“Give Me Yavneh and Its Sages”
Realistic Orthodox Judaism Saves by Accommodation
(Another Reply to Ben Shapiro’s article in the Jewish Press)
by Rabbi Michael J. Broyde
This article is an expanded and footnoted version of an article published in the Jewish Press on December 23, 2022 which can be found here.
The Talmud in Gittin (56a-b) and the midrash in Avot DeRabbi Natan (version B, chapter 4:5) tell us that Rabbi Yochan ben Zakai snuck out of Jerusalem during the siege that led to the destruction of the Second Temple (Bet HaMikdash) in a coffin to make a separate peace with the future Roman emperor who would level Jerusalem. Rabbi Yochanan ben Zakai asked for Yavneh and its scholars to be granted the religious freedom to study and continue growing the rabbinic tradition but would leave Jerusalem for Rome to destroy. Vespasian accepted the deal. Yavneh was saved, Jerusalem was destroyed, and rabbinic Judaism survived. But for Rabbi Yochanan ben Zakai, the accommodationist approach, all would have been lost.
That lesson is easily forgotten, to our detriment. Navigating complex times in a world full of people with ideas and ideals at tension with Jewish tradition is complex. We – the community of the faithful –face difficult headwinds. Moral clarity and complete resistance – even if it produce horrible death and complete destruction – sometimes seem easier religiously than a policy of accommodation.
Indeed, even successful accommodation still incurs attack by those who bemoan our failure to stand tall (ignoring the consequences we would have then suffered). Rabbi Yochanan ben Yakai reminds us that the war-cry of Jimmy Hoffa “better to die on one’s feet than live on one’s knees” is rarely the rabbinic response (and did not work well for the Hoffa’s, either.)
We all know accommodation isn’t popular, does not have the cache of moral purity and absolutism, of defiant declarations. But life is usually lived in a grayer place, unattractive as that is. In that gray place, it behooves Jews especially, but people in general, to find ways to live with each other, even though it means we sometimes are silent about what we really want.
Of course, Hannukah reminds us that sometimes resistance at all costs is necessary and indispensable, like when we are being personally compelled to commit one of the three cardinal sins. Except, if you consider Jewish history, we have Hannukah, Masada and precious few other examples of refusing to accommodate. Much of the rest of Jewish history involved finding ways to get along; we have always lived among those who oppressed us, many of whom were ready to kill Jews if they had the chance; yet with whom the Jews doggedly developed cordial relations.
It is no surprise that political accommodation works best, particularly when it is combined with internal moral and halachic clarity. The world would not have been a better place, the Talmud avers, if Rabbi Yochanan ben Zakai had stayed in Jerusalem and died a martyr’s death.
Moving from nearly two thousand years ago to the present, the lesson is clear. Recognizing the right of all people in our secular society – including LGBTQ members — to structure their lives as they see fit so long as they do not substantially and directly harm others is a wise idea and reasonable accommodation. Furthermore, it is what the Jewish community has always done, when it could. Sure, in some perfect world we wish everyone would follow the Torah or Noahide laws; but, what’s the next best step if that cannot be achieved? Accommodation is an acceptable option and one that we want offered to Jews, who frequently do things that others think is morally or religiously unreasonable in other’s eyes.
Providing robust protection of the rights of the many different religious individuals to conduct themselves consistent with their own faith and share their moral vision of the world is an important aspect of accommodation.
The virtues are obvious; but, as Rabbi Moshe Luzzatto famously emphasized, sometimes the obvious needs to be repeated, again and again:
- Supporting accommodations for the other makes for a society in which we too are more likely to be accommodated. The price for society not to discriminate against us is that we too not discriminate. Consider discrimination in employment as one example.
- Cultural wars –what we know is the alternative to robust accommodation — are complex and risky. We might lose, whereas a society devoted to accommodation has many fewer wars and many fewer losers. Consider the Defense of Marriage Act as an act of accommodation.
- Even winning cultural wars often entails terrible costs, because to win we need to make alliances with people who sometimes harm us. Maybe winning is as bad as losing because of the allies one has to deal with. Consider Donald Trump’s meeting with antisemites as an example.
- Jewish law has never really viewed secular law as the touchstone of our own morality and we have always lived happily and contently in secular societies that let us be Jews, without becoming the preachers to the world, without insisting that secular law mimic either Jewish law or Noachide law. We are a light onto the nations, Rabbi Hirsch avers by doing what we see as right, not by proselytizing. Proselytizers, we are not; we role-model and not preach.
