National Scholar Updates

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Rabbis and Educators Professional Community

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

The Summer Bet Midrash

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

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

The Campus Program

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How Not to Make Halakhic Rulings *

Daniel Sperber

Introduction

In a series of articles and publications I discussed the question of how halakhic decisors (poskim) should act in our day and age, arguing that they should seek to bring people closer to a love of Judaism and halakha, to be inclusive rather than exclusive, and to practice what I called "friendly decision making" (pesikah yedidutit). I am wont to quote a passage from R. Aryeh Leib Friedman's Tzidkat ha-Tzadik (undated, but after 1953), p.115:

How much responsibility and caution one requires in interpreting halakha when it comes to real life. How serious and terrifying is the thought of permitting the prohibited.... But clearly it is no less serious and aweful to prohibit the permitted; as we say in the Vidui ha-Gadol, "That which you declared guilty we declared innocent, and that which you declared innocent we declared guilty." And so it is stated in Yerushalmi Terumot 4.3: "R. Eleazar said: Just as it is forbidden to purify the impure, so too it is forbidden to declare the pure impure."

Thus, one must always take into account the implications of one's ruling, how much pain and anguish it may cause, weigh the relevant aspects involved in the issue, and seek out a way to find a suitable solution which will bring spiritual satisfaction to the questioners. Of course, we will not always be able to satisfy our "clients" with a "happy reply." But at least we should always try our hardest to do so.

In the following article, I shall give three examples, of how not to rule. They come from different fields of halakha, but they all reflect, in my opinion, the dangers and flaws involved in the tendency toward stringency, and the fear of leniency.

I. A Pesak attributed to R. Moshe Feinstein

R. Michal Zalman Shurkin, in his book Harerei Kedem vol.1 (Jerusalem 1980), which is a collection of hiddushei Torah which he heard from Rabbi J.D. Soloveitchik, has a sort of appendix "in order not to leave the folio empty", which has "facts, practices and advice (which he heard) from gedolei olam (pp.343-346), and in sect.II (pp.347) he relates the following tale:

I was present when the Gaon R. Moshe Feinstein z"l was asked the following question, and I am translating it in its original form, with its response. [And this is not le-halakha, and for the practical halakha the questioner should refer to his son R.David Shlita].

A young man (avrekh) came before R. Moshe z"l greatly perturbed by the complaints of his wife, who had already bore him several children one after another. And she sought permission from R. Moshe [to stop giving birth]. R. Moshe heard the question and replied, "There is no heter".
The young man continued and argued before R. Moshe that: "My wife is sickly, and perhaps the case of one who is sickly is different?" Upon which R. Moshe asked him, "What sort of sickness does she have?" The reply was, "She suffers, apparently, from weak nerves - i.e. nervousness." R. Moshe then asked the young man, "Does she hit the baby? "The young man replied in great surprise, "The baby is just seven months old." R. Moshe then said, "If she doesn't hit the baby, that means she is completely healthy." But the young man continued, "But how should I respond to my wife's complaints?" R. Moshe answered forcefully (be-takifut), "Learn with her musar." [See carefully in Iggrot Moshe vol.4 sect. 39, and in other responsa ibid., and I bring that which I myself saw and heard.]

I found this whole tale somewhat unbelievable, especially when we recall other rulings of R. Moshe. Thus, in Even ha-Ezer vol.4, sect.68, pp.137-138, we read as follows:

With reference to a couple that wish to use moch, (a form of birth-control), since, as a result of their weakness resulting from the [burden of upbringing], they hit them (i.e. the children).....
To the young man: Behold, because of your children, may they live long, your wife, and you yourself, have great distress from [the burden of] their upbringing, so much so that you beat them, even though it is clear to all that there can be no benefit in beating them. And, on the contrary, it will just add to the effort in educating them. Therefore this is an act of stupidity resulting from the disease of nervousness, for which we cannot exercise restraint (i.e. forgive) the pain they cause... and the cruelty to their small children..., even knowing that every strike is prohibited, and this is no form of education... and it may even lead to danger.... Therefore, there is good reason to permit the diaphragm.... And this ruling is for two years after she gives birth.... And this is also because of the danger to the mother, since it is clear that she is sickly with nerves (nerven) resulting from the great pressures and distress in bringing up her children, this too constitutes a danger both for the children and for her life too....

