National Scholar Updates

There is a type of "middle of the road" approach in religious observance that is passed down from one generation to the next, an approach that does not always coincide with what is practiced in the world of the yeshiva. It is quite common for a son to return from yeshiva and begin to find fault with the practices of the household: he doesn't approve of the size of the Kiddush cup; he wants to wear tsitsith so that they hang outside his shirt; he objects to preparing tea on Shabbat (by means of a "third vessel"), but insists on using tea concentrate, and so on.

I remember when I was a youngster entering the high-school-level yeshiva, and we began with the study of the Mishneh Berurah. Already on the first page I came across the obligation to wash one's hands in the morning upon awakening, right near the bed, without walking the distance of four cubits. This was something alien to what was customary at our home, and I was very embarrassed at the revelation that our household was not conducting itself according to halakha. I immediately adopted the new practice, to the chagrin of my parents. Only at a later stage in my life did I learn the kabbalistic basis for our household practice, its validity, and the many opinions that differed from the ruling of the Mishneh Berurah.
There are countless practices common in the households of observant Jews that do not coincide with recent books of halakhic rulings such as Mishneh Berurah, Shemirat Shabbat keHilkhata, Darkhei Tahara, and so forth. The yeshiva student's conflict between the written words of halakhic rulings and the experiential practices of the household find resolution in various ways, depending on the power of the competing sides. A household that governs itself according to halakha and a serious relationship with tradition will succeed in conveying to one who grows up within it the confidence that the "minhag (custom) of Israel is Torah" and one should not deviate from the practice of the household. But a household that is not confident in matters of tradition may lead one who is caught up in this conflict to choose to veer from the household practices. This has led to a phenomenon within the religious community of those who "turn in repentance" from the household practices and adopt a more stringent approach with practices that had not been the norms of the household. Thus, yeshiva students are identified by hanging their tsitsith outside their shirts, as called for by the Mishneh Berurah, in spite of the fact that their religiously observant fathers did not do so. We find Torah students of Sephardic backgrounds who are careful to don the tefillin of Rabbeinu Tam, even though their very traditional fathers did not do so. Many other examples could be adduced.

In all such examples, it is possible to see that the practices suggested by more recent posekim (halakhic decisors) are not universally accepted by other posekim, and it is possible to maintain the household traditions without halakhic difficulty. Clearly, in the yeshiva world there is pressure directed at elevating and purifying religious life, manifested in a meticulous concern for halakhic details. Educating the public toward the validity of the "middle of the road" approach requires the educator to be strong and comfortable with the perpetuation of tradition based on the practices of generations of religiously observant Jews. The argument that this approach fails to challenge and energize the religious soul, in the way that traditional yeshiva education does, is a serious one and should not be dismissed. It is critical to confront this challenge, but never at the expense of the tranquility of a measured and balanced Torah life.
In contradistinction to the ideal "middle of the road" approach that reflects many of the ideals of Torah im derekh erets, certain religious communities have created norms that barely meet minimal halakhic standards, for example, activities of a mixed society such as mixed swimming or dancing. The spiritual leadership of a community must take a stand with respect to these norms, either by speaking out or by remaining silent. As we know, failure to respond is in itself a response.

Because of these manifestations, many great rabbis have shunned the yoke of formal rabbinic leadership. Great sages such as the Gaon of Vilna and the Hafetz Hayyim recognized their own inability to compromise or close their eyes to the "middle of the road" approach of fulfilling the halakha. Many heads of yeshivot who came from Lithuania (Brisk and its offshoots) followed their example. They preferred to be enclosed in the four cubits of halakha and Torah, and to leave the responsibility to other rabbis to create a bridge that connects the Torah and the people. These other rabbis may have been on a lower level of Torah knowledge, but they bore on their shoulders the burden of communal leadership. Synagogue rabbis and teachers, from time immemorial, were called upon to confront communal norms that were not in line with halakha. The commandment to chastise sinners often stood in conflict with the biblical concern (in Proverbs) not to chastise someone who might then come to hate you. Is it better to choose the path of silence, or is a rabbi obligated to chastise, regardless of how people will respond? In fact, we know that many of our Sages tried hard to close their eyes to sinners, when they knew their chastisement would not have a clear positive result. However, one cannot shut one's eyes to the fact that there is also a danger in this approach.
A "middle of the road" approach to halakha that is characterized by religious compromise has caused a serious depreciation in the effective status of the "ideal middle of the road." The yeshiva world has identified the Modern Orthodox community as a community that is dissatisfied with religious principles.
It is our responsibility to restore the glory of the ideal "middle of the road" approach, and to distinguish between it and religious compromise. I am not certain that the ideal "middle of the road" approach will succeed in firing the hearts, but it is certain to maintain the warmth of Torah and derekh erets and to transmit it with care and confidence to future generations.

I will close with a comment on extra religious meticulousness during the Ten Days of Penitence. The Shulhan Arukh states that one should avoid eating "gentile bread" during this period. Rabbi Efraim Zalman Margaliot, author of Mateh Efraim, commented on this passage and noted the custom of pious people in Talmudic times to be stringent in the matter of eating food only while in a state of ritual purity. Rabbi Margaliot indicated that this stringency would be quite difficult and strange in our times. He wrote:
There are some pious individuals who are stringent with themselves and eat their food in purity during these days. One who does this, needs to seek grain upon which no water has fallen that would have made it receptive to ritual impurity; the flour needs to be mixed with fruit juice (rather than water). When he wishes to drink, he needs to bend low and drink from the river or well, so that he does not touch them and make them ritually impure.

This sort of behavior can be described as being quite strange. These are acts of piety that distance a person from normative life and cast into doubt the strong religious foundations of the general community. Rabbi Margaliot warns us about this stringency:
One should not follow this practice, unless all his deeds are in holiness and purity and he conducts himself with utmost separateness. Otherwise, this [excessive stringency] is foolishness and bad-spiritedness and presumptuousness. Each person is obligated only to do what he can do [and not to adopt unnecessary stringencies].

Would that people would fulfill that which they are obligated to do.

The work of educators in Day Schools is not to be underestimated. The dedicated men and women who work with adolescents are especially worthy of our appreciation. The volatile years of adolescence, times full of excitement and turmoil, present our youth with many challenges—but also harbor tremendous potential for personal growth.

Several factors tend to inhibit the realization of the potential of these formative years. With almost exclusive emphasis on measurable academic achievements, the formal setting of the classroom provides a rather poor setting for fostering inquisitive minds and searching souls. Even the most committed, diligent, and talented educator will find it hard to overcome the disadvantages inherent in the system. He or she is often forced by circumstances to neglect fostering the personal growth of the student as a human being and as a learning and practicing Jew. We should consider seriously revamping our academic goals and significantly changing the structure of our schools. The purpose of this article is to suggest substantial changes in our curriculum that can enrich our students and better equip them for the future.

In my experience, one of the most prominent features of the graduates of Orthodox schools is a lack of sophistication in their religious language. Even the most intelligent student, who has already mastered the rudiments of a liberal arts education, who reads diligently and enthusiastically, is often deprived of any depth or breadth in his thoughts relating to God and God’s relationship with humanity. Although students’ concepts about these issues remain undeveloped, these same students are expected to deal with a wealth of secular knowledge while being bombarded by criticism of religion. By the time they finish high school, these students quite often have reached the conclusion that religious thought is a sham, and religious experience is, at best, a pleasant illusion. This problem can be alleviated quite easily—although some our educators need some aid in making the transition.

Maimonides expressed criticism of biblical imagery eloquently and at great length in the Guide of the Perplexed and concisely in his Mishne Torah. He was so successful in “cleansing Judaism of vestiges of idolatry” that his approach is viewed by many as the final word on this topic. Maimonides’ interpretation of all anthropomorphic expressions as metaphoric is so obvious to some, that the portion of the Guide that deals with this issue seems to be superfluous, even boring. Yet even one with the most rudimentary knowledge of Jewish Thought after Maimonides will understand that although Maimonides' work was extremely influential, it must be viewed as an opening remark in a multi-generational debate. One important focal point is haRav Shneur Zalman of Ladi’s criticism of the concept of “negative appellations.” He states that even this approach smacks of “reverse anthropomorphism” since God is viewed as the negative of our selves. The discussion has become especially vibrant in the last hundred years. From haRav Kook to Emanuel Levinas, thinkers have dealt with the issue of theological language in very compelling ways. The criticism of such language by Wittgenstein created a great wake of reactions even in the Torah world. Professor Yeshayahu Leibovitz and haRav Professor Eliezar Goldman became exponents of extreme interpretations of Maimonides’ approach.

For high-school students, the issue of religious language is essential. At the turn of the last century, haRav Kook already noticed that the pioneers of the “Second Aliyah” were heretical vis-à-vis the image of God that remained in their mind from the formative years of the heder. Beyond the question of belief lurks the question of religious experience. Religious language affects our ability to interpret universal human experiences in a significant and meaningful fashion—and may add important dimensions to our existence. It is likely that the development of rich and diversified religious vocabulary is a necessary condition for the advent of more intensive explicit experiences. Beyond this, it could be posited that sophisticated religious language actually may be instrumental in the formation of spiritual experience.

Programmatically, the following introduction may be useful to both educators and students to understand where we stand—and to suggest what path we may take to enrich our lives and energize our commitment. At this point in the progression of Jewish Thought, it is inappropriate to be judgmental or apologetic about any particular imagery. For those who have “Maimonidian” sensitivities, I would suggest using the format used by the mentors of the Mussar Movement. When using biblical imagery, they would simply add the words, “so to speak.” In my mind, even the rationalist approach is a form of human imagery for "silence is your praise." The simple analysis suggested uses three distinct models to delineate the basic imagery employed in Jewish Thought and liturgy up to, but not including, the novel thoughts of Professor Emanuel Levinas. As in all analysis using models as their format, none of these models represents any particular opinion that was expressed historically. They are extreme constructs and lack sophistication, yet I have found that they function as a very useful map as students find their way through our sources and their own experiences.

· God is an omniscient and eternal persona who created the world by decree and intervenes in history when so desired.
· God watches over creation, administering justice.
· God is capable of great wrath, "foaming at the nostrils," and even greater compassion, "hearing their cries."
· God is susceptible to argument and prayer. The imagery is vivid, extremely anthropomorphic—and even includes descriptions of God's thoughts and changes of heart.
· God is the prime mover—an entity beyond our comprehension.
· God is an incorporeal "being," complete and never moved.
· The dichotomy between Creator and creation of Tanakh is reaffirmed and enhanced.
· Theism approaches Deism.
· Divine providence, God’s administration of justice and retribution, the significance of prayer, the appearance of angels, and even revelation are topics that deserve and receive special attention in this approach as they seem to contradict its premises.
· God is both transcendent and imminent. Although God is beyond human conception, God’s essence permeates the cosmos.
· The dichotomy between Creator and creation of Tanakh is broken; Creation is not only a moment in time, but is in some sense an ongoing process.
· Beyond the historical influences on this imagery mystical experiences nourish these thoughts.
· In peak experiences mystics lose their sense of self and become absorbed in the unity of all being. This experience is interpreted as a reflection of the Divine within the material world.

Although these models of talking about God seem mutually exclusive, the approaches in our literature often use them simultaneously. The way these thoughts are combined often creates intriguing results. The models suggested can help us analyze sophisticated religious language used by great thinkers in our tradition.

In our schools and synagogues, biblical and rationalist language are often used simultaneously in very simplistic ways, yet intertwined beyond recognition. Ideas used together seem to contradict one another. Intelligent students are confused. Some blame their confusion on the Torah. Sloppy thought seems to prove that religion is only "opium for the masses." Questions on a particular mode are often confused with questions on the essence of Torah and the halakhic lifestyle.

Very often, systematic justice administered by a “transcendent being” of the rationalist model by some created mechanism is somehow tied to very personal biblical imagery. This is prominent in students' minds and can create an impasse. Although they have many experiences that would be interpreted directly as meaningful meetings of humans with their Creator, these experiences are not recognized as such. The religious language of the student is too narrow to encompass spiritual experience. Since each set of imagery—biblical, rationalistic, and mystical—expresses and nourishes distinctly different religious experiences, some students are left empty handed. They have yet to feel the presence of God in the biblical sense—but they have no words or ways to conceive of God in any other sense. Some feel the presence of God in their lives, but are convinced that their feelings are silly, since their conception of God does not fit the lofty being of the rationalist mode. The rationalist mode and the mystical mode tend to contradict biblical imagery in the mind—and even more so in the heart. Some students manage to live in a dichotomous world. As a brilliant student once told me: "Although I find Maimonides' approach in the Guide very convincing, I live my life with the distinct feeling that God is holding my hand." Another student commented: "Fortunately, I forget the Guide when I pray!"