Even more complexly, the simple truth is that even Orthodox Jews who are same sex attracted (SSA) are deserving of support and help, consistent with our principles. The YU Kol Yisrael club is such an attempt, and while it was not introduced in a perfect way or time, it is a wonderful idea and worthy of support. Providing religious direction to those Orthodox Jews with SSA is a mitzvah and clubs like the one YU is seeking to form fulfills such obligations as well as hopefully “leads to harmony,” as Rabbi Hershel Schachter notes. YU is acting consistent with its principles, fighting for its religious freedom while serving all its students.
The same is true for the OU position on same sex marriage. The truth that we all know (but some are scared to say out loud) is that same sex marriage is here to stay for the foreseeable future. Insisting on waging a losing – or even worse, already lost — cultural war undermine our community’s ability to function and deprives us of allies on many other important matters. On the other hand, following robust principles of accommodation which allow all those who are on the moral outskirts of our American community to continue to function is the best long-term strategy. No one will accommodate us if we accommodate no one.
I have no special knowledge of any details, but one can well infer that without the language organizations like the OU helped to insert in the Defense of Marriage Act, Jewish institutions might have been in violation of the law when applying religious principles to their own institutions. Accommodation lets us carve out protections for all of us.
Furthermore, if we consistently take the losing side of culture wars, when we genuinely need assistance in social or financial or security matters from the public, the politicians’ constituencies may be less open to supporting our causes, even when unrelated to the cultural war we lost.
Our Modern Orthodox community is neither clumsy nor nervous and is not lead by people who are either. The best description of our community and its leadership is Realistic Orthodoxy; we achieve the achievable. Of course, sometimes knowing what is realistically achievable is complex and hindsight is always more accurate. But a culture war we might lose, is one we should not fight, unless we have absolutely no choice.
In truth, those of us who see the virtues of accommodation, worry – as did Rabbi Yochanan ben Zakai – that we have compromised more than is needed; zealots never have any regrets, I have noticed. But, I have always drawn strength in my approach from the Talmud (Gittin 56a-b) rebuke of Rabbi Zechariah ben Abkilus, who rejected two options to save the Second Temple from destruction, out of fear of scorn from the Zealots. The Talmud castigated him, since his fear of stepping wrong led to the destruction of the Temple, an example of how we might think of those who know the productive compromise, yet refuse to sign on to it in the name of moral or halachic purity.
The middle path of principled accommodation is complex and sometimes the hardest to defend. It is less exciting and electrifying than issuing shrill clarion calls demanding that we fight and die on every hill of moral principle and religious value, and it attracts the loudest critics. Yet accommodation and moderation is also often the most successful way of navigating a complex world. We survived as a faith because of the brave initiative of Rabbi Yochanan Ben Zakai, not because of the silence of those who could have accommodated or the pious Zealots who defended Jerusalem to their death and Jerusalem’s destruction.
Rabbi Michael J Broyde is a law professor at Emory University and the Berman Projects Director in its Center to the Study of Law and Religion. He has served in a variety of rabbinic roles in the United States, from director of the Beth Din of America to Rabbi of the Young Israel in Atlanta.
This quote seems to have first stated by Emiliano Zapata; see https://www.brainyquote.com/quotes/emiliano_zapata_109725. ↑
The gemera quotes different views on the question of why Rabbi Yochanan ben Zakai was scared at his death of punishment, but a significant one is encapsulated in the The talmud states “Rabbi Yosef – some say Rabbi Akiva – applied to Rabban Yochanan ben Zakkai the verse: “God turns wise men backwards and makes their knowledge foolish” (Yeshayahu 44:25). For he should have said to [Vespasian], “Let [the Jews] off this time.” But Rabban Yochanan thought that so much would not be granted him, such that [if he were to make such a request] even a little would not be saved.”
For an excellent discussion of this issue, see Rabbi Aharon Lichtenstein “Why Did Rabban Yochanan ben Zakkai Weep (at https://etzion.org.il/en/holidays/three-weeks/why-did-rabban-yochanan-ben-zakkai-weep) where Rabbi Lichtenstein add:
Rabban Yochanan ben Zakkai elects to make a smaller request in order to be certain that his request will be approved. His calculation is realistic, pragmatic, practical, and based on facts. He makes his calculation out of uncertainty as to what exactly the Romans will be prepared to allow. This leader of Israel adopts a self-consciously cautious approach: the spiritual future of the Jewish nation is not to be gambled with, and we do not ignore realistic, practical considerations. Sometime we are even prepared to suffice with “saving a little,” so long as it is the more certain option. ↑
This is really one the basic themes of Mesilat Yesharim, and is stated well in chapters 1 and 2. ↑
- It is worth emphasizing that unlike governmental discrimination, which has a Constitutional angle, employment discrimination by non-governmental actors could be totally legal in the United States. Title VII – passed only in 1964 – now prohibits most discrimination in commercial matters and completely exempts religious institutions. In Bostock v. Clayton County, the US Supreme Court extended this to matters of gender.