Although there seems to be a similarity between the two cases, though the former is much terser and more abrupt and even brutal in style, these rulings seem to contradict what he wrote elsewhere. For in Iggrot Moshe ibid. sect. 69 p.138, he wrote:

With regard what he wrote concerning the state of his wife, that she was forbidden to become pregnant because of the fear of danger to her, in view of her great weakness, which in itself is dangerous, and her depression which is also a danger, therefore it is simple that she be permitted to practice birth-control, as I have clarified in a responsum in vol.1 of Even ha-Ezer sect.63, that in place of danger she be permitted to use moch...

In R. Shurkin's case, the woman had given birth to several children, apparently close to one another in time, and she was constantly complaining that she did not want again to become pregnant, at least for a while. Undoubtedly, she had post-partum depression, if not a more serious type of depression. In such cases R. Moshe ruled clearly that this was sufficient reason for a temporary pause, an intermission, and hence to permit some form of birth-control.

Furthermore, R. Moshe himself, in that same volume, sect.74, p.142, subsect.3, wrote as follows:

As to the issue of a woman's taking birth-control pills to prevent pregnancy - even though it is forbidden to uselessly spill semen (zera le-batalah) , this is not the case [when one takes pills] because the sperm enters the woman's womb. But without great need one should not take them nor seek such advice. And even though in order to keep her good health, a woman is not obligated to bring upon herself distress greater than she has power to bear, nonetheless, this is against the will of God. However, if she is physically weak, and even more so if she has great fear which we call nerves (nerven), which is just like illness, there is room for permissibility.

And see also ibid. sect.71, and Even ha-Ezer vol.3 sect.24, where he permitted the use of pills for a limited period for a woman whose weakness was greater than is normal, even though the husband had not yet fully carried out the mitzvah of procreation, and if he had, he was permitted to carry out birth-control even up to three years.

Is this really the case which R. Shurkin cited? Could R. Moshe not have questioned the young man more thoroughly and more systematically? What really was his wife's state of mind and health? What were the symptoms of her depression? Was the request for temporary respite or permanent? Had the husband fully carried out the obligation of procreation? Could it be that he only asked him: "Does she hit the baby?" And could his ruling really have been: "Learn musar with her." R. Moshe was a great posek, with a great deal of experience, human understanding and sensitivity. In one case he even permitted a baal teshuvah, who married a gentile woman, and who discovered that he was a cohen, to continue to live with his wife after she had converted! (See ibid. sect. 39. p.83.)

Indeed, there are numerous discussions concerning the halakhic status of depression, and when it is considered health-threatening and even life-threatening. (See, Iggrot Moshe Even ha-Ezer vol.1, sect. 65, p.165.) A clear exposition on this subject may be found in Avraham Sofer Avraham's book, Mishnat Adam vol.3, Even ha-Ezer, Jerusalem 1988, p.65, where he writes, inter alia:

On the other hand, if she does not want to become pregnant out of fear of an attack of depression etc., even despite psychiatric treatment (mentioned above) it would appear that she is permitted to use one of the methods of birth-control (according to the ruling of a rabbi), and the husband cannot force her to [carry out] that mitzvah. And R. Shlomo Zalman Auerbach shlita, and R. Yehoshua Neuwirth agreed with me on this point.

Furthermore, in that same volume, p. 59 he discussed a woman's weakness as follows:

The Birkei Yosef (sect.1, subsect. 2) wrote: If he has already carried out the obligation of procreation and his wife permitted him to desist from intercourse, he may do so, as we have written below sect.76, on the basis of Rambam chapter 15 of Hilkhot Ishut.

From this, and the Birkei Yosef's conclusion, we may deduce that he is of the opinion that even without serious medical reasons, but merely for reasons of convenience, finances etc., a husband is permitted to desist (albeit not completely) from intercourse with his wife, provided, of course, he does not practice auto-eroticism.

R. Mordechai Breisch, in his responsa Helkat Yaakov, Tel Aviv 1976, vol.3, sect. 62, rules that in a case when the Rabbi sees that there might develop a situation of danger, or possible danger (safek sakanah), this may be regarded as an hour of danger (shaat ha-dehak) in which one may have a ruling of permissibility. Indeed, in a series of responsa R. Breisch permitted birth-control (vol.2, sect. 11-13) for a woman who had children "and now wants under no circumstances to become pregnant, and this issue is affecting her nerves in a most serious manner", (p.35). The doctors also agree that she may fall into a state of mental derangement; nonetheless, his ruling was only for one year.