It is my conviction that more students may remain devout if we enrich their religious language. It is important to note that mystical imagery is very potent for open-minded yeshiva students. Visiting a museum, listening to a concert, reading about the discoveries of contemporary physics, or seeing the smile of a child can be interpreted religiously in all three models. If students acquire a language of transcendence their lives, they may experience these activities as pivotal to the meaning of their lives.

The problem of the agunah—the woman whose husband refuses to give her a Jewish divorce—challenges the viability of Orthodoxy in a modern world that stands, if I may be given some poetic license, on the three pillars of equality, human rights, and the autonomy of the individual. How can it be that a Jewish woman in the twenty-first century is still dependent on the whims of her husband for her marital freedom?
In this article, I have three goals:

1. To describe the development of the tort of get refusal as a response to the problem of the agunah in the Diaspora and in Israel.
2. To explain why tort has gained popularity as a rejoinder to get refusal.
3. To argue that, although the tort of get refusal is not a systemic solution to the dilemma of the agunah, it is a step that may inspire the halakhic community to rise to the challenge of resolving this problem once and for all.

In recent years, various solutions have been proffered to end the problems of Jewish women and divorce. They include: prenuptial agreements (spanning the spectrum from the conservative Willig/RCA contract[1] to the more progressive tripartite agreement of Rabbi Michael Broyde[2]); annulment based on a major defect (Rabbi Rackman)[3]; and civil marriage.

Despite these solutions, agunot abound. I specialize in them, in particular since 1997, the year that I began my career as a cause lawyer, first as the founder and director of Yad L’Isha (1997–2004); and since 2004 as the founder and director of The Center for Women’s Justice. For the past ten
years or so, I have had the privilege to initiate the first and then a
series of successful damage claims against recalcitrant husbands in the
Israeli civil courts—referred to in legal parlance as "tort" cases. The term torts comes from the Latin, tortus, which means: twisted, crooked, dubious—like the husbands who refuse to give their wives a get—and
refers to acts that are wrong, cause harm, and should be redressed by
law. The idea behind these cases is that a husband who refuses to give
his wife a get is intentionally causing her emotional distress, and he should be obligated to make her whole for all the damages that ensue—including the infringements on her autonomy, her ability to remarry and have children, her pain and suffering—in the same way that he would be held liable for damages if he intentionally assaulted a third party.

The idea of using tort law as a response to get refusal was first raised in the United States, to the best of my knowledge, in the 1980s in two law review articles (one by Barbara Redman[4]; another by David Cobin[5]); and by Rabbi Prof Irving Breitowitz in an entire chapter in his book The Plight of the Agunah[6] entitled “Tort Law Theories." Although Redman and Cobin enthusiastically supported using tort as a remedy for the problem of get refusal, Breitowitz objected, noting possible U.S. Constitutional problems (church and state separation), as well the “classic” halakhic problems when it comes to divorce—the specter of the “forced divorce,” get me’useh.[7]

Some History

In the Diaspora

Notwithstanding the problem of separation of church and state, or issue of the “forced divorce,” Jewish women have turned in desperation to the civil courts all over the world to find relief from get refusal. To give just a few examples:

· Since the 1950s,
French courts have consistently awarded damages to wives whose husbands
refused to remove barriers to their remarriage despite their civil
divorce, declaring that such actions inflicted mental distress in
violation of section 1382 of the French Civil Code. [8]

· In 1967, a London court awarded Mrs. Brett a delayed lump sum payment of £5,000 for spousal support if her husband did not grant her a get within three months.[9] The judges held that the conduct of the husband “preclud[ed] the possibility of the wife remarrying and thus finding some other man to support her”; and that the husband was trying to “use his power to bargain and avoid payment of part or any maintenance award.”[10]

· In 1980, a family court in Sidney, Australia, citing Mrs. Brett’s case, issued a decision awarding 2,000 Australian dollars
in deferred alimony to Mrs. Steinmetz, claiming that her husband was
using “his power to prevent the wife from remarrying and gaining the
benefit of additional financial support which might come to her from
marriage.”[11]

· In 1985, the New York State legislature passed a law (familiarly known as the “First New York Get
Law”) requiring plaintiffs, as a prerequisite for filing for divorce,
to declare that they had removed, or were willing to remove, the
barriers to remarriage of their spouse.[12] Since then, Canada,[13] England and Wales,[14] Scotland,[15] and South Africa[16] have passed similar statutes.

· Not satisfied with the deterrent impact of the 1985 New York Get Law, in 1992 the New York legislature passed the “Second New York Get Law,” which allowed
a judge to take into consideration the failure to remove barriers to
remarriage when awarding alimony or dividing up marital property.[17]

· Isolated family courts in the United States have held that the ketubah requires husbands to give their wives a divorce and then ordered husbands to do so;[18] or that extortionist divorce agreements could be invalidated as unconscionable.[19]
In 2000, Judge Gartenberg of the New York Family Court voided an
unconscionable agreement in which Mrs. Giahn gave up almost all of her
rights to marital property in exchange for the get. Despite the agreement and the fact that the wife had fulfilled her part of the bargain, Mr. Giahn sadistically failed to give his wife a get for eight years. The judge held that the “coerced, unconscionable, and overreaching” divorce agreement “exploit[ed]
the power differential between the parties” and invoked principles of
“equity” and the “intentional infliction of emotional distress” to
award all the marital property to the wife (about $400,000).[20]

In Israel

In Israel, rabbinic courts have sole jurisdiction over matters of marriage and divorce.[21] So it was within the halls of the rabbinic courts, and in accordance with Jewish law, that we women lawyers and political activists first tried to find relief for the woman caught in the mire of Jewish divorce law. We asked the rabbinic courts to issue more orders against recalcitrant husbands, even to put them in jail. We asked the rabbinic judges to expand the grounds for interfering with a husband’s free will to give a get. We drafted prenuptial agreements that allowed for increased spousal support. And in the meantime, we collected growing numbers of agunot.
In 1999, Hanna came into my office. She was thirty-six years old and had lived apart from her husband since she was twenty-six. In 1994, the rabbinic court had tried to convince Hanna to give up all her property rights and to waive child support for her five children in exchange for the get.
She refused and saw no reason to return to the rabbinic court for
relief of any sort. Suing her husband for damages was her last resort.
In 2000, I filed a claim for damages for Hanna against her husband for get-refusal.
We argued that his refusal to divorce her caused emotional harm and
infringed on her basic rights to marry and have children. In December
2001, on the same day that Hanna's husband agreed to give her a get
in exchange for the dismissal of her tort claim, the Hon. Judge
Ben-Zion Greenberger of the Jerusalem Family Court denied a motion to
dismiss the complaint (File 3950/00); and held that get-refusal
is a tort since it violates a woman's personal autonomy protected under
the Basic Law: Human Dignity and Freedom. Similar law suits followed.
All held that damage cases were within the sole jurisdiction of the
family courts. All resulted in the husband giving the get in exchange for the dismissal, with prejudice, of the damage claims.
In December 2004, a particularly stubborn husband gave Judge Menachem HaCohen the opportunity to rule on the merits of a case. Judge HaCohen awarded a wife, another of my clients, 325,000 NIS in damages, and 100,000 NIS in aggravated damages (about $100,000 in total) (File 19270/03). HaCohen held that get-refusal
was a "tort" because it was unreasonable behavior that fell under the
rubric of negligence, section 35 of the Tort Ordinance.[22] In 2006, Judge Tzvi Weitzman, following the logic of Judge HaCohen, ordered the estate of a man to pay his wife 711,000 NIS in damages (about $180,000) (File 19480/05).
In 2008, three more women were awarded damages for get-refusal. The awards ranged from 377,000 NIS to 700,000 NIS (awarded to a woman who lived with her husband for only three months and had been refused a get for eleven years). In 2008, Judge Nili Maiman also denied a motion to dismiss a complaint against a mother, two brothers, and a sister, holding that a cause of action could prevail against family members for aiding and abetting get-refusal.
Since 2000, more than thirty women have filed for damages against their recalcitrant husbands. In many of these cases, the husbands agree to give the get in exchange for waiving the damage claims. In all of these cases the Bet Din was only too happy to be done with these cases and arrange for the get.
All
this notwithstanding, in March 2008, the Supreme Rabbinic Court held
that the filing for damages in the family court would invalidate
subsequent divorces because of the “forced divorce” (File
no.7041-21-1); and threatened that attorneys who advise their clients
to file tort cases are liable for malpractice. Attorneys continue to
file these cases; and men continue to give the get, or not. It all depends on them.

Why Tort?

In
an article that I have written for Brandeis “From Religious Right to
Civil Wrong: Using Israeli Tort Law to Unravel the Knots of Gender,
Equality and Jewish Divorce,” [23] I explain that tort
law is an important tool in the hands of innovative cause-lawyers who
want to reform Israeli divorce law, and whose vision of an ethical
Israeli society is one that is both Jewish and democratic. Tort law
allows these cause lawyers to articulate and reframe the problem of
Jewish women and divorce in a manner that makes room for such vision. Such reframing is far reaching in its goals and theoretical underpinnings.
Reframing is an act of translation in which an interpretive code ("schema") is transposed from one setting to another. This act of translation and renaming
allows the legitimacy of the familiar (harms should be redressed) to be
attached to the strange (a Jewish husband gives a divorce of his free
will).[24] Translation
is a creative but difficult balancing act in which the
translator-cause-lawyer must maneuver adroitly between tradition and
change, politics and justice, words and visions. The translator must try to resonate with existing laws and customs, and at the same challenge them. Cause lawyers who reframe a Jewish husband’s "right" to deliver a get at will into a civil "wrong," translate simultaneously in more than one direction. They reframe tort law to include get-refusal;
and they reframe religious law to recognize the forced divorce as an
actionable injurious act. They translate transnational human rights
principles (women have the right to divorce[25]) down into civil tort claims; and they translate local religious practice (only the husband can give the get) into tort violations.

I
posit that these delicate acts of translation and reframing allow cause
lawyers to define and delineate the problem of Jewish women and divorce; rally consciousness and unite women; demystify an act of power; defrock a religious act; and bring the State in to redress the harms inflicted on its citizens. Moreover, by constructing the tort of get-refusal, cause lawyers draw attention to the conflict of values between religious divorce laws and civil/human rights, and force a dialogue that the rabbinic courts would otherwise avoid.

Why Not?
Freedom's just another word for nothin' left to lose,
And nothin' aint worth nothin' but its free
“Me and Bobby McGee" Kris Kristofferson, Fred Foster
The women who bring these claims against their husbands have waited on average of ten years before bringing them. Once filed, either they receive their gets, because their husbands agree to give them of their own free will--and the rabbinic courts, in fact, have arranged for those divorces without raising any question regarding their validity; or the husbands refuse to give the get of their own free will, and the court awards damages to the wives. Sometimes the women collect on these judgments; and sometimes they don’t. If they do, it’s when their husbands are financially solvent. If they don’t collect, they offer up their decisions as a sacrificial deterrent for the benefit of other agunot.

The only reason to stop bringing these lawsuits would be if Orthodox rabbis finally acknowledge that the problem of Jewish women and divorce must be solved. They must take the power to give a get,
or not, out of the hands of the husband. The problem of the “forced divorce” must be understood as a euphemism for giving unfettered and unilateral dominance to men over their wives. The rabbis must change the Jewish marriage ceremony at its core, or allow for marriage to be entered into on conditions that guarantee proper divorce rights for women.[27] Until that happens, women must keep filing tort cases.

