National Scholar Updates

Spring 2013

We are very pleased to announce that beginning June 1, 2013, Rabbi Hayyim Angel will serve as National Scholar of the Institute for Jewish Ideas and Ideals. A remarkable scholar and teacher, Rabbi Hayyim Angel will dramatically increase the programming of our Institute by offering classes, serving as scholar in residence in communities throughout North America, organizing public conferences, conducting seminars for Judaica teachers…and more. Along with his work for our Institute, he will be expanding his teaching at Yeshiva University.

This dramatic new development has been made possible through the generosity of major supporters of our Institute who are also devoted admirers of Rabbi Hayyim Angel’s outstanding qualities as teacher and lecturer. This is a tremendous step forward in our Institute’s ongoing efforts to foster an intellectually vibrant, compassionate and inclusive Orthodox Judaism.

The well-known author, Naomi Ragen, recently wrote an article in praise of our Institute. “The truth is, something good is happening in Orthodoxy….The Institute for Jewish Ideas and Ideals is one of the prime movers of the Orthodox Spring….The Institute has been publishing an influential journal called ‘Conversations’ in which distinguished Orthodox rabbis and personalities express a wide cross-section of eye-opening opinions…encouraging a new kind of leadership.” Rabbi Hayyim Angel typifies this new kind of wise and creative leadership.

As we enter this new stage in the life of our Institute, we invite your added support and commitment.  Together, we can move forward to shape a better Jewish future.

SPECIAL BONUS:  Those who contribute $165 or more before June 20, 2013, will receive a complimentary copy of Rabbi Hayyim Angel’s new book surveying the Prophets and Writings of the Bible; Contributors of $1000 or more will also receive a copy of Dr. Pinchas Polonsky’s new book of commentaries on the Arfilei Tohar of Rabbi Abraham Isaac Kook; Contributors of $5000 or more will also receive an additional special publication.

All contributors will receive the satisfaction of being the Institute’s partners in promoting an intellectually vibrant, compassionate and inclusive Orthodox Judaism.

Shalom uvrakha,

Rabbi Marc D. Angel

Poet Robert Bly speaks of two periods of “opening” in human life, roughly between 18 and 23 years of age, and then again sometime in one’s mid-40s. The first of these coincides with our college years, a time of notable openness to new ideas, new ways. It was as a freshman at Yeshiva College that I was introduced to serious religion, and I became an enthusiastic participant. My engagement lasted only five years. I was very much in love with the Orthodox life, the practices, and the learning. But for better or worse I had a philosophical conscience.

I entered Yeshiva in 1960. Having no substantial Jewish education--I don’t count the horrors of pre-bar mitzvah Hebrew School--entered (what was then called) JSP, the Jewish Studies Program. The program was led and inspired by Rabbi Morris Besdin, a wonderful human being, gifted educator, and incisive interpreter of the Ramban. Rabbi Besdin was strikingly undogmatic; he loved good, even impossible, questions, so long as they were the product of honest probing. That Orthodox religion could be a source of such intellectual richness was something I never expected—and equally so, the deep spirituality in the air. I felt as if I had come home and to something I had not known to exist.

At the same time I was troubled by the ambitious truth claims of Orthodoxy. Beginning with belief in God and continuing from there, I was less than sure about any of it. Philosophy¾something equally new, equally wonderful ¾was of great help here. My introduction was provided by a visiting student from the University of Toronto, Sydney Goldenberg. There were lots of wonderful late nights in Ruben dorm talking through the thorny questions of faith.

As my engagement with traditional Jewish life intensified, and especially as I was introduced to the joys of Talmud, my theological worries fell into the background. I simply loved the life, the learning, and the community. I spent three years in JSP, and then moved to Rabbi Aharon Lichtenstein’s shiur in the regular yeshiva program. Rav Lichtenstein modeled what I took to be a very advanced form of religious engagement: intellectual rigor combined with an almost breathtaking humility. I felt a sense of privilege learning in his presence, not to speak of under his guidance. Religion, for Rav Lichtenstein, enhanced the human project; serious religion and serious humanism—a dream.

The Orthodox world to which I was exposed suited my political and social instincts pretty much perfectly. This was in the early 1960s, before many of us were awakened to issues about the engagement of women. But the atmosphere I lived in¾others at YU lived in different worlds¾exuded a sense of fairness and decency, a sense that serious human concerns would never be dismissed in the name of religion. Looking back, it was a world of the 1960s (minus the excesses of that period), and Rabbi J. B. Soloveitchik was its inspiration and spokesperson, a golden age of Modern Orthodoxy.

After five years of college¾I had extended college to devote time to Talmud¾I entered the semikha program and the Kollel. But for reasons or causes that I only partly understand, my theological concerns were again becoming prominent. The summer after college and before semikha I was teaching Talmud at YU’s Camp Morasha by day and obsessing by night about theology. By the end of the summer, I knew that I had to leave the semikha program. I had thought through (and under and over) my belief in God to the extent that, as I would have put it, (and this is only a little embarrassing) a just God would understand why I could not believe.

I started dating Barbara Lipner during my Yeshiva College days. Our families were next-door neighbors in Spring Valley, NY; we had met when I was 13 and she was eight. The Lipners were the only Orthodox people in the neighborhood and I spent many Shabbat meals with them. When I left religious life Barbara and I parted ways but then unparted them a short time later. Our marriage¾now 44 years old--was respectful of our religious differences and mutually supporting. Still, our differences, and especially raising children in the light or shadow of such differences, required discussion, work, attention.

And then, in my 40s--Bly’s second opening--religion exercised its magic a second time and I became a real ba’al t’shuvah. (I refer here not to fervor but quite literally to a return to something I had left.) Not that I had resolved my philosophic issues. But life was taking me in new directions that were not to be denied, and I took on the project, personally and academically, of making sense of my religious life. [1] In writing this I am struck by the energy it must have taken, the sort of stress that is part and parcel of such life changes. But that’s not how I experienced it; it was a time of new beginnings.

My wife reports that there was a day she was walking past the dining room, saw me with tefillin in place and actually did a double take. And I can imagine what it seemed like to my philosophy colleagues: One day I was thinking about the philosophy of language--exploring concepts of reference and meaning¾the next day about God. Perhaps this is why God created tenure.

What sorts of things, what sorts of life changes, might move a 40-something atheist academic toward Orthodox life? I’ve addressed the question more fully in an essay, “Man Thinks, God Laughs,” in my book, The Significance of Religious Experience.[2] There I spoke about various life events that contributed to my change in religious orientation. Here I provide only a sense of the new direction of my thinking and feeling.

As a young man, taken with philosophy, Talmud, and such things, the life of intellect was very much a first love. So much so that while there was a place in my life for music, poetry was beyond the pale. I remember trying to read A. J. Heschel, the twentieth-century poet/philosopher of Jewish religious life; the work was inaccessible, far too poetic, too mushy. By my mid-40s, though, my Jungian shadow had begun to emerge: I found myself reading poetry, amazed that I could, stunned by its power. Heschel became available and with his help, religion in a new key. Rationality seemed to pale a bit; Heschel’s emphasis on awe seemed to capture something essential to the life of the spirit.

My atheism, if that’s what it was, did not involve any sort of disdain for religion. I remember arguing with a friend at Notre Dame about the matter. My practice was to use the adjective, “religious,” as a sort of honorific; he, with Marxist sensibilities, the opposite. My atheism was a metaphysical position; I couldn’t wrap my mind around the supernatural. But my finding spiritual power, meaning, solace in religious life didn’t feel like it had anything to do with belief in another realm, removed from the natural world. It’s true that God remained a puzzle; the central idea of religion was what I found the most difficult. But as I gained more than a foothold, it seemed more and more natural for the idea of God to be elusive. After all, I mused, there is a substantial religious intuition that when we try to think about God we are over our heads, out of our depth. Lots of people supposed that God has to come first, then some form of religious life. I was increasingly at home in religious life, even prayer; but lost about what it was I was talking about. Buber comments that it is one thing to talk to God, and quite another to talk about Him. One who attempts the latter reaches beyond his competence.[3]

And so my thinking about religion, about religious life, about God, began to take on a direction. I met Charles Taylor, a traditional Catholic, at a conference in which we both presented material. I asked him about the more theoretical aspects of his religious commitments. “I’m an orthodox Catholic,” he said. “I believe every bit of it, but I have not much of an idea what it means.” And this was not, I believed, an evasion. Overstated perhaps, under-explained, but not an evasion.

My first sojourn in Orthodoxy was a gift of hessed. I showed up in Washington Heights (of all places) and there it was, almost waiting for me. The second time around it was very different. The world had moved to the right in politics and religion. A kind of yeshivish Orthodoxy had become something of the norm, for which the black hat is not a bad symbol. A moment of confusion: early in this period my family was away at a Pessah hotel. I was walking through the corridor, to the shul, walking behind a group of men of various ages, all wearing large black hats. But their conversation was not that of b’nei Torah. I was learning my way around the new world.

The world seemed to have shrunk spiritually and ethically in the intervening period. In America, and noticeably among my students (largely Christian), religion grew stronger but seemed less open, more evangelical (or in our vocabulary, more eager for outreach). The religious humanism with which I had so strongly identified seemed less in evidence. Religion seemed both on the move and more identified with right wing political and social attitudes.

When I was at YU, the learning was at the core of my religious life. And returning to the life, I was eager to return to the learning. I never forgot how to learn; the mode of thinking was deeply inscribed. But Aramaic and the text of the Gemara was another thing; I had only been involved for a few years. And trying to find a havrutah was now a serious challenge.

Learning opportunities were in a way abundant; daf yomi, for example, had become widely available. But the learning that I knew and loved was very different. (Rabbi Moshe Chait, z”l, my former JSP teacher and mentor who had become the Dean of Jerusalem’s Yeshivat Chaftetz Chaim, later told me¾we were discussing daf yomi¾that he was once encouraged to take a speed reading class…and he failed.) Where was I to find a learning partner? I tried a Kollel of Lakewood mushmakhim in Los Angeles. Their offer¾if I wanted a one-on-one havrutah¾was for 20 minutes a week. Twenty minutes! A local rabbi in Los Angeles told me that he could arrange a havrutah. My excitement was short-lived¾seconds¾he immediately added that I would have to pay for it. Not only that but I had the sense that he was thinking about doing it himself. I felt quite confused by all this and seriously considered paying. But Rabbi Chait advised against it.

Rav Chait once told me that the boys in YU were nowadays “not like you fellows were.” I asked what he meant. “They don’t know how to challenge stubbornly, to fight their way to clarity.”[4] I said, “They are frum.” I was thinking about a conversation I had with my brother, about my son who was then about 10 years old and in Little League baseball. I was lamenting my son’s lack of aggressivness. “Of course he’s not so aggressive,” my brother said. “He’s so sweet. You can’t have it both ways.”

During our travels Barbara maintained her observance. Shabbat was a family holiday. But strange things happened in our super-galut world. If we ever make the movie, it will feature prominently a scene of me flagging down a bus in western Minnesota during the winter. It had a shipment of kosher meat from Minneapolis. Among our memorable Sukkot stories: My father-in-law built us a heavy wood sukkah in Minnesota. It protected us from the wind, but we still needed down parkas and a camping heater. The first year we spent there, before the advent our own sukkah, a colleague from biology built a sukkah more or less in Barbara’s honor; he said it was something he always wanted to do. I, severely lacking in the gifts of carpentry, helped him, as it were. A non-Jewish friend looked at the sukkah and commented that he now understood why they didn’t let Jews into the carpentry union. Some of the places we lived lacked anything like a Jewish community. Others lacked Orthodox shuls, or lacked ones in which Barbara felt comfortable.

In 1989, before my return to religious life, I moved from the University of Notre Dame to the University of California, Riverside. I was motivated by a lifelong dream, to help build a first-rate philosophy department and a graduate program that I would have enjoyed as a student. We moved to Redlands, California, a lovely orange-grove town, with more of a Jewish community than anything nearby and a small Conservative shul. My observance grew during this period; as time went on I would sometimes daven for the amud and sometimes give divrei Torah. But I was never at home in the Conservative environment, not even when I was barely observant. It seemed like thin soup with only a taste of the real thing.

After a number of years in Redlands, Barbara wisely saw that we needed a more focused Jewish community, and we moved to Los Angeles. By this time, I had found my way back to observance. We joined a Modern Orthodox synagogue that was halakhically, socially, and politically congenial. But as my engagement intensified, it became difficult to daven there. There was so much talking and the rhythm felt all wrong: rushing through the most important parts of the tefillah, taking enormous amounts of time for more conventionally appreciated aspects of the ritual. Tefillah in a local yeshiva was more satisfying, until it came time for the talk. So I would attend one synagogue and then the other.

For over 15 years, I have been going every summer to Jerusalem. It started with a letter I wrote to David Hartman, z”l, with whom I was acquainted from the old days. I explained my situation and expressed a desire to connect with his institution, especially with its annual philosophy conference. Hartman invited me to the next conference and I have been a regular ever since. Part of what we do at the Hartman conferences is to study talmudic texts; these are mined for their political or social content, but are not studied in depth. And so I sought a more intense learning experience during my visits to Jerusalem. And here a funny story ensues.

The year after my first Hartman conference, I contacted an old YU friend who was teaching at an Israeli yeshiva known to be on the liberal end of the Orthodox spectrum. I asked if I could come the following summer for 10 days to study at the yeshiva. The plan was to go to the Hartman conference and then to the yeshiva. I was told that I could … but a condition was imposed: that I did not speak to the students. It was a bit titillating to feel like a dangerous character. But what were they thinking? Would I use a discussion with students to insert questions in their minds? Why would I do that? A simple question addressed to me would have allayed such concerns. But life is strange, and I moved on.

Subsequently, an old and wonderful friend of mine from YU, Rabbi Yitzhak Frank, mentioned that he had met Rabbi Chait, who asked about me. I told Yitzhak the story of my recent experience. He laughed and volunteered to speak with Rabbi Chait about finding me a havrutah. Rabbi Chait also laughed, and then suggested that he would be happy to help. Strange that a more Hareidi yeshiva was less concerned about the danger I posed.

Thus began my havrutah with Rabbi Menachem Diamond, one that continues to this day. We spend two to three weeks every summer, two to four hours a day depending on his teaching demands. It began as a kind of tutorial. The first day I learned with Menachem was like basic training in the military. I was completely winded after an hour. But over the years, our learning, supplemented by various havrutahs in Los Angeles, has turned into something closer to a real learning partnership. It has become one of the most important highlights of my year.

My summers in Jerusalem, sometimes with Barbara but often alone, were and often are magical. The time often has a monastic quality: solitary and focused on the spiritual. Central has been my relationship with Yakar synagogue, especially with its late Rabbi, Mickey Rosen, z’l. Rosen was or is an unforgettable character, a man of spiritual intensity, so focused on his relationship to God and on the orientation, the stance that this relationship engendered, that he failed to notice many of the things that are prominent for many of us. Davening with him was a privilege and I think he taught me by example how it is to be done. He often davened be-yehidut in the mornings, to minor-keyed, second movements of classical compositions. His religious devotion stood alongside his deep commitment to an ethical stance that was inseparable from his relationship to God.

Twice a year he gave a sermon on unsere; on how our collective self-absorption blinds us to our ethical shortcomings. This would not have been problematic for his Jerusalem congregants, except that his case in point was the Israeli treatment of the Palestinians, which he took to be unacceptable. He would lose a lot of people twice a year, but his musical gifts drew them close after a short time. The davening in Yakar was breathtaking, a few hundred people in a small enclosure, singing their hearts out in spontaneous harmony. The music began some years ago, I believe, as the sort of Carlebach minyan that has now become almost normative. But Mickey was not seeking a routine; he was seeking intimacy with God, and so the music was dynamic, alive to the state of his soul.