I shall not go into all the intricacies of the halakhic discussions in the numerous sources that discuss this issue. But surely this suffices to show how careful one must be in making such decisions. There are so many elements to be taken into account: halakhic, psychological, medical etc. I therefore find it difficult to believe that R. Shurkin's testimony is indeed accurate. For I do not believe that a great decisor could rule on such flimsy evidence, examined so superficially, and giving a ruling so abruptly. I believe this to be a lesson in what not to do.

2. The Sheitel Memorandum

Some few years ago a new issue erupted primarily in the hareidi community: Women were wearing sheitels (wigs) made from human hair coming from India. Some, perhaps even much, of this hair came from a place called Tirupati, in South India, where there is a Hindu temple. Pilgrims coming to this temple, before entering it, shave their hair and place it outside the temple entrante. . Millions of Hindus come annually to Tirupati - perhaps as many as twenty thousand a day! -, and vast amounts of hair pile up. The temple authorities, apparently realizing that this hair could constitute an additional source of income, began, many years ago, to sell it to wig-making companies.

When this suddently became known to a number of Rabbis in England, Israel and the U.S.A. - it had already been known to others and halakhically discussed many years earlier - they declared it "tikrovet avodah zarah", idolatrous offering, something directly related to idolatrous practice, and hence "assur be-hana'ah", such that it was absolutely forbidden to derive any benefit therefrom. The resultant publicity of this ruling led to mass burnings of those very expensive sheitels by the thousands.

Those devout women, who upon hearing that their sheitels were "idolatrous" immediately burned them, are to be lauded and applauded for their great piety. However, I imagine they were plagued with pangs of anguish, not only because they had to destroy what for them was a very costly and personal part of their apparel, but even more in that for many years they had been covering their heads with "idolatrous wigs", trespassing - albeit unwittingly - one of the most serious prohibitions in Jewish law.

Numerous erudite responsa were written discussing all sorts of halakhic aspects of this subject, the vast majority of them concluding that the sheitels were to be destroyed. Some more lenient ones counseled that they be exchanged - not necessarily such a practical suggestion. Only the barest minimum ruled that it was permitted to go on wearing them.

Virtually none of those learned sages had any real knowledge of India, Indian religión or languages, and I suspect that the majority had never even been in India, and certainly not in Tirupati. It is true that a small mission was sent for a few days to examine the temple, but none of the members had the competence, the linguistic abilities etc., as they themselves admitted, to make a real evaluation of the pilgrims' hair-shaving activities. More surprisingly, or maybe not so surprisingly, none of the experts in the field of Indian studies were consulted, neither, for example, Prof. David Schulman of the Hebrew University, an internationally acclaimed Indologist, nor Rabbi Alan Unterman of Manchester University, who did his doctorate in India on Indian religion, nor Prof. P.V. Wiswanath, a devout Jew of South Indian origin, now living in New Jersey, nor even the local Indian rabbis and authorities living in Mumbai and Delhi.

One of the few rabbinic authorities to examine the issue systematically from all points of view, was the renowned posek R. Menashe Klein (ha-Katan), whose numerous volumes of responsa are very widely acclaimed and largely accepted also by the hareidi communities. Incidentally, he surmises that around a million women wear such sheitels, whose cost is upward of a thousand dollars each so that the total destruction of the wigs may amount to as much as a billion dollars (!) - hefsed merubeh, enormous monetary loss, an important consideration to be taken into account by halakhist. And even if his assessment be seen as somewhat exaggerated, the halakhic point he made is certainly pertinent. His conclusion was that the sheitels were not prohibited, but he counselled against wearing them for other reasons.

Now without even making an unequivocable statement as to whether the Tirupati hair constitutes "tikrovet avodah zara" or not, my point is that the halakhic procedure whereby the rulings were concluded, was highly flawed and therefore totally unsatisfactory. The decisior (posek) bears a great burden of responsibility before making a ruling that may incur the loss of thousands of dollars to thousands of individual women, and perhaps cause them deep anguish on learning that they had been trespassing so serious a prohibition.

***

On the fifth and sixth of February this year, I participated in the first "Hindu-Jewish Leadership Summit" at Delhi, India. This summit was attended by a delegation of the Chief Rabbinate of Israel and some prominent European rabbis, and religious leaders of the Hindu Dharma. I was asked to participate, perhaps because I had served briefly as a rabbi in India many years ago, and was therefore thought to have some understanding of Indian culture and religion.