[1] “The Prenuptual Agreement, Halakhic and Pastoral Consideration,” Basil Herring and Kenneth Auman, eds. 1996, 45–53. See also Susan Weiss, Sign at Your Own Risk: The "RCA" Prenuptial May Prejudice the Fairness of Your Future Divorce Settlement, 6 Cardozo Women's L.J. 49 (1999).
[2] Response of Rabbi Broyde to Rabbi Dr. Aviad HaCohen’s “Tears of the Oppressed,” Edah online journal.
[3] Susan Aaranoff, Two Views of Marriage, Two Views of Women: Reconsidering. 3 Nashim 199 (Spring– Summer 2000); but see Rabbi J. David Bleich, Kiddushei Ta’ut: Annulment as a Solution to the Agunah Problem, 33:1, Tradition 90, 115 (1998).
[4] Barbara Redman, What Can Be Done in Secular Courts To Aid the Jewish Woman? 19 Geo. L. Rev. 389, 416 (1984—1985).
[5] David M. Cobin, Jewish Divorce and the Recalcitrant Husband: Refusal to Give a Get as Intentional Infliction of Emotional Distress, J. L. & Religion 405 (1986); Breitowitz, The Plight of the Agunah, supra note 42, 239–249.
[6] Irving A. Breitowitz, Between Civil and Religious Law, the Plight of the Agunah in American Society 286–291 (1993).
[7]
Orthodox lore maintains that a Jewish divorce is only valid if a get is
given by a husband to his wife of his free will. A divorce that is
given after applying pressure that impinges on a man’s will is invalid
(literally a forced divorce, a get me’useh)
unless such pressure is applied by a Jewish court, within the limited
parameters of the causes of action recognized by Jewish law. See M. Yebamot 14:1 (T.B. Yebamot 112b): “A
man who divorces is not like a woman who is divorced because the woman
is divorced with her consent or against her will, while the man divorces only with his own free will.” See also Rambam, Dinei Gerushin (Laws of Divorce), Chapter 1, Laws 1 and 2.
[8] See Jean Claude Niddam, Emdatam Shel Batei Mishpat HaEzrahiyim BeTzorfat Klapei Tviot Neged Ba'alim Yehudiyim LeMisirat Get [The Position Taken by the French Civil Courts in Suits for a Jewish Divorce Against Recalcitrant Husbands] 10/11 Diné Israel 385 (1981–1983) (includes translation into Hebrew of six French cases decided between 1955 and 1980). Despite attempts by French husbands to claim that damage awards violate the halakhic
prohibitions against the forced divorce, French rabbis have held that,
insomuch as such damage awards relate to time past (and not to the
future), they do not violate Jewish law. Memorandum from Annie Dreyfus (in French) (on file with author).
[9] Brett v. Brett 1 All ER 1007 (1967).
[10] Ibid., at 1011, and 1015.
[11] In the Marriage of Steinmetz, 6 Fam LR 554 (Fam. Ct., Aust., Sydney) (1980).
[12] N.Y. Dom. Rel. §253 (McKinney 1988).
[13] Canadian Divorce Act §21; Ontario Family Law Act, Section 56 (5), Limitations on Separation Agreements.
[14] England and Wales, #000000">Divorce (Religious Marriages) Act 2002 (came into force on 24th February 2003).
[15] http://www.scotland.gov.uk/library/documents-w8/isfl-03.htm (recommends adopting the law in England and Wales).
[16] South Africa, §5a The Divorce Amendment Act 95 (1996).
[17] N.Y. Dom. Rel §236B Section 5(h).
[18] Stern v. Stern, 5 Fam. L. Rep. (BNA) 2810 (N.Y. Sup. Ct. 1970); Burns. v. Burns, 223 N.J. Super. 219, 538 A 2nd 438 (N. J. Super. 1987); In re Goldman 196 Ill. App. 3d 785, 554 N.E. 1016 (Ill. App. Ct. 1990); But see Breitowitz, Plight of the Agunah, supra note 41, at 77–96 (criticizing the courts' interpretation of the ketubah as an implied contract to give a get).
[19] Perl
v. Perl, 126 A.D.2d 91, 512 N.Y.S.2d 372 (1987); Golding v. Golding,
176 A.D.2d 20, 581 N.Y.S.2d 4 (1992); Schwartz v. Schwartz, 153 Misc.2d
789, 652 N.Y.S.2d 616 (1997).
[20] Giahn v. Giahn (Sup. Ct. N.Y) (April 2000) available at http://www/jlaw.com/Recent/giahnhtml. See also Weiss v. Goldfeder NYLJ, Oct. 26, 1990 (maintains that withholding of the get may be tantamount to the intentional infliction of emotional distress).
[21] §1 Rabbinic Courts Jurisdiction (Marriage and Divorce) Law 5713–1953
(“Matters of marriage and divorce of Jews in Israel, being nationals or
residents of the State, shall be under the exclusive jurisdiction of
rabbinic courts.”)
[22] On December 5, 2007, The Supreme Court of Canada awarded damages to a woman whose husband breached an agreement to give her a get, citing Judge HaCohen’s decision is support of same.
[23] In Gender, Culture, Religion, and Law (Publication Pending).
[24] See Patrick Ewick and Susan S. Silbey, The Common Place of Law (1998); Austin Sarat and Stuart Scheingold, The Worlds Cause Lawyers Make: Structure and Agency in Legal Practice (2005) (discusses how lawyers use schemas creatively).
[25] CEDAW (Convention for the Elimination of Discrimination against Women).
[26] Meir Simha HaCohen Feldblum, “The Problem of Agunot and Mamzerim: A Proposed Encompassing and General Solution,” 19 Dinei Yisrael 203–215, 212–3 (1997–8).
[27] See Eliezer Berkovits, T'nai beNisuin veGet (Conditional Marriages and Divorces) (1967).

There was no Rabbi more concerned with tseni'ut (modesty) than R. Moshe Feinstein. He was against men shaking a woman's hand even as a polite greeting (IM OH 1:113; EH 1:56). Even in circumstances when the law didn't strictly prohibit the mingling of men and women, he encouraged God-fearing people to avoid such situations.

There is, however, one place where R. Feinstein had no problem with men and women being together: the marketplace. In workplaces, on trains and buses-including the crowded New York subway system-R. Feinstein's stance is absolutely clear. There is no halakhic, or even spiritual problem, with men and women sitting next to each other in such situations: "Because, " wrote R. Feinstein, "unavoidable and unintentional physical contact is devoid of sexual connotations....And if a man knows that he will read into this contact sexual connotations...he should focus his mind on Torah. For it is idleness that causes a man to be prone to lascivious thoughts" (Even HaEzer 2:14).
All this was asked and answered decades ago.

If, then, there is clearly no halakhic problem, what is really behind the sudden rise of Hareidi demands that public buses in Israel be sex-segregated, women banished to the back door and the back seats? Furthermore, what is the motivation of the women, almost all of them Orthodox like myself, who have taken the unprecedented step of filing a legal complaint in Israel's Supreme Court to stop Israel's Ministry of Transportation and the monopolistic public bus lines Egged and Dan from caving into Hareidi demands? Where are the battle lines being drawn, and what will be the meaning of victory or defeat in this newest arena of modern ultra-Orthodox re-fashioning of Jewish life to fit an image and a lifestyle that has no Jewish precedents?

The desire for sex-segregated buses is not new. Over a decade ago, Hareidi elements in B'nai Brak pressured then Minister of Transportation Yitzchak Levi to allow two public buses serving Hareidi neighborhoods within B'nai Brak to require separate seating. From this seemingly small and very limited accommodation to the sensibilities of extremist elements in a tiny, isolated homogenous religious sector in a small section of a small town, was born the idea that a public bus, serving the general public, can make demands relating to gender, invading their passengers' private space to decide what seat they can or cannot choose to sit in on a public bus; how they can dress, and what the driver can listen to on the radio.

Before that time, Hareidi passengers managed to ride public buses without undo difficulties. Honestly, many were the times when I voluntarily chose to find another place to sit rather than impose my presence on a Hareidi man. I did this out of a sincere desire not to affront what might be a delicate religious sensibility, despite the clear lack of any halakhic basis. Used to the idea of Jews who require a hekhsher on salt or detergent-without any halakhic basis-I did not want to step on anybody's list of no's. Why make someone uncomfortable if you don't have to? Where I drew the line was standing if no other seat was available. My feeling was that if one decides to adopt a humra (stringency), others need not suffer. If he had a problem sitting next to me, he was welcome to stand. I am sure many Hareidi men welcomed the opportunity to give their seats to elderly women, or to a woman carrying a child and a baby carriage. I remember that a Hareidi man actually did get up and offer me his seat when I was eight months pregnant, and the bus was in sardine-class mode.

When did this status quo suddenly become unacceptable? And more importantly, why? Is this really a battle over religious observance? Or is it a battle over something far less holy, and far more prosaic? "Separated buses are a wonderful opportunity to make some easy money in the Hareidi society; and this is what makes this issue so harsh," says Yonatan (not his real name), a Hareidi resident of Sanhedria in a recent article published in the Jerusalem Post. "From outside, in the secular world, it seems as if it is all about these things you may call fundamentalism. This is indeed how it started. But today, inside the Hareidi society, it is mainly a matter of earning a living. People here ask, 'Why should we renounce such an opportunity for profit, especially in these days of economic turmoil, and leave the profit to Egged?'"

According to Israeli law, the Ministry of Transportation must approve all bus stops, routes, and fares. Getting approval involves paying expensive tariffs to the Ministry of Transportation. Unauthorized buses and taxis are known in local slang as chapperim. In 2001, Hareidim began to operate just such an unauthorized line between Jerusalem and B'nai Brak, claiming that communication between them and the bus companies had broken down, and that their demands--including not only separate seating but also what music could be played on the radio, and what the stores in the Central Bus station could advertise and sell-were not being met.
In an article published on the Hareidi website Dei'ah Ve'Debur in 2001, author Betzalel Kahn wrote:

The Vaad Mehadrin, which acts in accordance with the dictates of gedolei Yisroel, faced two challenges-the
failure to come to a settlement with the various parties; and the bureaucratic obstacles placed before the route's implementation. As a result of the obstacles, the Vaad Mehadrin decided to utilize an independent, shomer Shabbos bus company to operate a new Jerusalem-B'nai Brak route, mainly as a means to pressure the bus cooperatives and the Ministry of Transportation to run the 402 line. The mehadrin line carried about 14,000 passengers during hol haMoed Succoth. This seems to have jarred the other factors into taking action. The one-way price was only NIS 10 (about $2.32) as opposed to Egged and Dan's inter-city fare of NIS 18.50 (about $4.29). The independent line's fare is 46 percent cheaper, without government subsidies and it still made a profit (emphasis added).