Here are two illustrative incidents. One Shabbat afternoon during se’udah shelishit (which at Yakar meant very little se’udah, but lots of intense music) an American (without a kippah) wandered into the darkened room. It was as if he were an actor playing the evil son of the Seder. “Why do you folks bother with all these little silly, picky details?” he asked. Rabbi Rosen looked at him, unruffled, “It’s the way we express our intimacy.” The comment took me a year or so to assimilate fully. It seemed to me to suggest a new way to think about the hukim, more generally about mitzvoth and their details the point of which are obscure.

A second incident: I gave a lecture at Yakar on the thought of Wittgenstein, a terribly difficult but profound thinker. Perhaps I should not have volunteered to do so, and I was not happy with the lecture; Wittgenstein is simply too difficult to try to unravel in an hour or so. During the question period, someone asked a penetrating question about which I needed to think. So I paused and thought about it a moment and responded. Several hours later, Mickey and I were visiting a friend in a hospital and the friend asked how my lecture went. I told him that I wasn’t happy with it. Mickey commented that he didn’t know about that, but that when someone asked a good question, I paused for a full 30 seconds before replying. The report was meant as a high compliment.

There is an aspect to my religious attitude, to my religious being, that I hesitate to highlight here. I am not an Israeli and so I speak very hesitantly about Israeli politics and policy. This is not because “if one doesn’t live there and share the risk, one should not offer opinions.” Indeed, when Ehud Barak sought compromise, right-leaning American Jews did not hesitate to criticize in very strong terms. They did so out of care and concern for Israel. My hesitation instead reflects my belief that unless one lives in the country, day by day, one’s perspective is partial and limited. When I am in Israel for even a few days, I feel an intangible sense of an enlarged perspective. So viewing things from a distance, even if it has some advantages, has serious disadvantages. At the same time, Israel is my other home, one that I love and honor, one about which I feel an enormous pride, a place whose history and policies are of great interest and concern. It has always seemed strange in the extreme that criticism of the State’s policies are seen by some as disloyal or as indicating a lack of support. This is not the place for the sort of extended discussion that the matter deserves. But I do feel an obligation to read, to think, to learn, to support policy where that seems right and to criticize forthrightly when that is what is called for.

A final word about the religious life for which I am so grateful, actually about the question of how to describe that life, and how to describe myself as a participant. There are some words, “Impressionism” comes to mind, that are introduced into the language by opponents or critics of the designated movement. “What you are doing is mere impressionism” was originally hardly a compliment. But the term stuck and eventually was adopted by those we call the Impressionists. “Obamacare” is another. And “Orthodoxy” in the context of religious Judaism is a third. The word literally means “correct belief” and its appropriateness to our religious ways seems to me questionable. Perhaps it’s no worse than “Judaism,” which suggests an ideology, an “ism.”

________________
[1] See my book, The Significance of Religious Experience (Oxford University Press, 2012), a collection of essays written over a 15-year period, all aimed at the project mentioned.
[2] Oxford University Press, 2012.
[3] As Larry Wright would put it.
[4] I’m reconstructing our conversation.

Vision from the Prophet and Counsel from the Elders
By Rabbi Hayyim Angel
OU Press, 2013, 368 pages
Reviewed by Rabbi Israel Drazin

This scholarly, very readable, and informative book by a teacher of rabbinical students and advanced undergraduates at Yeshiva University is a superb book for anyone of any religion who wants to learn what the Bible is actually saying. Rabbi Angel examines the nineteen books of the Hebrew Bible that follow the five books of Moses, from Joshua through Chronicles, the prophets and writings. He exposes the plain meaning of the texts, not the homiletical, sermonic, lessons that others draw from them. He also offers some guidelines how to read the plain meaning of Scripture. Readers will discover that many of the books do not say what they think they say and will be enjoyably surprised to learn what they are saying.

For example: Angel explains why Joshua was a perfect candidate to succeed Moses. Both the books of Joshua and Judges report incidences out of chronological order, and the second century CE Rabbi Ishmael said that the five books of Moses also sometimes do so. Many of the biblical heroes had sons who did not follow their ways, even turning to idols. Some Bible commentators understood biblical statements literally that others insisted are allegories; thus Nachmanides believed Isaiah’s prophecy about a wolf and lamb lying together (11:6-9), that animals would become non-carnivorous in the messianic age. Similarly, while many people understood biblical prophecies as predictions of what will occur, others, such as Tosaphot Yevamot 50a, s.v. teda, and Malbim on Isaiah 11, took the prophecies as predictions of what should happen. In fact, they note that many famous prophecies never occurred.

Rabbi Angel reveals that frequently we need to read biblical narratives both forward and backward. For example: “When one reads the narrative from beginning to end, it appears that (King) Solomon failed spiritually only toward the end of his life…. Once we know the tragic end of Solomon, however, it is possible to look back through the narrative and trace the roots of Solomon’s failure to the beginning of his reign.” Angel also uses this reading-back technique to understand other biblical figures. He shows that Bible readers need to pay close attention to the text. Thus, he discloses that some biblical stories, such as Ruth “initially appear clear (but) are more elusive after further scrutiny.” This scrutiny, which many fail to make, but which Angel does, reveals that the “short narrative (of Ruth) captures so many subtleties in so short a space.” Sometimes commentators are able to see problems and need to argue poetic flexibility in their interpretations: Many rabbis explain Psalm 37:25’s “I have been young and am now old, but I have never seen a righteous man abandoned, or his children seeking bread” as “never totally abandoned.”

Readers will find surprising facts in this splendid book. Some examples are: Our current breakdown of biblical books is different than they were in the past. The books of Kings, Chronicles, and Ezra-Nehemiah were not divided into two books. Conversely, Psalms 1 and 2 were originally considered by several sages to be one psalm. The order of the Hebrew alphabet was not yet fixed during the ancient biblical period. Some rabbis suggest that some of the Proverbs in chapters 30-31 were composed by non-Jews. Remarkably, the Greek version of Esther, the Septuagint, mentions God’s name over fifty times, but the Hebrew version doesn’t refer to God even once. Additionally, it is possible to read, and Rabbi Angel shows how, that the main character of the book Esther is King Ahasuerus.

Among many other thought-provoking revelations, Angel notes the non-prophetic perspective of the book Ecclesiastes and writes: “Significantly, Ecclesiastes’ inclusion in Tanakh (the Hebrew Bible) and its consideration as a divinely inspired book elevates human perception into the realm of the sacred, joining revelation and received wisdom as aspects of religious truth.”

These are just a very small fraction of the multiple insights that Rabbi Hayyim Angel divulges in this splendid book.

How much legal autonomy—and how much exemption from otherwise applicable laws—ought religious groups to have?
When government grows larger and more ambitious, laying down the law in more and more areas of life, these questions arise more often and more urgently.

It is a common motif that without some “special accommodation” or exemption from various laws, it would be difficult for religious communities or even individuals to live religious lives. If public law forbids employment discrimination on the basis of religion, for example, religious groups have an obvious claim for exemption when choosing their clergy, and a claim for autonomy to decide who qualifies to be rabbi, priest, or pastor.

The controversy in recent months over the Obama Administration’s mandate to Roman Catholic institutions over abortive drugs and contraception is just one example of the almost limitless situations in which the question of special accommodation can arise. Should Native American (or Rastafarian) sects be exempted from drug laws that forbid peyote or marijuana? Should Mormons (or Muslims) be exempted from laws against polygamy? Should Christian Scientists be exempted from laws requiring parents to provide for medical treatment for sick children? Should Sikhs be exempted from laws prohibiting carrying knives in public? Should observant Jewish soldiers or officers be exempted from military uniform rules, which would not permit wearing a kippah? Should religious individuals be exempted from duties that would otherwise be required on the job: a nurse who refuses to assist in an abortion or administration of contraception? A police officer who refuses to arrest anti-war, or anti-abortion, protesters? A postal worker who refuses to deliver mail that he or she considers blasphemous, or (as is now an issue in Israel) who refuses to deliver pamphlets proselytizing for Christianity, or who refuses to process military conscription documents?

In the United States, these questions—as with so many things in American life—can often be framed as Constitutional issues. The first Amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” So perhaps some or all of the claims for religious exemption must be granted in order to satisfy “free exercise.” On the other hand if they are granted, but people who might want to smoke peyote, marry polygamously, and/or carry ceremonial but sharp knives in public for non-religious reasons are prohibited from doing so, this can be said to be an “establishment of religion”: it would certainly discriminate in favor of religion and against people who might want exemptions from the law for secular (but perhaps for serious or conscientious) reasons. Free exercise and establishment, especially if each is construed broadly, threaten to collide with one another.

The U.S. Supreme Court has followed a notably up-and-down course in recent decades about special religious accommodation. In two famous cases decided in 1963 and 1972, the Court held that the First Amendment requires exemptions from generally applicable federal and state laws unless there is a “compelling state interest” (or something close to it) for enforcing the law—a constitutional standard that usually means the government has to give way to a claim under the Bill of Rights. The first case, Sherbert v. Verner, involved a Seventh Day Adventist who wanted an exemption from a requirement to be available for work on Saturday as a condition of receiving unemployment benefit; the second, Wisconsin v. Yoder, involved an Amish community that wanted its children excused from compulsory school attendance past the eighth grade.1 The Court held that Free Exercise requires a religious exemption in both cases.

But in 1990, in a case called Employment Division v. Smith, the Supreme Court reversed course and said that the Free Exercise Clause does not require religious exceptions from generally applicable laws that are enacted for secular purposes.2 The idea implicit in the decision, clearly, is no official preference for religion over non-religion. The U.S. Congress reacted sharply to the decision by enacting the Religious Freedom Restoration Act of 1993 (RFRA), seeking to restore the pre-Smith “compelling state interest” standard, which favored religious exemptions. In 1997, the Supreme Court struck back, and struck down RFRA as unconstitutional: Congress has no power to impose this pro-exemption requirement on the states.3 Recently, in yet another turn, the Court tacitly upheld RFRA for religious exemptions from federal laws (although Congress still cannot require such exemptions from state laws).

In practice, there has been less change in public policy toward religious exemptions than a reading of the (somewhat dizzying) Supreme Court decisions might suggest. In the era before Smith, exemptions were by no means granted as readily as Sherbert and Yoder might imply, and after Smith they are still available in various guises. Even in the post-1960s (but pre-Smith) era, the Supreme Court rejected all religious claims for exemption from tax laws; it rejected all claims arising from prisons and the military; it rejected a claim for exemption from the Fair Labor Standards Act. Virtually the only claims the Court accepted were—like Sherbert—for religious exemption from (Sabbath) requirements to be available for work under unemployment benefit laws. And after Smith, religious claimants still sometimes win in the Supreme Court. For example, the Court says that where the government actually considers individual eligibilities—as it does in unemployment cases—it still has to grant religious exemptions. The Court also strikes down laws that it finds to be discriminatory against particular religions or their practices, such as, in a famous case, animal sacrifices by the Santeria sect.4
Perhaps more importantly, federal and state laws—even, or especially, after Smith—have been strongly favorable toward religious exemptions.5 RFRA was enacted by unanimous vote in the House of Representatives (better than the Declaration of War after Pearl Harbor), and by almost unanimous vote in the Senate; it still applies to the federal government, requiring religious exemption unless a “compelling state interest” militates against it. More than half the states have enacted their own RFRA-like laws. Twenty-three states and the federal government allow sacramental use of peyote.

Congress granted the Amish an exemption from social security taxes after the Supreme Court turned it down. Congress granted members of the armed forces the right to wear “religious apparel” after the Supreme Court turned down a claim by an Air Force doctor, an observant Jew, to wear a kippah on duty.

Some of these enactments might actually give cause for second thoughts, even if one supports generous religious exemptions. The federal Civil Rights Act of 1964, for example, prohibits employment discrimination on account of race, religion, sex, and national origin. But under a 1972 Amendment, religious corporations and institutions may discriminate on the basis of religion.6 (The original 1964 law had allowed such religious discrimination more narrowly, only in relation to “religious activities.”) The Supreme Court upheld the broadened exemption in the case of a gymnasium (open to the paying—not necessarily praying—public) operated by the Church of Latter Day Saints, which fired a janitor for failing to live by Mormon standards of religious practice.7 The exemption from anti-discrimination law is not merely for a few religious groups, under the new law, or for a narrow range of religious employees. Religious organizations employ more than a million Americans, and religious bodies can have large-scale business interests, with a lot of leverage over would-be employees. Churches own (or have owned) a major secular news agency (the United Press International), the largest beef ranch in the United States, and a major life insurance company. With the broad (or over-broad) exemption, there is the potential for enterprises owned by religious bodies to swallow the anti-discrimination law, at least in some localities or in some trades.

Meanwhile, there have been increasing calls in recent years both in the United States and in other Western democracies, not merely for religious exemptions from secular laws, but also for actual power to adjudicate under religious law. There are already steps in this direction with binding arbitration in religious courts: halakhic or sharia tribunals, for example, created by religious groups. An extensive network of Batei Din, or rabbinical arbitration courts, now exists in the United States. More recently, Islamic groups have called for the establishment of comparable Sharia courts. Thus, businesspeople can contract to arbitrate future disputes in a religious court; or a couple might sign a prenuptial agreement to arbitrate family disputes, including divorce, under religious law. Going further, there have been suggestions in the academic literature that “insular” or self-contained religious groups might be given public judicial powers, by analogy to the powers of tribal courts on Indian reservations.8 The Archbishop of Canterbury recently provoked a flurry when he called, in somewhat general terms, for aspects of Islamic Sharia law to be adopted in Britain. The role of religious courts in Israel is sometimes cited as an example of how religious adjudication might function in a democratic society.

In a sense, even “special accommodation” or religious exemption from secular law implies that religious groups must have some autonomy and power to decide, hence in a more or less formal sense, to adjudicate, relevant questions by their own standards: to decide at what age Mennonite children should leave school, for instance, or which day is the Sabbath and what are the rules of Sabbath observance, what apparel is religious apparel, what use of peyote is sacramental, and so on.

The creation of actual state religious courts in the United States, comparable to the Israeli religious court system, is improbable, to put it gently, given “separation of church and state” under the First Amendment. But to the extent that halakhic or Islamic arbitration awards are enforceable in the secular courts, such religious judgments would have binding force under American law. Supporters of religious “multiculturalism” and increased autonomy for religious groups have suggested that the usual rules of arbitration law should be relaxed for religious tribunals. For example, whereas a standard arbitration award is unenforceable if a court finds it to offend “public policy,” it has been suggested that religious adjudication should be enforced by the secular courts unless the judgment is “unconscionable.”9 On the other side, opposition to religious courts—in particular to the spread of Islamic Sharia law—has also grown. Oklahoma adopted a referendum in 2010, subsequently struck down by the federal courts, forbidding state courts to consider Sharia. At least six other states have considered similar measures, which might forbid state courts to enforce the judgments of religious arbitral courts. Along the same lines, after public statements by an Islamic leader in Toronto that only “bad Muslims” would fail to submit their disputes to Sharia arbitration panels, the Canadian province of Ontario now bans the enforceability of religious family law arbitration. In the words of the Premier of the Province: “There will be no religious arbitration in Ontario. There will be one law for all Ontarians.” But despite occasional rebuffs, halakhic tribunals and their caseloads—and Muslim interest in Sharia tribunals—have grown in the United States in recent years. It remains an open question to what degree and on what terms the secular courts will accept and enforce their judgments.

The attractive side of increased religious autonomy is fairly obvious. Generous exemption from secular laws and increased availability and enforceability of religious adjudication all provide a framework for people to live more religious lives, under religious law if they choose. These developments empower religion accordingly. They might seem especially well suited to “nomo-centric” or law-intensive religions like Judaism and Islam. After all, Jews are obliged under Jewish law, at least under appropriate circumstances, to adjudicate disputes before halakhic courts and not to turn to secular tribunals.10
When religious autonomy is enshrined in secular law, however, there are potential and actual problems and drawbacks as well.

