“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[1].)

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.[2]

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[3]:

  • 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.[4]
  • 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.[5]
  • 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.[6]

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.[7]

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.

  1. This quote seems to have first stated by Emiliano Zapata; see https://www.brainyquote.com/quotes/emiliano_zapata_109725.

  2. 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.

  3. This is really one the basic themes of Mesilat Yesharim, and is stated well in chapters 1 and 2.

  4. 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.

  5. In that it was made clear that religious institutions are exempt, but commercial institutions shall all recognize same sex marriages.

  6. 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[1] — 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.

  7. 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.

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56 Responses

  1. Steven Brizel says:

    R Broyde argues in relevant part as follows:
    “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”

    One can argue that we are indeed in a Kulturkamph and that the continuous moving of the goalposts by the LGBT movement which will never be satisified with just legalization, tolerance and recognition-rather it demands the right to teach all of us starting at as an early age as possible that such a lifestyle is normal-the refusal to bow down to the cultural norms is the messagee of Chanukah. R Yochanan Ben Zakkai while saving the Mesorah by relocating to Yavne, is recorded by the Gemara as wondering on his deathbed as to whether he made the right decision,. We should oppose any notion that any Jewish child in a yeshiva be taught that Yaakov has two Tatties, Abbas, Dads , Immas or Moms.

  2. Steven Brizel says:

    Moreover, the language in the so called Respect for ( Same Gender and lack of respect for traditional) Marriage Act clearly establishes a carve out that is limited , begruding , and insulting to all people who have religious values
    ( i.e your iinsistence on releigous standards is bigoted-just as any one who opposes interracial marriage ) To the extent that any carve out was necessary, the amendment offered by Senator Lee of Utah was far better.

  3. Meir says:

    If accommodation was all that was being requested, perhaps what you’re saying would be true. But it isn’t.

    As we see in New York and in the UK, our educational insitutions are now under scrutiny for not teaching topics that support and encourage Arayos and other aveiros.

    And in secular schools, too, students are expected to participate in Gaavah parades and Arayos shows now. How much longer before Yeshiva students, too, will be expected to do so?

    If you haven’t seen that the Overton window on this subject has been constantly pushed to the left- and is still being pushed to the left, you haven’t been paying attention.

  4. Bob Miller says:

    If the Romans had required Yavne and its sages to adopt elements of the pagan Roman belief system, and be monitored for compliance and disciplined for noncompliance, that option wouldn’t have been tenable, either.

  5. Tal Benschar says:

    I don’t have time for a longer post, but some quick thoughts:

    As some posters have hinted, there is a difference between the two topics discussed, same-sex marriage and an official club at YU. As to the former, that is an external matter, and while acceptance of SSM is very unfortunate, in the end it only indirectly affects us. The secular law already recognizes marriages we don’t, such as intermarriage. It’s a fait accompli, no matter how much we might lament it.

    As to the latter, however, that is a direct invasion of the educational mission of YU, the flagship institution of modern orthodoxy. This is of a pattern to use non-discrimination laws to impose ideological conformity on people and institutions, and must be resisted. Otherwise, you could be forced to recognize clubs for all kinds of ideas that are antithetical to YUs mission. (What next, the Molech Club?)

    As for providing religious direction to those who have SSA, you don’t need an official club for that, just like you don’t need and official club to provide religious direction to those who have difficult dealing with OSA, or any other yetzer harah. People, especially young people, have had issues dealing with the Torah’s requirements since the Torah was given. YU rebbeim and mashgichim deal with all kinds of issues people have. An official club devoted to a particular aveirah is simply a breach that will be followed by demands for more.

    • mycroft says:

      . This is of a pattern to use non-discrimination laws to impose ideological conformity on people and institutions, and must be resisted.

      If YU wishes to be treated as a religious institution just charter themselves that way.

      • Bob Miller says:

        Calling it non-sectarian certainly helped with public and private source fundraising, for example, but it created an amazing vulnerablity. The people involved had learned to trust the outside liberal world too much, never thinking of potential betrayal. The heavy hand of government might land on their differently dressed, less-connected, “insular” cousins, but never on them.

    • nt says:

      In particular, the optics are bad. Devoid of context it might seem good, but in context it looks like buckling to pressure. And LGBT clubs are notorious for having an outward facing image and an inward facing agenda that is far more radical than they publicly admit.