One cannot help wondering if this would have been true if tariffs had been paid.
The article continues:
Rabbi Micha Rothschild, one of the Vaad Mehadrin heads, said in an earlier interview, "Instead of the heads of the Transport Ministry meeting the minimal request of gedolei Yisroel, who demanded throughout the years to operate mehadrin lines for the Hareidi public, the Ministry of Transportation continued with its scheming against the new mehadrin line. Transport Ministry inspectors-with police assistance-followed the buses, stopped the drivers, fined them thousands of shekels, and even wanted to suspend the company's operating license. Such a situation is intolerable. The Hareidi public, which (almost) entirely utilizes public transportation, deserves a route run according to its values.
In recent weeks, Hareidim in Jerusalem began running their own mehadrin bus routes to the Kotel-again, illegally, without applying for a license or paying tariffs. This, they said, was in response to the Supreme Court's interim decision on our petition to prevent the bus companies from designating any more routes as mehadrin until our case was decided. Before we filed, new mehadrin lines were sprouting at the rate of ten a month all over the country, and not between Hareidi communities, but cities. This line, which did not apply for a license, and did not pay fees to the Ministry of Transportation, and had thus made no attempt to become legal, was shut down. The result was a carefully orchestrated "riot" by the Hareidi "public" who stoned Egged buses, causing the bus company to finally stop cooperating, taking umbrage, and refusing to provide any buses at all to Meah Shearim that day.
I must say I was delighted to see Egged finally show a little backbone. Unfortunately, Egged seemed far more outraged to see its profit margins attacked than its female passengers. I say this from personal experience.
My own involvement with this issue began several years ago when I inadvertently got on a completely empty bus that followed the most direct route to my then neighborhood Ramot, in Northern Jerusalem. Let me emphasize that my neighborhood was mixed: Orthodox, non-Orthodox, and Hareidi. At that time I had no idea such buses existed. I got on one not because I wanted to start a feminist protest, but simply to get home as quickly as possible from the center of town.
Choosing a single seat near the front of the bus, which was clearly visible to the silent driver who issued no demands and no warnings about what I had just unwittingly stepped into, I sat down and opened up a newly purchased magazine. Soon a young Hareidi man sat down in front of me. He turned around and delicately informed me that I wasn't allowed to sit where I had chosen to sit. I closed my magazine and looked at him. He was about my son's age. "Listen," I said. "I'm not sitting next to anyone. No one has to look at me if they choose not to. This is a public bus, and I'll sit wherever I choose." He didn't argue. Actually, he seemed uncomfortable, and simply turned around. Little did I know that this young man was actually trying to help me.
Returning to my article, I didn't notice that the bus was filling up in a peculiar, gender-segregated manner until a huge, sweating bear of a man in a black suit and hat leaned over me threateningly and shouted: "Move to the back of the bus! Who do you think you are? There are laws in this country!"
I stared at him, then looked around the bus. I was the only woman sitting in the front. My sisters were all in the back. Not a single one of them lifted her head or her voice. It was a moment of truth for me. I guess I could have gotten up and moved to the back. If only the gentleman in black wasn't hanging over me barking orders, perhaps I would have. But to be addressed in public in such a humiliating and aggressive manner by a stranger who felt that he had the right to order about with such barbaric lack of manners someone old enough to be his mother ('s younger sister) made me realize that I could not, without ruinous consequences for my dignity and self-respect, accommodate him. It really did make me feel like Rosa Parks. And so I said, quietly, but in hearing distance of all: "When you bring me a Shulhan Arukh and show me where it is written that I can't sit here, I'll move. Until then," I suggested a few places where he might go in the interim.
The reaction was explosive. He leaned in close and started to call me names that I shall not repeat. There is no question in my mind, that only the prohibitions of negiah (non-permitted contact with someone of the opposite gender) prevented him from picking me up bodily and heaving me out of my seat.
This is not paranoia.
Miriam Shear, a Canadian grandmother who took the number 2 bus to the kotel to pray every day (a bus not designated mehadrin by the way) who took a front seat and refused to move, was spat upon, had her head covering torn off, and was thrown to the ground and beaten by men in ultra-Orthodox clothing who apparently had fewer scruples about negiah.
Horror stories abound: A pregnant woman got on the 318 midnight bus from B'nai Brak to Rehovot. She sat in the front because of motion sickness, explaining this to the other passengers. One Hareidi man stopped the bus by standing with one foot outside and one on the step up so the driver couldn't close the door. The woman finally fled into the street in the middle of the night. The other passengers went looking for her and found her under a tree, humiliated, hurt, and refusing to re-board. She called her husband to come and get her. A young woman on the midnight bus from Safed to Afula boarded wearing pants, and had to fight with the driver and other passengers who insisted that she be thrown off the bus in the middle of the road. A grandmother helping her son and grandchildren to board a bus in Beit Shemesh through the front door was attacked and cursed. I could go on.
Faced with these horror stories, rabbinical response has been slow and mixed. There are of course, the people who got all this moving. Shlomo Rozenstein, a Vizhnitz Hassid and a city council member, has been at this for over eight years. "This is really about positive discrimination, in women's favor," he said recently to Katya Allen of BBC News. "Our religion says there should be no public contact between men and women, and this modesty barrier must not be broken." I'm sure R. Moshe Feinstein would have been surprised to hear this.
Modern Orthodox rabbis have not been in the forefront of this battle, but neither have they been silent. Rabbi Ratzon Arussi, chairman of the chief rabbinate's council on marital affairs and rabbi of Kiryat Ono, said that: "Halakhically speaking, it is preferable for a man to sit next to his wife than to have other women pushing past him to get to the back of the bus. Being with his wife keeps the husband's attention focused. Seating men up front causes additional problems. For instance, pregnant women or women with heavy bags are forced to walk all the way to the back of the bus. It is obvious that the men who initiated the mehadrin line did not think about women or about the halakhic problems created."
Indeed. A woman recently wrote to Rav Yuval Cherlow for a halakhic ruling, saying that she is forced to use the mehadrin lines to get to work, but that she finds it degrading to be told where to sit, and she is also prone to motion sickness at the back of the bus. Should she respect the religious extremism of others and go to the back to her own discomfort? Can she sit in a vacant front seat if there are not seats in the back? And what about elderly and pregnant women? His reply: "there is great importance in keeping the public forum a place that is tsanua, not having immodest advertising signs up, for example." But, Rav Cherlow also writes, "I am against the mehadrin buses. These buses are mehadrin in shaming other people, in dealing with tseni'ut in an immodest fashion." Rav Cherlow goes on to advise the questioner that if she is not doing it to stir up trouble, but for a purpose, such as health, or when there are no seats available elsewhere, "then you can sit wherever you want. And those who change things, they have the lower hand."
Can we not, all of us who care about real tseni'ut, agree that any benefits from a policy of sex segregation on public buses are far outweighed by the hardships and sins that such a policy causes? And can we not agree that the real result of this battle so far has been the transformation of neutral public spaces into sexually charged battlegrounds characterized by the verbal and even physical abuse of women who fail to fall into line with the new rules?
If we complain that the Reform Movement plays fast and loose with Jewish law, what is one to say about those in the Hareidi world who insist on twisting the halakha into the particular shape needed to accommodate their desire for both profit and a very particular and minority view of what constitutes purity in the public sector?
As for me, and the women who filed the petitions against these buses, I will repeat what I told the Jewish Chronicle in February 2007: "The insidious degradation of the faith I was born into, love, and have practiced faithfully all my life by fanatics who pervert its meaning in order to bully women in the name of God is something I cannot, and will not, abide. First and foremost because it is a desecration of God's name; and second, because it is limitless."
Modesty patrol hooligans already roam our Jerusalem streets. Paint and bleach have already been thrown at women by Hareidi "fashion critics"; immodest clothing has been snatched from Meah Shearim homes in house to house searches, and posters screaming "Dress modestly-or else" adorn many public streets. Now there are women being sent to the back of the bus, one more way for Judaism to go backward, turning our future into a past that never was.
I believe the time has come for rabbinical voices to be raised in protest against the treatment of women on these buses. As a Hareidi woman told me recently: "We hate these buses, but we can't say so openly because we don't want to be accused of being immodest. Someone has to speak for us."

In suburban Baltimore, MD, the Jewish Community Center in Owings Mills is contemplating establishing Shabbat hours with activities. The Orthodox community called a protest rally in opposition to this policy change. The rally’s purpose was to celebrate “the beauty and sanctity of Shabbat.” The rally was “officially” against “nobody,” but seemed to be occasioned by the new Shabbat policy of the JCC. In much of contemporary Orthodox life, spin is critical; one must sound “liberal” and reasonable but act traditionally and with a countercultural, parochial agenda.

“’This is going to be a very positive program for the support of Sabbath observance,’ said Eli Schlossberg, one of the rally’s organizers. “Just like the last one we had, we’re not coming out against anything or anybody.” If this euphemistic claim were indeed the case, that the rally and Orthodoxy is “positive” and not against anyone, the rally would have occurred not in response to the JCC opening on Shabbat, but as an unconditioned and unconditional invitation to experience Shabbat.

The Owings Mills facility is not located in an Orthodox neighborhood, and it serves a largely non-Orthodox population. On the other hand, the Park Heights JCC, serving a mostly Orthodox population, will not open on Shabbat. A 3500 person protest took place 12 years ago when the Owings Mills JCC considered opening on Shabbat. The social/religious meaning of the new rally and the rhetoric that justifies the rally requires analysis.

My own position is that the JCC ought to be closed, but the Orthodox community should not squander its moral voice on these kinds of communal conflicts. Orthodoxy must teach by gentle example and not with coercion or protests.

We have to examine and understand
[1] The position of those who want the JCC in Owings Mills to remain closed,
[2] The reasons supporting the opening of the JCC on Shabbat,
[3] The position of Rabbi Joseph Soloveitchik regarding religious coercion, and
[4] What a responsible Orthodox response ought to be

[1] The position of those who want the JCC in Owings Mills to remain closed Those who advocate forcing the JCC to remain closed on Shabbat maintain that the word “Jewish” really means something significant, dear, and sacred. Being Jewish means that Shabbat is important, beautiful, divine, and yes, obligatory. It is a violation of Judaism to desecrate the Sabbath, and “Judaism” and “Sabbath violation” are as antithetical as are the terms “Jewish” and “non-Jewish.”

Opening the JCC on Shabbat will offend good, pious, and sincere Jews, the most Jewish of Jews, the Jews for whom Judaism is too precious to be compromised. And violating the Sabbath in the name of the community will disrupt and, heaven forefend, undermine the unity of the community, whose existence is assured by the commitments and feelings of the consistently, fervently and steadfastly Orthodox community who observe the Shabbat and want all Israel to share in Shabbat observance. God said: “remember and observe” the Sabbath and we dare not forget what God commands in the Ten Commandments. How can we call ourselves Jewish if we deny what God says, ignore what God orders, and we without sensitivity to Jewish belief, practice, and sensibilities?

[2] The reasons supporting the opening the JCC on Shabbat, Those who wish to open the JCC have their reasons as well, which from the perspective of its segment of the Jewish community, also make sense. And in order to feel their feelings and respect their integrity, we, the Orthodox community, are morally and religiously required to hear them as we wish to be heard by them. Rightly or wrongly, there are those who adhere to different Judaisms, who believe, behave and belong as Jews without Orthodox commitments. In New York, the “Y” is open on Shabbat; in Israel, people are allowed to observe Judaism any way that they choose; and in Haifa, busses run on Shabbat. Just as Orthodox Jews resent and resist pressure to abandon their cherished beliefs and opinions, other Jews who identify as Jews also cherish their autonomy, the right to define their personal expressions of spiritual identity, and do not look to Orthodoxy for authenticity, be the issue rite observance or right morality, and for whom Shabbat afternoon is leisure time to be celebrated as a matter of personal choice. Why should the beliefs of others impede, impinge, or impose themselves on those who believe differently?

Jews have always defined themselves differently. Today we call this phenomenon “pluralism.” We have a right to act in ways that others believe to be wrong. Orthodoxy has its own issues. People with the wrong head covering, the wrong color of clothes, with the contamination of secular studies and ideas, and those unwilling to accept the Orthodox flow are not, for some, “really Orthodox” either. So let’s live and let live, agree agreeably to disagree, and to compete constructively with each other and not contend cantankerously against each other.

[3] The position of Rabbi Joseph Soloveitchik regarding religious coercion In Thinking Aloud, p.41, edited by Rabbi David Holzer, a record of R. Soloveitchik’s oral musings on current issues appear, teaching three essential doctrines: a. thinking is allowed b. we are allowed to disagree with the consensus c. coercion may never be used in modernity to enforce compliance.

When Rabbi Joseph Soloveitchik was sent to Berlin to study philosophy, pressure was put on his father, Rabbi Moshe, to disallow the study, the exposure to heresy, the very bad social religious example of non-conformity, and the frontal challenge to accepted, conventional religion. Rabbi Joseph went to Berlin, and his father, R. Moshe, blackballed by fanatics, came to America to teach at Yeshiva University.

The Biblical Joshua and Caleb defied the consensus of 10 wrong-headed spies, Moses ignored the consensus created by Pharaoh’s tyranny, the prophets rejected the consensus of ancient Israel’s regnant elites, and no Judaism that is authentically Orthodox regards the consensus of a self-selecting clique to be a covenantal command. When told by a student that his understanding of a Talmudic passage disagrees with the “consensus of latter day sages,” i.e., aharonim, R. Soloveitchik responded that he too is an aharon, a latter day sage. There is no rule in Judaism that insists that a post-Talmudic rabbinic consensus, which is not convincing, may be coercively applied.

Rabbi Soloveitchik is modern and not ultra-Orthodox for a reason. Just as the Biblical Joseph saw ancient Israel in Egypt as a new reality, requiring a different approach to a world that is different from that of his ancestors, R. Joseph Soloveitchik saw the Holocaust and Israeli statehood as new realities which Jewish law must address and confront. He therefore contends:

I am at loggerheads [i.e., in disagreement] with the entire [Orthodox] Jewish community. But I can’t help it. No undue influence and no coercive circumstances must interfere with the behavior of the person. If one is constrained by legislation which is provided by effective sanctions, by public opinion, by ulterior considerations to conform to certain codes of morality or ethical standards, then the sublime sacrificial action is desecrated, vulgarized. [Think Aloud, p. 41]

For R. Soloveitchik, the individual conscience, both of others as well as his own, is inviolate. Being coerced to observe the Sabbath makes for an angry Jew, not an observant, believing or loyal Jew. Folkways and customs are neither commandments nor are they inherently religious acts. R. Soloveitchik regards the placing of phylacteries [tefilin] on the person of one who has no cognition is a meaningless act, and not a religious deed. An Orthodox Judaism that coerces conformity, that stifles individuality, i.e., the very image of God, and applies social disapproval for actions and attitudes that regnant elites regard to be socially disruptive, secularizes the sacred and is not Orthodox at all.

[4] What a responsible Orthodox response ought to be If I am reading Rabbi Soloveitchik correctly, Orthodox Judaism in modern times must understand mitsva not as “good deed,” a secularizing of Torah, and not as a coercive “command,” but as a “precept,” more enjoining than commanding, never denying the possibility of dissent. Those who would ride to or swim at the JCC will do so in less Jewish environments, facilitating intermarriage. Orthodoxy must be a loving, accepting moral model, not a coercive clique of clerics for whom conformity to their righteous will is unreasonably reified into the rule of God.

Orthodox Jews have a right to require kosher food at the JCC, so that the JCC be the center of an inclusive, i.e., not excluding, Jewish community. No one forces Orthodox Jews to violate their conscience; Orthodox leaders must take pains to respect the feelings of non-Orthodox Jews who believe, behave, and belong differently. Orthodoxy has a right to demand that it not be excluded from the organized Jewish community; in return, Orthodoxy must serve as a model and not a menace, as a conscience but not as an enforcer, as pious gentle examples of goodness and not as a judgmental thought or behavioral police force.

More critically, Orthodoxy must walk humbly before God and show dignity before humankind. All too often, Orthodox Jewish leaders confuse respect for God with respect for human leaders. God has a right to rule absolutely, human leaders do not have this right. God gave the Torah as a book that we read, share, revere, and reference, sanctifying our conversation. If Orthodox Judaism is to be a Judaism for all times, seasons, and Jews, it must in modern times apply Rabbi Joseph Soloveitchik’s strategy of sharing the Torah in respectful conversation. Jews who do not like Orthodox Jews will not wish to live as Orthodox Jews.

