National Scholar Updates

As the head of the Center for Women's Justice, I encounter on a daily basis the intractable entanglement—the “Gordian knot”—of State and (Orthodox) religion in Israel. This union of religion and state supports a gendered society, infringes on the basic rights of women, challenges the democratic values of the State, and threatens to undermine Israel's integrity as the political expression of the Jewish nation.

Using some of the cases that have come my way at CWJ, I will illustrate the above and argue that the place of “Orthodoxy” in Israel should not be within the coercive sphere of the “state,” but within the voluntary sphere of “civil society,” alongside other expressions of Jewishness.

An Intrinsically Gendered Society

In Israel, the Chief Rabbinate Law of 1980 states that the Chief Rabbinate is authorized to give answers and opinions regarding Jewish law, to bring the public closer to the values of the Torah and its commandments, to issue kashrut certificates, and to decide who shall sit as rabbinic judges and as official city and community rabbis. The Rabbinic Courts Jurisdiction Law of 1953 (Marriage and Divorce) gives rabbinic courts sole jurisdiction over matters of marriage and divorce.[i] The Chief Rabbinate and the Rabbinic Courts are exclusively Orthodox, and they are gendered. Men and woman are not equal.

No woman serves on the Chief Rabbinate Council, or as an official rabbi of any city in Israel. No woman is permitted to sit on rabbinic courts as a judge.[ii] The Chief Rabbinate and its Rabbinic Courts are run by men. The Rabbinic Court Administration Office has tried to bar women from applying for positions as law clerks.[iii] In the Petah Tikvah Rabbinic Court, until recently, no woman sat in any position, even an administrative one.

Rabbinic Courts apply religious laws that discriminate between men and women. Women appearing before rabbinic courts have little say in their attempts to divorce their husbands. Grounds for divorce for women are few, if any, and are not mutual. [iv] If a woman refuses to accept a Jewish divorce (a get), the state has an specific exception to its bigamy laws[v] to allow him to marry another woman and continue with his life (heter-meah rebbanim). If a man refuses to give his wife a get, she can be bound to him forever.[vi]

This taken-for-granted gendered, and discriminatory, world of the Orthodox rabbinic courts trickles down into other parts of Israeli society in the name of pluralism, and tolerance. So, for example, Egged, the state bus company, had (until recently) allowed, facilitated, and enforced “separate” buses in which women were expected to sit at the back of the bus, separate, apart, and unequal to men.[vii] The Supreme Court of the State of Israel has barred women from praying at the Western Wall in prayer shawls and phylacteries and has, instead, delegated the women to a separate, but not quite equal, section of the wall.[viii]

The Infringement on the Bodies—and Basic Rights—of Women

In Israel, the state authorizes the Chief (Orthodox) Rabbinate and its (Orthodox) Rabbinic Courts to “discipline and punish”[ix] the bodies of women.

The Chief Rabbinate Office is responsible for monitoring, registering, and conducting all marriages between Jews in Israel. It requires all Jewish women, as a precondition to their marriage, to immerse in a ritual bath (mikveh); to undergo a course on when and how to conduct their sexual lives with their husbands; and to set a date of their wedding in accordance with their menstrual cycle.[x] The Chief Rabbinate issues directives that determine the way to operate the (state built) ritual baths that service (the bodies of) Jewish women, and has recommended that attendants refuse access to women who are single or divorced.[xi]

The Rabbinic Courts set and interpret all laws regarding divorce between Jews in Israel. According to those courts, adultery on the part of a woman is absolute grounds for divorce; whereas adultery on the part of a husband can be forgiven.[xii] The court sometimes conduct “sex” trials to try to bar a woman from engaging in sexual relations after marriage with a man who may have been her lover; and, should the trial prove the allegations true, the rabbinic court can direct the Ministry of Interior to note the fact on the woman's divorce ruling, thus literally branding her with a letter “A” and “outing” her lover on official state documents.[xiii] Should a Jewish woman commit adultery and bear a child of that illicit relationship, the court can conduct a hearing that will put such child on a blacklist that prevents the child from marrying another Jew (mamzer).[xiv] Moreover, under Jewish law as applied by Israeli Rabbinic Courts, a man can withhold a divorce from his wife indefinitely, infringing on her autonomy and freedom.[xv]

Challenges to the Values of a Liberal, Democratic State

By deferring to the (Orthodox) Chief Rabbinate and its Rabbinic Courts in all matters relating to marriage and divorce, the state infringe directly on the freedom of conscience of Israelis by subjecting them to religious irrespective of their religious beliefs, or lack thereof.

Israelis are not free to marry in the religious ceremony of their choice. Only Orthodox ceremonies are recognized by the state. Conservative and Reform ceremonies are not allowed, though many non-Orthodox rabbis conduct such ceremonies for their constituents despite the fact that those marriages will not be registered by the Ministry of Interior. (Members of Parliament have proposed to make such ceremonies specifically illegal.)[xvi] No civil marriage or intermarriage is conducted in Israel.