      • mycroft says:

        never thinking of potential betrayal

        Of course, possibility was always there. Major student demonstrations against YU becoming a secular institution. RYBS in a rarity for him came PUBLICLY out against YUs move warning about consequences

  6. joel rich says:

    First they came for the socialists, and I did not speak out—
    Because I was not a socialist.

    Then they came for the trade unionists, and I did not speak out—
    Because I was not a trade unionist.

    Then they came for the Jews, and I did not speak out—
    Because I was not a Jew.

    Then they came for me—and there was no one left to speak for me.

    If folks find they can’t live with the freedom that allows US Jews to practice religion at their current levels, perhaps it’s better to come home and fight the battle in Israel?

  7. Michael Jay Broyde says:

    It seems to me that there are a few different comments or question. But, I want to make a three points that explain them all.

    1. Rabbi Yochanan ben Yakkai was only wondering on his deathbed as to whether he made the best accommodation he could and not whether his basic approach to seek an accommodation was correct.
    2. The basic purpose of an accommodation is to insure that we have the autonomy to do as we want as a matter of faith, and we have to be prepared to give that accommodation to others. We should not be surprised that if we refuse to accommodate others, others refuse to accommodate us. The reason to grant accommodation is to make sure that we know the answer to the question “How much longer before Yeshiva students, too, will be expected to do so?” is never.
    3. The statement “If the Romans had required Yavne and its sages to adopt elements of the pagan Roman belief system, and be monitored for compliance and disciplined for noncompliance, that option wouldn’t have been tenable, either” strikes me as wrong. The Romans put up idols everywhere and as the famous mishnah in Avodah Zarah 3:4 notes, we accommodated.

  8. mycroft says:

    Of interest is a compliment I once heard RYBS say about someone: “He knows when to fight and when NOT to fight”

    • William Gewirtz says:

      This touches on a fundamental error made when a person who is so to speak “kuloh Torah” is asked to pasken. Peak always requires a deep appreciation of circumstance that sometimes cannot be appropriately provided by a third party. Pesak often requires a deep understanding of circumstance – when to fight and when not to – as you quote from the Rav ztl.

      Despite his own broad and deep knowledge, the Rav would often gather various viewpoints on the subject being addressed.

      • mycroft says:

        Pesak often requires a deep understanding of circumstance

        Here again RYBS is an example of showing the importance of knowing circumstances. There were occasions when Rabbonim students of the Rav asked him a sheila about what to do. Many sheilas really revolve around conflicting principles and which one should apply in that case. RYBS would often answer you’re there I’m not what do you expect me to add. Local Rav student of RYBS would answer but Rebbe I want your judgement. Rav would ask what factors and halachas are you considering. RYBS would answer what do you want from me-Id use the same principles and even offer to review sugya but he would not pasken. Shows the importance RYBS saw in knowing the circumstances-RYBS certainly knew that he knew more than any talmid of his but the message given is a strong one-that knowledge of circumstances so crucial can be even more important than knowing Kol HaTorah Kulha

  9. william l gewirtz says:

    Excellent article. One observation: those who compromise will likely be second guessed. In fact, as has been observed, even on his deathbed, R. Yochanan ben Zakai was concerned whether he made the ideal compromise.

    Those whose adherence to principals does not permit compromise may sleep well while leading us down a path we will all live to regret.

  10. Tal Benschar says:

    The statement “If the Romans had required Yavne and its sages to adopt elements of the pagan Roman belief system, and be monitored for compliance and disciplined for noncompliance, that option wouldn’t have been tenable, either” strikes me as wrong. The Romans put up idols everywhere and as the famous mishnah in Avodah Zarah 3:4 notes, we accommodated.

    What in the world are you talking about? There was no “accommodation” there. That Mishna is discussing a bathhouse, which. R. Gamliel held was permitted to bathe in for the reasons stated there. True, the Jewish people did not have the power to ban Avodah Zarah, as they were a conquered nation, but so what? Either it was permitted to use or not.

    That is far afield from requiring foreign ideas to be made part of a yeshiva curriculum. \

    Frankly, this answer makes me doubt your bona fides.