Many leading Achariahs and Swamis from all over India were present, and a very lively and probing dialogue took place. In our discussions we asked them whether Hinduism is a polytheistic and idolatrous religion, and they all unanimously and most vigorously denied such an assertion, explaining the apparent outward manifestations of idolatry in a completely different fashion.

At the end of the conference, a "Declaration of Mutual Understanding and Cooperation" was co-signed by all participants. Perhaps the most significant clause in the whole document in this context is the opening one:

The participants affirmed that:

1) Their respective traditions teach Faith in One Supreme Being
who is the Ultimate Reality, who has created this world in its
blessed divinity and who has communicated Divine ways of action
for humanity for different peoples in different times and places.

I wonder whether the learned rabbis who prohibited the use of Tiraputi-based sheitels would have ruled differently had they had this document before them. Perhaps not. Perhaps the way in which Indian religious authorities understand their own religion is irrelevant to them. They know better, even if it causes the loss of millions of dollars and many heartbreaks....

3. The Lookstein Affair

The Facts: Rabbi Haskel Lookstein was invited by President Obama to participate in an interfaith thanksgiving event that was to take place in the Episcopal National Cathedral on the morning after his historic inauguration as the 44th President of the United States of America. Representatives of the various religions were invited, such as the different streams of Christianity, Islam, Buddhism etc. For the first time in such an event, the three major streams in Judaism, Reform, Conservative and Orthodox, were asked to participate, and Rabbi Lookstein was chosen to represent American Orthodox Jewry. And indeed he accepted, and participated in this memorable event.

The Reactions: The Rabbinical Council of America (RCA) took Rabbi Lookstein to task, issuing a press release saying that he broke the rules by entering a Christian church, rebuking him and claiming he had violated an unnamed rabbinic rule by entering a church and reciting a prayer there in honor of the President's inauguration.

The Questions: The issue is indeed complex, since it touches upon the very nature and parameters of permissability in our relations to our gentile-Christian neighbours. The basic questions are: Is Christianity idolatrous? Are Christians idolators? Are all forms of Christianity identical? If Christianity is idolatrous, may we, or, more correctly, how can we conduct trade relations with Christinas and/or Christians institutions. For according to the Mishnah (Avodah Zarah 1:1,2) in the land of Israel it is forbidden to do business with idolators three days before their holy days and three days after, and in the Diaspora according to Shemuel on that day itself (Bavli Avodah Zara 7b, 11b; and see, Encyclopedia Talmudit, vol.1, s.v. Eideihem). If Sunday is a Christian holy day, then in Israel one can never do business with a Christian! Similarly it is forbidden to derive any benefit from idolatry or to provide it with any benefit. Can one drink Benedictine liquor, which finances the Benedictine monastaries? And what about Quaker Oats, is that also forbidden? And partnership with idolators is also forbidden. But if a shareholder is halakhically considered a partner, how can one even buy shares? Are we certain that the United Methodist pension fund has not invested in those shares, or the Anglican Church? ...etc.

A further question that must be asked is: are there circumstances under which one may override these possible prohibitions, such as shelom malkhut- in order to keep peace and good relations with the authorities, or mi-shum eivah- in order not to engender hatred and tension with our gentile neighbors?

Analysis: These questions-problems already troubled medieval halakhic authorities, for restrictions such as indicated above would have created insurpassable difficullties in the economic life of the Jews living in a Christian environment. Maimonides regarded Christianity as idolatrous, because of the belief in the Trinity, incarnation and the presence of images in their churches. For him, living in a Moslem context, and Islam being regarded as monotheistic, he was less affected practically by this halakhic position. However, European Jews in practice simply paid no regard to the prohibitions prescribed by Tractate Avodah Zarah. They traded with Christians before and after their holy days, sold objects used for ritual worship, and so forth.

The Solution: Three possible solutions were offered by the major medieval authorities: Rabbenu Gershon Meor ha-Golah in the eleventh century, basing himself on a statement of Rabbi Yohanan, namely that "Gentiles outside the Land of Israel are not idolatrous, but they are merely following the customs of their ancestors" (B. Hullin 13b), permitted trade with Christians even on their holy days (Teshuvot R. Gershon Meor ha-Golah, ed. S. Eidelberg, New York 1957, 21 pp. 75-77). So Christianity may be idolatrous, but outside the Land of Israel Christians are not necessarily idolators.