Israelis are also not free to divorce in a manner of their choice. Even if they married abroad in a wedding recognized by the state under the rules of reciprocity (thus managing to bypass religious coercion at the wedding stage), if both husband and wife are Jewish, the couple will find themselves back on the steps of the rabbinate at the time of divorce. Recently, a rabbinic court held that such a couple must undergo the religious get ceremony in order to be divorced, and even incarcerated the husband until he gave the get.[xvii] Such order was a gross infringement on the husband's freedom of conscience, not to mention his physical freedom, and ironically, in direct contradiction of halakhic decisors, both in Israel and the Diaspora, who have held that Jewish couples who marry in a civil ceremony do not need a get. The husband had agreed to the divorce and simply wanted a decision of the court declaring that he was no longer married.

Israelis are not free to follow their conscience when going to the mikveh. Recently a young high school woman studying at a well-respected Jerusalem High School asked CWJ to petition the High Court of Justice to order the attendants at the mikveh to allow her to use the facilities when the attendant refused her access because she was single.

A Threat to the Viability of the Jewish Nation-State

One can argue that the Israeli state has effectively, and perhaps inadvertently, rendered “Orthodoxy” as the established “church” of the state of Israel[xviii] or as its official state religion.[xix] This gives voice, authority, and validation to “Orthodoxy” as a reflection of the “Jewishness” of the Israeli nation state, while in reality the (Orthodox) Rabbinate and Rabbinic Courts are not at all concerned with the values and interests of the state,  but rather with what they feel are the values and interests of the pan-national, or tran-national, Jewish people/religion. And the two are not necessarily in sync.

Thus, for the sake of the integrity of both the Jewish people and the Jewish nation, I posit that it is necessary to separate the Jewish “nation” from the Jewish “people,” and leave the imagining of the Jewish nation to its own separate sphere and consideration. This separation is not an easy feat, conceptually or practically, and it is one that has challenged the mighty and great. In 1970, Judge Moshe Zilberg, pondering the question whether one could be a Jew by nationality but not by religion,[xx] could not find a way to separate the two conceptions. He wrote: Nation (leum) and People (am) are synonyms and have the same meaning.”[xxi]

Judge Haim Cohen, on the other hand, understood that one's Jewishness from a religious perspective is not necessarily the same as ones Jewishness from a national perspective and that, when imagining what is a Jewish nation, the courts or whoever else is doing such imagining, must be guided by considerations such as human rights and freedoms. He wrote:

The halakha has its place of honor… I can imagine other purely legal considerations, with basic constitutional consideration at the fore, among them basic freedoms and human rights, that must guide a court's steps when it will, in the future, have to decide the question of a persons “nationality.” All of these considerations are legitimate and must move the court, and even obligate it, to decide the issue in a way that is not consonant with laws of religion.[xxii]

A Jewish nation, Cohen seems to be saying, must, first and foremost, be one that is consonant with and sensitive to human rights and freedoms.

The Need for a Place in “Civil Society”

While I have made a strong argument to take the Jewish (Orthodox) “religion” out of the Jewish state and its coercive state apparatuses, I would also like to make a strong argument for nurturing and sustaining Jewishness in the “nation” sense as a reflection of the morals and values of the Jewish state. To do this I would not relegate the Jewish religion to the very private sphere of the individual and family. Instead, I would place Jewishness in all its manifestation, as culture/tradition/religion, in the very public sphere of civil society—the space inhabited by voluntary civic, social, and religious organizations and institutions.

I would like Jewish culture/ tradition/religion to flourish in the State of Israel, thus sustaining the Jewish nation. I would even suggest that the state support the various activities of the various civic and social expressions of Jewish culture/tradition/religion without preferring one expression of Jewishness over the other. Israel should become the Mecca for Jewish learning, writing, art, music, and religious denominations of all sorts, including of course Orthodoxy in all its permutations. In the public sphere, and subject to human rights and religious freedom, Judaism would be the cultural capital of all Jews, Israeli and otherwise.[xxiii]

No religion—whether the current Orthodox, or any other variation thereof, be it benevolent Orthodox, Open Orthodox, Reform, or Conservative—should be thrust on the citizen of a democratic state. Today's benevolent Orthodox is tomorrows fundamentalist. The democratic and liberal values of a modern state must allow for freedom of conscience, or reflections of Judaism that may not be the ones that we personally espouse. Only such pluralism and tolerance with keep us together. Forcing all of us into one narrow, square hole for the sake of supposed unity and uniformity, is not working. Instead, it is alienating the great majority of us Jews from both the state and the religion.

Haval, what a shame. We Israelis and Jews of all denominations, including the ultra-Orthodox, deserve a more hopeful, pluralistic, and tolerant reality.

On Changes in Jewish Liturgy

Options and Limitations

By Daniel Sperber

Urim Publications, 2010, 221 pages          

This is the second recent volume where Daniel Sperber, professor, rabbi, author of thirty books and more than four hundred articles, a leading expert on Jewish laws and customs, addresses what many consider deplorable treatments of women in Judaism.

The earlier book, Women and Men in Communal Prayer, treated the exclusion of women from being called to the reading of the Torah, called aliyot, in Orthodox Jewish synagogues. It offered the opinions of four prominent, well-respected, and articulate men, rabbis and scholars. Two, including Sperber advocated changing the current practice to allow women to participate more than presently. Two opposed the change. All four approached the issue from “halakhic perspectives,” meaning that the authors articulated opinions based on the precedents of past rabbinic rulings.