  11. Robert Lebovits says:

    Can R. Broyde offer a bright red line where accommodation would no longer be acceptable?
    I suspect there are many in the observant community who perceive continued accommodation of secular demands by our side, without reciprocal tolerance of our wish to live according to Torah values by their side. And yes, there are most certainly “sides” in the current interface with the general society.
    When do we say the limit of accommodation has been reached?

    • Michael Jay Broyde says:

      Robert, I am not sure I have a single “bright red line” but it seems to me that an important line is whether we are being asked to violate Jewish law, or merely being asked to condone other people’s violations. That is an important line, reflective of halacha. We almost never have a technical obligation to object.
      This as well replies to Tal Benscher. I can not understand how idols everywhere is truly consistent with what God wants of us, and we did nothing — we did not protest, or picket or tear them down, but we ignored them, which is exactly the accommodation that was needed. Tal misses the point by focusing on “either it was permitted to use or not” as most of the matters here are not matters of strict halacha — since we are not called upon to violate halacha, but just permit others to violate.

      • Bob Miller says:

        The idols were not everywhere. They were not in our schools at any level, for example. We don’t need all this fancy wordplay unless we want to be inert in the face of serious provocation.

      • Robert Lebovits says:

        When the Gay Rights movement first began it was with the explicit request for tolerance of a lifestyle that was then considered immoral by the general culture. In effect, the message was, “Just leave us alone! Don’t impose legal sanctions on our sexual behavior, don’t refuse us housing simply because of what we choose to do in the privacy of our bedrooms, etc.” There was certainly no demand for recognition of a non-heterosexual orientation and conduct to be fully equivalent to a heterosexual way of life.
        In 2003 when SCOTUS invalidated the last anti-sodomy laws, it would have been accurate to say that the country had chosen the route you describe – condoning other people’s behavior from a distance even if it was viewed to be immoral since the public was not being forced to act against their own morality themselves. Thus the conflict should have been resolved. OMG! How far we have come in less than 20 years!
        Almost immediately after anti-sodomy laws were repealed the demands for full recognition became dominant including same-sex marriage, equal rights laws, etc., which has since required the public to, in fact, act against their moral codes. Fast forward to the present and we are now told that immoralities are proper and should be celebrated and advanced. There are severe sanctions threatened for anyone who challenges or even voices misgivings about the latest progressive idea. It has become virtually impossible to be a bystander. The old 60s adage – “You are either part of the solution or part of the problem” – has come back with a vengeance. “A technical obligation to object”? That is not the issue at all. The demands made upon us all including YU now seem to me to precisely accept violations of Jewish law.
        So I must ask again: What are the limits of accommodation?

      • Tal Benschar says:

        This as well replies to Tal Benscher. I can not understand how idols everywhere is truly consistent with what God wants of us, and we did nothing — we did not protest, or picket or tear them down, but we ignored them, which is exactly the accommodation that was needed. Tal misses the point by focusing on “either it was permitted to use or not” as most of the matters here are not matters of strict halacha — since we are not called upon to violate halacha, but just permit others to violate.

        WADR, it is you who is missing the point. The issue here is that a group devoted to a violation of the Torah wants official recognition from a yeshiva. This goes directly to the educational mission of the yeshiva. From a legal POV, it is forced approval. That is the problem here that your example from R. Gamliel does nothing to refute.

        As for R. Gamliel, of course “idols everywhere is [not] consistent with what God wants of us.” The land of Israel was then under Roman military occupation. There was no more opportunity to protest than our tearing down a modern church (or Hindu temple) as avodah zarah would be. Why you think this proves anything is beyond me.

        since we are not called upon to violate halacha, but just permit others to violate.

        Wrong. No one is calling on YU to “permit” anything. YU is in New York City, and just a subway ride away, if not closer, any YU student can do any aveirah in the Torah and no one will stop him or her.
        What is being called upon is to give YU’s official imprimatur to a “club” devoted to violating one of the mitzvos ha Torah. Clubs, of course, are part of the educational function of any university, even if an elective one. A university recognizes and funds them because they (supposedly) enrich student experience and growth. No one is stopping any student from joining any club off campus, whether devoted to aveiros or stamp collecting.

        I repeat, what is at stake here is legally forced approval and material support (read money). Akin to wishing mazel tov to two men or two women on their upcoming marriage. (Yes, I know certain Open Orthodox shuls do that. Shame on them.)