Rather than coerce or manipulate others to conform to Orthodox norms, subtly conceding that Orthodoxy is right and other Judaisms are wrong, Orthodox Jews must become God’s goodwill ambassadors instead of appearing as God’s political shock troopers. By respecting the integrity of the other, the image of God that inheres in the other may shine; by speaking as if our voice is God’s voice, it is God’s voice that is sadly silenced. Rabbi Moshe ibn Hagiz taught that the Torah was given without coercion; that Israel’s decision to accept the Torah had to be reported to God because a literal reading of what God said did not indicate that a mountain was threateningly suspended over Israel’s collective head. Only people who are free to resist the Torah are able to accept the Torah freely. Orthodoxy denies this existential choice to other Jews in defiance of God’s Sinaitic example.

What should I do when my best and most honest reading of halakhic texts contradicts
my deepest sense of right and wrong? Can I relate with reverence to talmudic
rhetoric that, if used by a contemporary, would fill me with disgust or
outrage? What should I think when I am intellectually convinced by historical
or philosophic positions that seem to contradict significant elements of Jewish
tradition?

Torah is the standard by which values must be judged, yet a person without values
cannot properly interpret Torah. If Torah cannot anchor us against the winds
and tides of moral fads, what use is Torah? And yet—how can we know that “Do
not murder” is the norm, and “Erase the memory of Amalek” the problematic
exception, unless we approach Torah with a prior unshakeable commitment to the
value of all human life?

I have struggled with these questions since high school and emerged with an
enhanced but clear-eyed commitment to and appreciation for halakha and rabbinic
tradition. In that process nothing challenged my faith more than finding
teachers who were afraid of difficult religious questions or whose character
made it hard to believe that Torah improved the world. Nothing strengthened my
faith more than friends and teachers who faced religious challenges without
flinching, and whose character embodied Torah at its best—but they were all too
rare.

The Center for Modern Torah Leadership (CMTL) was founded twelve
years ago to make sure that my children and students would have a community of
friends and teachers who would model commitment to Torah through intellectual,
religious, and personal courage. More than that—it was created to make such
friends and teachers the norm in the Orthodox community.

CMTL fosters a vision of fully committed halakhic
Judaism that embraces the intellectual and moral challenges of modernity as
spiritual opportunities and takes the ultimate significance of all human beings
as tselem Elokim (created in the image
of God) as a norm by which all Torah interpretations should be evaluated. We recognize that
ideas and rhetoric have consequences, and we understand that Torah is mediated
by the character of Torah leaders.

CMTL nurtures and develops Jewish leaders who conceive of themselves as producers of
Torah. We believe that the Jewish people is responsible for the face that our
Divine Torah presents in this world, and that we are obligated to produce Torah
that represents the best in ourselves and constitutes a sanctification of God’s
Name.

We further believe that the Modern Orthodox community could and should be the lead
contributor to that project, but is not fulfilling its potential. I want to
offer here a diagnosis of why that is so, and explain how CMTL’s
work will enable Modern Orthodoxy to fulfill its mission.

Modern Orthodoxy at its best combines passionate and punctilious halakhic observance
with commitment to core concepts such as recognizing the tselem Elokim in every human being, regardless of gender or ethnicity,
and affirming the intrinsic importance of knowledge, regardless of its source.
In a healthy law-based culture, values and law continually interpenetrate, and
jurists, legislators, and laity alike see themselves as engaged in the common
task of aligning law and cultural values and practices with one another. Many
of the best and brightest of Modern Orthodoxy’s laity, by contrast, seek at
best to reconcile themselves to halakha as it is, and Modern Orthodox rabbis
often feel compelled to choose between intellectual and moral integrity when
deciding halakhic issues.

For example: Many Modern Orthodox Jews believe that all human beings are created
equal, but that halakha requires breaking Shabbat to save Jewish lives and bans
breaking Shabbat to save non-Jewish lives. Many Modern Orthodox Jews believe
that men and women are equal partners in marriage, but that halakha gives
husbands the power to financially blackmail wives in case of divorce. Many
Modern Orthodox Jews find spiritual inspiration and deep meaning in Shakespeare
and Milton, but believe that halakha forbids reading all Christian religious
works or works with erotic components. This cannot continue if Modern Orthodoxy
is to thrive.

Let me dramatize the effects of this in the following way. Imagine for a moment two
Orthodox Jewish communities. In the first, rabbis are given the narrowest of
talmudic educations and censured if they seek any kind of breadth of knowledge.
Rabbis are expected to remain ignorant of economics, history, jurisprudence,
biology, and the liberal arts except insofar as they can be derived from
traditional talmudic study.

In the second, rabbis are expected to obtain broad and deep general knowledge and competence. Rabbis are
expected to have a good grasp of economics, history, jurisprudence, biology, as
well as the liberal arts, and to have graduate competence in at least one field
other than traditional talmudic study.

            Now imagine further two Orthodox Jewish communities. In the first, rabbis are given broad
authority over areas of religious life that impinge on economics, history,
jurisprudence, biology, and the liberal arts. In the second, rabbis are given
authority solely over issues of technical halakha.

It should be evident that Modern Orthodoxy is the community that expects great
breadth of knowledge in its rabbis while greatly narrowing their authority. The
reason for this is that the community does not believe that its rabbis live
integrated religious lives, that their breadth of knowledge is effectively
translated into Torah and halakha. And the community is certainly not entirely
mistaken in this regard. The gaps between values and law, and between
intellectual commitments and creeds, are significant.

I do not wish to suggest that this problem emerges entirely from clear
misunderstandings of Torah, whereas the Torah properly interpreted would be in
perfect consonance with Modern Orthodox commitments. This would be facile; “The
Torah is not in Heaven,” and so halakha, for example, is what the halakhically
observant community and its halakhic authorities see as halakhically
justifiable. That category today—we need to acknowledge this openly—includes
positions that many of us in the Modern Orthodox community would exclude, and
excludes positions that many of us would include. For example: It seems to me
halakhically justifiable today to assert that non-Jewish doctors may not
perform abortions even to save the life of a mother, and not halakhically
justifiable to say that women have the same obligation to study Torah that men
do, although I would be more comfortable with the reverse situation.

Nor do I wish to suggest that Modern Orthodoxy should create a sectarian,
separatist halakha on the basis of its values, paying no practical or
intellectual attention to those who disagree with or delegitimate its
conclusions. First of all, I think that in all but the most extreme cases this
would itself be a violation of lo
titgodedu, the halakhic prohibition against forming factions. Second, a
major premise of the Torah and rabbinic tradition is that the Jews are a
political community bound by religious law. As Abraham Lincoln noted, no legal
community can survive as such if everyone reserves the right to secede when a
legal decision goes against them. I think the attempt to create a sectarian
Modern Orthodox halakha would most likely produce not a new halakhic community
but rather yet another non-halakhic community.

What I suggest instead is that Modern Orthodoxy needs to follow the strategy of Bet
Hillel. We need to remain in dialogue with and cite those with whom we
disagree, while at the same time seeking to change the contours of the overall
halakhic community’s understanding of Torah. This does not mean that we need to
convince every observant Jew that our interpretations are correct, although we
should strive to convince as many as possible. It does mean that we need to
develop a community that models complete devotion to Torah and halakha and
believes with complete intellectual and spiritual integrity that our core
values emerge from and are rooted in Torah, and in language and texts that
speak to the entire observant community.

 There is a vicious cycle here. The felt gap
between values and the halakhic community’s understanding of Torah can prevent
commitment to halakha, yet Torah will not expand to include values that are not
endorsed by those committed to halakha. But I believe that we can imbue our
students, our colleagues, and our friends with the conviction that the Jewish
people is responsible for Torah as well as to Torah.

Here are some illustrations of how CMTL
accomplishes the tasks outlined above:

The Rabbis and Educators Professional Community

            CMTL brings a select group of Jewish scholars and teachers together to discuss
challenging issues in an environment of intense listening and complete
commitment. This is, to my knowledge, the only Orthodox leadership setting that
explicitly sets out to have women and rabbis work as equals in the task of
producing Torah, measured by their scholarship, talent, commitment, and
character—without regard for titles. Our first conference addressed the prima
facie conflict between the central modern value of autonomy and the phenomenon
of “asking a sh’elah,” of asking a
halakhic decisor for a binding decision. Among the issues discussed was whether
students should be taught to see that act as a valorous symbolic submission to
the Divine Will, or, on the contrary, as a recognition of personal inadequacy,
which they should strive to overcome through greater education. We’ve now run a
highly successful second conference and have over one hundred rabbis and
educators interested in forming an ongoing professional community.

The Summer Bet Midrash

For the past twelve summers, we
have brought a group of college and semikha
students with excellent textual skills together for a full-time, six-week
seminar centered on a practical halakhic topic. Summer Bet Midrash Fellows
learn to take responsibility for Torah by writing a practical halakhic
responsum to a case that tests their knowledge, skills, commitment, and
character. They are challenged to confront areas of discomfort and use them l’hagdil
Torah u’leha’adirah, to expand and strengthen Torah. Summer Bet Midrash
Fellows discover, for example, that finding ways to free agunot and finding mandates for treating non-Jews as beings created
b’tselem Elokim is a matter of obligation to Torah as well as to human
beings. They discover that Torah is shaped by those who teach and implement it.
Finally, they discover that Torah is affected by the character of scholars as
well as their ideas, and particularly the necessity of courage and integrity
for healthy pesak halakha (halakhic decision-making).

It is worth noting that to our
knowledge the Summer Bet Midrash is the only Orthodox program that explicitly
seeks to give women the experience of deciding halakha.

The Campus Program

            CMTL brings Orthodox college students from across the Boston area together for
shiurim and discussions of religious issues that have immediate relevance to
their experiences. Our goal is for these students to see themselves as the
vanguard of Orthodoxy, as those who have the first opportunity to see how and
whether contemporary ideas and values can contribute to the expansion and
strengthening of Torah. Students from Harvard, MIT, Brandeis, Wellesley,
Lesley, and Boston University participate, and we look forward to making our
reach broader through an East Coast Shabbaton next semester. CMTL
also sponsors lectures on many campuses.

The tsad ha-shaveh, the
unifying theme, of all these programs is that they help participants develop a
vision of Torah that fosters a holistic religious life. They enable
participants to affirm their experience of being deeply moral and religiously
inspirational Jews; their love of great art, music, and literature; their
commitment to improving the ethics of every society they feel part of; their
belief in the ontological equality of men and women—and all in the context of a
community that supports their questions and is willing to profoundly challenge their
answers.

            CMTL already has a significant effect on our community. Summer Bet Midrash alumni,
for example, have served or are serving as Jewish Learning Initiative Fellows
at Princeton, University of Pennsylvania, Brandeis, and University of Maryland.
But our current programs are only a kernel that we anticipate will grow into
the intellectual engine of our community, including a semester-long full-time
fellowship integrating Israelis and Americans, a program for Orthodox
investigative journalism, and major curriculum development initiatives.

            I want to close with a d’var Torah
that in some ways encapsulates everything I’ve tried to say here.

            Mishnah Tractate Avot (often translated “Ethics of Our Fathers,” but better translated
as “Chapters of Principles”) begins by reciting the chain of transmission of
the Oral Torah. “Moshe received the Torah from Sinai and transmitted it to
Joshua, and Joshua to the Elders, the Elders to the Prophets, and the Prophets
transmitted it to the Men of the Great Assembly.” Two questions about the
wording are apparent:

1. Why does the chain begin with Moses as receiver, rather
than with God as transmitter?

2. Why are the transfers from Moses to Joshua, and from the
Prophets to the Men of the Great Assembly, distinguished as “transmissions,” as
opposed to those from Joshua to the Elders and from the Elders to the Prophets?

The answer to the first question
is that our tradition wishes to emphasize that authority in Judaism can never
be based on a claim of direct Revelation. All Jewish claims of authority must
go through Moses’ revelation and be accountable to the text and traditions that
record it. This makes Judaism profoundly anti-charismatic, as appeals to Divine
authority have no standing. But the price of eliminating such appeals is that
we cannot count on God to correct our errors.

However, this picture is
oversimplified. How can I claim that Judaism is anti-charismatic when prophecy
continued for many years after the death of Moses? We need to qualify that
claim as follows: While Moses was alive, he turned to God for the answers to
both his halakhic and his less formal, more value-oriented questions. Before Moses
died, he transmitted Torah to Joshua, that is to say that a qualitative
change occurred, and it was no longer legitimate for halakhic questions to be
resolved by unmediated Divine Revelation. Prophets could still claim that the
Mosaic revelation intended particular values, but their charismatic authority
was subject to the intellectual processes of the legal tradition. On the other
hand, the outcomes of the formal processes of halakha could be critiqued on the
basis of prophetic value statements.