Sperber, as is his custom, presented a host of examples to support his view that the concept of “human dignity” should trump all arguments that disallow full participation of women in the Torah reading service. He did not contradict Jewish halakhah (law), but argued that the concept of “human dignity” is a vital part of halakhah. He uses the same historical halakhic approach in this volume. He shows that the law is not what people think.

This volume asks: can changes be made in Jewish prayers? Sperber examines many prayers, including the three blessings that are part of the introduction to the morning service, prayers that set the daily mood.

The origin of these “blessings offensive to women” is a statement by a second century CE rabbi in the Babylonian Talmud, Menakhot 43b:

It was taught: R. Meir says: A person (read, man) must say three benedictions every day, and these are they: “who has made me an Israelite (meaning, a Jew); who has not made me a woman; who has not made me an ignoramus.” Rav Aha bar Yaakov heard his son reciting the blessing, “Who has not made me an ignoramus.” He said to him: Why do you recite this blessing? Surely the ignoramus is also obligated in mitzvot.

Rav Aha advises his son to substitute “Who has not made me a slave.”

Should these prayers be recited as they are written because they are a Jewish tradition? Are they sacred because they were unchanged for two millennia and were repeated in this format by generations of Jews? Are Jewish prayers never changed? Sperber shows with dozens of persuasive examples, and with footnotes as long as the text itself, for those readers desiring further proof, in a dispassionate, scholarly, and easy-to-read manner that the answer to all of these questions is “no.”

He cites early talmudic sources showing that rabbis were sensitive to the feelings of women and disliked Rabbi Meir’s blessings. Remarkably, he discloses that the source of the blessings is not Jewish at all. Parallel Greek benedictions “are found in Greek classical sources, specifically in the writings of Plato and Aristotle, and in other Greek sources from the fifth century BCE,” some seven hundred years before Rabbi Meir.

                        Blessed are You Who made me an Athenian and not a barbarian.

                        Blessed are You Who has made me a man and not a woman.

                        Blessed are You Who has made me a free man and not a slave.

Sperber quotes many alternative versions of the Jewish wording written by rabbis who saw that “the Jewish prayers were deemed offensive to women.” He quotes also a host of examples of the changes made in other prayers. For example, he sites “nineteen (!) different versions of R. Meir’s first blessing, ‘Who made me an Israelite.’” He notes that our current prayer book changed Rabbi Meir’s blessing from a positive to a negative statement, “who has not made me a heathen” and that the prayer book has a new alternative version to “who has not made me a woman” that women can say, “who has made me according to his will.” So changes do occur.

In fact he sites many examples of changes, such as many different versions of the very important daily amidah prayers. He notes that different groups of Jews, Ashkenazim, Sephardim, Oriental, Chasidim, Mystics, and others have different wordings of prayers and even made substitutions. He cites the first Lubavitch Rebbe rewriting many of the prayers. He mentions the new prayers such as the prayer for Israel, America, Israeli soldiers, Israel’s Independence Day, and others. He tells about the insertions by poets of piyutim and tehinot, poems and supplications, into the prayer book and the changes made by printers. He reminds us that half of the Friday evening service, called Kabbalat Shabbat, is a sixteenth century invention of the mystics to Safed in Israel. He tells tales of mystics changing prayers so that the number of letters and words would suggest their notions of mystical lessons. He recalls that many prayers are different today because of Christian censors. These are just some of the multitude of alterations that he relates.

Thus, Sperber makes it crystal clear that past changes made in the prayer book show that changes are allowed. As an Orthodox rabbi, he concludes that a person should not “alter the text of the prayers in accordance with his current state of mind. Of course, this is not feasible, nor is it our intended message. We are speaking only of changes mandated by communal needs, major historical events or broad sociological changes.”

Is it enough, is it sufficiently sensitive and humane to allow women to say “who has made me according to his will” while encouraging men to thank God for not making them a woman?

No issue in Israeli public life arouses the range and intensity of emotions as does anything relating to Hareidim and Hareidism—the terms used for the “ultra-Orthodox” and their lifestyle. [1]  A typical discussion on any Hareidi-related issue is laden with ideology, dogma, and opinion, but short on facts, let alone hard data.

The sad reality is that most Israelis, including most dati-leumi (National Religious/ Modern Orthodox) Israelis, relate to Hareidim with a mixture of fear and loathing—and even hatred generated by that potent mixture. Hareidim feel much the same way about secular Israelis and, very often, about religious ones too. The mutual antipathy stems from the concern on each side that the other will seek to impose its views and lifestyle.

Yet this stereotyping tends to break down at the individual level. Thus, although the average Israeli will express strong negative views about Hareidim in general, s/he will often feel warmly toward Hareidi individuals he knows through family, community, or work connections. This is a positive and hopeful feature in a generally bleak picture, which carries important implications for the future—assuming Hareidim become more involved in, and even integrated into, the wider society.

That assumption is a critical issue—not just for the future of Hareidi society, but for the very existence of the State of Israel. I will argue here that the future is one of greater integration, but that outcome is far from assured. If the Hareidi sector of society adheres to the ideology of separation—which has been one of its bastions and sources of strength and which has, at least in some respects, intensified in recent years—then the tensions between the wider society and the Hareidim will be exacerbated, and the suppressed conflicts will likely become steadily more overt and possibly violent.