        As for your Baylor U. citation, that is up to the administration and roshei yeshiva of YU. But the students who brought the complaint against YU rejected that option and still do. They want free rein to promote their views of what is permitted and not. All this with YU’s forced blessing and forced support.

        And as I said, we should have no illusions of where this is going. Ask some of our brethren in the UK, where the authorities keep trying to force Orthodox educational institutions to teach that alternative lifestyles are acceptable. You can read about some of this here: https://www.thejc.com/news/news/chasidic-school-is-dodging-lgbt-lessons-says-ofsted-5Hvxshz19VCTeYwexa5D6e

        That’s coming here in a few years. Why can’t the State of New York mandate that for schools? Or YU for that matter?

  12. Michael Jay Broyde says:

    Since this issue has come up, I want to suggest to the readers of CC that they look into how so many Christian colleges have addressed this issue. Look for example at Baylor and how they have formed an LGBTQ club. Please read this; https://www.texastribune.org/2021/07/09/baylor-university-lgbtq-student-group/ and . And this; https://www.texasmonthly.com/news-politics/baylor-prism-lgbtq-students/.
    Baylor is — to a great extent — chartered as a “yeshiva” in that it has a religious charter and not a secular charter and is in a much legally stronger position than YU and yet it is a major academic institution with a strong religious base – it is the YU of Baptist schools, if you want and located in Texas. They are completely exempt from the civil rights laws since they have a religious charter and not a secular one; See https://www.baylor.edu/student_policies/index.php?id=22176 – which notes directly that “Baylor University is controlled by a predominantly Baptist Board of Regents and is operated within the Christian-oriented aims and ideals of Baptists. The University is also affiliated with the Baptist General Convention of Texas, a cooperative association of autonomous Texas Baptist churches. As a religiously-controlled institution of higher education, the University is exempt from compliance with some provisions of certain civil rights laws. As such, the University prescribes standards of personal conduct that are consistent with its mission and values.)

    But yet, they decided — not were forced — to deal with the LGBTQ issue frontally and directly within their own model. This is also not a bad idea. Baylor acknowledges that some members of its community are LGBTQ (also true within our community) and these students need religious guidance and Baylor intends to form a school sponsored club (if you excuse me using the term) al taharat hakodesh to allow students with an LGBTQ orientation to join together and discuss issues in the right format. There are issues to discuss and a student club format for discussing them could be good. This is much more complex, but it also could be done. Have an LBGTQ club with the right Torah personality as the faculty advisor and run it al taharat hakodesh asking the question of how should a person with an LGBTQ orientation function as a matter of halacha would be impressive.

  13. Mark says:

    Rabbi Broyde has it completely backwards.

    While RYBZ accommodated, he was heavily criticized for it by his fellow greats: קרי עליה רב יוסף ואיתימא רבי עקיבא משיב חכמים אחור ודעתם יסכל
    They were of the opinion that he had no right to settle and it was not his job to act as G-d’s negotiator.

    Seforno makes a similar point in Bereishis 38:1 where he explains that Yehudah lost two children prematurely and childless because he instead of returning Yosef to his father, he negotiated a compromise to sell him as a slave. This, despite the fact that Yehudah was virtually the only one to lift a finger on Yosef’s behalf, but if he knew that Yosef did not deserve to die, he also didn’t deserve to be sold. The only reason Yehudah sold him is because he was worried that trying to return to him his father would fall on deaf ears. Thus he settled for the lesser evil. However, Seforno explains, we don’t have the right to accept the lesser evil. We must fight for truth and live with the consequences whatever they may be. (As it turns out, the brothers blamed Yehudah for failing to suggest that he be returned home! The wasn’t any true need for him to accommodate, a reality that is so often the case.)

    G-d forbid that we seek an accommodationist policy here. What’s at stake is very great and we dare not equivocate even though it’s likely that we won’t wind, but if we do negotiate a middle path, it’s a certainty that we’ll lose and we’ll have to hang our heads in shame for failing to speak out.

    Do not allow the smooth-talking attorneys and law professors who already feature a long history of compromised behavior to suggest otherwise or to influence your thinking. אמת is unchanging.

    • william l gewirtz says:

      RYBZ may have been heavily criticized, but hashgaha/history has proven that the compromise he made resulted in the survival of klal Yisroel.

      • Mark says:

        I’m curious to learn what this statement is based on? What compromises did RYBZ make that saved Klal Yisroel? Please enlighten me.