In the first place, the substance of religious law may be at odds with the values of a liberal society. This arises most obviously on points where both Jewish and Islamic law, for example, are not egalitarian as between men and women. Divergences from liberal norms can arise in religious commercial law and in other areas as well. For example, it may conflict with federal and state antitrust laws in the United States for Batei Din or rabbinic arbitration tribunals to enforce the halakhic principle of hasagat gevul, which restricts competitive business practices that might put an existing business out of business.11

A plausible response to this sort of concern is that a liberal society is pluralist and does not require everyone to live by liberal norms: indeed that it would be illiberal to do so. So long as there are ample choices and full freedom to affiliate and disaffiliate, and so long as the interests of third parties are not compromised, liberal society should not be offended if some people and groups, including religious groups, voluntarily opt for non-liberal ways of life. In the case of hasagat gevul, this runs into the objection that third parties are compromised: that the purpose of antitrust, and of public policy favoring competition, is to promote lower prices and better quality goods and services for everyone, and that the public suffers whenever there is less competition. As for respecting people’s free choice to submit to religious law: the more readily secular courts enforce religious arbitral judgments, the more this implies scrutiny by the courts into just how voluntary, and how fully informed, the parties were when they consented to religious adjudication. Religious communities might feel such scrutiny intrusive, both as to the community pressures which undoubtedly affect whether people agree to religious adjudication, and also as to how much is known in advance about the interpretive or ideological leanings or commitments of particular religious tribunals.

There is also a concern, in terms of social cohesion, about the balkanizing effects of group autonomy, especially where religious groups, identity groups, or other groups inspiring deep passion and commitment are involved. This concern traces back to Hobbes and Locke, who wrote during or just after a period of religious civil war, and it has been a perennial worry in the history of liberal thought.12 The apprehension, of course, is that when such groups are empowered, it tends to diminish their members’ loyalty to, or even involvement in, the broader liberal community. If things go too far, it threatens to begin pulling liberal society apart. This concern has re-emerged sharply in Western European countries in recent years, where Muslim communities have grown, and where Islamic or Islamist leaders have achieved a degree of autonomy under “multicultural” policy. The concern, of course, is that group differences, far from shrinking, are growing more intractable and more threatening as a result of these policies.

If religions are granted exemption and autonomy that others might not be granted, there is also the ever-more-uncertain question of who or what is a religion. When Will Herberg’s famous book Protestant Catholic Jew appeared in the 1950s, it was broadly true that those were the three religious alternatives in America, with subdivisions among each of course, but each with a recognizable identity as well, and broad consensus about what is a religion, such that Americans could feel that they would know it when they saw it. Today it would be fair to say that there is an ever-expanding psychic shopping mall of religious, semi-religious, and quasi-religious beliefs, notions, groups, and ideologies. In American prisons, for example—not an entirely representative subset of the country, to be sure—there has been dramatic growth in adherence to a variety of sects including the Nation of Islam (“Black Muslims”), pagan groups such as Wicca, Odinism, Asatru, and Druidism (often associated with White Supremacists among the prisoners), and Native American spirituality.13 An American court today may confront not only the question of whether an Air Force doctor who is an observant Jew may wear a kippah on duty, but also a case of a Free Exercise claimant who asserts that his religious beliefs require him to dress like a chicken when going to court.14

If religions are granted exemption from otherwise applicable laws, and even a degree of autonomous authority, there is an obvious temptation for all sorts of groups to claim to be religions and to demand special privileges and powers. A well-known but by no means unique example is the Church of Scientology, which began as an entirely secular therapy-marketing enterprise founded by the science-fiction writer L. Ron Hubbard, but which went on to claim religious status, partly in hope of a tax exemption. Despite its considerable criminal history by then, Scientology was eventually granted tax exemption in 1993 as a bona fide religion.15

There is a further point, which perhaps deserves more emphasis than it sometimes receives. If the state offers a significant degree of religious autonomy—power over jobs, resources, and decisions that affect people’s lives—it can encourage the take-over of religious communities by authoritarian and factional religious leaders. This may partly be due to the attraction that autonomous power might have for the most enthusiastic people within a religious group or its leadership, who may tend to be the most extreme people.

But autonomy has a perverse logic of its own, which more directly encourages extremism: namely, if autonomous rulings are not going to differ from the rules of secular, liberal society, then why is it important that the religious group should have autonomy? Whereas the more radically the group’s rulings do differ—including the rulings of religious arbitration courts—the more necessary and justified the claim for autonomy. Once there is autonomy, in other words, there is liable to be a “cascade” effect towards more distinctive, which is to say more extreme, positions on the part of the autonomous institutions and those who steer them, if only to justify the idea that autonomy is necessary in the first place.

The religious courts in Israel may be a cautionary example in this context. The State of Israel, as is the case with many Muslim-majority countries, maintains a religious court system within the state framework, with jurisdiction over family law, including marriage and divorce and related questions of “personal status”. The religious courts trace back to the “Millet” system under the Ottoman Empire—where the phenomenon of “Balkanization” originated—and was kept on under the British mandate in Palestine and again after the establishment of the State in 1948. It is common knowledge in Israel that the religious courts have increasingly come under the sway of Haredi rabbinical judges in recent years, and there have been notorious cases of the religious courts refusing to issue marriage licenses where one of the parties is a non-Haredi convert to Judaism; the religious courts have even attempted to revoke Orthodox but non-Haredi conversions retroactively and to render Jewish families abruptly “non-Jewish”.16 The polarization of religious life in Israel, and the growing power of Haredi ultra-Orthodoxy, undoubtedly has complex origins, and can surely not be laid to the existence of state religious courts alone.

But the religious court system, and the autonomous power of the religious “establishment” in Israel, have certainly not stopped the drift towards religious extremism in the Orthodox rabbinic world, nor prevented the estrangement of Jews of various religious tendencies from one another, both in Israel and abroad.

Extensive religious autonomy, in short, can lead to the creation—with state approval—of “islands” of authoritarianism in an otherwise free and democratic society. It can also promote corruption of various kinds, which often accompanies authoritarianism. Corruption, not on a modest scale, has certainly been one of the issues in Israel in the context of religious legal autonomy and political power.

A consideration of these various problems, actual and potential, with religious autonomy is not to suggest that religious exemptions from secular law, and a measure of a religious autonomy, are simply undesirable. On the contrary, they may be indispensable for religious people and groups to be free to live religious lives. Special accommodation of religious needs under secular law, and arbitral “alternate dispute resolution” in religious courts, may actually work reasonably well if there is a degree of moderation on all sides. If the government authorities are basically respectful towards religious concerns—which they generally have been in American history; if a rough consensus about who and what is a “religion” does not break down in a welter of opportunistic or unhinged claims; if religious groups themselves do not seek to abuse either the host society or their own members: then there is the prospect of a reasonable balance of interests. All this presupposes a degree of social cohesion and good faith, of course: that all concerned should be “touched... by the better angels of our nature.”17

Relying on everyone’s being touched by the better angels of our nature, unfortunately, can sometimes be uncertain. It is all the more uncertain in a fractious and polarized society. At root, the question of special accommodation, and of religious adjudicatory independence, arise most urgently when government grows in its reach and ambition. After all, if most areas of life, including those that touch on religious life, are left to people’s private arrangement, then not much special accommodation will be necessary. But when government takes control over more and more areas of life, regulating who shall do what, under what rules and conditions, then clashes with one or another religious way of life are almost inevitable. The dispute over government mandates to provide abortive drugs and contraception, in the framework of increasing government control of health care in America, is merely a well-known recent example.

With a relatively open market in health care and private health insurance, religious institutions needed no special exemptions to adopt their own approaches, on questions of contraception and abortion as on other matters. But greatly increased government regulation implies more uniform standards and rules, and hence more controversy over whether there should be religious exemptions, and if so, for whom, to what degree, and on what terms.

Special accommodation for religion, and special adjudicatory powers, are problematic, for reasons I have tried to suggest. In the long run, especially under less-than-favorable social circumstances, they might not be workable. If not, then society may ultimately have to choose between big government—an ever-growing and ever-more-powerful administrative and redistributive state—on the one hand, and lively religious pluralism and thriving religious life on the other. This, perhaps, is what religious people and groups ought to fix their attention on.

1 Sherbert v. Verner, 374 US 398 (1963); Wisconsin v. Yoder, 406 US 205 (1972). Justice William O. Douglas dissented in Yoder, suggesting that a high school child may or may not want to be “harnessed” for life to the Amish community: “[h]e may want to be a pianist or an astronaut or an oceanographer. To do so, he will have to break with the Amish tradition… The child, therefore, should be given an opportunity to be heard before the State gives the exemption which we honor today.”
2 Employment Div. Dept of Human Resources v. Smith, 49 US 872 (1990).
3 City of Boerne v. Flores, 521 US 507 (1997).
4 Church of the Lukumi Babalu Aye v. City of Hialeah, 508 US 520 (1993).
5 The Supreme Court decisions are about whether religious exemptions are required as a matter of Free Exercise by the Constitution. But federal or state statutes are free to grant more “special accommodation” than the Constitution (minimally) requires: so long, of course, as the “special accommodation” isn’t viewed as rising to the level of an Establishment of religion.
6 42 US Code 2000e -1.
7 Corporation of Presiding Bishop v. Amos, 483 US 327 (1987).
8 E.g. Mark Rosen, “The Radical Possibility of Limited Community-Based Interpretation of the Constitution,” 43 William and Mary Law Review 927 (2002).
9 E.g. Michael A. Helfand, “Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders,” 86 NYU Law Review 1231, 1287-8 (2011).
10 Gittin 88b; but see Sanhedrin 23a. See generally J. David Bleich, “Survey of Recent Halakhic Periodical Literature: Litigation and Arbitration Before Non-Jews,” 34:3 Tradition 58 (2000); Michael A. Helfand & Yaacov Feit, “Confirming Piskei Din as Arbitration Awards,” 61 Journal of Halacha & Contemporary Society 5 (2011). Of course Jewish law does not, because it cannot, prescribe to what extent (if at all) non-Jewish secular courts will enforce halakhic arbitration judgments in cases where the losing party does not submit voluntarily to the judgment.
11 See generally Simcha Krauss, “Hasagath Gvul,” 29 Journal of Halacha & Contemporary Society 5 (Spring 1995).
12 See Richard Boyd, Uncivil Society: The Perils of Pluralism and the Making of Modern Liberalism (Lexington Books 2004).
13 For the religious situation in the prisons, see the United States Commission on Civil Rights report, Enforcing Religious Freedom in Prison, September 2008: http://www.usccr.gov/pubs/STAT2008ERFIP.pdf, especially the Statement of Commissioner Gail Heriot at p. 118. For a statistical survey of American religion generally, see the Pew Forum on Religion and Public Life, US Religious Landscape Survey 2010: http://religions.pewforum.org/reports. The Pew Survey summarises: “religious affiliation in the US is both very diverse and extremely fluid. More than one-quarter of American adults (28%) have left the faith in which they were raised in favor of another religion—or no religion at all. If change in affiliation from one type of Protestantism to another is included, 44% of adults have either switched religious affiliation... or dropped any connection to a specific religious tradition altogether.”
14 Compare Goldman v Weinberger, 475 US 503 (1986) (upholding prohibition of the kippah) with State v Hodges 695 S.W. 2d 171 (Tenn 1985) (quashing a contempt citation and remanding to the trial court for further consideration of the religious claim for the chicken costume). In a nutshell, the kippah lost. The chicken costume, at least tentatively, won.
15 See Hugh B.Urban, The Church of Scientology (Princeton University Press 2011).
16 See Marc D. Angel, “The Conversion Crisis and Challenge” (November 2008): http://www.jewishideas.org/min-hamuvhar/conversion-crisis; Zvi Zohar, “From Periphery to Core,” 10 Conversations 93 (2011). For an account of a case in which the rabbinic court purported to revoke a conversion, see “The Interrogation of the Convert “X” by the Israeli Rabbinic Courts” (February 2011):
http://www.jewishideas.org/susan-weiss/interrogation-convert-x-israeli-rabbinic-courts

The Center for Women’s Justice in Jerusalem is active in behalf of converts entangled in such cases, and posts about recent developments:
http://cwj.org.il/home/cwj-news/newrabbiniccourtrulingcwjclientsarejewish
17 Abraham Lincoln, First Inaugural Address (1861).

During the last decade, the State of Israel has struggled to refine policies related to conversion to Judaism on multiple levels. There have been a number of conversion annulments, even more attempted annulments, some of which were rejected in Israel’s rabbinical courts. Others were dealt with by Israel’s Supreme Court. There have been hundreds of cases of converts who were unrecognized by local rabbinates, hundreds more who converted overseas and were denied entry into Israel under the Law of Return, and finally, thousands who sought conversion in Israel but were unable to convert through the national system, either because the process was too burdensome, or alternatively, because they were rejected out of hand by the Ministry of Interior.

Is the State of Israel, the Israeli rabbinate, or the Ministry of Israel anti-conversion? If one were to perform a cursory reading of media stories related to conversion in Israel, one might get that impression. As a friend wrote to me recently after reading an article about conversion, “Is Israel simply a banana republic? … Here you have a woman who has converted through two different Batei Din; she is Jewish by any definition (even for the most extreme Haredim); and Israel won't let her live in the country? … I don't know who is worse when it comes to converts, the Batei Din or the Israeli government?”

This article seeks to address these issues from the ideational perspective. It highlights the tension that is latent in the emended law of return from 1971, which enables converts to make aliya and receive Israeli citizenship automatically. It also discusses the role of the rabbinate in overseeing conversion in Israel. Ultimately, it argues that even though there is significant unnecessary anguish inflicted upon converts and those seeking conversion, the issues that motivate the seemingly (and often deliberate) arbitrariness of the Israeli establishment need to be addressed on a more comprehensive level.

Conversions Performed Outside of Israel

One of the great debates of the last 30 years relates to the responsibility of the State of Israel to recognize conversions performed outside of Israel. This issue has a double aspect, since Israel’s political establishment has divided the “recognition” into two areas. For purposes of aliya, it is the Ministry of Interior that recognizes conversions. For purposes of marriage, it is the rabbinical courts who are empowered to certify the conversions.

Regarding the Ministry of Interior, it should be noted from the outset that from the perspective of emigration, the Law of Return’s relevance to conversion is even more problematic than the law’s acceptance of those born Jewish. It is one thing to accept someone based on ethnicity for emigration purposes. It is another thing to accept a Jew by choice. This was made clear to me once by the State Attorney General who asked me, “Why should someone in New Square who has never visited Israel, and might not even believe in Israel’s right to exist, be able to determine who can emigrate to Israel?”

In one sense, this is a compelling argument. On the other, if the thrust of Jewish tradition is to accept converts as full members of the people, and moreover, if Israel’s law (as it currently does) anchors the rights of converts, then the Ministry has no choice but to accept converts.

Thus, the question becomes not “Should the State civil authorities accept converts?” but rather “Who is considered a convert?” This may be relevant to the question of “who is considered a rabbi,” but given the fact that the halakha makes it clear that a Bet Din may be composed of non-rabbis (in addition to qualifying that there is no real semikha today), it seems to me that we need not identify our criteria for rabbis today. Instead, we need to speak of Jewish communities.

During the last decade, the Ministry of Justice has sought to limit the civil rights of those who completed conversions overseas, by denying them the status of a “convert.” Rather than rely on the local Jewish community’s definition of conversion, the ministry has adopted an objective definition of convert: one who immerses in the mikvah; who, if male, undergoes circumcision; who studies a particular curriculum for a particular amount of time; and who lives in the community prior to and following the conversion for a particular amount of time.