That negative scenario is much less likely, but it is essential to understand why. The reason is that the primary source of friction between the Hareidi and non-Hareidi sectors is no longer cultural, let alone ideological. In a postmodern society such as Israel, the acceptance of numerous lifestyles is increasingly the norm (even by Hareidim, as their self-defeating struggle against gay parades in Jerusalem illustrated very clearly). Most non-Hareidim therefore have no problem with Hareidism for Hareidim, although they obviously don’t like it or want it in their backyard. However, this acceptance is subject to two important conditions: that the Hareidim do not attempt to impose their values and life-styles on non-Hareidim, and that the Hareidi community and its lifestyle is not paid for by non-Hareidim. 

It is the first of the issues—perceived attempts by Hareidim to impose their mores and values on others—that generates most of the heat and light popularly associated with “Hareidi/ secular” clashes. Travel on Shabbat, gender separation on buses—these are the classic issues that have led to bitter and sometimes violent confrontations. But these are trivial matters in the wider scheme of things. At the macro level, the clash between the Hareidi sector of Israeli society and the non-Hareidi majority has been over resource allocation, which, in plain language, means money—but also manpower (because labor is also a resource, and a critical one at that).

As soon as the Hareidi/ non-Hareidi “clash” is put in those terms, it becomes more amenable to resolution. After all, in every country different groups and sectors of the population vie for “shares of the pie.” The competition may be between rich and poor, old and young, country versus city—each country has its own characteristics, but none is devoid of rivalry. In a democratic society it is the electoral process, which enables citizens to choose between the platforms of political parties, that provides a mechanism whereby that society decides how to divide up its proverbial pie. Each group’s starting point is that it deserves more, for whatever reason—but every group must relate its demand, either implicitly or explicitly, to its contribution to the overall society.

The Hareidi “Problem”—Burden or Blessing?

The singular feature of the Hareidi sector is that it bases its request for a growing share of the national pie on a contribution that the non-Hareidi majority does not recognize. The Hareidim claim, as an article of faith, that their contribution of studying Torah full-time is equal to, if not greater than, that of the majority who serve in the army and work for a living. For reasons that will be explored below, the non-Hareidi majority have acquiesced to an arrangement whereby Hareidi young men are not conscripted into the Israeli Defense Forces, nor do they join the labor force and engage in economic activity. Instead, they remain in a framework of institutions devoted to Torah study, encompassing secondary and tertiary education and developing into open-ended “post-graduate” studies in kollels for married men.

However, this acquiescence on the part of the political leadership of non-Hareidi Israelis does not reflect acceptance by them—let alone by the general public—of the principle that adult Torah study is an equivalent contribution to work and/or army service. Consequently, the growth of Israeli Hareidism has generated a widespread feeling that “the burden”—the financial burden of paying taxes, the economic burden of making the country self-supporting, and, above all, the physical/existential burden of defending the country—is not shared, and that the Hareidim do not pull their weight but rather live a parasitic existence, paid for and defended by their non-Hareidi compatriots. 

But since the highly democratic Israeli electoral system allows the Hareidim to express their beliefs and pursue their demands via political parties in the Knesset, and since the political system results in coalitions in which these parties are usually members—and since the Hareidi political parties’ primary raison d’être is to channel budgetary allocations to its constituency—the result has been that the Israeli public has continued to pay for the maintenance and expansion of Hareidi society.

To suggest that this is going to change is considered by most Israelis today as naive, ridiculous, or proof that the suggestor is detached from Israeli reality—or all of the above. Indeed, it is now universally accepted by informed and educated Israelis that the Hareidi population poses a major problem, even a threat, to the socio-economic well-being of the State of Israel—and hence to its existence. No serious analysis of the country, its society, economy and political structure, can or does fail to make this point. Even foreign analysts have “discovered” the Hareidi problem, which now features in analyses produced by the OECD and the IMF, as well as reports in the Economist magazine, The New York Times, and other important international news media.

The existence of so broad a consensus is a strong indication that the view it presents is very likely to be wrong. To the contrarian analyst, the only time you can be sure of anything is when there is unanimity among the experts about that subject. In particular, if the accepted wisdom is that something is a serious problem that seems intractable, then you can be fairly confident that it’s going to be all right. This general rule applies to the problem posed by Israeli Hareidism.

If I therefore move straight to the bottom line, my conclusion will be that the Hareidim are going to be integrated into the Israeli economy and, to a lesser extent, into Israeli society. This long and difficult process is already underway and is picking up speed. It is being driven by forces both from within Hareidi society and outside it, so that although the initial impetus for change may have been imposed on the Hareidim, today that is not the case. If anything the opposite is occurring: Change is being driven from within, by a new generation with a new mindset.

Last but not least, this conclusion does not mean that Hareidism is going to disappear, or that the Hareidim are going to become irreligious, or “Modern Orthodox,” or anything else. Hareidism of one sort or another is a permanent fixture within the spectrum of views and behavior that comprises Judaism, at least in the modern era. It can and will adjust, as it has done several times—despite the Hareidi mythology that they and their lifestyle are unchanging—and it is in the process of doing so again. This is tremendously good news for the Jewish people as a whole, for the State of Israel, and for the Israeli Hareidi community.

Mythology Meets Reality

Before analyzing the process of change underway, it is essential to review how we arrived at the current state of affairs. Along the way, we will discover how and why the process of change started some years ago.