      • William Gewirtz says:

        Mark, imagine an Israeli politician giving up a part of the old city in a compromise. RYBZ effectively gave up the fight for the BM in return for Yavne ve’hakhamehah.

      • mycroft says:

        William Gewirtz December 29, 2022 at 3:21 am
        Mark, imagine an Israeli politician giving up a part of the old city in a compromise. RYBZ effectively gave up the fight for the BM in return for Yavne ve’hakhamehah

        FWIW RYBS certainly belonged to that school- I remember Rubin Schule at YU Spring 1968 where he stated he would give up the Kotel Hamaaravi to save one life. He stated that he was not taking a position one way or the other if that was a wise policy. It would be based on military/diplomatic considerations which as non-Halachic issue he had no special expertise. IIRC he spoke publicly-IIRC you’ve stated you heard similar around that time in 92nd Y. I remember it from a speech he gave Rubin Schule at YU Spring 1968. But clear if it would save a life accommodation was what RYBS advocated. Thus, clearly to save medinat Israel and Jews RYBS would have supported giving up the old city.

      • william l gewirtz says:

        The Rav ztl made that same remark during a teshuvah drasha at the 92nd street Y (in 1968 I believe,) acknowledging the presence of the late Prof. Pinchat Peli, who then also reported for an Israeli newspaper. He worried in the late 70’s about what has now occurred, Mizrachi turning into a right-wing land-uber-alles party.

  14. Steven Brizel says:

    Accommodation is a vague term that is inordinately elastic and is wholly unrealistic given the well documented intellectually dishonest ( “we only want respect and equality for ourselves as human beings”) unceasing demands of the LGBT movement to groom young children as to Arayos and create sexualized pre pubescents in public schools with sexually explicit texts in kindergarten and for publicly funded drag shows treating mentally il transgender individuals as normal and mutilation of children predicated on junk science

    • dr. bill says:

      ask your rabbeim about transgender. please do not attack its existence; unfortunately, it is all too real. what paths to follow is an issue best left to psychologists, medical specialists and poskim with breite pletzes. general characterizations are not helpful.

      • Robert Lebovits says:

        Please don’t conflate the idea of “transgender” as discussed in Torah with the modern phenomenon of transgenderism. The two are wholly unrelated. Today transgenderism is borne out of the notion that gender is purely a social construct detached from biological reality. Anatomy and physiology have nothing to do with gender in this conceptualization. Hence there is constant gender fluidity and all that is required to go from one gender to the other is a declaration of self-identification. “I am a (boy/girl/other) because I say so.” And so you are.
        The Torah definition requires anatomical conditions that are not self-inflicted.
        As an aside, it is amazing how fast extreme ideas become common currency. Transgenderism “is all too real”? There are medical and MH professionals who would challenge that statement on scientific grounds.

      • Steven BriZel says:

        Sorry junk science is junk science snd there is no medical basis for castration and mastectomies of minors solely based on gender fluidity .Please identify by name and published any link any Posek with broad shoulders who approves of the same

    • Michael Jay Broyde says:

      Steven Brizel s correct that “accommodation is a vague term” and I think that every application is different. But I think that I can lay out three principled ideas. The first accommodation is that we are only seeking to to protect our own rights. The second is that — as an accommodation — we do not seek to stop people from sinning of their own free will whether they are violating’s halacha or Noachide law, except when it impacts our rights directly. Third, situations in which there is a tension between our rights to live consistent with halacha, and the rights of others to live their lives consistent with their principles, need to be closely negotiated as a matter of law with nuance and complexity, aware of the fact that we do not want to let people engage in economic discrimination against us due to our faith — and thus we do not want to do so to others — and also aware of the fact that our religious institutions need to be free to act consistent with our faith and other religious institutions need to have the same rights.

    • mycroft says:

      The Rav ztl made that same remark during a teshuvah drasha at the 92nd street Y (in 1968 I believe,)
      which would be about half a year after I heard similar thoughts from the Rav in a public forum.

      acknowledging the presence of the late Prof. Pinchat Peli, who then also reported for an Israeli newspaper

      At one time he was the editor of a Hebrew weekly, relatively easy Hebrew-Panim el Panim

  15. A Thinking Talmid says:

    One important he’ara:

    My understanding is that Rav Hershel Schachter gave his approval for what YU is doing. One can certainly disagree with Rav Schachter but it should be done respectfully, and dare I say, with humility.