These requirements were challenged in the Israeli Supreme Court and in a repercussive decision penned by then Chief Justice, Aaron Barak, they were summarily rejected. Justice Barak wrote:

Regarding the Law of Return, we should recognize conversions performed in recognized communities based on their self-determined principles. For this purpose it is immaterial whether the convert joins the same community following his conversion, if he transfers to another Jewish community outside Israel, and then goes to Israel, or if he comes to Israel soon after the conversion. Regarding this last point it is immaterial, whether before immigrating to Israel, he resided in Israel or came to Israel for the first time after the conversion. In all cases, conversions conducted abroad should be recognized by the Law of Return….

We are aware of the need the State to maintain control of recognized conversions in the context of the Law of Return. This prompted a state's natural need to monitor the process of becoming a citizen in person. Conversion is not just a private act with a religious dimension. Conversion also has a national-civil aspect. This second dimension demands governmental oversight. This should be manifest in our conception that conversions performed abroad be effected in the framework of a recognized Jewish community. These will meet the demands of the Law of Return. With this the State maintains its oversight, while maintaining the connection between people in Zion and the people in the Diaspora. [1]

Chief Justice Barak, who clearly was seeking to empower the autonomy of the local Jewish communities, demanded from the Ministry of Interior to retract their policy and establish new criteria for allowing converts to be eligible for aliya.

Although two attempts at new criteria have been proposed since 2005, this issue has yet to be resolved, and a number of lawsuits have challenged the ministry on this issue, most recently, in 2011. [2]

The issue of recognizing conversions for purposes of aliya has nothing, prima facie, to do with halakha or Jewish tradition. In fact, based on an Israeli Supreme Court decision in 1988, the State must recognize conversions from all of the denominations, Orthodox, Reform, and Conservative. And yet, even this decision is repercussive given the new landscape of the Diaspora Jewish community. Consider for a moment whether Israel ought to accept as a candidate for aliya someone who converted to Judaism in a post-denominational community, or someone who has converted through the internet, or, perhaps, through a Jews-for-Jesus community. My sense is that in the first case, there would be some deliberation, in the second, less so, and there would be general consensus that in the latter case, the individual shouldn’t be able to emigrate as a Jew under the Law of Return.

The confusing (or “banana-republic”) approach of the Ministry of Interior regarding converts is partly due to inefficiency and naiveté on the part of clerks who are unaware of the nuances of the Diaspora communities. But it is connected to the diverse landscape of the Jewish community as well. I have participated in a number of meetings where I found myself as an Orthodox rabbi advocating on behalf of a convert and found the Conservative or Reform movements fighting against me.

Given these complexities, it is not surprising, even as it is disturbing, that the Ministry of Interior has significantly raised the bar on who it perceives as a legitimate convert, and its clerks resort to seemingly absurd tactics to certify a conversion. The most extreme measure of this began in late 2010, when the Ministry began consulting with the Chief Rabbi of Israel regarding the recognition of Orthodox conversions from abroad for purposes of aliya. As stated above, the Supreme Court had already ruled that non-Orthodox conversions were accepted, and because of this, there could be little hope that the Chief Rabbi would certify most conversions. And yet, in response to a query regarding who determines a “recognized Orthodox community abroad,” the spokesman for the Israel population registry wrote that Israel’s Sephardic Chief Rabbi is the leader of Orthodox communities around the world—a statement that I would imagine would cause alarm in the Diaspora.

In the end, the issue has been joined by the Ministry agreeing that the Israeli Chief Rabbi has no authority to determine the legitimacy of conversions. Instead, the ministry committed to consult with the Jewish Agency on matters of “recognized” Jewish communities.

Still, the attempt to introduce the Chief Rabbi into the picture stems from a bind that highlights the problematic nature of the Law of Return, on one hand, and the desire to be inclusive when it comes to converts on the other. Even after the agreement was reached in July 2011, the Ministry of Interior continued to consult with the rabbinate on foreign Orthodox conversions, and the new directives continue to be monitored.

The Role of the Rabbinate

If the responsibility over certifying conversions performed outside of Israel is problematic, the legal status of conversions performed in Israel is equally fraught with tension. In Israel, there are national conversion courts that operate under the auspices of the Prime Minister’s office and employ some 30 rabbinical court judges. For our purposes, the conversions performed in the Israel Defense Forces (army conversions) also fall into this category. These conversions are all performed by Orthodox rabbis chosen by the Chief Rabbi. Then there are private conversion courts, which exist in the Orthodox, Conservative, and Reform communities in Israel.

The national conversion system is grounded in a pre-mandatory law which enables those completing the course of study and passing the rabbinical court’s test (and mikvah) to receive a teudat hamara, or conversion certificate, which for non-citizens allows for aliya, and for citizens, allows for marriage through the rabbinate. [3]

The following chart illustrates the number of individuals who have converted in the national system in the past four years.

Year FSU Ethiopia Other Total
2007 1864 5538 606 8008
2008 1804 3614 803 6221
2009 1849 3710 672 6231
2010 2159 1813 673 4645
2011 1936 1647 710 4293

During the same period, the Reform and Conservative communities have effected together approximately 100 conversions in Israel each year, while private Orthodox rabbinical courts such as that of Rabbi Nissim Karelitz in Benei B’rak, have moved from converting 20 to 25 people a year to converting more than 400 a year.

The remarkable growth of the Orthodox private conversion “industry” raises two questions: first, why is there such growth, and second, what are the implications of the conversions in the legal sphere?

There are two essential factors that would lead someone to a private Orthodox conversion in Israel: Either the national system won’t accept them as a candidate, or the national conversion won’t meet their own standards of Jewishness. It is this first area that I would like to address in our context to demonstrate that there is a real tension latent in conversion in Israel, even when it borders on the absurd.

The Israeli conversion system is built for citizens of Israel, and addressing non-citizens who seek conversion isn’t exclusively a halakhic area. And still, Israeli halakhists and particularly the head of the conversion courts must address this issue frontally.

According to directives of the Prime Minister’s office, if a student, foreign worker, or even non-Jewish spouse of a Jewish Israeli seeks conversion in Israel, he or she cannot open a file with the conversion courts. First they have to prove to a “committee on exceptions” that they are not trying to convert only to receive citizenship.The committee (or vaadat harigim) is made up of representatives of the Ministry of the Interior, the Legal Department of the Prime Minister’s Office, and the Office of the Chief Rabbi.

The committee automatically rejects any application from foreign nationals in one of the following categories:

1. Illegal residents
2. Infiltrators
3. Local residents or a resident of neighboring countries
4. A foreign citizen holding a B-1 visa
5. A temporary resident holding an A-5 visa who has lived in Israel for less than one year

Now this may seem technical, but even if someone is completely committed to halakha, or is married to a Jewish Israeli, he or she cannot even approach the rabbinical court, since he/she is stopped by the committee. If someone does meet the basic threshold, he/she must still demonstrate to a non-rabbinic body that his/her intentions to convert are genuine. This can sometimes take months, and sometimes years, and ultimately is arbitrary. I should note that at present, the functioning of this committee as the arbiter of the future of people’s lives has been broached in the Knesset and is now being investigated by the State Ombudsman’s office. But in the meantime, this issue is still a challenge.
Just to provide an example to illustrate the challenges: I am presently trying to help a woman to convert. She is completely committed to halakhic observance. She was married civilly to an Israeli man more than four years ago. She began the process of converting, and was approved to convert by the State authorities. The rabbinical court demanded that both she and her husband begin a process of study. However, as she became more observant, her husband refused to adopt her full halakhic lifestyle, and recently she divorced him. As soon as the conversion authority heard that she was divorced, the rabbi in charge of the committee said that she was ineligible to convert, and she is now in limbo, unable to convert, but equally unable to turn the clock back on her commitment to the Jewish people.

The director of the committee who has rejected this young woman is the representative of the Chief Rabbi of Israel. As the committee’s regulations have become more draconian, more and more individuals seeking conversion have sought private conversions, in order to join the religious community, if not the national one.

There is an ironic twist to the legal aspect of private conversions. In 2002, the Reform and Conservative denominations convinced the high court in Israel that their local converts should be registered as Jews in the population registry, even if they didn’t receive a teudat hamara. However, today, with the increase of private Orthodox conversions, no such arrangement exists and the Orthodox conversions are not recognized by anyone official in the State of Israel.

In short, the rabbinate—both by trying to play a role in the criteria of aliya of Orthodox converts, and by trying to raise the threshold of eligibility for those seeking to convert in Israel—is actually downgrading halakhic conversions. Because the Reform and Conservative denominations have stronger legal representation in Israel, their converts are actually being treated better than Orthodox ones.

Moreover, even though the issues of emigration of converts or eligibility for conversion are not purely halakhic issues, halakhic authorities are being asked to make decisions on these issues that are relevant to the policies of the State of Israel, something that in the end may undermine both the halakha and the policies of the State.

Future Directions

As I articulated at the outset, the policy issues facing the State are complex. I don’t believe that Israel is a banana republic, but I do believe that a lot more critical thinking must be done to determine how conversion functions in Israel, and how the State of Israel can ensure—in the spirit of Jewish tradition—that those genuinely seeking conversion and those who have completed conversion can be full members of the Jewish people.

Israel is not a halakhic State, and given the needs of the Jewish people today, that is a good thing. However, to allow State institutions, and particularly the rabbinate, to function counter to Jewish tradition when it comes to a vulnerable population such as the community of converts is
irresponsible. Much more advocacy needs to be done on behalf of Orthodox converts so that the rabbinate will not be able to maltreat this group in the name of “halakha.”
Over the coming years, hundreds of thousands of individuals will consider conversion to Judaism and tens of thousands will convert in an Orthodox manner in Israel. How the State relates to them both during the process and beyond will, to a large extent, determine the very fabric of Israeli Jewish society in the coming generation.

[1] Supreme Court decision 2597/99 Makarena vs. Interior Ministry.
[2] Supreme Court case 9411/11 Lidia Bicos vs. Interior Ministry.
[3] This seems to be the perspective of the court although the actual law simply states that someone with a teudat hamara can be judged in the religious court system rather than in the civil system.

The Orthodox-secular rift has threatened the Zionist movement from its outset. To facilitate cooperation despite the deep differences, the "status quo" was established, so that it would not be necessary to deal comprehensively with the place of religion in Zionism and the State of Israel. Piece by piece, various "arrangements" were established in order to avoid making fundamental decisions.

We wish to present a new message: Polar ideologies will be replaced by a wide national consensus. From right and left, from Meretz to the National Religious there will be agreement of a basic principle of intensifying the Jewish identity of the State of Israel out of free choice and not coercion. On many questions of religion and state there is agreement in principle of more than three quarters of the Jews in Israel. The working plan presented below is intended to offer a new agenda for the relationship between religion and the state, rebuilding this relationship on the basis of widespread agreement in principle.

Instead of the tension between loyalty to tradition and reaction to progress, a new plan is presented here. Progress will foster tradition—the Jewish Scriptures encourage progress. The protests for social justice in the summer of 2011 were described in the report of the Trachtenberg Committee—which was constituted in their wake—as encouraging participative democracy. We believe that nurturing participative democracy through communities will make the Israeli society more Jewish and more faithful to tradition. Social pluralism will lead to a flourishing Jewish tradition, imbued with the value of the dignity of each human being specifically, and democracy in general. These values are essential in reinforcing the base of democracy in Israel.

Renewal of the Jewish character of Israel necessitates changes in all sectors of society. We are not making accusations against any sector of the Jewish people. The Zionist majority in the state must assist the ultra-Orthodox minority to renew the learning of core subjects, the obligation to teach practical skills so that its children will be able to participate in ensuring the physical existence of the Jewish people. The Zionist majority should call for intensified Bible studies in the various educational systems, leading to more meaningful participation in the Jewish heritage.

Introduction

The Zionist movement has been headed by "secular" leaders since Herzl's time. Many ultra-Orthodox were opposed to the movement. The religious Zionist movement, established by "Mizrachi," was a bridge between the Zionist faction and ultra-Orthodox community. The vast majority of the religious Zionists in Israel, during the British Mandate and after the establishment of the State, were active participants in building the country, in its defense, in immigration and in settlement.

The leadership of pre-State Israel and the ultra-Orthodox Agudat Israel political party did not integrate in the pre-State institutions, and the ultra-Orthodox remained outside the mainstream. In their opposition to the secular leadership, they rejected modernity and progress in ultra-Orthodox education. The boys' educational institutions, from haderim to yeshivas, turned their backs on the basic requirement to teach an occupation and to teach skills that enable one to make a living. On the other hand, study of the Jewish traditions was neglected in the pre-State secular schools. In the words of one of the leaders of a secular party: "We wanted to bring up skeptics, and we brought up ignoramuses."

The Zionist leadership entrusted the National Religious sector, in its various forms, to set up the religious and rabbinical establishments in Israel. The heads of the rabbinical establishment declared its responsibility for all of Israel's citizens, but those carrying out the work were members of political parties. The party administration made its impression on the basic structure of the rabbinical establishment of Israel from the beginning.

The crises of Jewish identity, the ultra-Orthodox isolationism, and the decline of the religious establishment all merged together. The rabbinical establishment that was controlled by the political party bowed to the ultra-Orthodox parties and their functionaries. It was not able to inspire a generation seeking its roots. The growth of the ultra-Orthodox population in recent generations has led to abject poverty among them. The increase in magnitude of an education system which does not prepare its graduates to earn a living and support families has become a threat to Israel's growth and prosperity.

However, this crisis offers an opportunity to take a new direction. The ultra-Orthodox community is ready to recognize, in view of spreading poverty, "that a father should teach his son a livelihood" and progress is essential. The vulnerability of religious Zionism brought about the realization that Jewish tradition cannot be placed in the hands of the political parties. In fact, ignorance of Judaism has led to a thirst for knowledge in secular society. This brought about a demand for books from the traditional Jewish library.

Our basic premise is that the Torah was given to all Jews. We hope it will become the common property of all the people. Moreover, the responsibility of participating in the day-to-day existence of the individual, the family, the people, and the State belongs to all sectors of society. The study of the Torah should be the right of everyone and learning an occupation should be expected of all sectors.

From a Political Institution to a Civil Society

The Jewish nation consists of many ethnic groups, with no single religious leader of them all. Diversity and pluralism are its most outstanding characteristics. The religious leadership draws its strength from Jewish communities everywhere. Historically, each community appointed a rabbi spiritually suited to its members. The democratic and pluralistic character of the Jewish people was expressed in its rabbis.

However, after the founding of the State of Israel, the rabbinical establishment was based on a central authority. The Minister of Religion became the main factor in choosing the rabbis of towns and settlements in Israel. However, a religious leadership drawing its strength from politicians and political party sectors cannot be a source of inspiration for general society. The main democratic principle, according to which the leadership draws its authority from society, was neglected.

The central leadership, the government, the Knesset and the law courts, made decisions on religion: the best conversion methods, the most suitable kashruth certificates, the suitability—or unsuitability—of rabbis to serve communities. The political system's decisions were reached, as usual, by distasteful bargaining and not by persuasion, influence, and discussion. Shamefully, the discussions on the content of religion too often led to a distancing between the Jews in the Diaspora and in Israel. The damage to Israel, the Jewish people and religion as a result of the political influence on the religious system was obvious.

We recommend reversing the system and turning over control to the community: leadership and Jewish culture, financial resources, and authority should all be turned over to the general public. Each community will receive a budget according to the number of registered members who pay a voluntary religious levy (as done in some European countries). The community will plan its activities and the level of Jewish practice consistent with its members and its chosen leadership. The rabbis will be employees of the community, as has been the practice in the Diaspora for generations, and not government or local authority employees.

Matters requiring a broader forum than the community, such as kashruth, marriage, and conversion, will be carried out by voluntary community associations. The public and not the government will determine kashruth standards and conversion principles. The state will grant a number of communal associations (the larger ones) licenses for kashruth, marriage, and conversion. The general public will supervise, resolve, and authorize the various bodies to implement whatever necessary.

The range of tasks to be carried out by the communities are described below.