The Hareidi problem, stripped of its emotional and religious over- and under-tones, boils down to one of demographics and economics and the relationship between these two areas. From an economic point of view, any society can afford—if it so chooses—to provide special privileges to a small group within it. In many societies, ancient and medieval, this group was the priesthood or clergy. The Torah itself adopts this concept by designating the tribe of Levi as the privileged group to be supported by the wider society in return for devoting itself to religious duties, both in the Temple and throughout the nation. Mainstream Hareidi ideology uses the Levites as an example and role-model for the position Hareidim wish to assume within Israeli society.

The concept of a small group of devoted scholars, engaged in keeping the flame of traditional Jewish study alive after the annihilation of the European Torah centers during the Holocaust, was accepted by Ben-Gurion and other secular leaders in the 1950s and provided the justification for the two key privileges granted the then-tiny Hareidi sector, namely the exemption of dedicated yeshiva students (and all religious girls) from army service and, even more importantly, the creation of a separate education stream for the Hareidi sector. At the time, these seemed to be minor concessions and did not attract significant attention; the cost, in social, military, and economic terms, was negligible.

However, two dynamics combined to change the relative position of the Hareidi sector within the wider society, and, consequently, to change the attitude of the silent majority of the population with regard to Hareidi privileges from one of passive acquiescence to increasingly vocal opposition. The first of these was demographic: Over time, the birth rate in the Hareidi sector rose dramatically, as this society adopted early marriage and large families not merely as social mores but rather as key cultural values. At the same time, the birth rate in the general population, especially the Jewish population, was declining as the immigrants from Europe and the Arab world adopted Western mores. The inevitable result was a steady rise in the relative size of the Hareidi sector within the overall Israeli population, from a negligible level at the foundation of the state to a small but noticeable minority by the 1970s.

This period—roughly the first three decades of Israel’s existence—is viewed today by many older Hareidim as a “golden age.” From their weak and marginal position in society, firmly planted in political opposition to the ruling Labor-left coalitions, the Hareidim were forced to struggle for anything they needed. Their small numbers and shared goals and needs forced them to work via a single political party—Agudat Yisrael—to protect and expand the privileges they had obtained. Their religious leadership, comprising a handful of outstanding personalities who had survived the Holocaust and were now dedicated to regenerating Hareidi life, focused their efforts on education as the means to produce a new generation committed to living by the old values and verities. Money was scarce, for the country as a whole and especially for the marginalized Hareidim but—as in the wider Israeli story—much was achieved, thanks to determination, focused efforts, and inspiring leadership.

In 1977, the second dynamic came into play. The “political upheaval” of May 1977 ended the hegemony of the Labor-left and brought to power a Likud-led center-right coalition. The new Prime Minister, Menachem Begin, invited Agudat Yisrael (AY) to join his government—and the invitation was accepted with alacrity. AY maintained that it could not accept ministerial positions because that would require accepting responsibility for government decisions and activities it could not approve of; instead, its representatives took deputy ministerial posts and other positions, notably the chairmanship of the Knesset Finance Committee, through which they became instrumental in making key policy decisions. More importantly, from the narrow sectoral perspective through which AY viewed its involvement in national politics, its entry into government and its prominent position in budgetary affairs allowed it to massively increase its access to funding for its institutions, educational and other.

The common perception is that from this point on, Hareidi power and influence rose steadily. This process was catalyzed by the deadlock between the two main political blocks that characterized Israeli politics through much of the 1980s and 1990s, and that allowed Hareidi parties to hold the balance of power and thereby to extract more concessions in return for their support. These concessions were almost always in the form of larger budgetary allocations, which gradually spread across a range of channels: the Ministry of Education provided budgets for the Hareidi school systems; the Ministry of Religion was the primary source of funding for yeshivot and kollels; the National Insurance Institute (NII), via its child allowances and other social welfare payments, became a critical source of funding for burgeoning Hareidi families; and, over time, a huge array of NGOs serving the Hareidi sector emerged, most of them reliant on government funding as their primary source of support.

To be fair, the process of tapping into the government budget to finance institutions and NGOs with a sectoral orientation was by no means a Hareidi monopoly. In the period from the late 1980s to the turn of the century, everyone got into the act, but the Hareidi parties were the acknowledged masters of this game—the biggest and the best.

Note that by this point it was necessary to speak of Hareidi parties in the plural. The old alliance of all the Hareidi groups under the AY umbrella broke down, once again under the twin forces of demographics and politics. There were now large numbers of people in each of the main sub-groups of the Hareidi sector—the Hassidim, the Mitnagdim (“Lithuanians”) and the Sephardim. The latter group not only broke away to form its own party but, under the leadership of Rabbi Ovadia Yosef and his chief lieutenant, Aryeh Der’i, launched an unprecedented  campaign that reversed the secularization process underway among Sephardic Jewry. Shas grew to become a mass movement, led by Sephardi Hareidim but attractive to a much wider public. Its relationship with the other mainstream Hareidi party, Degel Hatorah, is complex and multi-faceted, but the basic fact remains that Shas views itself as a Zionist party and as a full partner in the governing of the state. [2]

The process described above, of financing the growth of Hareidi education, welfare, and other systems from the state budget, was both the cause and the effect of Hareidi demographic and political expansion in the 1990s. It reached its climax in the “Halpert Law” of 1999, named after an AY Knesset member and foisted on another weak coalition in desperate need of Hareidi support in order to cling to power. The law changed the structure of child allowance payments from the NII so that, whereas hitherto the additional allowance for children under the age of 18 rose until the fifth child and then declined, now it would continue rising: each marginal child would bring in a relatively larger stipend. The obvious beneficiaries if this law would be the Hareidim—but also the Bedouin Arabs, where polygamous family structures existed and NII stipends enabled and encouraged high birth-rates.