Prophecy ended by the time of the
Men of the Great Assembly, at which point Torah underwent yet another
qualitative change—to an era of complete human responsibility for Torah, in
which we have no tool other than the text of the original Revelation to correct
our errors. Only our own study of Torah can correct us if our halakha ignores
the cries of the weak, or if our rhetoric denies the humanity of those we see
as Other.

The Center for Modern Torah Leadership makes it possible for our community to fulfill that responsibility.
It creates the contexts and content that let us hold a mirror up to our
community and ask whether the Torah we learn and live by is everything it
should be. If you’re interested in learning more of our Torah, or about our
program—or if you are interested in helping us take responsibility for
Torah—please visit us at www.Torahleadership.org.

Question: Confidentiality is a vital concern that impacts the freedom of expression of quite a number of professions. Many professionals receive confidential information as part and parcel of their normal involvement with their clients and/or patients. Rabbis are also privy to confidential data. At issue is whether halakha (Jewish law) provides any guidelines or rules pertaining to this matter?

Response: In terms of a general overview, it should be noted that the medical profession considers confidentiality as a cardinal precept of medical ethics. Indeed, for centuries doctors have committed themselves to the Hippocratic Oath upon assuming a medical career. The modern version of that Oath as replaced by the Declaration of Geneva adopted by the World Medical Association states, “I will respect the secrets which are confided in me, even after a patient has died”. In other words, as a doctor one may hear very private concerns. The doctor takes an oath that he or she will not divulge such information. The patient came to the doctor assuming confidentiality will govern their relationship and, therefore, the doctor must guard any and all private matters from becoming public. Yet, complications and moral quandaries may develop. A psychiatrist or therapist may have revealed to them information that might be potentially dangerous if kept confidential. Are they required to remain silent when such silence will negatively affect the community at large? Should they, for example, relate that a young man who recently proposed marriage to a young lady has AIDS? And what about, for example, the problems of the legal profession? In America, due to the rules of attorney-client-privilege and Codes of Professional Responsibility a lawyer may not reveal any information received in confidence or secret, even if necessary to prevent fraud. As such, knowledge emanating from the attorney-client relationship that Mr. X is an outright thief, may not be revealed to prevent others from being duped in a fraudulent scam. Rabbis, moreover, hear a litany of very private, painful confessions. At times, their investigation prior to serving as a wedding performer discloses very embarrassing details. Some deal with actions or illnesses that would taint the reputation of families should such information be revealed. Are rabbis obligated by Jewish law to preserve the confidentiality of their information? Or, to prevent a community liability or social problem, does Jewish law provide to rabbis the authority to reveal private information?

The first important principle is that unlike the medical and legal profession, the clergy, especially as noted by halakha, has, no special oath or rule proscribing the revealing of private, personal matters to others. In other words, there is no specific rabbi rule against violating confidentiality. It is not just rabbis who are forbidden to divulge secrets. Everyone, every Jew, no matter his or her profession or lack of a profession, is prohibited by Biblical law from telling private matters to others.

The Bible overtly states, “Thou shalt not go about as a talebearer among thy people”, (Lo Telekh ra’hil – Leviticus 19:16); the verse then concludes, “and thou shall not stand inactive (idly) by the blood of thy neighbor, I am God”. (translation, Rabbi Samson Raphael Hirsch) The practical application of this is expounded by the Rambam. He rules,…”telling tales is a great sin. It served as the cause for the murder of many Jews. [Indeed,] this is the reason why adjacent to it [the verse prohibiting talebearing] is the verse prohibiting one to not stand idly by the blood of one’s friend.” The process of talebearing takes place “when a person goes from one to another and says this is what so-and-so said, this is what I heard about so-and-so, even though it is the truth, such is destructive of the world. A worse sin included in this [Biblical] prohibition is the sin of Iashon hara. That is the telling of something which is negative to one’s friend, even though it is truthful. (Rambam, Hilkhot De'ot Chapter 7: Laws 1 and 2.) Thus the sin of revealing private, confidential information is operational whether it is negative or positive. The sin is graver when the information is or may be negative. Also, the truth or falsity of the information revealed does not in any way provide a halakhic permit to divulge a confidence. (See also, Sanhedrin 31a and Yoma 4b)

There is a fascinating Talmudic citation corroborating this concept in Pesahim (113:b). The Talmud reports that a man by the name of Tuvia sinned. He committed adultery. A man called Zigud was aware of this sin and by himself, without another witness, he came to Bet Din, the Rabbinical Court to testify against Tuvia proclaiming that Tuvia was an adulterer. Rav Papa, the senior Rav of the Bet Din, punished Zigud for testifying. Zigud was appalled. He called out in protest, “Tuvia sinned and Zigud is punished?” In other words, the Bet Din did not punish Tuvia for the alleged sin of adultery. Zigud was, however, punished for he was guilty of lashon hara, telling negatives about another. In Jewish law sins relating to adultery require the presence of a minimum of two qualified witnesses. Bet Din will not accept the testimony of a singular witness in matters pertaining to adultery. Accordingly, Zigud should have known that Bet Din would not act upon his testimony. Thus, Zigud was in effect merely spreading gossip about Tuvia. The fact that the allegation may have been true was of no concern. Zigud was punished for informing others of slanderous material. He should have kept knowledge of the immoral act to himself.

I believe that those involved in professions that deal with confidential information and subsequently divulge such private concerns to others, may be deemed to have transgressed greater sins than ordinary people who tell tales and are involved in gossip. I have no actual halakhic ruling on this, but, I do believe Biblical law intimated this concept. The Torah details the punishments to be given to different types of theft. It states that whosoever steals an ox and/or sheep pays more than a crook who robs jewels from a house. Indeed, the Torah says, “he shall pay five oxen for the ox and four sheep for the sheep”. (Exodus 21:37) Rabbi Samson Raphael Hirsch suggests that the reason for the onerous punishment for stealing an ox or sheep is that such animals are generally kept outside in the open air. As such, one must trust the community not to violate private property even though the animals are not locked up in a home. To the extent that one must place greater trust in people concerning the security of animals, the punishment for the violation of this trust must be greater than a case where something was locked up in a home. Thus, whenever there is a situation wherein confidence is assumed, the violation of such trust should generate a more onerous punishment, not just from society, but also from religious law.

Of major, practical interest is that there is a vital provision that alters the above halakhic prohibition. Namely, the Biblical prohibition to divulge confidential information is limited to cases wherein the intention of the talebearer is to hurt the feelings or merely to disparage in some way the reputation of another. But what about a case wherein the intention is to prevent crime, to withhold damage from a community, to help the person involved, in such circumstances, many rabbis rule that halacha would permit the divulging of private, confidential information. The basic source for this is the Rambam who rules, “whoever is able to save another and does not endeavor to do so, violates the [prohibition of]’ do not stand idly by the blood of your friend, therefore, one who witnesses his friend drowning in the sea or brigands attacking him and he [has the ability to] save him, or he heard that people seek harm to him…and he does not contact his friend to reveal this, he is in violation of the Biblical prohibition of ‘do not stand idly over the blood of your neighbor.’” (Rambam, Hilkhot Ro-tzeah Chapter 1:14 See also Shulhan Arukh Hoshen Mishpat 42:1, cited by Rav Ovadia Yosef, Responsa Yehaveh Daat, Volume 4: Siman 60) Indeed, Rav Ovadia Yosef contends that the reason the Biblical verse starts with a prohibition against standing idly by the blood of your neighbor is to manifest that saving a neighbor from damage is more important than maintaining the confidentiality of certain information.

Thus, the rabbi and the professional practitioner are permitted and may even be required to reveal information that may prevent harm to others. This, for example, would mandate revealing knowledge that a prospective bridegroom had AIDS. It would, moreover, require one to reveal to a prospective employer that a certain person has a serious heart condition and should not be entrusted with becoming a bus driver for young children. It would, also obligate one to divulge information that will prevent monetary damage to others even though it could destroy the reputation of the person who confided the private information. This generates a difficult moral as well as professional dilemma. The fact that a psychologist may reveal to others, the foibles or illness of their clients to hopefully prevent communal damage may jeopardize the psychologist’s entire career. Word will get out that the psychologist does not honor a code of confidentiality. Accordingly, clients will feel that they cannot trust the therapist to withhold divulging private information. Once such a rumor takes hold in the community, no one will be willing to confide in the professional. At issue is whether a person is required to jeopardize his or her professional career by revealing confidential information detrimental to others. Namely, is a person obligated to sacrifice one’s own career to prevent others from being hurt? What ruling does halakha provide in such a quandary?

When confronted with the cost of observing a mitzvah, the rule is that one is not required to expend more than one fifth of income. As such, should an item required for the performance of a mitzvah cost more than one-fifth of one’s income, the Jew would not be obligated to purchase such a costly item, even as a result he would not observe the mitzvah. This rule relates only to the observance of positive mitzvoth. When dealing with the violation of negative mitzvoth, there is no financial limit imposed upon the Jew. All funds must be expended to forestall the violation of a Biblical negative command. (Rama, Shulchan Aruch Orach Chayyim 656) Scholars, however, finely hone this rule. They contend that the issue of concern is not whether the cost of observing a mitzvah is either a violation of a positive or a negative mitzvah. The issue is whether a positive action is necessary in order to violate the negative mitzvah, or whether a violation takes place by inaction, (as termed in Talmudic parlance, shev v’al ta’aseh). (Pit-hei Teshuva, Yoreh Deah 157:4) As such, silence in the face of a crime that may occur to others, does not obligate any professional to jeopardize their careers. In a way, it revolves around the pivotal issue of conscience and personal judgment. The key question is not necessarily what does Jewish law say, but, rather, can you live with yourself by the judgment you, yourself may have made. Namely, to speak or not to speak, that is the question.

Not many years ago a woman revealed to her Rabbi in Long Island that her husband was not aware that she stopped going to the Mikvah.The Rabbi , in an attempt to prevent the husband from committing a sin, revealed this information to her husband.The woman was aghast at this violation of confidentiality. The Rabbi defended himself by stating that it was his moral and religious obligation to prevent the husband from committing sin.Regardless of who was right, one glaring truth emanated from this incident. No one in the community would ever trust again confidential matters to the Rabbi in question His role as a trusted professional was over.Once the word is out that a Rabbi may reveal confidential matters, then the public will most probably not confide in him again. One means of ameliorating the difficulties of the decision making process, is to seek the advice of an objective third party. The Mishna Berura, for example, contends that in matters pertaining to money, it is best never to make a decision by oneself. In these matters the evil inclination will seek out legal loopholes of support. (Orakh Hayyim 605:1) In other words, the decision of an outsider will be much more objective and less tainted. So too in matters relating to moral quandaries. Seek out an objective voice. Many times, the Rabbi will be asked to make the judgment as to whether it is more ethical to be silent or to reveal confidences. His decision( hopefully) will be based upon Torah and moral principles, not just personal judgments. At times, the old rule that discreticon is the best of valour serves as the guiding standard. This issue needs community dialogue and input.

            The rabbis depict our forebears Abraham and Sarah spreading the knowledge of Hashem far and wide. Some formulations of this idea actually use the verb gayyer (=to convert).^[2] Moreover, the Talmud ascribes to God, no less, the designation of the partriarchs as “those who first made Me known in the world” and to Israel the claim “we have made Thee known in the world”.^[3] But why marshall texts to demonstrate the obvious: Torah and Talmud mostly^[4] see Israel as having received the Torah that they might be its torch-bearers. Thus in rabbinic tradition welcoming gere sedeq (=righteous converts) into the covenant is deemed to be a misvah.^[5] So giyyoor being a misvah giyyoor was sacrosanct. Or at least so we thought.

            Then early last year news broke of men and women who had converted to Judaism under the auspices of respected Israeli rabbis and were now being declared gentiles. The initial perplexity that greeted the news turned into disbelief as reports began to speak of conversions anulled in the hundreds and thousands by Israel’s supreme rabbinic court. Eventually we managed to procure a copy of that court’s decision that allegedly set in motion the overturning of conversions. The following is the picture as it emerges from the pages of that document.

            It all begins in Ashdod when a couple appears before the local rabbinic court seeking a divorce. The court informs the couple that it is impossible to get divorced unless one was first married. Jewish law, it explains, does not recognize marriage between a Jew and a gentile. And because the woman is a gentile, the court does not look upon them as husband and wife. Having lived in the belief that she was Jewish ever since her conversion many years prior, the woman is flabbergasted. She appeals to the supreme rabbinic court in Jerusalem. On February 2^nd, 2008, that august body issues its reasoned pesaq in a 53 page document that essentially upholds the Ashdod ruling.