    I think Rabbi Broyde provided a sufficient overview of the role of compromise in realpolitik. Of course, the devil is always in the details. In some situations, one must compromise and in others one must stand strong.

    Another reason why Rav Schachter might sign off on this club: Let us say that yerei shamayim psychologists believe that a club rather than individual counselling will help prevent LGBT students from Chas V’Shalom committing suicide. This club would not endorse forbidden behaviors but rather would help students stay strong in their commitment to Torah and to life. If yerei shamayim psychologists believed this club would save lives, in my mind, someone who wants to forbid this club needs to bring a rayah. Granted, YU might get labeled by some as confused but that isn’t necessarily a good reason to not help these LGBT students.

    • Steven Brizel says:

      All true but the plaintiffs are not interested in any compromise solutions but rather the destruction of the traditional family and relationships between the genders as defined by Halacha

  16. nt says:

    The defeatist tone of this article (“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.”) is very odd in the same year that Roe vs. Wade was finally overturned. All Rabbi Broyde’s arguments could have been made then as well.

    Similar arguments about the necessity of compromise were made by the Conservative movement in the past. The difference between them and Rabbi Yochanan ben Zakai was that he did not compromise on a fundamental issue, or any substantive issue really. He made a calculated bet on a practical issue. In the case of Rabbi Zecharya ben Avkulas, he was machmir on something that was actually assur. He did not compromise on something that was actually assur.

    • William Gewirtz says:

      As mycroft quoted from the Rav ztl:“He knows when to fight and when NOT to fight”

      Rabbi Broyde exhibits a similar sensitivity.

      • mark says:

        Whether it applies to Rabbi Broyde or not is not implied by anything that Rav zt”l said. He said it about someone else and we have no idea how he would feel about the author of this piece.

    • Bob Miller says:

      You’ll note that the OU was not exactly all in about Roe v. Wade. After SCOTUS struck it down, the tepid OU response, noting fine points in halacha regarding outlier cases, didn’t forcefully address all the carnage that Roe v. Wade had successfully encouraged. Flashback—In the decades when Roe v. Wade was in force, what exactly did the OU say in public against the general case, elective abortions for convenience? When did it ever make common cause with general pro-life groups?

  17. Eliezer Abrahamson says:

    The exemption for religious institutions is, at best, a figleaf for what effectively amounts to religious oppression.

    In the final analysis, it is the government that decides what is and is not a religious institution. This makes our religious freedom entirely contingent on the government’s prior approval.

    The idea that religious freedom only applies to pre-approved “institutions” essentially eliminates religious freedom for the individual person. This is religious freedom along the lines of the Soviet Union, where (a few) synagogues were permitted to remain open but actual attendance was heavily repressed.

    As we have already seen in Great Britain and in New York, the recognition of religious freedom for Jewish educational institutions is clearly under attack by the left. There is no real question that, over time, this will escalate.

    The idea that we can reach any kind of practical accommodation with this highly motivated ideological enemy (and there is no question that that is what the woke left is) is simply self-deception.

    That being said, on a practical level we may not have much of a choice. As successful as the American Orthodox community has been, we remain an tiny minority and, outside of a few local areas, we do not have the political clout to oppose the will of the government.

    This is nothing new, of course. In the middle ages, as one example, Jews were often required to attend Christian sermons intended to convert them to Christianity. And Jews went, because the alternative was mass murder. We often do have make “accomodations” to the dominant society but it is simply absurd to talk of this as if this is some kind of consensual arrangement with our oppressors.

    • Michael Jay Broyde says:

      I did not understand your post. The government exempts all religious institutions and does not define them or regulate them. The YU case is so hard exactly because YU did not file as a religious institutions. I explain this case in great detail in this article “Religious Values in Secular Institutions? Yeshiva University and the Future of Religiously Affiliated (but Secularly Chartered) Higher Education in America which you can find at https://www.broydeblog.net/uploads/8/0/4/0/80408218/yu_as_a_religious_institution_brill_journal_of_law_religion_and_state_broyde.pdf . The YU case is not about Chaim Berlin or JTS, but about an institution with a secular charter.