In that it was made clear that religious institutions are exempt, but commercial institutions shall all recognize same sex marriages. ↑
For more on this story, see Iggrot Moshe YD 1:101 sv umashekatav. Rabbi Feinstein argues that even novel and innovative compromise needs to be voiced in urgent situations. In truth, this colloquy within Iggrot Moshe is one of the most amazing methodological observations Rav Moshe writes. I find it to be one of the few times that Rav Moshe zt”l expressed systemic thoughts about the role of chiddush. In the previous three teshuvot, this one and the next two — all written in the midst of the Great Depression under Communist rule, and before Rabbi Moshe Feinstein’s fortieth birthday — Rabbi Feinstein presents a novel analysis of the question as to whether a woman may immerse in a mikvah with earplugs inserted. [Contrary to all prior analysis of this issue, he concludes that such an immersion is permitted.] One respondent asked Rabbi Feinstein whether it is proper to rely on Rabbi Feinstein’s own understanding of halacha, since it reaches a novel result and all other authorities disagree – quite an amazing question and if you think about, essentially, the question is “when should a posek rely on his own novel understanding of the halacha against the consensus”. That is a weighty and important question. Rav Moshe posits that the distruction of the Beit Hamkidash could have been avoided if the rabbinic leadership at that time would have been more willing to assert what it thought the halacha really was in this urgent time, and not stay silent. In times of urgent need, it is role of every great Torah scholar to step forward and advance his ideas as to how to solve the urgent problems we confront, Rav Moshe writes. Silence – and particularly deference to greater poskim — is not a proper approach.
And that which my dear correspondent wrote asking how we are permitted to rely in practice on such innovative insights as those I have presented, particularly when such a view contradicts the position of some latter-day authorities, I say: Has there already been an end or boundary set for Torah study, God forbid, that we should only rule according to what is found in existing works, but when questions arise that have not been posed in our traditional works we will not decisively resolve them even when we are able?! Certainly, in my humble opinion, it is forbidden to say this, as certainly Torah study will continue to flourish now in our time; therefore, everyone who is able must rule decisively on each halachic question posed to him, to the best of his ability, with diligent investigation in the Talmudic sources and the works of halachic decisors, with a clear understanding and valid proof, even if it is a new application of the halacha which has not been discussed in our Jewish law works. And even for a halacha which has been discussed in our Jewish law works, the one issuing a ruling must certainly understand the issue, too, and reach a conclusion in his own mind before issuing a ruling, and not rule solely based on a ruling that can be found on the topic in other halachic works, as that is considered as one who decides points of law merely from reading law books, about which it is said, “Those who merely recite the Mishnah bring destruction upon the world, for they decide points of law from their recitation of the texts” (Sotah 22a; see commentary of Rashi there). And even if one’s decisions sometimes go against those of eminent latter-day rabbinic authorities (acharonim, so what? We are certainly permitted to disagree with latter-day authorities, and sometimes even with medieval authorities (rishonim) when one has valid proofs, correct reasoning in particular — on matters like this, our sages stated, “A judge has but only what his eyes see [before him]” (as explained in Bava Batra 131a; see Rashbam there) — so long as one does not contradict the undisputed opinion of the Shulchan Aruch and commentaries which have been widely accepted in our community; on these types of matters it has been said, “[our predecessors] left room [for us] to distinguish ourselves.” Most of the responsa of the latter-day authorities indeed utilize innovative insights to decide numerous questions of practical import. However, one ought not be haughty in one’s instructive rulings – this should be avoided whenever possible, but in cases of great need, and certainly in serious matters regarding the ending of marriages as this case, we are certainly obligated to rule [leniently], even if we merely deem it plausible to be lenient, and it is forbidden for us to be among the “humble” and [thereby] cause Jewish women to remain unable to marry, or cause fellow Jews to stumble in prohibited activities, or even simply cause a Jew’s financial loss — See Gittin 56 which states, “Because of the humility of Rabbi Zecharya ben Avkulas, the beit hamikdash was destroyed;” why does it say “his humility” and what does that incident have to do with humility? See the comments of Maharatz Chayot there for a correct interpretation — This indeed is what results [from these types of failures to act], and we are compelled to rule [leniently] even for practical application when we deem it appropriate with evidence and clear understanding, and particularly in a serious matter of leaving a woman without a husband or avoiding a severe temptation. ↑
What is not well addressed in this short piece is that perhaps the anthropological truth is that in every social movement the resisters need the accommodationists to close a deal and the accommodationists need the resisters to threaten resistance. Rabbi Kook was willing to admit this about Rabbi Sonnenfeld, but I am not sure if Rabbi Sonnenfeld himself ever expressed the same sentiment in the opposite direction; maybe if one is a resister, one doesn’t have the luxury of that honesty. ↑