Community

1. A minimum number of people who are interested may be registered as a community and receive budgets according to the number of members.
2. The conditions to becoming a community are holding at least a weekly meeting and promoting mutual activities according to the Jewish tradition, such as prayer, Torah study, and Kabbalat Shabbat. Each community will decide on its character, and there will be no limitations regarding the religious, the ultra-Orthodox, or secular, ethnic groups, or other streams. Each community will decide on its character as it chooses.
3. Communities may become associations. Licenses to grant kashruth certificates, marriage ceremonies, and conversions will be granted to the largest communities.
4. The state will finance the community activities, but not control them. A regulator, and not a director, will prevent exploitation of the communities.

Rabbinical Authority

1. Every community can decide whether to employ a rabbi and the scope of that rabbi’s position.
2. The rabbi will be employed by the community, in accordance with an agreement between them.

Spreading of the Torah

1. Budgets for Yeshivas and Kollels will be transferred, in the main, to the various communities.
2. The communities will decide on the best ways, according to their understanding, to spread Torah among their members and the general public.

Kashruth

1. The state will grant licenses to issue kashruth certificates to a number of the larger communal associations.
2. The communal associations will select a "Kashruth Committee," which will decide on the kashruth policy of the association and will supervise its activities. [1]
3. The kashruth certificates will be issued by the various associations throughout the country.
4. Profits from the kashruth certification will be transferred to the communities, to develop and expand their activities.

Marriage and Divorce

1. The state will issue permits to grant marriage licenses to a number of the larger community associations.
2. Each couple may choose under which association's auspices to hold its wedding, not limited to the couple's place of residence.

Conversion

1. The state will issue licenses to grant conversion certificates to the largest community associations.
2. Each community association will establish a national conversion system.
3. These conversion systems will set up learning institutions and religious law courts which will carry out conversions according to their own policies.

Immediate reforms

Since the Mandate period, the religious establishment was developed with disregard for the local communities. Restoring authority to the communities will require a period of transition. Listed below are changes regarding religion and the state which should be carried out immediately. We believe that within a year it is feasible and essential to improve the religious establishment in Israel. These changes will increase the respect for the Torah and its followers.

Rabbinate

Before the transition to communities a number of outstanding distortions in the Israeli rabbinical establishment should be annulled.

Termination of the ethnic duplication

1. The Israel law calls for ethnic duplication in the rabbinical positions as well as in the various rabbinical bodies (the Chief Rabbis' Council, the body that elects the chief rabbis). All ethnic considerations in rabbinical positions should be cancelled immediately.
2. Only one Chief Rabbi should be in office, regardless of ethnic origin.
3. The president of the rabbinical court will be elected by a committee for the appointment of rabbinical judges.

Time limits in appointing rabbis

1. The appointment of rabbis will be limited to seven-year terms.
2. At the end of the term, the election committee will decide (by a majority of two-thirds) whether the rabbi should continue in the position. If the rabbi's term is not extended, the position will be open to other candidates.
3. Term limitations will apply to all categories of rabbis: neighborhood rabbis, community rabbis, area council and local council rabbis and municipal rabbis.

Council for Higher Religious Education

1. A council for higher religious education will be established, similar to the Council for Higher Education.
2. The goal of the council will be to extend Torah study to all sectors of the population. A budget for this purpose will be granted for a limited period.
3. The council members will be elected from various bodies—the central and local government, the Council for Higher Education and municipal rabbis. The goal of the selection will be to prevent sectorial control of the council.
4. The council will be in charge of deciding the guidelines for the religious education systems' budget.
5. The budget for Torah education will be granted mainly to those who have served in the army.

Kashruth

The word "kashruth" has regrettably become a synonym for shady deals. At a cost to the majority of Israelis who request kosher food and the rabbis who assist them, the various ultra-Orthodox (Badatz) certifications are raking in a fortune, sometimes assisted by the Israeli rabbinical administration in ways that are certainly not "kosher." We have presented a comprehensive proposal for a kashruth system supervised by the community associations, the profits of which will be directed to their wellbeing. Here we will propose principles which can immediately facilitate the struggle against the corruption existing in the present system.

Transparency

1. Each kashruth entity, official or not, will be required to publish its kashruth regulations on an internet site accessible to the public.
2. Each kashruth entity will be obliged to publish the regulations governing its tariffs and the price charged to each supervised entity.
3. All payments for kashruth certificates will be made directly to the kashruth entity and not to the kashruth supervisor.

Non-profit entities

Private companies will not be allowed to issue kashruth certificates, supervise kashruth etc. An ultra-Orthodox entity which wishes to issue kashruth certificates will be required to register as a non-profit association with full transparency.

The Rabbinical Courts

The political party control of religious services to the public and the hegemony of the ultra-Orthodox parties in the rabbinical establishment are seen predominantly in the rabbinical courts. To our sorrow, we cannot state that the many complaints directed towards the system are groundless. A number of immediate steps can be taken, which will contribute to the dignity of the religious courts.

General Education for Rabbinical Court Judges

The rabbinical courts deal mainly with disputes between married couples. Very often complaints are made that in these courts women are discriminated against. It is also maintained that some of the rabbinical judges are not anchored in the real world. The concepts and world views of those appearing before them are not understood by the judges, who come from a completely different background. On the other hand, there are complaints that the civil judges are detached from the Jewish sources. The following is therefore proposed:

1. Only rabbinical judges with a certain standard of general education will be appointed.
2. Only rabbinical judges with a certain standard of education in Judaism (such as Hebrew law) will be appointed.

Increased Representation of Women in the Rabbinical Courts

In principle, halakha adjudicators do not allow women to act as rabbinical judges. This causes a feeling of alienation in the women who appear before "a man's world" in the courts. To balance this situation it is proposed to ensure a majority for women in the committee for the appointment of rabbinical judges. Our proposal is based on halakha and is intended to improve the status of women. The integration of women in the system, even if they do not preside as rabbinical judges, will improve the attitude of the women appearing in court and will advance the dignity of the court, the Torah and its implementers. The Committee for the Appointment of Rabbinical Judges will consist of: [2]
a. The Justice Minister
b. The President of the Rabbinical Court and the Chief Rabbi One rabbinical judge
c. A female minister (or deputy minister) chosen by the government.
d. Two female members of the Knesset.
e. Two female rabbinical pleaders.
The rabbinical judges will be elected by a majority of seven of the committee members. A female rabbinical pleader will be chosen as the director of the rabbinical court. Approximately half of the rabbinical courts' area secretaries will be female.

Marriage and Divorce

1. Regional marriage registers will be set up.
2. The possibility of civil marriages will be advanced, based on the proposal of Rabbi Bakshi-Doron.

Conversion

The concentration of the conversion system in the hands of one central entity exposes the system to pressure from the ultra-Orthodox. Therefore the conversion process should be decentralized, as follows:

1. Three rabbis from each local committee will be authorized to sign conversion certificates. The "Tzohar Law"—drawn up by an independent group of the younger generation of advanced thinking rabbis—is more extreme, as it permits all municipality rabbis to convert. We have limited this to three rabbis.
2. A convert, like any other Jew, will be able to register for marriage in any place of his choosing.

[1] Some have observed: who will be responsible for the kashruth of the certificate? Kashruth supervision, like all quality control, requires specific expertise and specialization. The sages, who said "go out and see how the people behave," have already replied to this question. To ensure that the relevant experts will be responsible for kashruth one must trust in the wisdom of the people. A license to confer a kashruth certificate will be granted only to a limited number of kashruth associations, chosen by the members of the communities. It is a given that an expert will head the association. The U.S. OU organization is an example. Not only a bureaucratic system, chosen and controlled by government, local authorities and legislators, which organize and arbitrate, can be responsible for food kashruth.
Moreover, the marketplace today, with its many tens of ultra-orthodox courts, some tiny, each of which grants certificates to its followers, will be replaced by a limited number of associations, controlled by the general public transparently. Not only will respect for the Torah increase, but also observance of the commandments.
[2] The committee members at present are: the Justice Minister and an additional minister chosen by the government, the two chief rabbis and two rabbinical judges, two Knesset members and two members of the Lawyers' Bureau. At the time of writing (April, 2012) there is no woman among the twelve committee members.

I.
Let’s start with “Elohenu she-baShamayim.” It’s a Passover counting song.

Most of the Sephardic songs I know I learned from my father. Until I was twelve we lived in Manhattan, but when we learned to be Americans by moving to the suburbs, we got a new activity in our lives—one that nearly all Americans practice day in and day out—regular bouts of riding in the car. For some reason, whenever my mother was driving with me over the Atlantic Beach Bridge from forays to the supermarket or to the bakery for a Jewish rye, the dashboard of our pea-green stub-nosed 1950 Dodge would smoke. The upward lilting smoke accompanied terribly tense conversations about hairstyles or other deeply painful mother-teenage daughter issues. Driving in general did not suit my mother’s Bronx Turkish temperament, if you’ll forgive a stereotype; it made her anxious; it did not come naturally to her. Within a few years, she rebelled entirely against the suburban life, and we moved back to the city, where she could go to Carnegie Hall or a museum in a civilized way, by subway or cab or on foot, and could get a job as a payroll secretary.

During the suburban interlude, my father, as the provider who had to drive from Long Island to his office in Brooklyn, had the better car, a 1958 two-toned blue Dodge with tailfins (!); he had acclimated far better to this American business of driving because he’d been doing it for years. As a man, he had no gendered driving dysfunction, although I did realize years later that all along he had this habit of putting his foot up and down on the gas pedal, as if he hadn’t really decided yet to go forward body and soul with being a high-fueled American. One summer I took a job at another branch of his company in Brooklyn, and so we had a steady two months of car-rides to Brooklyn and back, he dropping me off on the way to his office and later picking me up. This was a good routine. During these rides, father and daughter in a legitimate business enterprise could reap all the rewards of time together, and it was not surprising that he used the time to sing me songs, or to teach me how to say it’s raining in Italian (piove!), or the nursery rhyme by which he learned the French vowels in Turkey in 1909. The songs he loved to sing while driving were mostly those he learned from his mother. Sephardic songs belonged to women, because men sang the liturgy of prayers and blessings. Singing his mother’s songs called up all the pleasures of being a treasured son. He also loved his father’s blessings, and sang them at the table or at synagogue with conviction in a happy natural way, but those didn’t come up in the car.

We’ll get to the car songs shortly, but “Elohenu she-baShamayim” calls out to me first because, although my father learned it as a child, with all the excitement that followed, a world war in Turkey and the American twentieth century, he forgot the song until about 75 years after he learned it, when I commandeered my family to take a weekly class with me given by Joe Elias, the son of a Monastirli cantor, at the Hebrew Arts School on West 67th Street in Manhattan. My family included my Sephardi-looking Ashkenazi husband, our youngest babe in utero, and then in arms, and my father and mother. Although my mother had disdain for Turkish songs, which she’d grown up with from brittle heavy 78s played with unconscionable frequency by her parents, and rowdy Saturday night Turkish musical gatherings in the Bronx, she rose to join any activity that got the family together and brought social focus to the week. Our oldest son, at ten years old, along with our seven-year-old, managed to elude this weekly gathering. For an hour or so one night a week for two years, a bunch of us sat in a little circle learning songs that Joe remembered from his mother and collected from women informants. He’d been a District Superintendent for the Board of Education, but his passion was the repertoire of songs that his mother knew by heart, hundreds of them, and I gather—I found this out many years later—that Rabbi Marc Angel, descended from the Jews of Turkey and Rhodes, had encouraged him to perform and preserve. My cousin, Elliott Kerman showed up also, Elliott soon founding his well-known barbershop, doo-wop, and pop Rockapella; while his group’s usual fare was great snappy black t-shirt choreographed popular love and zombie songs, he was still drawn to the Zamir Chorale and Sephardic songs. Elliott’s grandmother—did he know this?— my father’s sister Esther, had been a beloved kanoun (zither) player in Turkey as a girl. We sat around Joe’s small classroom, listening to his stories, and singing through his self-published 20-page photocopied song-books, rich with Isaac Levy folk music collection borrowings and with black and white cartoonish covers showing a mustached oud player in a fez and a tall thin festively dressed woman holding high a tambourine. Joe mostly played the guitar, his foot on the chair, his guitar propped up on his knee, and especially after retiring from the Board of Education went on to play concerts here and in Israel, finding especially rapt audiences in Florida. It was a point of pride with him that he was an authentic Sephardic singer, as opposed to many people springing up on the concert circuit. He never said anything like purity of blood, of course, because of the phrase’s provenance in Spain, but the many Johnny-come-latelies who sang Sephardic songs earned a certain dismissal from him. He was the real thing.

And his son Danny played (and still plays) a superb Balkan clarinet. Joe never mentioned that a truly authentic Sephardic singer would be a woman. He had a corner on the market, and while he generously had us share in his glory—we performed at street fairs and at the Sephardic Home for the Aged—my dad and I did one song with my new baby in my arms, written up in, not the Huffington Post, but the Sephardic Homes News; and another day our middle son belted out a song with us on the Lower East Side. But Joe was the professional and a total pleasure, and we were the tag-alongs, and rightly so.

When Joe introduced a variant of Elohenu one evening, what a gift. Although my father’s version was slightly different, here was a cherished counting song thrillingly recovered from my father’s Ottoman era. My father ignored Joe’s wording, more complicated and less appealing than his own, but regained a piece of his Anatolian-peninsula childhood. And once he reclaimed it, there it was for the rest of us, for every Passover thereafter for our sons and, among others, the extended Elliott Kerman clan. I eventually created a brief song sheet for these seders; and as my father passed into his eighties and nineties, his eyebrows ever bushier, we kept up the validation of generations celebrating the same holiday with the same song. “Elohenu” didn’t displace “Dayenu,” or “God of Might,” or the Ashkenazic version of Mah nishtanah ha laila hazeh, but there it was:

Eloheno she-baShamayim, el dio nos yeva a Yerushalaim (the refrain, our God in the heavens will bring us to Jerusalem).
Kualo es el uno? Uno es el Kriador, Barukh Hu uBarukh shemo (bless Him, bless His name).
Kualo son los dos? Dos, Moshe y Aron, Uno es el Kriador, Barukh Hu uBarukh shemo.
Two is Moshe and Aaron. Three is our three fathers, four, the four mothers of Israel, five, the five books of the Law, six, six days of the week, seven, seven days counting Shabbat, eight, eight days for berit milah, nine, nine months of pregnancy, ten, ten commandments of the Law. The Spanish is so easy, the concepts so central to what matters in life, and no small thing too that the mamas numerically beat out the papas.

Kualo son los tres? tres, muestros padres son.
Kualo son los kuatro? kuatro madres de Israel.
Kualo son los sinco? sinco libros de la ley.
Kualo son los sesh? sesh dias de la semana.
Kualo son los siete? siete dias kon Shabbat.
Kualo son los ocho? ocho dias de berit milah.
Kualo son los mueve? mueve meses de la pregnada.
Kualo son los diez? diez komandimientos de la ley.

Going past verse ten has never been of interest; ten verses are enough. And my father never talked about the 50,000 Salonika Ladino-speaking Jews murdered in the Holocaust. He was very focused on the present, and if he read the December 6, 1983 New York Times article Joe handed out about the horror of that decimation, my father never mentioned it. For him, a song reclaimed was a happiness reclaimed. Incidentally, I added to the song sheet the Ladino chant, when you hold up the matzah, which everyone knows in English, but here it is in Ladino: Este el pan de la africion ke komyeron muestros padres en tierra de Ayifto, todo el ke tiene hambre venga i koma, todo lo ke tiene de menester, venga y paskue, este anyo aki, el anyo ke viene en tierra de Yisrael, este anyo siervos, al anyo ke viene en tierra de Yisrael, hijos foros. My father always sang this at Passover, and I finally realized what it was and put it on our Passover song sheet. It’s in Rabbi Angel’s Sephardic Haggadah, be assured.