      But you are correct that American law does not allow discrimination by religious individuals in commercial activity at least in a larger corporate or large individual setting. You seem to think that this is bad, but on the whole, I think we gain from that idea. I do not want secular institutions or corporations to be able to discriminate against me and the price I am prepared to pay is to not engage in commercial discrimination against others.

      Do you really want to live in a society where secular commercial institutions can say “I do not want a bris to be done in my hotel” and refuse to rent to a family having a bris? I want secular institutions to not be allowed to make those discriminatory decisions against me and and thus I am prepared to not make them against others. What do you think the law should be?

      I do not think the analogy to the Soviet Union is at all correct. Nor is England an exact model, as there is much more government aid and when the government pays, it make many more rules.

      • mycroft says:

        In general, we agree on the YU case. I’d even emphasize stronger; YU is not simply a case where one might try and argue they checked the wrong box but treat them as a religious institution. YU made a conscious decision to switch its charter for secular institution for money. They certainly can’t come in clean hands saying they should be entitled to benefits as a religious institution while maintaining secular charter. BTW IMO this is far from first impact of rechartering. A few years ago YU Commentator wrote about a minyan that some YU students wanted with women speaking after davening. Apparently RIETS Roshei Yeshiva opposed such a minyan, but YU Dean stated YU had to give them space in Main Campus-in YU property, not RIETS property-thus they were not given space in Beis Midrash but in I believe Furst Hall-regular YU property. Im sure there have been other accommodations throughout the years due to YU being a secular institution by choice. Certainly, RYBS very public attack on changing the charter which no one has been able to show he recounted publicly. Very public I heard it in person in I believe Room 501 Furst Hall-the largest room in Furst Hall-I have seen no evidence that he recanted publicly various people have claimed he dropped opposition. Even if arguendo, he became convinced it was an issue not worth fighting-it does not take away from the logic of his attack.
        Probably, what has changed is that Supreme Court has changed, and YU believes anything goes as long as claim religious. IMO YU is the worst vehicle to argue-much more intellectually honest would be to recharter as religious and then file lawsuits which likely be successful stating must give us money the same way secular institutions. At least then YU would be honest in its approach, instead its approach is one that shows a lack of integrity.

      • Eliezer Abrahamson says:

        Reb Michael,

        Not every organization can claim to be religious in nature. I cannot claim the legal status of a religious organization for my home or my business, and if I attempt to do so I will face serious legal consequences.

        Now, of course, that is only to be expected. Obviously, when the government gives special exemptions and status to a specific class of organizations, it needs to set criteria for what qualifies. The problem arises when the special status granted by the government to religious organizations is conflated with religious freedom itself, which is a Constitutionally protected right held by every single individual and organization. It is simply absurd to argue that our religious freedom is protected because officially recognized religious organizations are exempt from laws that require us to violate our religious freedom.

        This is true for all religions, but is doubly so for Judaism, which, in its essence, is not primarily focused on religious institutions (as important as those certainly are). For many American Christians, the entire focus of their religious lives is set within the confines of their church. But that is not at all true for religious Jews.

        As for the benefits that we gain from laws prohibiting discrimination, while that may be true (and, given where things are going, I am far from confident that this will remain true ), if the trade-off is the requirement that we must violate our religious principles then it is certainly not worth it.

    • mycroft says:

      Disagree-no questioning of RIETS ability to do what it wants religiously but YU affirmatively made a conscious choice to recharter itself as secular not religious.

      • Steven BriZel says:

        The conservative majority of SCOTUS may very well find that the facts on the ground as to the facts on the ground religious requirements of YU undergraduates are the substance on the ground that is far more relevant and important than the legal formalism form set forth in the charter

  18. Michoel Cohen says:

    Interesting ideas in this article. However, the issue with terms like “accommodation” is that it tends to soften the severity (and yes I will use the term “evil”) of the thing we are accommodating. All facets of Orthodox life are challenged with societies WOKE agenda tearing down every formally normal aspect of human life (gender confusion, abortion on demand, traditional marriage are just the tip of the iceberg…). Every Orthodox Jew from the most “modern” to the most “Charedi” who visits a doctors office will now see when filling out the intake form, a list of possible genders and pronouns almost as numerous as the fingers of both hands.