R. Tam, the Great Tosafist, claimed that the prohibition of trade applies only to what might be used as an idolatrous sacrifice and not to any other sort of business, (Tosafot, to B Avodah Zara 2ª, "Assur").

The third approach sees a change in the actual status of Christianity. The fourteenth century Provençal authority, R. Menachem Meiri, creates a new distinction between nations that are law abiding and those that are not, i.e. that have positive ethical values, and a legal system to enforce them, and those that do not. He describes the idolatrous nations to which he believes the Talmud is referring as follows (Beit ha-Behirah, Avodah Zarah, ed. A. Sofer, Jerusalem 1944, p.48, of pp. 3.28, 33, 46, 53):

They are polluted in their practices and disgusting in their moral traits... But the other nations which are law-abiding, and which are free of these disgusting moral traits and, moreover, punish people with these traits - there is no doubt that these laws do not apply to them at all.

Thus, while for Maimonides, for example, it is the object of worship, the theology, that defines worship as idolatrous, for Meiri it is the life style that is the deciding factor (see M. Halbertal and Avishai Margalit, Idolatry, Cambridge Mass., 1992, pp.212-213;Y. Katz, Zion 1953. pp.15-30 etc.). Hence, according to the Meiri there should be no prohibition to entering into a church, and certainly not an Episcopalian one which is virtually bereft of images.

Furthermore, there are differences of opinion among the early authorities as to whether trinitarianism is forbidden to gentiles. Clearly Jews are not permitted to believe in any form of "partnership" (shituf) between God and other divine entities. Our God is a single unitary God. But are gentiles permitted to believe that alongside God there are other (subservient ? related?) divinities? Maimonides clearly is of the opinion that this is absolutely forbidden for gentiles too, since this is real idolatry, (Hilkhot Avodah Zarah chapters 1, 2).

However, the Rema (Orah Hayyim 156) rules that shituf is permitted for non-Jews, and in greater detail in his Darkei Moshe ibid., basing himself on Rabbenu Yeruham, Toledot Adam 159c, and Tosafot to Behorot 2b, s.v. Shema. The ruling of the Rema was interpreted in a variety of ways. But the Shakh ad loc, and so too the Pithei Teshuvah to Yoreh Deah 147 clearly understood the Rema as meaning that shituf was not prohibited to gentiles.

Hence, if we take into account the view of the Meiri, on the one hand, and that of the Rema, on the other, it would well appear that Christianity is not, as such, idolatrous, and it should not be prohibited to enter a church, and certainly one that is virtually bereft of images.

Thus, we see that there are differences of opinion as to the halakhic status of Christianity, and this in itself creates a degree of uncertainty, a safek, as to the status of Christianity. The Taz, in Yoreh Deah 141, writes as follows:

It would seem that even though "uncertain idolatry" (safek avodah zarah) should be regarded with stringency (le-humra), nonetheless in any case where there is a rationale (sevara) either to permit or to forbid, one should deal leniently (raui le-hakel). For it is a principle that in all cases we do not create prohibitions in areas of uncertainty (lo mahzikinan issura misafek), and we do not deal stringently in cases of uncertainty, except where the prohibition is clearly established.

The RCA's Rebuke. It is true that the position of both R. Moshe Feinstein and R. J.D. Soloveitchik was to discourage interfaith meetings, and presumably, this was the basis of the RCA's ruling and consequently the reaction to Rabbi Lookstein's participation in this interfaith event. However, they were referring to interfaith dialogues, when different religious parties attempt to persuade one another of their theological legitimacy. This interfaith gathering on the other hand, involved no sort of dialogue. Clearly, the Christian church was not legitimizing Islam or Buddhism in this event. It was merely one of national solidarity to the President, encompassing representatives of all faiths.

How would it have looked, if the representative of Orthodoxy had refused the President's invitation while the Conservative and Reform agreed to be present? What would have been the perception of the general public had they learned that an Orthodox Rabbi could not attend because he regarded Christianity as idolatrous? In our days of increased antisemitism, is this the sort of publicity we need? Would this have endeared us to the new President and the Christian public?

In my opinion, Rabbi Lookstein's participation constituted a kiddush ha-Shem, whereas the RCA's press release was not only totally irresponsible, but may also be regarded as a hillul ha-Shem.