The Halpert Law proved to be the high-point of Hareidi political power. But it is important to note that even in the late 1990s it was already apparent, both within and outside Hareidi circles, that Lord Acton’s dictum that power corrupts applied to Hareidim no less than to others. The most obvious evidence was the number of Hareidi Knesset members sent to jail for various forms of corrupt practices. Although I would tend to accept the Shas argument that its representatives, and Aryeh Deri in particular, were victims of a political witch-hunt inspired by the Ashenazi/ left-liberal “elites,” that doesn’t make them innocent—it just means they were picked on and picked off.

However, with the benefit of hindsight, it is clear that the peccadilloes of specific Knesset members and ministers were only the tip of a much larger iceberg. In effect, Hareidi political power resulted in Hareidi society becoming entirely dependent on the government budget. In other words, Hareidi Judaism—despite its proclaimed ideology of separation, self-sacrifice, and asceticism and its efforts to dissociate itself from Zionist ideology—turned itself into a branch of the Israeli welfare state. Nor did this happen by accident; the process became self-supporting  as more and more Hareidi leaders, their entourages and their institutions, became increasingly dependent on funding whose ultimate source was the government budget—and hence the Israeli taxpayer. True, there was an alternative source of funding, namely foreign donations. But after the fall of the Reichman brothers’ empire in the early 1990s, the illusion that one family had been designated by Providence to support the entire edifice of Israeli Hareidism was shattered. Foreign donations remained an ongoing source of support, but its role was increasingly to provide jam, while the bread and butter came from the Israeli government. The lesson of the rise and fall of the Reichmans seemed to be that no wealthy individual, however mind-bogglingly rich, could play the central role. The national budget was larger, more accessible and seemingly more dependable.

But government funding was earmarked for two main areas: education and welfare. As a result, both saw massive expansion. They became the focal points of activity for every entrepreneurially oriented Hareidi so that, sadly and ironically, they became the main “industries” within the Hareidi business sector. Furthermore, since the new generation of Hareidi entrepreneurs had neither experience nor formal education, management of the new entities was characterized by inefficiencies, superfluity, and corruption.

Educational establishments proliferated, each one of which was a business venture in an increasingly competitive market. The more successful entities, whether by design or by accident, became involved in real estate, catering and wedding halls, and other legitimate business operations. As for illegitimate activities, the reader is referred to the media and/or Google for more details.

The overall picture was one of rapid, headlong, and unplanned growth, in which the nimble and well-connected came out on top, while a wider class of political machers, public relations, marketing, and other consultants, along with the managers of the NGOs, emerged as an embryonic Hareidi upper-middle class. But there was nothing below them, other than a mass of yeshiva/ kollel families, dependent on meager stipends and living near or actually in relative poverty, as the cost of feeding, educating, and marrying off their numerous children consumed their small incomes. 

The Secular Backlash

The Halpert Law proved to be the proverbial straw that broke the camel’s back. By pushing their political power too far, the Hareidim triggered a political backlash on the part of secular, middle-class Israelis, against what was commonly called “Hareidi blackmail.” Since the two big parties were unwilling to clash with the Hareidi sector directly, the protest movement found a new outlet in the form of a new party, Shinui, which not only called itself  “the secular list” but was openly and stridently anti-Hareidi. Its leaders were indeed anti-religious, but most of its supporters were probably not; they, too, were concerned with money rather than ideology, above all with who paid taxes and who received benefits—as well as with who served in the army and did reserve duty and who didn’t.

One of the most remarkable of the many political parties to shoot across the Israeli political firmament, Shinui may arguably be regarded as the most successful. In its first election effort, in 1999, it won six seats, a highly respectable performance, but not enough to change the balance of power. But by the next general election, the country was in a very different position. The hopes of peace and security prevalent in 1999 had been dashed by the second intifada and the suicide bombing campaign, while the prosperity engendered by the high-tech dot.com boom had been expunged by the “tech-wreck” and a global recession. These, coupled with the impact of the suicide bombings on the domestic economy, had plunged Israel into the longest and most severe recession in the country’s history. Tax revenues plummeted—but expenditures continued to rise, as the welfare structure created in the 1990s was impervious to the ups and downs of the economy. The result was a massive budget deficit and a financial crisis in 2002, which occurred against a background of serial suicide bombings and an Israeli counter-offensive against the Palestinian terrorist groups—Operation “Defensive Wall.”

There had been serious tensions between Hareidim and secularists in 2000 over Prime Minister Ehud Barak’s “secular agenda” and what Hareidim perceived as excessive Supreme Court activism. But the events of 2002 exposed the Hareidi sector to an unprecedented degree: they paid little tax but received a disproportionate share of the government’s expenditure and, as usual, they played no role in the military campaign. All this made Shinui’s message resonate widely so that, with the help of a vigorous and nasty election campaign, the party won 15 seats in the election of February 2003, making it the third-biggest party in the Knesset and an obvious coalition partner for the Likud—which, led by Ariel Sharon, had won a tremendous victory, garnering 40 (out of 120) Knesset seats.