II
The second song is a one-line lullaby. I think it’s a Turkish song translated into Ladino, and the words say “Ya se va durmir,” and then the child’s name. Lullabies usher a child into the sweet nether world of sleep. Joe Elias didn’t know this one, and I’ve never seen it in a book. But the simple words are so-and-so is falling asleep already; that’s it. The line is repeated three times, and then a fourth time without the child’s name. I think it was my father who sang this to me at bedtime when he happened to be home on time; my mother didn’t go in for this kind of stuff. But over and over again, with a modal twang, the words kept coming, lulling the child to sleep gently and ineluctably, as if someone simply made up the line as an easy way to soothe a child to rest. I in turn sang it to my children. And then when my father was on East 5th Street in Dr. Nichols’s nursing home at the end of his one hundred years of life, and struggling with the inability to be his charming instructive optimistic self, I placed my cool hand on his forehead, to soothe him with Ya se va durmir, Victor, Ya se va durmir ir ir ir , Vi i i i i c tor, Ya se va durmir ir ir ir , Vi—i ictor, Ya se va durmir-ir ir ir ir . It’s possible my father’s mother sang this song to me, but I doubt it. I think it was just my father, whispering like Athena into my ear, and calming me from the uproars of family life.

I don’t know that I actually ever heard my father’s mother sing any of these songs which he told me she’d taught him. Knowing that she’d sung them to him was just a fact of my growing up, but I don’t think I ever experienced it directly. The singing came down to me as a gift from her via my father.

III
And so, did I ever hear my father’s mother actually sing “Ken ve va kerer a mi?” Probably not, but this one was definitely for the car. And soon I was wailing out the chorus along with my father, Who is going to love me, who is going to love me, Sabiendo ke yo te amo y me muero de amor de ti, knowing I love you, your love is the death of me, as if the greatest questions of life were decided in Ladino driving on Flatbush Avenue, famously the longest street in the world, or so said my father. But it was the song she sang most often, he told me. Who is going to love me, you’re abandoning me for another woman. Why such sad lyrics, why such a tragically bitter song when my father’s father was truly a good Jewish man, and my father’s mother such a well-loved joyful woman? Yo me acodro de aquella noche, cuando la luna me enganyo (I remember that night when the moon tricked me!). Why did she take such pleasure in those lines? The song said, She fell in love, and the man abandoned her. And my father’s mother sang it with zest and force of spirit!

Why?

Ethnomusicologist Dr. Judith Cohen tells me this song was not from medieval Spain (people erroneously think most Sephardic songs are from medieval Spain—forget it!). Probably instead, she said, Ken me va kerer a mi was one of many modern songs that appeared in the late nineteenth and early twentieth centuries in Spain and reached Ottoman Sephardic communities “through touring Spanish singers, and perhaps on the ‘new’ phonograph machines. Istanbul,” says Judith, “was a very early center of the recording industry.” We can picture that the song became very popular.

The feisty woman’s complaint emboldened popular singers, who began to make their way across the cultural landscape with aplomb. The very idea of a woman’s song must have lit up women’s lives and made a lament into a complaint, capturing all the intention of a woman’s purpose-driven hectic domestic life to survive in tough times, even with sunny Turkish skies above. Who is going to love me, you tricked me, you abandoned me for another woman, you know well I have a son, he was born from that misery, I was so disgraced even my mother abandoned me, tomorrow night I’m going to make my way with my son to the salty sea, to throw away all my sins, because I know that I am going to die. None of it was true to my father’s mother’s circumstances. It was the very differentness that appealed.

Above all, this was entertainment—and entertainment before technology took over and made women singing while cooking a thing of the past. But the feeling of heroism in the angry singer made this song a live rebuttal to whatever might face her on the horizon, whether a great war at home, or transporting herself and her husband and six children across the seas to a new land.

IV
The fourth song is famous, “Arboles”—Trees Cry for Rain. This was a great car song. Readers probably know it. Arboles yoran por luvyas, montanyas por ayres (trees cry for rain, mountains for wind). Then my father and I sang it at my parents’ fiftieth wedding anniversary party. We sang it at the microphone to the gathered guests. I was newly pregnant with my third child and we sang in Ladino, Trees cry for rain, so do I cry for you, my beloved. Come hither, my beloved, come, come see me; I want to speak but cannot, my heart sighs. Come hither, my beloved, and we’ll unite—aunaremos! See that word una in the middle of the Spanish word a-una-remos—let’s become one.

Now here’s the thing about this song. It’s so famous that there are books named after it, and videos. The internet and YouTube have many versions of it. But there’s a chorus that my father never sang. It’s a key part of the song, but my father never sang it, and neither do we: Penso y digo, ke va ser de mi? En tieras ajenas no puedo bivir (I think—I ask—what will become of me?—I cannot live in foreign lands).

It’s easy to imagine the song is about the expulsion from Spain, or about leaving beautiful Turkey when there was no way to make a living there. How can we sing in foreign lands? My father never wanted that lament—or maybe his mother simply never sang it, and he’d never heard it. Arboles for him was simply a love song. There was something poignant about my father wanting to sing that song, when his relationship with my mother was stormy and vexing. But, as always, joy was uppermost, celebrating a fifty-year marriage and children and grandchildren represented the best happiness. My husband and I and three sons sang Arboles at our eldest son’s wedding this August at a state park in Oregon. Enfrente de me, ay un angelo, con dos ojos me mira. Avlar kero i non puedo, mi korazon suspira (an angel stands before me looking at me with her beautiful eyes, I want to speak and cannot, my heart sighs). Hello and welcome to our new daughter-in-law.

V
At many weddings, a famous song that gets many women onto the dance floor is the Misirlu. Women, and often men too, get up to join this Greek dance, a single line winding in and around the dance floor. I get up with them, but for me, the Misirlu is first of all a song. My father’s mother was quiet and soft-spoken in her old age, while my mother’s mother could be brash and mean, although always interesting, and excited about being in the world. My brash mother’s mother used to sing the famous Greek song about the alluring Egyptian girl, Misirlu. It would be bedtime and my sister and I would be in bed, and I’d call her and say, Grandma, sing us Ach ya habibi (that’s the refrain, but also the title we used for the song). She’d come in, a big woman with stature and a Turkish hauteur, she’d sit down in my room on the edge of my bed with all her many bangle bracelets on her arm. She’d get a diva-ish Turkish puckering of her lips, and start with a low mysterious sweetness,
O polimo I gli casu imay ya (my little bird, you’re sweet),
O polimo I gli casu imay ya
Ach ya habibi, ah ya haleli, ah (my dear, my beloved, o my love),
Mono no si klepso (I will steal her away)
Mam aptin ara pia (from Arabic lands).
Aah, a-ah ah, ah ah ah, a a Ah, Misirlu.

This grandmother in front of the house once when she didn’t realize that I, a little bit of a thing, was right behind her, stepped back landing hard on my foot. Grandma, I piped up bravely, you stepped on my foot. Don’t you say you’re sorry? From the perch of her grand height, she glanced around and down at me, and pronounced magisterially, You’re lucky I didn’t press. I was. But at bedtime, I’d say, grandma, do the head thing. She’d sing a little, put her arms up over her head, her arms with her twenty bangle bracelets, as her head slid forward and back like a belly dancer’s, awing her grand-daughters in pajamas. It’s clear most people are cheated and unaware that Misirlu is a song, one of the richest in the world’s repertory. Its haunting sensual melody has long been famous, used in many movies, like Pulp Fiction. Let’s not get this wrong. This is not a Ladino song, but a Greek song. Sephardic songs include French, Greek, Turkish, and Hebrew songs. What they reflect is a predilection to make the entertainment of singing a part of daily life, in whatever guises or languages or occasions present themselves.

VI
As I said, my mother didn’t hold much truck with Turkish or Ladino music. She decided early that the patriarchal unfairness inflicted upon her by her father was attributable to Judaism itself. She certainly didn’t want to buy into that worldview at a time when American culture was sweeping women into the future. She found the Metropolitan Opera elevating, a key to the future somehow of the savvy woman. She went with her brother and sister-in-law and took my father along to all the operas, and bought the librettos, those soft gray-clad somber treatises on women’s tragedies and comedies sung into high-class art.

But there was one song that made her laugh. It would pop out of her without her thinking about it, because it represented a salty rebelliousness that fit her refusal to be brought up a second-class citizen as a girl. The song was “La Vida Do Por El Raki.” That means I’d give my life for raki, a potent licorice-flavored brandy, and my mother was all too happy to sing its pleasures and the raffishness it liberated in her from the tight constraints she felt her father represented, for instance: no college, you’re a girl. So she could sing it and feel Free! Rakish and raffish, she’d sing La vida do por el raki, no puedo yo desharlo, de bever nunca me arti de tanto amarlo (I give my life to raki, I can’t stop drinking it because I love it madly.) Of course, it didn’t matter that her father loved the song as well, her mother too. It threw everyone in together to a great need for singing, for the wish to be free of impossible constraints. Kuando esta en el baril, el no avla del todo, kuando me ago yo kandil, ago bayuos de lodo (when it’s in the barrel, it doesn’t say a thing to me, but when I’m drunk, I go down in infamy). Me siento yo ijo varon, me siento yo primario, sin tener liras en el kashon, me siento milionario (I feel myself a young man, I feel myself top dog, without liras in the cashbox, I’m a millionaire). La vida do por el raki.

VII
Here’s the seventh song, “Oseh shalom bimromav.” At our youngest son’s bar mitzvah, after my mother and I did the hamotzi (this was unusual, but fine), my father asked me to remain at the front of the gathering. So there he and I stood, and when he began singing “Oseh shalom,” I joined in and everyone joined in. It’s that way with the important songs. We know them. We know them well, from our whole lives. “Oseh shalom bimromav, hu ya’aseh shalom aleynu, ve’al kol Yisrael ve’imru amen.” The song is simple and short. No one has to think, do I know the words? It’s right there. Here’s how Rabbi David de Sola Pool translates it, “May He who creates the harmony of the spheres, create peace for us and for all Israel: and say ye, Amen.”

Coda
My mother’s name was Estelle or Stella, like the word Estrella pronounced Streya, meaning star, and although she was a difficult impetuous woman, no one could help loving her force of spirit. So another song reminded us of what she was about, “Streya Biva,” which ends very differently from the songs in which the lover throws herself tragically into the sea. “Streya Biva” is a new addition to our family songbook. My middle son took it up from our reconstructed Ladino song sheets this year and sang it at a little dinner for my husband and me and his friends, as a surprise for us on a special occasion. When he was a child, I said, I’ll tell you what I want for Hanukkah. Work with grandpa and learn the long blessing that he sings on the first night of Hanukkah. What scarf or book or even jug of honey could compare with that most perfect gift? He got it just right, and, many Hanukahs since my father died, my son has launched into it quietly, bringing light unto the nations, bringing a sense of calm and connectedness. This night at dinner, he sang “Streya Biva.”
Tu sos una streya biva, abaxada de ariva, si venites a tomarme, en tus brasos abrasarme, en tus brasos abrasarme. (You’re a living star, descended from above, if you come to take me, you’ll take me in your arms to embrace me).

Las tus karas koloradas, la dulsura ke me dates, komo ti ya no ay otra, ni aki ni en Evropa, ni aki ni en Evropa (your cheeks are rosy, ah the sweetness you bring me, there’s no one like you, not here or in Europe).

Las tus ojos son brilyantes, parecen dos diamantes, arelumbras korazones, de donzeyas y barones, de donzeyas i barones (your eyes are like diamonds, lighting up the hearts of young girls and young men).

Sos yena de ermozura, venida de la natura, en tus brazos me tomates, a la kama me yevates, a la kama me yevates (you are beautiful, your beauty is natural, you took me in your arms to bed, in your arms you carried me to bed).

In an interesting footnote to Jewish History, we find the triumph of the human spirit.

Rabbi Yaakov Yehoshua Falk (1680-1756) was born in Krakow, the scion of a rabbinic family. Newly married and working as the inspector of the local school, Rabbi Falk became a respected community leader in Lemberg, Poland. But in 1702, the trajectory of his life was irrevocably altered. A powder keg explosion took the life of his wife, daughter, mother-in-law and her father. Trapped under debris, Rabbi Falk narrowly escaped himself. While still threatened by the specter of death, he vowed to compose an original commentary on the Talmud. He swore to find meaning and purpose in this tragedy.

Rabbi Falk published his novellae on the Talmud as P’nei Yehoshua, a title that bears the same name as a work of responsa by his illustrious grandfather, Rabbi Yehoshua Heschel, for whom he was named. In Meginei Shlomo, Rabbi Yehoshua Heschel defends Rashi against the challenges posed by the Ba’alei HaTosafot. His grandson, Rabbi Yaakov Yehoshua Falk, would continue the tradition, and do the same in his own work.
P’nei Yehoshua was first published in Amsterdam in 1739. In his Introduction, Rabbi Falk writes:

Behold, I accepted upon myself an obligation and vowed this vow at the moment of my anguish, on the day of Hashem’s wrath – 3 Kislev, 5463 - in the holy community of Levov [Lemberg]. ‘I was tranquil in my home and invigorated in my sanctuary,’ together with my friends and students who were listening to my voice, when suddenly the city was turned into a heap: ‘Overturned in a moment, though no hands were laid on her.’ The sound of a cry was not heard. But the sound of a blaze was singled out, together with the appearance of a great flame that rose through our palace and windows, due to some large and frightful kegs filled with gunpowder. They were the cause of a fire that destroyed the homes, making them uninhabitable. A number of large and very tall, walled homes were lowered to the dust, razed to their very foundations, and thirty-six holy souls of Israel were killed. Among the casualties were also members of my household – my first wife (her soul in Eden), her mother, and her mother’s father. The tragedy reached my young daughter, her mother’s only child. She was beloved to me - ‘foremost in rank.’ I too was among the fallen of this ‘lofty place into a deep pit.’ I came to the deepest depths of the ground underneath, just like under a press, because of the heavy burden of the heaps and heaps that fell upon me – pillars of our home – more than the pillars in a mill. ‘He did not allow me to refresh my spirit.’ My hands and limbs were not under my control. ‘I said, I am doomed,’ ‘with my days cut short… deprived of the rest of my years… I will not again behold a man with the inhabitants of the earth.’

...Therefore, I said, when I was still under the heap, ‘if the Lord be with me and take me out from this place to peace, and build for me a faithful house to increase its boundaries with students – then I will not remove myself from the walls of the Beit Midrash and I will be diligent in the doors of study of topics in Shas and Poskim, and I will lodge in the depths of Halakha, even spending many nights on one issue.’

At the tender age of twenty-two, Rabbi Falk’s life was forever changed. Yet he possessed the strength and courage to execute what would be his life’s mission: To carry on in the tradition of his grandfather and commit himself completely to Torah study. In doing so, he created one of the most original and important commentaries to the Talmud of the Modern Era.

Rabbi Falk became renown for his great diligence and piety. It is told that before he began writing his P’nei Yehoshua, Rabbi Falk studied the entire Talmud thirty-six times, corresponding to the thirty-six lives that were lost in the explosion. Describing an encounter with Rabbi Falk, Rabbi Hayyim Yosef Dovid Azulai wrote, “I, the youth, merited to receive the face of the Shekhina in those days. And his appearance was that of an Angel of the Lord.”

But Rabbi Falk was also famous for his stubbornness. His unwillingness to compromise forced him to move from community to community. He served as rabbi in Lemberg, Tarlow, Kurow, Lesko, Berlin, Metz and, at the height of his career, was appointed Chief Rabbi of Frankfurt am Main. There he would become embroiled in the famous Emden-Eybeschutz controversy. Due to his vociferous support of Rabbi Yaakov Emden, Rabbi Falk was forced to leave Frankfurt in 1751. When he was invited back to Frankfurt several years later, his opponents prevented him from teaching publicly, causing him to flee once again. Rabbi Falk lived in Worms and Offenbach until his death in 1756. And although he requested no eulogy, Rabbi Falk was eulogized by Rabbi Yechezkel Landau, the famed Noda B’Yehudah. Rabbi Falk was buried in Frankfurt, where his grave remains until today.