    We all know that it does not take long to get used to things we formally found distasteful. I live on a street with over 90% Orthodox Jews. One of the few non- Jews on the block started hanging a Pride flag this past summer. I asked many friends their thoughts on it and surprisingly most were so used to seeing these flags everywhere during pride month, that it didn’t seem to rattle them too much. Not too many people were politely or impolitely asking them if it could be taken down due to the religious nature and innocence of the children of the street. Hence what 20yrs ago might have caused great discomfort was now accepted without any resistance.

    Accommodation could very easily lead to a further watering down (or worse “ice on the fire”) of our own values. As soon as we accommodate on these latest societal evils, in a few years their will be new ones and the current batch will appear as “kosher” in comparison.

    I would like to suggest what in this forum might be considered a “radical” idea:

    The real challenge is not how do we accommodate, but rather how do we as religious Jews remain spiritually and emotionally pained by the immorality, child abuse transgender agenda, rampant acceptance of homosexuality, and every other degradation of the word term “Human Being”, or as we know it to be ,”Tzelem Elokim” currently marketed as not just OK but healthy and good?

    This in my humble opinion, is the real challenge. If we don’t emotionally (and not just coldly intellectually) feel the pain this is inflicting on children and society, how can we be taken seriously on any Torah teaching we try to give over to our own children?
    Our children need to SEE our discomfort, our pain and not just callous acceptance and drive to accommodate.

  19. Shalom Rosenfeld says:

    This article (at least in this form) refers to the Defense of Marriage Act; if I’m not mistaken, DOMA was passed in 1996 and then repealed by 2022’s RFMA — was RFMA the intention here? (Or did the author prefer not to use that term per se?) Just a little confused.

    Unrelated note — this one’s for Professor Broyde more than Rabbi Broyde — if I read the new law correctly, neither a religious institution nor any of its employees need provide any services to same-sex weddings. So could a baker take a $1 salary from a church/synagogue for providing one lecture a year, and then use this clause? (If so, is that a bug or a feature?) Or is there some implied legal interpretation about in what capacity that person is acting?

    • Michael Jay Broyde says:

      Shalom, these are hard matters. I doubt that the trick that you propose will work. I suspect that a kosher caterer can not avoid providing such food, but a kashrus organization need not provide a hashgacha. In those cases where the caterer can not cater in location without a hashgacha, my intuition is that law will exempt.

    • Bob Miller says:

      There is something odd in allowing only a religious Jewish functionary to act out Jewish moral law in all respects, but not all religious Jews as a group. Non-Jews might like the distinction, because they view religion differently—too bad for them. Both this law and the decision of the allegedly conservative SCOTUS that opened the door are bad for what’s left of society. We’ll ultimately have to decide if the US is acceptable to live in or not.

  20. Steven BriZel says:

    Rabbi Pruzansky in the most recent issue of the Jewish Press has published a response to Rabbi Broyde that someone should provide a link to and is worth discussing in its own right here I will post the link later tonight

  21. Steven Brizel says:

    https://rabbipruzansky.com/See here for Rabbi Pruzansky’s response to Rabbi Broyde.

  22. Steven Brizel says:

    I think that “accommodationist” is apologetics in all of the worst sense of that word and the Torah committed world in America regardless of its hashkafic varieties has thrived in America precisely because it is not engaged in apologetics but in presenting the timeless and profound nature of a commitment to Torah observance that was aided in no small measure by Holocaust survivors BTs and by a unified refusal by the Torah observant world in all of its varieties to conform the secularization of American life which was marked by a full scale assault on the traditional family

  23. Michoel Cohen says:

    The question I would like to humbly ask is the following:

    Has anyone in this forum ever broken down in tears over any of these issues (these are just a few things discussed here in this forum…there are many more…):

    -Women walking around Eretz Yisroel in army uniforms? (first country in history to mandatorily draft women)
    -The “pride” parade in Yerushalayim?
    -The onslaught of LGBT brainwashing one can easily see in any public library or public school and everywhere in the media
    -The open legalization of child abuse in the US…transgender surgery on children, Drag queen story hours for 5yr old’s in public libraries and much more that I don’t want to lose my lunch over now….

    If we are able to literally bring ourselves to tears over these things…then perhaps we have the right to discuss these issues and I humbly think we will receive the Siyatta D’Shmaya to protect ourselves, our family and our communities….but if not…well…that just means we are assimilated Jews with yarmulkes.

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