The election outcome enabled Sharon to turn Israeli politics on its head and build a coalition in which all the Hareidi parties—including Shas, to its amazement and horror—were excluded. Sharon appointed Binyamin Netanyahu as Finance Minister, with the seemingly Herculean task of pulling the battered economy into shape, and these two used their parliamentary majority and the atmosphere of dire crisis to rapidly legislate a series of sweeping reforms. In addition to rationalizing the tax system to generate higher revenues, Netanyahu homed in on the expenditure side, which was plainly out of control. Inevitably, justifiably, and predictably, he took a machete to the sprawling welfare system that had been constructed and of which the Hareidim were the prime beneficiaries.

In the course of 2003–2004, the overall amounts of government funding to the Hareidi sector fell drastically, probably by one-third, perhaps even more. The main blow was the slashing of child allowances, but the yeshiva stipends and other elements were also pruned. Not surprisingly, the Hareidim came to call this development “the Netanyahu gezeros” (decrees, a term usually applied to anti-Jewish laws by gentile anti-Semitic regimes). The alternative would have been to admit that they and their leadership had, through greed, short-sightedness, and sheer stupidity, set themselves up for this disaster. But whatever label is used, this was the watershed event that marked the end of the Hareidi welfare-state society that had been constructed over the previous three decades.

The sheer scale of the implosion in funding caused massive distress for many Hareidi families and forced many institutions to merge or close altogether. Objectively—and if the government’s aim was indeed to incentivize Hareidim to move from welfare into the workforce, as it claimed—then the cuts should have been phased in gradually, over a period of 5-10 years. But the immediate need was to stem the hemorrhaging in the national budget and, in this context, the swollen welfare budgets were the obvious targets. The result was traumatic—and that trauma set Hareidi society on a new path.

From Crisis of Confidence to a New Model of Hareidism

The immediate task facing the Hareidi leadership in the wake of the so-called gezeros was to address the crisis as best they could. In practice, beyond an emergency fund-raising campaign, the pain could only be eased gradually, as the Israeli and global economies began to recover. But the situation began to improve perhaps faster than might have been expected. The domestic scene changed: Shinui imploded in a welter of internal feuding and corruption charges, and soon disappeared entirely from the political scene—as far as its voters were concerned, its mission completed. Subsequent governments recognized that the cuts imposed by Netanyahu had been too drastic and allowed some increases in child allowances.

Meanwhile, a new development was sweeping the economies of the main developed countries where large Hareidi centers had developed. The greatest real-estate boom ever seen was minting millionaires seemingly by the minute, and a rich new vein of foreign funding opened up. For five years, from 2004 through 2008, unprecedented sums of money poured into the Israeli Hareidi sector, not just in the form of donations, but also as investments in real-estate and other businesses. The wider Israeli public was largely unaware of this, but anyone walking through the Hareidi quarters of Jerusalem and other Hareidi population centers could hardly fail to notice the surge of construction activity.

Once again, however, as with the Reichman saga 20 years earlier, the hope that foreign sources could replace the Israeli government in whole or part proved illusory. The real-estate crash in the United States and the subsequent financial and economic crisis in the West wiped out many of the new Hareidi tycoons, and, together with a series of scandals within the Hareidi Diaspora, served to eliminate key sources of funds, with the inflow drying up much faster than it had expanded.

Nor was the new money, even when it was available, a true replacement for the funds lost via the “gezeros.” Donations went via intermediaries, who generally took a hefty cut for themselves, to institutions and organizations, wherein a new Hareidi executive class began to emerge and adopt a lifestyle to match. The government money, or what was left of it, went to individuals and families who desperately needed it—although they then had to turn to the charity organizations to supplement it.  Thus the real-estate driven prosperity of 2004–2008 aggravated the existing income and wealth gaps within Hareidi society, with the majority of the Hareidi poor being left steadily further behind.

Meanwhile, even as the chimera of Diaspora real-estate money came and went, far-reaching changes were taking place in Israel, both inside and outside of the Hareidi sector:

• Beginning in 2003, the Israeli economy began what was to become its longest-ever period of economic expansion. Although the global crisis of 2008 hit the Israeli economy too, its impact was short and after two tough quarters, the economy bounced back and resumed its growth path. In hindsight, the period 2003–2010 can be seen as “seven fat years” in which Israel surged ahead and prosperity became widespread. However, massive income and wealth gaps developed, with Hareidim and Israeli Arabs standing out as the two main population groups left out of the party.
• If the economic success story is well-known, the extraordinary developments in Israeli demography since 2003 are not. Yet the data are official, regularly updated, and clear-cut. They show that a) since the slashing of child allowances the Hareidi birth-rate has trended lower (as has that of the Bedouins); b) the birth-rate among non-Hareidi Israelis has steadily risen; c) the birth-rate among Israeli Arabs continues along its long-term declining trend.
• Within the overall economic success story, the single most important datum is not widely known. This is that the participation rate in the labor force has risen steadily and is now at a record-high level of 58 percent. This rate is still extremely low by Western standards, but the upward trend is the critical factor. One of the causes of this improvement, perhaps a central one, is the increase in the rate of participation among Hareidim, including Hareidi males.
• Within Hareidi society, major changes are underway. Three, in particular, need to be highlighted, relating to a) politics, b) sociology, and c) psychology. Space only permits presenting these in “headline” form, but each is worthy of close examination.