Since time immemorial, man has tried to comprehend suffering. One may never find an answer to the question of theodicy, but he may find meaning in his pain. As Rabbi Joseph B. Soloveitchik wrote:

Suffering comes to elevate man, to purify his spirit and sanctify him, to cleanse his mind and purify it from the chaff of superficiality and the dross of crudeness; to sensitize his soul and expand his horizons.

By transcending his personal tragedy and authoring P’nei Yehoshua, Rabbi Ya’akov Yehoshua Falk would expand his horizons and ours too, as students of the Talmud.

To Rabbi Dr. Nathan Lopes Cardozo:

Dear Rabbi:

Your article the Spring 2010 issue of Conversations on “The Nature and Function of Halakha in Relation to Autonomous Religiosity” has inspired quite a bit of discussion in our family. Your comments have hit squarely home and crystallize the religious anomie of several of our recently married children. You issued a passionate call for responsible rabbinic leadership to meet the challenges of a less-than-dynamic halakhic process. This is vital to the authentic continuity of our traditions. Please grant me a few moments for a layman’s reflections on this matter.

Halakhic decision-making, since the sealing of the Talmud by Ravina and Rav Ashei in the fifth century C.E., has always been the province of local rabbinic authorities. The subtleties required for rendering the decision of complex issues can only be appreciated by the local Rabbi. The local socio-cultural context provides the framework for a proper and relevant understanding of the issues involved. This feature of our halakhic process has kept our oral law perpetually dynamic and eternally relevant. The application of legal principles to changing local circumstance and nuance demands continuous adaptation. What may be right for one local community at a particular time and place may not necessarily be right for another congregation at the same time but in another region or country. How the values and principles of Torah are applied depends on the subtleties of social context.

The convergence of several unique factors in the broad social context of our information age has indeed bred the paralysis of halakhic evolution. To borrow a term from a popular author and journalist, I call these factors “flatteners”—“Halakhic Flatteners”

1. The emergence of the “professional rabbi” in combination with other flatteners detailed below is probably the most important factor. The Sephardic tradition as detailed by Maimonides calls for community rabbis to serve the local community while pursuing their own professional or commercial career goals. Accepting fees for formal positions as “judge” or halakhic decisor was frowned upon. Yes, valid arguments against that position are made for today’s rabbinic leaders, especially in a world that is increasingly specialized. However, Maimonides’ point needs to be understood. The politics of deciding how to apply law need to be removed—decisions have to be rendered with complete INDEPENDENCE. The current legal decisions of the “professional rabbi” are not and cannot be free of political considerations. The dictates of serving synagogue boards as well as of supporting large yeshiva study centers promotes the practice of what we can label “political/commercial rabbinics” rather than practical rabbinics. Halakhic decision making becomes hostage to the necessity of maintaining crowd/communal popularity and raising money for rabbinic institutions to sustain salaried rabbinic positions rather than what may be necessarily “legally correct.”

2. Instant global communication - Any creative or innovative practice of any remote community is now instantly communicated. It is then subject to analysis and critique by the “professional rabbis” whose interest may very likely be the promotion of their own authority, their own ideology and their own local and vocal constituencies. The political and peer pressure of e-mails, blogs and the internet can suffocate innovation and inhibit the correct application of law to circumstances that may demand a different rabbinic approach than the norm. Flat and politicized worlds cannot accommodate the flexibilities needed for dealing with the subtleties of local social context.

3. Mass education—With lifestyles focused on leisure rather than survival, more than ever before, more people are engaging in religious study. This establishes an exciting base for intellectual ferment and the possibility of a true Jewish Renaissance—unseen for centuries. However, there is nothing more dangerous than a little knowledge, especially when politicized in a world of instant communication. When all of these flatteners combine with the next flattener, the results are explosive.

4. The revolt against secularism and the concurrent rise of religious fundamentalism. This is an understandable reaction to the excesses of an indulgent society and an amoral culture. The constant bombardment of the individual with anti-traditional messages through every media portal can provide a justifiable basis for isolationism in ghettos. It is a rather natural reaction to the excesses of the age of greed and materialism (the 1980s and 1990s) and our new, in the words of President Obama, “culture of irresponsibility.”

5. The rate of change of the social condition has quickened. Women are now, for the most part, treated as equal in ability and opportunity to men. The nuclear family is under siege. Revolutions in the fields of medical and life sciences pose serious ethical and halakhic dilemmas. The major institutions that dominated society for millennia are withering. Indeed, the very premises of traditional cultural values are seriously challenged. Before the twentieth century, history was defined mostly by political and religious institutions. In the past century, this paradigm has changed. Technology, more than ever, is rapidly changing the institutional landscape. (an example: The Mideast revolutions and social media). In order to remain relevant, halakha must address these major and continuously changing social dynamics.

6. The paranoia in the Orthodox world created by Conservative and Reform Judaism (as well as the overwhelming success of assimilation.) The success of alternate forms of Judaism in nineteenth-century Europe and later in America has created a charged atmosphere among Orthodox Rabbinic circles that promotes instant overreaction to any creative or lenient halakhic decision. The defense of “tradition,” is paramount, whether the suggested practice or halakhic ruling even defies Torah law itself.

These six convergent forces have contributed to the paralysis of the world of halakha. Set within this petrifying framework, the current method of rabbinic decision making cannot address rapidly changing general and local needs. It cannot address subtleties and shies away from confronting the serious moral dilemmas that accompany a world changing faster than ever. It loses elasticity as well as its dynamic capability. As we have stated, it is subject to the many political/commercial dictates of a centralized and remote Ivory Tower of rabbinic authority, most of whose leaders have retreated into the world of Fundamentalism, where change is anathema. And those Rabbis who do attempt to resolve burning issues or deal with local needs are themselves burned in the process. Just look at the reactions to Rabbi Rackman, a”h,” on the aguna issue or Rabbi Avi Weiss on just about any issue.

Hence, Rabbi Cardozo, halakhic paralysis.

I would like to suggest that the solution to halakhic paralysis has to be halakhic. I propose that we respect the legal process set in place after the Talmud was sealed in the fifth century. The Rabbis determined that halakha must be locally applied; kal vaHomer (how much more so) in a world where the rates of change vary in its different social and local contexts, However, the current definition of a “local community” must be understood in terms of new 21st century understandings. Communities are no longer merely small towns, shtetls or even local city neighborhoods. Communities are today defined as groups of individuals with common interest. Mention the word “community” today and most people think of the concept of virtual community, social media, Facebook, and web blogs. In an age of leisure and mass transportation, mass education and global communication, I suggest that this definition be broadened.

The traditional physical neighborhoods of major urban centers and suburban enclaves can no longer be considered exclusively as local communities. Communities are now defined by activity or interest rather than exclusively by geography. There are gym and health club communities, golf clubs, dance clubs, and political clubs. Communal life itself previously was characterized by long hours of work, the nuclear non-working mother family, and a local house of worship. This image of a local community is history.

Therefore, the concept of halakhic rulings being rendered by LOCAL community rabbis must now respect the need for this expansion of the term “local community.”

Let me provide a concrete example:

Several years back I attended an unusual Saturday minyan on the Upper East Side of Manhattan. It was presented as an Orthodox service, where men and women sat separated by a mehitsah, in accordance with Orthodox custom. Otherwise, women were equal participants with men as Cantors, Torah readers and Torah olim. It felt funny to me at first, since my background is Sephardic Orthodox. I approached the young, bearded Orthodox Rabbi at the end of the service and inquired how he could halakhically justify this type of service. He answered that for this group, the egalitarian activity of the women is halakhically acceptable. He explained that the traditional reason of not allowing women to participate in the services is due to the concept of “kavod tsibbur,” or the fact that male congregants would not respect women as they would men, and that involving a woman in any part of the service would detract from the majesty of the service. This particular community of individuals defined their attendance at that minyan by their commitment to egalitarian principles. Therefore, the issue of kavod tsibbur, preventing women from participation alongside men in their minyan, just did not apply.

Here we have the halakhic process totally respected with complete authenticity but non-traditional practice.

Perhaps the evolution of halakha, which eternalizes our Torah and its values, has to respect the new expanded definition of “community” and allow the time honored practice of having “local” rabbis properly posek for their new communities.

Consider the results of an exposure of our new young Jewish “activity/interest” communities to halakhic principles and their new “local” and contemporary application (as to why they might differ from other halakhic communities). This would not only inspire active inter and intra community debate, but stimulate new understandings of halakha and a new appreciation for committing and living our sacred halakha directed lifestyle.

In addition to a re-definition of “local community,” perhaps our leading rabbis should consider the use of twenty-first century technology to mitigate or “unflatten” some of our previously detailed “flatteners.” Perhaps our leading rabbis can develop a “Virtual Sanhedrin.” By that I suggest the development of a secure blog site where rabbis who share a common philosophy and respect for each other, can debate issues honestly, openly and in the cool, calm medium of a confidential and secure blog site, with controlled access only by this Rabbinic group . Furthermore, i suggest that the debates conducted over this web blog be done anonymously, with specific reference numbers assigned to each rabbi who would present their issues by numerical code. For important issues, this medium can provide the time to flesh out complications and develop more authentic legal rulings. The flatteners of rabbinic commercial/political issues, of larger than life personalities, and of instant publicity would be much more controlled. Real issues can be thoughtfully addressed and more honestly debated. This healthier debate process will result in more meaningful halakhic consensus and decision making. The fact that decisions are arrived at anonymously by group consensus will also provide political cover for any specific congregational or professional rabbi. I think the Rabbis of the Babylonian Academies, would have loved these incredible modern tools of communication for enhanced debate.

Perhaps this very same communication technology can be used to promote learning and to stimulate debate amongst active and involved community laymen. The e-mailing of “halakhic issue alerts” from the local community rabbi can become:
1. a terrific teaching tool
2. a confidential polling tool for the Rabbi to feel out public opinion prior to issuing local decisions.
(a halakhic ruling should not be openly promoted if the community would not respect it :
ex. A young adult singles mixed dancing in Orthodox synagogues during the 1950s and 1960s)
3. a community energizer on large, common and serious issues.

Imagine the ferment and excitement generated by exploring an issue like “organ donation.”
(Fragile—handle with care)

Indeed, in a rapidly evolving, technologically developed world, certain halakhic questions require specific technical expertise. Here, perhaps, rabbis of like philosophy and mutual respect should consider establishing virtual panels of specialists to deal with technical issues. Let us call this “the specialist blog.”

The panels can debate internally (a la the previous “virtual Sanhedrin” model) and, in turn, e-mail the rabbi who faces the difficult question.

I am sure this type of process currently functions in an informal manner. Why not formalize it and publicize its structure to the group of rabbis of like philosophy. I can suggest panels on:
1. Medically Assisted Conception and Birth
2. Living Wills and the Ethics of Artificial Life Support
3. The Digital Home on Shabbat

Lastly, and rather simply, why not utilize the medium of large flat screen streaming video and or DVD to present the positions and/or debates of rabbinic Superstars. Imagine a remote far flung community gathering in a synagogue to hear a presentation of Rabbi Jonathan Sacks on Pluralism and its impact on halakha.

We have here several 21st century platforms that can truly energize local synagogue life as well as stimulate adult learning and commitment to a relevant halakhic process.
If I may summarize some of these ideas:
a. an expansion of the term “local community”
b. the “Virtual Sanhedrin”
c. the “specialist” blog
c. “Halakhic Issue Alerts”
d. the “Streaming Superstar”

These simple ideas can be part of an overall process to liberate halakha from its paralyzing flatteners. Rabbi Riskin offers a wonderful spin to the classic Talmudic episode of “the Tanur of Achnai.” This story deals with halakhic authority and ends with God chuckling as His support for the minority opinion on a halakhic issue is overturned by a rabbinic court. The classic Divine response is “Nitzhuni Banai”—“My children have defeated my argument.” Rabbi Riskin answers that perhaps we should read the text as “Netzahuni Banai “—as God saying “You have eternalized me”—that by making law subject to rabbinic decision making “You have kept my law eternally relevant.”

Rabbi Cardozo, we salute your inspired call to restore halakhic dynamism. As you have pleaded so forcefully, our rabbinic leadership must respond now with new methods of decision making to keep our Torah eternally relevant.

Response to Eli Haddad:

Dear Eli,
I read your observations with great interest. While I fully agree with your thesis that halakha has been flattened for all the reasons you give, and while I admire the solutions you suggest, I believe there is another, much more fundamental problem we need to deal with. Unless we do, your solutions will not have the result you so desperately seek.

We are confronted with a terrible misunderstanding of what halakha is really all about and what it wants to accomplish.
It is not just on the practical level that halakha is flattened, but also on the ideological, religious level. We have separated halakha from a conscious awareness of God. Our halakhic living has ignored Him. We are more concerned about the specifics of halakha than we are about our existential relationship with God. No doubt this is partially the fault of the halakhic process itself. Even the Sages, when discussing these issues, rarely mention God in their conversation, making it very legal and often dry in a religious sense. The reason for this is obvious. There was no need to mention God in all these debates because they were thoroughly touched by His presence, just as water touches every part of our body while we are swimming. One does not have to mention water when completely immersed in it. God was the great background music to anything the Sages felt and said. In their view God was a challenge, not a mere notion. They had a trembling sense of the “hereness” of God. They realized that they were more known by God than God could ever be known by them.

In modern times, this religious experience has been lost on us. We study Talmud and halakha in ways that have been deeply affected by the secular environment in which we live. God-consciousness has left us. The majority of us are no longer God-intoxicated. Most if not all of our halakhic authorities have also fallen victim to this sad situation without even being aware of it. They decide on halakhic matters while God is not actively present. This does not mean that they do not believe in God or that they have no yirath shamayim, but it does mean that they are not stirred by His presence while dealing with halakhic issues. How often is God mentioned in sheeloth u-teshuvoth?

One needs to have a religious experience while deciding the halakha. Rabbis do not realize that one can only render a halakhic decision while simultaneously experiencing the wonder of life, the astonishment of existence and the marvel of Judaism. halakha can only be decided on and lived when we ask the question: How are we able to, even dare to, live in His presence? Halakha is a protest against taking life for granted. One of its aims is to make us aware that there is no commonplace, no moment of insignificance, and no deed of triviality. Halakha is the attempt to undo the attitude of “everydayness,” but it can only work when we are fully conscious of this impediment and realize that there is no way to understand the meaning of halakha unless we make this goal our most important concern. If the posek (halakhic arbiter) does not realize that this is the function of the halakha and that this should be his ultimate goal when making a decision, his attempt to lay down the halakha is futile.

The problem we face is not realizing that halakhic living may become, if it hasn’t already, a form of avodah zarah (idol-worship). When we think that by following halakhic demands we will automatically draw closer to God, we are guilty of self-deception. We do not realize that we often use halakha as a way to escape Him. We believe that as long as we are living a halakhic life we do not have to make a supreme effort to draw closer to Him through the development of our God-consciousness. But this cannot be done by halakha. It needs to come from awe, from radical amazement, as Abraham Joshua Heschel called it. Only then is the halakha able to develop and deepen these notions.

This, however, is no longer part of Jewish Education. We have allowed the spirit of halakha to be flattened and have incorporated this dullness into the way we teach our children Judaism. We have made Judaism common instead of an astonishing experience. No wonder many of our young people drop their Judaism!

