer, long established conservative shul mikvah. I strongly doubt either of those two mikva’ot were built with anything but the best of halachic intentions, but the standards are clearly not universal.
The fact that I, in New Jersey, am aware of those two mikva’ot brings me to my other point: Do the modern increases in travel and communication change the analysis? Perhaps divorce and conversion used to be local issues, but no longer are due to our mobility, and therefore require universal standards. (I would think mikva’ot are local: if I don’t hold of a mikvah, I could travel to another.) Alternatively, perhaps increases in literacy and communications push in the opposite direction: as more of us understand the basic issues, or are privy to decisions of far away rabbis, perhaps the public can better choose among the competing approaches?
Shmilda asks some interesting questions. The first one is when universal standards are to be set, “how” are they set? I think that the general answer to that is “universal” standards exclude as many legitimate shitot as reasonably possible that most of the other views think as invalid even bedeeved. That way, everyone is sure that the final product is acceptable.
My sense is mikvaot are built to that standard and have been for centuries, The example quoted proves, rather than disproves, the point. Discouraging something is acknowledging that it is actually valid and the Conservative mikvah is a different case than an Orthodox built one for a host of obvious reasons.
I agree that factors such as ease of travel do change the calculus as to whether universalism or particularism is wise in any particular case and I am not sure in which direction.