Hareidi politics: The evidence of a crisis of leadership in Hareidi society is most evident in the political sphere, where it can actually be measured. The most obvious evidence is the failure of the Hareidi parties to increase their representation in recent elections, despite surging growth in the Hareidi voting population. This suggests that Hareidi votes, especially younger ones, are leaking away to non-Hareidi parties—a suspicion supported by reading of the Hareidi and non-Hareidi media and by anecdotal evidence. In addition to voting patterns in general elections, the faction- and personality-based feuding within the Hareidi political scene—the municipal elections in Betar and Jerusalem in 2008 are outstanding examples—is forcing many young Hareidim to the conclusion that their interests are not being promoted by traditional Hareidi parties. More generally, the shrinking of government support has revealed that Hareidi politics has become entirely focused on obtaining government funding and providing jobs through patronage, and has shed its ideological underpinnings.  Now that Hareidi parties are unable to provide sufficient funds or jobs to answer their constituencies’ needs, they have lost their validity and with it, increasingly, their support.

Hareidi sociology: The “gezeros” left  most Hareidim over the age of 35 with insufficient income to support their large families—and without education, training, or any practical means of finding jobs in the wider economy. Overnight, they became a “wilderness generation”—and the Hareidi leadership has not been able to provide systemic solutions to the crisis. The conclusion drawn by many younger Hareidim—especially those who are, for one reason or another, uncomfortable with or unsuitable to the yeshiva/ kollel lifestyle—is that they must look out for themselves. Specifically, they must be able to earn a living. This is fuelling a steady increase in the number of young Hareidim attending colleges and even universities, as well as vocational courses, in a broad range of fields. These efforts are being funded and guided by, inter alia, the Joint Distribution Committee, numerous individual philanthropists, and institutional philanthropies from overseas, as well as various Israeli government ministries and agencies—including most branches of the IDF.

 This means that the front line of Hareidi integration into Israeli society is now the labor market—but also that serving in the IDF, after yeshiva and perhaps some kollel study, is acceptable. The envelope is being pushed steadily outward, both in quantitative terms—the number of people involved—and in qualitative terms, meaning the kinds of things they do.

As this process moves forward, it is creating a genuine Hareidi bourgeoisie—people with real jobs and businesses that create income and wealth, rather than party apparatchiks and “welfare entrepreneurs” whose business arena is the Hareidi “hessed” empires that are the hallmarks of the sector’s poverty and welfare-dependence.

Hareidi psychology: This point is based more on subjective impressions than hard data, but it seems to me both correct and a logical accompaniment to and outcome of the preceding points. In Kennedy-style terms, we can speak of the torch being passed—more correctly, seized—by a new generation of Hareidim, who have come of age in the twenty-first century, tempered by terror and war, disciplined by a severe financial but also spiritual crisis, proud of its ancient heritage, and unwilling to impose on the next generation the ideals of genteel poverty on which it was brought up. Furthermore, this new generation sees and feels itself to be entirely Israeli, an integral part of the multi-cultural mosaic that is the State of Israel today. Unlike their grandparents, they feel no need to molder on the margins of society, and unlike their parents, they do not carry an inbuilt inferiority complex vis-à-vis secular or religious Israelis. Many of them are beginning to realize that they have much to give to the wider society and also much to learn from it, because—contrary to what they were told in school—they and their leaders do not have all the answers. Above all they are convinced, on the basis of what they have seen both in Israel and among their peers in the Diaspora, that it is possible to live a Hareidi lifestyle and yet interact, where necessary, with the wider society.

These new trends are the antithesis of the old-style welfare-state Hareidism. The battle between the two is ongoing and will take time to resolve, but the global reversal of the welfare state model ensures that the old system is doomed. The future of Hareidism lies with the new generation, which is engaged in a live experiment of adapting its lifestyle to a new socio-economic reality.

The track record of Hareidim in adapting to new circumstances is a good one. Furthermore, the overwhelming majority of the wider Israeli society, including the government and the main institutions of the state, are strongly supportive of this effort. How exactly it will turn out cannot be known—because the future is unknown. But too much hangs on the outcome of this effort, for the Hareidim, for the strength and cohesion of the State of Israel, and for the future of the Jewish people, for it to fail.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conversions Performed Outside of Israel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Role of the Rabbinate

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Future Directions

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

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

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

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

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

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

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

Introduction

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

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

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

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

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

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

From a Political Institution to a Civil Society

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

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

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

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

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

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

Community

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

Rabbinical Authority

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

Spreading of the Torah

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

Kashruth

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

Marriage and Divorce

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

Conversion

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

Immediate reforms

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

Rabbinate

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

Termination of the ethnic duplication

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

Time limits in appointing rabbis

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

Council for Higher Religious Education

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

Kashruth

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

Transparency

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

Non-profit entities

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

The Rabbinical Courts

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

General Education for Rabbinical Court Judges

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

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

Increased Representation of Women in the Rabbinical Courts

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

Marriage and Divorce

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

Conversion

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

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

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

Spring 2013

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

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

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

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

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

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

Shalom uvrakha,

Rabbi Marc D. Angel

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

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

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

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

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

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

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

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

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

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

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