            The Beth Din’s Pesaq of February 2008 (hereafter BDP) is problematic in at least three areas. First, it makes assertions that are inconsistent with the facts. For example, it states that all the posqeem (=halakhic decisors) throughout the generations have ruled conversion retroactively invalid if the convert fails to live up to his/her commitments. When we consult the posqeem - whether it be Rambam,^[6] Tur,^[7] or Shulhan Arukh^[8] to mention three of the most eminent - we find them saying the exact opposite. Indeed, there seems to be only a single dissenting rishon, namely the author of Hagahot Mordecai.^[9] Now in order to appreciate the Hagahot Mordecai’s position we need to recall the talmudic passage from which he claims to derive the idea of retroactively invalid giyyoor. The Mishnah at Yebamoth 24b reads:

A man who was alleged to have had relations with ... a non-Jewish woman and she later converted he shall not marry [the woman]. If, however, he married her they shall not be separated. If a man was alleged to have had relations with a married woman and she was subsequently divorced, then even if they went ahead and married they shall be separated.

The convert of this Mishnah is one whose motives for conversion cannot help but raise doubts. Nevertheless, in ruling that “if married they shall not be separated”, the Mishnah implies the conversion to be valid. But can this implication be correct when it would seem to contradict another tannaic source? That is what the Gemara wants to know, and it begins by citing the counter source.

Surely we have learnt in a Baraitha: Whether it is a man who converts for the sake of a woman or a woman for the sake of a man; whether the person converts for the sake of the royal table or to be employed by Solomon - none of these are converts according to R. Nehemiah. For R. Nehemiah would say: those who convert for fear of lions; those who convert on the prompting of a dream; those who converted in the days of Mordecai and Esther - none of these are converts ...

Inasmuch as he invalidates conversions undertaken for less than the purest motives, R. Nehemiah is irreconcilable with our Mishnah - or rather with the inference the Gemara had drawn from it. So ought that initial inference to be rejected? No, says the Gemara, because apropos of this very issue R. Yitzhak bar Shemuel bar Marta transmitted in the name of Rav that the law is KE-DIBRE HA-OMER (=according to the one who says) ‘They are all converts’ (Yeb. ibid.).

            Now Rav (d. around 250) having bestraddled the tannaic and amoraic eras, is allowed to dispute a tanna^[10] - a licence not granted other amoraim. However, it is not on the strength of his quasi-tannaic status that Rav rules here at Yeb. 24b, but rather does he side with the anonymous tanna who disagreed with R. Nehemiah and “says ‘They are all converts’”. Hence the Gemara’s original inference is vindicated; for though it places our Mishnah at odds with R. Nehemiah, it keeps it in line with the tanna cited and seconded by Rav. And it is the decision of Rav (which the Gemara identifies as consistent with the Mishnah) that post talmudic halakhists follow almost to a man. But as noted earlier, there is a dissenter: Hagahot Mordecai.

Although the Talmud rules there [at Yeb. 24b] that they are all full proselytes, we could say that it refers only to cases where we see them rectifying their ways even if their initial motive was marriage etc. ...^[11] I prefer this interpretation to the alternative which would posit an amora [i.e. Rav] ruling not in accordance with the baraitha of R. Nehemiah. Moreover, the undisputed baraitha [cited Yeb. ibid.] that says no converts were accepted in the days of David and Solomon [for fear of ulterior motives] supports us.^[12] What I have written here is my own opinion, not what I received from my teachers; and my understanding should not be relied upon.

            One has to wonder whether Hagahot Mordecai had the words KE-DIBRE HA-OMER in his copy of the Talmud. Be that as may, there is nothing anomalous about a halakhist relying upon a variant reading of the Talmud. Similarly, halakhists will occasionally argue for following a da‘at yaheed (=minority opinion). However, what is so disconcerting about BDP is its insistence that the exceptional view of Hagahot Mordecai is shared by all posqeem throughout the generations.^[13]

            The second bone we have to pick with BDP is over its ad hominem slurs. Stooping to the level of personal attacks is usually a sign of desperation. How else to explain its ploy of declaring venerable members of named Israeli judiciaries to be resha‘eem? And classifying people resha‘eem is tantamount to impugning their credentials to act as witnesses - and by analogy also as judges.^[14] The prohibition to accept the testimony of a rasha‘ is derived from Scripture, as explained by the Talmud and conveniently codified by Rambam:

“Resha‘eem [=unjust or guilty persons; felons] are disqualified from giving testimony as it says [Exod 23:1] ‘You shall not make common cause with a rasha‘ to be a witness of hamas. Tradition understands this scripture to be saying ‘Do not let a rasha‘ be a witness’.” (Yad, Edut 10:1)

Proclaiming a dayyan (= judge of a rabbinic court; plural: dayyaneem) a rasha‘ is a grave matter and one would expect to learn which court of law convicted him and on what count. Instead BDP arrogates to itself the authority of ruling fellow dayyaneem resha‘eem without even hearing the men’s defence. If that were not egregious enough, the primary charge it cites against the dayyaneem rests on the following circular reasoning. Conversion requires a beth din (see Yeb.46b). Since they are resha‘eem, their court is no court, and consequently the people they convert remain gentiles. The Torah pronounces a curse on anyone who leads a blind person astray (Deut 27:18 cf. Lev 19:14). In making the people they convert believe themselves to have become Jews when in fact they are still gentiles, they are guilty of the sin of leading the blind astray.^[15] Hence such dayyaneem fall into the category of resha‘eem.

            Additional charges bandied about by BDP include: 1) forgery, 2) heresy and 3) brazenly disparaging Torah. The forgery charge alleges that the rasha‘ judge signed conversion certificates presided over by dayyaneem other than himself. Now these types of certificates begin with the formulaic opening be-mothab telatha ka-hada (= the three of us sat in judgment etc.) - because it is the same three judges who form the converting beth din that also go on to sign the certificate. Needless to say, a judge who did not personally sit on the court cannot lawfully put his name to such a document. But that, alleges BDP, is precisely what the ‘delinquent’ dayyan went and did. If true, nobody would dispute the impropriety of such behavior. However, the Talmud lays down a principle sheluho shel adam ke-motho.^[16] Of course misvot she-begufo i.e. duties that demand personal involvement cannot be deputized; and signing a document that claims its signatories were party to the transaction described in that document is surely such a duty. Yet it is conceivable that a senior judge might, albeit mistakenly, think of his trusted juniors as emissaries. Furthermore, unlike a bill of divorce or even a marriage contract, a giyyoor certificate has no halakhic function whatsoever. It is granted merely to serve the convert as ready proof in the future when facing bureaucracies and the like. All in all then, the forgery indictment seems a stretch.

            The heresy charge (levelled originally by the Ashdod court but cited approvingly by BDP) is even more baffling. The actual term used is epiqoros - which in popular parlance is generic for heretic. The Talmud, however, defines the epithet more narrowly. The tenth chapter of Mishnah Sanhedrin^[17] lists reprobates who forfeit their share in the world to come. One of them is the epiqoros. And it is in the course of expounding the Mishnah that the Gemara records the following definitions.

Rav and R. Haninah both say he [the epiqoros] is somebody who insults a Torah scholar. R. Yohanan and R. Yehoshua b. Levi say he is somebody who insults his fellow in the presence of a Torah scholar. Now those who classify the epiqoros as somebody who insults his fellow in the presence of a Torah scholar, the one who insults the scholar himself they classify as megalleh paneem ba-torah shelo ka-halakhah (= a brazen disparager of Torah). But for those who define epiqoros as one who insults the scholar himself, what kind of person is the megalleh paneem ba-torah? He is somebody like Manasseh son of Hezekiah^[18] (San. 99b).

Since BDP does not elaborate, one cannot be sure which definition of epiqoros it has in mind. On reflection, though, it is probably the vernacular meaning since it would be rich beyond belief for BDP to accuse another of disparaging a Torah scholar! More substantively, what is the point of BDP branding the dayyan of its disfavor an epiqoros?

            It will be recalled that, based on Exodus 23:1, resha‘eem are disqualified from giving testimony. Besides rasha‘, Exodus 23:1 contains another operative word: hamas.^[19] The Talmud (San. 27a) records a dispute between Abayye and Rava as to whether or not hamas modifies rasha‘. Rava holds that the word hamas modifies rasha‘; hence anti-social behavior is prerequisite for witness disqualification. For Abayye, on the other hand, even non-hamas wrongdoing (e.g. ritual delinquency that is a matter between a person and God), is sufficient to lose a witness his credibility. Thus Abbaye would disqualify not only a mumar le-te’avon^[20] but also a mumar le-hakh‘ees. But even according to Abbaye a person is disqualified to testify by virtue of wrong action. Yes; wrong action, not unorthodox thought. Yet Rambam, writes:

“Informers and epiqorseen ... ^[21] the Sages had no need to name in their list of people unfit to give evidence because they listed only Jewish miscreants. But such rebellious infidels are worse than idolaters...” (Yad Edut 11:10)

There is nothing odd about the inclusion of informers because their guilt yesh bo ma‘aseh (=involves action)^[22] and is consequently ascertainable (and where appropriate punishable) by a human tribunal. But the appearance of heretics, whose fate the Mishnah leaves to divine judgment, is striking.^[23] Nevertheless, by means of an ingenious a fortiori argument of Rambam’s own devising, heresy is made a crime for courts to discover and to act upon - in this case invalidating the testimony of such that are found to be heretics.

            By dragging in heretics Rambam breaks new ground. Magistrates on the watch for heresy are a far cry from the Talmud’s standards of objectivity, and, what is more, seem dangerously close to the murky realm of inquisitions and thought police. So the question is, Why would Rambam have introduced this drastic innovation? We know it was not conformity to the Talmud that impelled him, because the Talmud never mentions heretics in connection with testimony. Moreover, as we saw, Rambam makes no secret of the fact that heretics transpired as a result of his own extrapolation. Something other than the Talmud, then, must have impelled Rambam to bring up heretics. In any event, once epiqorseen are blacklisted and Rambam’s ruling is adopted by later codes, declaring someone an epiqoros immediately impugns his eligibility to testify or to adjudicate. Hence, in levelling its heresy charge, BDP aims to undermine the authority of its targeted beth din.

            The related aspersion megalleh paneem ba-torah shelo ka-halakhah (again, borrowed and endorsed by BDP p.4) is meant to inculpate the dayyan in question with insulting scholars (rather than imitating Manasseh - see San. 99b cited above).^[24] If you ask ‘which scholars? What insult?’ BDP has its answer pat. We have already met BDP’s assertion that ‘all the posqeem throughout the generations have ruled conversion retroactively invalid if the convert fails to live up to his/her commitments’. That being BDP’s premise, it follows as night follows day, that to flout such a unanimous ruling of halakhists down the ages is nothing short of brazen effrontery.

            Finally, BDP’s gravest imputation of all: the ‘rogue’ beth din failed to elicit qabbalat misvot^[25] from those it purported to convert. Now qabbalat misvot is an integral component of giyyoor and in the opinion of many posqeem it is also a sine qua non. That any beth din could skip qabbalat misvot seems incredible. Yet that is what happened according to the allegation repeated over and over in BDP.^[26]

POSTSCRIPT

            What are we supposed to make of this document and its extraordinary contentions? Manifestly the 53 page screed is animated by more than sober halakhic logic; dare one say by something akin to polemical zeal? But whereas the written word has a life of its own and must be judged on its merits, people should always be given the benefit of the doubt. Indeed, because of the imperative to judge men charitably,^[27] one wants to try and extenuate that zeal. Clues within BDP suggest that recent tendencies towards a politicization of giyyoor may have raised its authors’ hackles.^[28]

            For there is no denying the attempt in certain quarters to fuse the ideas of nationality and divinity in a manner redolent of the old Baalism. What follows is an example of this phenomenon.      

From the Rambam’s words we learn that candidates for conversion must express their wish to join, simultaneously, both the people of Israel and its Torah. ‘Entering the covenant’ [in Rambam’s formulation, Issure Bi‘ah 13:4] refers to the congregation of Israel that consists of children of the covenant. ‘Taking shelter under the Shekhinah’s wings’ [Rambam’s formulation ibid.] means living as a member of the Jewish religion ... The requirement to express this twofold identification with the Jewish nation as well as with its God and Torah, was learnt by our sages of blessed memory from Ruth the Moabitess. When seeking to impress her mother-in-law Naomi of her [Ruth’s] spiritual and practical preparedness to cast her lot with Judaism, Ruth speaks the words “... Your people is my people and your God is my God”. The equal emphasis on the people and its God as the objects of [the convert’s] adoptive identity clearly demonstrates that the religion and the nationhood are a single indivisible entity in Judaism ... Clearly, then, already in such an early era [as Ruth’s], conversion was conceived of as a procedure simultaneously both religious and national, whose elements are inseperable.” (Mi Hu Yehudi? by Avner Shaki, vol. 2 Jerusalem 1978 p. 343).