Only after we have cultivated this God-awareness can we start speaking about proper halakhic observance. Its goal is to take this cognizance and introduce it into every level of our lives. The fact that we see an unhealthy emphasis on rituals, but a disregard for matters that relate to ethical standards, proves my point. Violence, a severe dislike for non-Jews, and financial corruption within the Orthodox community, all of which are not even properly and fiercely condemned by our rabbinical authorities, are the obvious result of this escape from God in the name of halakha. If Orthodox Jews would really experience the awesome presence of God, how would it be possible for them to engage in these practices? (Is it not most remarkable that rabbis who suggest slight changes in Jewish rituals for the sake of greater religious devotion are condemned as heretics and as non-Orthodox, while those so-called Orthodox Jews who violate major tenets on the ethical side of Judaism are still considered to be Orthodox?)

When conversing with yeshiva students I often ask them how many years they have spent learning in yeshiva and how many masekhtot (talmudic tractates) they have studied. Once they tell me that they have mastered a good portion of the Talmud, I ask them what they would answer if a secular Jew, or a non-Jew, would ask them why they are religious. Nearly all of the students respond in total indignation and are completely taken back by this question. They have no answer. When I ask them how is it possible that after so many years of intensive study of religious texts they are still incapable of responding, the usual answer I receive is they have never thought about these questions, nor have their teachers ever discussed these matters with them. Topics such as religion, God and the meaning of life are taboo in many yeshivoth. The half hour spent on mussar literature is, for the most part, nothing but lip service. These topics are treated as hukath hagoyim, meant for religious non-Jews, and too inferior for Jews to discuss. On several occasions I have challenged their teachers or rashei yeshivoth about this. Most of them, although not all, avoided my questions by telling me that more gemara learning or “another tosafoth” would do the trick. They were sincerely convinced that this was the solution to the problem. When I showed them the inadequacy of such an answer and kept pressuring them, it became crystal clear that they themselves were deadly scared of these topics. The policy was to ignore these issues and bury one’s head in the sand. When their students abandon yeshiva and, in today’s parlance, “go off the derekh,” they are totally surprised. But is this not obvious? What else should we expect?

God’s voice needs to be heard rising from the text, but we have long stopped teaching our students to hear it. It has been replaced with ceremonies, “observance” and humroth (stringencies), but not with holy deeds. God is of no importance unless He is of supreme importance, said Heschel.

In fact, many yeshivoth will skip—and not without pride—all non-halakhic texts, such as the aggadoth, which in fact deal with the most important dimension of halakhic living—the religious transformational purpose of the halakha. By ignoring these texts, they are sending a message to their students, not only that this part of the Talmud is inferior but that authentic religiosity is of little value. Teachers do not seem to realize that although halakha may be able to inform a man how to act in any given situation, it cannot provide insight into the quality of a given act, nor can it provide a sense of spiritual change that is the result of the performance of, or adherence to, a specific dictate. The power of aggadic and other non-halakhic material is in preventing mechanical observance and freeing man’s spirit, as well as in suggesting what one’s religious aspirations should be all about. Halakha is only the minimum of these religious aspirations. Religious non-halakhic material allows the unseen to enter the visible world and was formulated to give man the ability to go beyond the realms of the definable, perceivable and demonstrable.

Methods such as the Brisker approach to Talmud learning—today immensely popular in many yeshivoth—have in fact made this experience nearly impossible. While “hakiroth” and even “pilpul” may give spice to the discussion, they are unable to draw the student’s attention to the existential meaning of what religiously needs to be accomplished through the engagement with these texts. This is a tragedy of the first order, for which Orthodoxy pays a heavy price.
Precisely that which needs to be its most important goal has been totally dismissed and buried under the sand of halakhic discourse.

Another most important issue, which should be central to halakhic conversation, is the Jews’ obligation to be “a light unto the nations.” The Jewish people have been called upon by God to be the instrument through which He enters into the lives of all people. The universal purpose of Am Yisrael is to inspire and to transform. This has serious consequences for how halakha should be applied and, above all, how it should be taught. Nearly no halakhic authority seems to make this a central point when dealing with halakhic issues. Most halakha is decided by focusing solely on the exclusive needs of the Jewish people. Universalistic issues are ignored. While some profound Hassidic thinkers and people like Chief Rabbi Avraham Yitzhak Kook dealt with these issues when writing non-halakhic works, I can think of only Hakham Benzion Uziel, the former Sephardi Chief Rabbi of Israel, who incorporated the universalistic mission as expressed by the prophets in his way of halakhic decision making. (See also Rabbi Dr. Marc D. Angel’s book: Loving Truth and Peace: The Grand Religious Worldview of Rabbi Benzion Uziel, Jason Aronson, Inc., Northvale, New Jersey, Jerusalem, 1999)

Most present-day halakha is self-centered and often under the pressures of our galuth experience and defensiveness. (See Rabbi Eliezer Berkovits’s Hahalakha, Koha V’Tafkida.) What is urgently needed is prophetic halakha.

One of the most serious complaints by young searching Jews, when studying halakha, is the absence of the notion of mission and concern for the rest of mankind. This flattens the halakha in ways that do great damage to its very image.
All that is mentioned in this letter is only the tip of the iceberg. Mainstream halakhic Judaism will become more and more irrelevant in the years to come, except for a small but growing community of religious Jews. But the more they will dedicate their lives to halakha, the more the rest of our people will be detached from it, for the very reasons the religious Jews get more involved: the stabilization of and self-satisfaction with halakhic living. halakha has become a platitude instead of being a great spiritual challenge. Our thinking is behind the times.

The Jewish community of Izmir was an important center of Sephardic Jewish life during the centuries following the expulsion of Jews from Spain in 1492. It boasted vibrant synagogues and communal institutions, as well as a host of learned Torah scholars and a respected rabbinical court (Beth Din).

Izmir’s Chief Rabbis enlightened the Jewish community by answering hundreds of questions in Jewish law. They answered the questions not only from ?zmir but also from the distant Jewish communities. Rabbi Shemuel Yitzhak Modeliani from Thessaloniki noted that the Jewish community of ?zmir was led by respected people.

One of the most important features of ?zmir was its Hebrew printing press that published many books in Jewish law and thought. Izmir became an important publishing center for the Jewish communities of the Ottoman Empire and beyond.

The Izmir Jewish community functioned according to the religious rules. The Jews in the city fulfilled the mitzvot of the Torah in a spirit of faithfulness and traditionalism. Special teams were appointed in order to ensure the obedience of the religious laws. When these teams identified those who did not follow Torah rules, the accused were judged by the Beth-Din; and if they were found guilty, they were punished.

Beit Yaakov Rabi, founded by philantrophist Yaakov Rabi, was the biggest and most important among Izmir’s 16 synagogues and 50 yeshivot. When Rabbi Yaakov decided to move to Jerusalem, he left the the management of the Yeshiva to his nephew Rabbi Yosef Hazan, author of responsa entitled “Hikre Lev”. Rabbi Yosef Hazan’s daughter Kaden married Yaakov Palachi, who was well known as a religious scholar. In 1788, Yaakov and Kaden’s child Hayim Palachi was born.

From his early years, Hayim was in the presence of important religious leaders and received an intense education. In a short time, as a clever and enthusiastic boy, Palachi emerged as unique among his peers. The writer of “Bet Yitshak”, Rabi Yitzhak Gatenyo, was one of his teachers. When he was a student at Yeshiva at the age of 20, he married Rabbi Yitzhak Gatenyo’s daughter. They had two girls and 3 boys. Rabbi Hayim Palachi worked with Rabbi Rafael Yosef Hazan to prepare and publish the book, Simha le Hayim.

At the age of 25, Hayim Palachi received the title of “Haham Hashalem - Haham Kumplido” in Yeshiva. Rabbi Hayim Algazi honored him with this title and appointed him to the rabbinate. While his father was alive, he did not want to take any official duties. Yet, when his father passed away in 1827, he accepted the position of Dayan and Shofet. He also became the head of Beit Yaakov Rabi Yeshiva where he completed his education.

In 1849, he was appointed to the community’s Beth Din. Together with Beth Din members, Yesua Shelomo Arditi, Hayim Binyamin Pontremoli, Rahamim Nisim Yehuda de Sigura, Nisim Hayim Moshe Modai and 45 other rabbis, they ran the Beth Din and provided religious leadership for the community.

Aside from writing his books, he answered hundreds of questions from individuals and communities of various cities. His main principle was to answer all the letters and questions. His interpretations, explanations, and rulings were accepted around the world, and communities began to teach his doctrines. Rabbi Palachi maintained correspondence with leading Sephardic and Ashkenazic rabbis. In 1852, with an edict written by Sultan Abdulmecid, he was appointed as chief Rabbi of ?zmir.

His reputation spread throughout Ottoman lands, and in 1858 he was awarded a medal by Sultan Abdulmecid. At the same time, the Sultan granted him the rights of jurisdiction and the rights to judge according to both Ottoman and to Jewish religious laws. In this capacity, he became the legal judge of the Jews in Izmir. Later on, he was awarded a second medal by Sultan Abdulmecid.

As the Chief Rabbi of Izmir, he eased the administrative rules. He tried to apply the halakha in a way that made daily life easier. Meanwhile, his first wife died and three years later, he married a Vida Nama.

During his Rabbinate period, he gave importance to social welfare; and as an important mission, he thought of founding a Jewish hospital. He requested assistance from the wealthy Jews in town. Despite his request from Baron Rothschild and his negative reply, he did not give up. With the help of respected Senior Leon Adut, they contacted Rothschild again, and received the necessary support. He was also able to receive the support from Sir Moses Montefiore. The Jewish hospital was established. At the time, the population of ?zmir was 220,000, with the Jewish population consisting of about 16,000 souls.

Rabbi Palachi’s set a goal to maintain mandatory education to all Jewish children. He adopted a law which required every Jewish father to give Talmud Tora education to his children. Children would continue their education until they were able to read and write properly, and could grasp the fundamentals of Tefillah. Only the Mefakeah, the instructor, was allowed to decide when the children had achieved the required educational goals. Rabbi Palachi made sure that all the poor children also received education.

Rabbi Palachi felt deep responsibility for each member of the community. In order to protect the health of his followers, he prohibited smoking. He tried to solve the problems between spouses. He tried to solve the problems among friends who had business disputes.

The following story was told. A Jewish man was about to die. Hopelessly, his family asked Rabbi Hayim Palachi for his blessings and prayers. Rabbi Palachi asked if the patient was a behor (first born male) or not. After a positive reply, he asked if he had a proper pidyon (redemption of the first born) or not. They found that there actually had been a problem with the pidyon ceremony of this man. Rabbi Palachi arranged for a cohen to visit the patient so that a new pidyon haben ceremony could be performed. Rabbi Hayim Palachi recorded a note mentioning that this patient recovered and lived another twenty years.

Rabbi Hayim Palachi was very sensitive to events that affected Jews outside ?zmir as well. During the blood libel in Damascus in 1840, he called for the support of his Egyptian Jewish friend Don Avram Kamando, Baron de Rothschild and Sir Moses Montefiore. Through their intercession, the innocent Jewish victims in Damascus were exonerated.
On a trip to Israel, Montefiore stopped in ?zmir and reinforced his friendship with Rabbi Palachi. Montefiore contributed generously to the Jewish organizations of Izmir. In appreciation, Rabbi Palachi wrote a book dedicated to Montefiore and his wife. He also wrote a book in Ladino called “Y?MTSA HAY?M” that praised the English Queen’s efforts on behalf of the Jews of Damascus.

With the beginning of Tanzimat period—when the Ottoman government introduced modernization reforms-- we observe changes that were beginning to occur within the Jewish community of Izmir. Until then, the community was solely directed by its own Beth-Din; but with the Tanzimat, a council made up of a lay board of directors was formed. This secular administrative council had the authority to control the income of the community.

During Rabbi Palachi’s last years, there were disagreements concerning the management and organization of the community. In November 1865, the community formed a board made up of 1 president and 9 members. At their first meeting, this board invited Rabbi Palachi. They requested that he not sign any important decisions without first consulting the board. They also asked him to rescind a tax that he had imposed on the sale of alcoholic beverages, since he had not complied with the new administrative procedures. Rabbi Palachi acceded to the board’s demands. and Rabbi Palachi removed the taxes.

Soon, factions arose within the community—some in support of Rabbi Palachi, and some opposed to his continuing in his post as Chief Rabbi. As the situation worsened, the Chief Rabbi in Istanbul appointed Yakir Geron in order to maintain a stability in Izmir. Meanwhile, Baron de Rothschild advised Rabbi Palachi not to worry and if he wished, he would be glad to offer him a position in London’s Grand Rabbinate. But Rabbi Palachi did not wish to leave ?zmir, in spite of the growing tensions within the community.

In 1866, the Secretary of Istanbul’s Chief Rabbi, Samuel Danon, was sent to Izm?r. In his report to the Chief Rabbi, he indicated that the only way to solve the complicated situation in Izmir was to remove Rabbi Palachi from his position and to appoint a new Chief Rabbi. The Chief Rabbi Geron approved this report, that had been signed by 60 people from ?zmir. The Chief Rabbi applied to the government in order to receive permission to remove Rabbi Palachi from his post.

This tension and polarization within the community deeply saddened Rabbi Palachi, and he shut himself into a synagogue. He opened the ark and put 2 candles in his hand; he turned candles upside down and began to pray. At that moment, there was a very strong earthquake. People were terrified and came to apologize from Rabbi Palachi, fearing that the earthquake had occurred due to the Rabbi’s prayers. Even his opponents now wished that he would be the Chief Rabbi. In resuming his post, Rabbi Palachi forgave all that was done to him and did not foster any bad feelings against anyone.

Rabbi Hayim Palachi wrote 72 books in total. The names of his books always included the word “hayim”. This was both an allusion to his name, as well as an allusion to the Torah being a source of life.

Izmir suffered fires from time to time. In one great fire, many Jewish houses, including Rabbi Hayim Palachi’s, were burnt down. The fire spread to the Jewish neighborhood at night, while people were asleep. Despite the fact that fire spreaded so quickly, the Jews were able to leave their houses alive. Yet, thousands of Jews became homeless. The majority moved into their relatives’ houses until new houses could be built.

All the books Rabbi Palachi collected since the age of 16 and the books he wrote, were kept in the cellar of his house. One of his students who was informed about the cellar, put his life in danger by entering the burning house in order to save one of the boxes of books.This box had only 14 books. The other books which Rabbi Palachi had worked on for years—were destroyed in one night.

Seeing the Jews in despair and losing so many of the manuscripts of books he had written, Rabbi Palachi was deeply pained. For six months, he stayed in bed, hovering between death and life; his son Avraham cared for him tirelessly. During this illness, Rabbi Hayim dictated words of Torah to his son, who recorded his father’s words on paper. When Rabbi Hayim recovered, his son showed him his notes. Rabbi Hayim was amazed to learn that he had been able to transmit the contents of his lost manuscripts, and that his son had been able to restore much of the work that had been lost in the great fire.

As he grew old, he became increasingly weak. While reading the Torah portion on Simha Torah, Rabbi Palachi started to cry. This chapter of the Torah was the last prayer Moshe Rabenu recited to the children of Israel before his death. The congregation started crying with Rabbi Palachi. People sensed that his death was close. When he died a few months later, on 17 shevat 5628, many Jewish and non-Jewish people from ?zmir attended his funeral. Due to their respect, many tradesmen closed their businesses and attended his funeral. With the Sultan’s order, an official ceremony was arranged, with part of the Ottoman army in attendance.

Rabbi Palachi was buried in Bahri Baba Jewish cemetery.
***
Rabbi Eliezer Gabay had lived in ?zmir a while before making aliyah to Israel in the 1960’s. During his stay in Izmir, he received an education in Mahazike Tora. After his migration to the city of Lod in Israel, he established a yeshiva in the name of Rabbi Hayim Palachi and made a great effort to teach Rabbi Palachi’s books. He convinced the governor in Izm?r and mayor Ahmet Pri?tina to designate Rabbi Palachi’s tomb as a sacred place. In addition, with the support of the community, using the water flowing from the nearby spring, they built a mikveh.