Shaki’s enunciation of the nation-divinity amalgam would not merit citation were it not that he invokes Scripture, Sages and Maimonides in support. But seeing that he does, it behooves us to examine these sources’ alleged espousal of ‘Shakian dualism’. Ruth’s “Your people” we shall consider shortly. As for the unsubstantiated claim that the sages deduced from Ruth “a twofold identification with the Jewish nation as well as with its God and Torah” we are unable to comment upon, since no source is indicated.^[29] Rambam certainly mentions covenant: “Similarly throughout the generations, when a non-Jew wishes to enter the covenant and take shelter under the Shekhinah’s wings...”. The only question is whether Rambam was using the phrase ‘entering the covenant’ as shorthand for joining the polity of the children of the covenant. Rambam’s classic commentators refer us to a baraitha in Keritot that mandates all subsequent conversions to reenact, as it were, the conversion leading up to the Sinai/Horeb covenant.^[30]

Ribbi [Judah the Partriach] says as with your forefathers so with [proselytes] throughout your generations. Just as your forefathers did not enter into the [Sinaitic] covenant except through circumcision, immersion and propitiation by means of blood [sacrifice] neither shall they enter the covenant except through circumcision, immersion and propitiation by means of blood [sacrifice] (Ker. 9a).

            The covenant Rambam alludes to is the very one under discussion in Keritot; which, in turn, is the Torah’s covenant mediated by Moses between God and the people who were to become the covenantal community. In other words, the pledge made at Sinai as understood by tradition was to God rather than to a group of human beings. Hence, the proselyte’s entering into the covenant, modelled on the Sinai prototype, is about the neophyte’s commitment to God rather than to a group that Shaki calls ‘children of the covenant’.

            Needless to say, among Jews who take their faith seriously, equating a person’s political choices with his/her choice to ‘enter under the shekhinah’s wings’ must seem to border on the sacriligious. Without belittling one iota tribal and national allegiances, they are surely of a different order from the plighting of one’s troth to Hashem. Moreover, the Talmud categorically forbids associating the Name of Heaven with anything else.^[31] Hence the extreme unease that attempts such as Shaki’s to politicize giyyoor engender in the bosom of many a Torah-oriented Jew who ponders Scriptures such as 2Kgs 17:26-28.

It was reported to the king of Assyria saying ‘The peoples that you deported and settled in the cities of Samaria do not know the law of the god of the land and he sent among them lions that are devouring them because they know not the law of the god of the land’. The king of Assyria gave orders that one of the priests who had been deported from there should be sent back in order to teach them the law of the god of the land. So one of the priests who had been exiled from Samaria came back and dwelt in Bethel and taught them how to fear Hashem.

Two irreconcilable voices speak to us in these verses. The first is the voice of paganism whose gods are territorial, each presiding over his/her national borders. Then in verse 28 we hear the Torah’s voice, that instead of the idolatrous ‘god of the land’, speaks of fearing Hashem. A closely related pagan concept to the territorial, is the national god that is essentially an apotheosis of a people and its collective identity and aspirations. Naomi recognizes the nation-god nexus of Moabite religion when she says to Ruth ‘Behold your sister-in-law has gone back to her people and to her gods’ (Ruth 1:15). Perhaps Ruth was projecting some such Moabite territorial theology onto Hashem when she responded ‘Your people shall be my people and your God my God’ (v. 16).^[32]

            But even if one shares BDP’s dismay at the way politics has come to invade and dilute giyyoor (and other aspects of religion), it is quite another proposition to condone the methodology it employs to counter the lamentable trend (assuming such trends to be BDP’s driving gripe). Besides, even a cause worthy in the abstract, has to yield if it leads to real people suffering. This was the way of our Sages who opened a back-door for gereem gerureem when conventional giyyoor was inapplicable.^[33] They even offered a halfway conversion whereby a person attained the status of ger toshav (as distinct from ger sedeq). Ger toshav is not a mere synonym for Noahide. No. The ger toshav formally forswore idolatry and accepted faith in Hashem and belief in revelation.^[34] Withal, never did the Sages say let idolaters stew in their idolatry. Today, when the ger toshav option has fallen into desuetude, extra vigilance is called for. Not so much in order to catch and keep out ‘rotten apples’ (though that too), but to ensure that no seeker after Hashem is left out in the cold.

[1]      See Job 31:32, and especially its midrashic interpretations (e.g. Exod. Rab. 19:4).

[2]      See, for example, Targum Yonathan to Gen 12:5.

[3]      Men.53a.

[4]      The word ‘mostly’ is used advisedly because some - notably priests whose status was inherited - seem to have conceived of Jewishness as also being hereditary. The Talmud suggests that there were priests who looked askance upon both converts and conversion (see Mihnah Rosh Hash. 1:7; Yom. 71b et al).

[5]      Yeb. 47b.

[6]      Issure Bi‘ah 13:17.

[7]      Yore De‘ah 268 end.

[8]      Yore De‘ah 268:12.

[9]      The author of the glosses known as Hagahot Mordecai remains elusive. R. Hayim Yoseph Daveed Azulai (HYDA d.1806) surmizes that he lived a century or so after R. Mordecai b. Hillel ha-Kohen (d. 1298) whose work he glossates.

[10]    See Erub. 50b, Ket. 8a, Git. 38b, San. 83b.

[11]    These words of the Hagahot imply that if the convert’s subsequent behavior does not exhibit “rectitude of ways”, then the conversion is retroactively null and void.

[12]    Since it does not address the be-de‘abad (=post factum) situation, it is unclear how the David-Solomon baraitha supports R. Nehemia. On the contrary, had the David-Solomon baraitha emanated from the school of R. Nehemiah we know how it would have been worded. For at Yeb. 76a-b we learn the reason converts were not accepted in the halcyon days of David and his son “because their motive is likely to have been the royal table”. And conversion undertaken with an eye on the royal board is invalidated by R. Nehemia even be-de‘abad : “whether the person converts for the sake of the royal table or to be employed by Solomon - none of these are converts”.

[13]    More than a century ago when R. Yitzhak Schmelkes chose to follow the Hagahot Mordecai he did not dissimulate his own predilection for the tentative proposal of Hagahot Mordecai. Rather did R. Schmelkes opt for full disclosure: “Although he [Hagahot Mordecai] wrote that his understanding was not to be relied on, we rely upon his understanding” (Beth Yitzhak vol. Yore De‘ah responsum 100 [p.86]).

[14]    Actually a judge’s moral qualifications are spelled out in the Torah (see Exod 18:21; Deut 1:13, 16:18). Nevertheless for a ruling to be anulled on grounds of the judge’s unfitness, there would have to be evidence of resha‘ .

[15]    BDP devotes five pages (7-12) to lifne ivver (= the sin of misleading the blind).

[16]    Literally ‘one’s proxy is like oneself’. As a legal concept it means that a person can appoint a shaliah (=proxy) to deputize on his/her behalf in carrying out non-personal duties. The Talmud provides numerous examples such as priests offering sacrifices on behalf of the laity; tithing; effecting betrothal by conveying the medium of betrothal from a man to his destined bride; most familiar, perhaps, is the shaliah sibboor or precentor who recites the prayers on behalf of the congregation (see Qid. 41b-42a et al.).

[17]    In many editions it appears as the eleventh chapter.

[18]    Described earlier on San. 99b as a man who would use his sermons to mock Torah: Did Moses have nothing better to write than ‘Lotan’s sister was Timna’ (Gen 36:22)? or ‘Timna was a concubine to Eliphaz’ (Gen 36:12)? or ‘Reuben went in harvest time and found mandrakes’ (Gen 30:14)?

[19]    Hamas is often translated violence. Rabbinic sources render some occurrences of hamas ‘robbery’ or ‘armed robbery’ (see Targums and Rashi to Gen 6:13). At San. 27a the rasha‘ of hamas is defined as someone who in the act of transgressing misvot causes material harm also to fellow humans - which definition embraces also venal folks who will do anything for lucre.

[20]    Literally ‘a renegade out of expediency [or for pleasure]’ e.g. a person who eats non-kosher food because it is cheaper than kosher (see Rashi San. 27a s.v. h”g mumar okhel nevelot le-te’avon).

[21]    In many printed editions the text continues “and mumars”. Others omit mumars (see Lehem Mishneh ad loc.). The editio princeps (Rome 1480) instead of mumars has “sectarians (minin) and apostates (meshumadin).

[22]    Or at least treacherous speech. While some reckon speech as ‘action’, according to all tannaim wrong thought is outside the purview of the courts (see San. 65a-b et al).

[23]    Especially when we recall Rambam’s own definitions of epiqorseen as persons guilty not of wrong speech but of heterodox opinions (even if they happen to verbalize those opinions). “There are three that are called epiqorseen: 1) the person who denies prophecy and the possibility of knowledge reaching the human heart from the Creator; 2) one who denies the prophecy of Moses our teacher; 3) one who says the Creator has no knowledge of the affairs of man. Each of these is an epiqoros” (Yad, Teshubah 3:8 and see Kesef Mishneh’s comment ad loc.).

[24]    Both the long form megalleh paneem ba-torah shelo ka-halakhah and the short megalleh paneem ba-torah occur at San. 99b and are used there interchangeably, as we saw. At Avot 3:11 most MSS have the short form whereas printed editions typically the long. Incidentally, the dispute over the definition of megalleh paneem seems not to have been resolved; hardly surprising seeing that there are no ramifications for earthly bate din. Thus Rashi explains the megalleh paneem of Avot with reference to Manasseh, while Rambam identifies the megalleh as one who brazenly and ostentatiously defies Torah.

[25]    Literally: acceptance of misvot. The requirement for the prospective ger to express his/her acceptance after being apprised of the liabilities as well as the privileges inherent in Judaism is laid down in the baraitha.“They acquaint him with some of the easier misvot and some of the heavier misvot; they acquaint him with the sin of [neglecting] to leave behind for the poor fallen or forgotten sheaves or the ‘corner’ and of [neglecting] to give the tithe of the poor. Furthermore... they say to him ‘hitherto if you ate suet you were not liable for kareth; if you desecrated the Sabbath you were not liable for seqilah but henceforth you will be liable’... And just as they acquaint him with the punishments for [breaking] misvot similarly do they acquaint him with their [the misvot’s] rewards. They say to him ‘Know that the world-to-come is reserved for the righteous, but Israel at present is unable to receive (le-qabbel) either great good or great travail’. They do not burden him with more [words] or with stringencies. If he ACCEPTS, he is circumcised forthwith...” (Yeb. 47a-b).

[26]    “The woman bringing the appeal did not accept observance of misvot” (p.1); “qabbalat misvot did not occur in the case of the appellant” (p.3); “an additional transgression is their declaring a non-Jew who did not accept to observe the misvot of Hashem’s Torah... to be a Jew” (p.7) etc.

[27]    Avot 1:6.

[28]    E.g. “The conversion of [a certain] deaf-mute will not bring her to a state of misvah observance... The only possible consequence of the conversion would be a social one - something that neither constitutes conversion nor bestows any zekhut (=spiritual advantage)...” ( p.19); “There is certainly no misvah upon a beth din or any other Israelite to make efforts to bring non-Jews into the Israelite fold [sic] - a fortiori when the person’s only attachment will be of a national kind and not an attachment to the God of Israel and the Torah of Israel.” (p.20); “Despite what was said, national or social goals must not be recognized ... they see themselves belonging to the Jewish people only in the national-social sense without any inward religious connection ...” (p.21) etc.

[29]    If anything, the Talmud would seem to invest Ruth’s ostensibly national ‘Your people' clause with religious significance. “She [Naomi] said to her ...‘We have 613 commandments’. She [Ruth] replied ‘Your people is my people...’” (Yeb. 47b).

[30]    Rabbinic sources typically consider the Hebrews to have had the status of Noahides prior to the giving of the Torah (see, for example, Rashi at San. 82a “It was prior to Sinai that Moses had married Jethro’s daughter, all at that time having the status of Noahides. When the Torah was given they all, she [Jethro’s daughter] as well as proselytes of the mixed multitude included, entered into full misvah-hood”).

[31]    Suk. 45b, San. 63a.

[32]    Boaz, while applauding both, separates her commitment to God (Ruth 2:12) from her national and familial loyalties (v. 11). Moreover, the distinctive phrase la-hasot tahat kenafaim (taking refuge or shelter under wings) Scripture uses exclusively of the relationship between an individual and Hashem (cf. Ps 36:8, 57:2, 91:4).

[33]    See Yeb. 79a, Avod Zar. 3b, 24a; Yerushalmi Qid. 65c, San. 23d.

[34]    “The person who accepts them [the seven misvot] is called a ger toshav; but the acceptance must be solemnized in the presence of three haberim [that constitute a beth din]. Whoever accepts the seven misvot and is careful to keep them behold he is of the pious among the nations and has a share in the world-to-come. That is provided he accepts them and does them because Hashem commanded them in the Torah...” (Yad, Melakim 8:10-11; cf. Issure Bi‘ah 14:7).