Those distinguished Rabbis should have taken into account the questionable nature of Christianity's status, and following the Taz, regarded the issue leniently. They should have taken into account the issue of shelom malkhut, and perhaps even more mi-shum eiva and mi-pnei darkei shalom. They should have been aware of the ruling in Shulhan Arukh Yoreh Deah 178:3 that "a Jew may join government service and wear gentile clothes every day - thus violating a Torah prohibition - so that when the day comes he will be in place to serve the good cause of the Jewish people." Rabbi Lookstein, did not hide his Jewishness, or his Orthodoxy, but proudly stepped into a church publicly to show the American nation that Orthodox Jews also wish to express their thanks (hakarat ha-Tovah) and solidarity together with the rest of the American people.

*  I requested Rabbi Shabtai
ha-Cohen Rappaport, Head of The Beit Midrash of the Machon Gavoah LeTorah at
Bar-Ilan University, to comment on what I have written here. And as a result, I
have been privileged to receive his observations, which I am including here in
order to give a counter-balancing point of view to much of my aggressive
criticism. (His remarks are in square brackets followed by the initial S.R.)

[1]

 See "Paralysis in Contemporary
Halachah," Tradition 36/3, 2002, pp.1-13: Kevod ha-Tzibbur u-Kevod
ha-Beriyyot", Deot 16, 2003, pp.17-20, 44; "Congregational Dignity
and Human Dignity: Women and Public Torah Reading", The Edah Journal 3/2,
2002, pp.1-14; "A Plea for the Chained Daughters of Israel", The Edah
Journal 5/1, 2005, pp.1-4; "Revisiting the Agunah Problem", JOFA
Journal VI/1, 2006, p.20; "Ol Mitzvot Noam Mitzvot", Akdamot 15,
2005.pp.129-139. "Friendly Halakhah and the Friendly Posek," The Edah
Journal 5/2, 2006. pp.1-36; "The Human Element in the Commandments: The
Effect of Changing Community Norms on Halakhic Decisions". JOFA Journal
VI/4, 2007,pp.7-9; Darkah Shel Torah, Jerusalem 2007, pp.128 et seq.; Netivot
Pesikah, Jerusalem 2008, pp.130 et seq.

[1]

 [ On this passage R. Shabtai Rappaport comments
as follows:

This passage is in my
opinion strange. Obviously one may not prohibit the permitted, just as one may
not permit the prohibited. In Hoshen Mishpat 25, one who prohibits the
permitted is obligated to pay [damages], as in the story concerning R. Tarfon.
However, from where do we learn that the ruling must tend to leniency? It has
to be truthful. Furthermore, even if the truth leads to pain and anguish, the
truth remains the truth. In addition, I do not understand why the source
directs that the decisors may grant the questioner spiritual satisfaction. At
all events, we are assured that "Whoso keepeth the commandment shall
suffer no evil thing" (Eccles 8:5). 
S.R.]

To which I would respond that the Tzidkat
ha-Tzadik is keenly aware of the fact that there is not always a single
absolutely truthful response to every question. The "truth" that is
to be sought is often a subjective one, rather than a "mathematical"
one. In such cases the decisor has to take into account all the implications of
his ruling, including the possible negative effects upon the questioner. See,
in greater detail, in my Darkah Shel 
ha-Halakhah, Jerusalem 2007, pp.51 et seq., and my Netivot
Pesikah, Jerusalem 2008, pp.130 et seq.

To which R. Shabtai comments:

[It is true that there may not be a single
correct response to a halakhic question, and hence, the arguments  (mahlokot) throughout our history. However,
from this one should not conclude that a rabbinic response must always be such
that it satisfies the applicant. Concerning this Rav Yosef, in Pesahim 52b
cited the verse in Hosea 4:1b, "My people ask counsel at their stocks, and
their staff (maklo) declareth unto them" – all who rule leniently (meikeil)
declareth unto them. The response has to be constructed upon the inner truth of
the responder. See also Dibrot Mosheh to Shabbat sect.10, that the ruling has
to be completely consonant with the responder's understanding of the Talmudic
source and the relevant halakhah, related to it even tangentially. This
consonance with his understanding [of the sources] assures that his ruling will
not be influenced by his personal inclination, but only result out of his deep
understanding of the Talmudic sources through an examination with no specific
relevance to the issue at hand.

It is true that in many cases one has to adapt
the ruling to the specific circumstances of the questioner, and there are many
precedents for this; but this does not mean that the ruling has to please the
questioner. Indeed, at times one has to distance the questioner from a
transgression or from causing harm to others. 
S.R.]

To which I would reply, that in principle I
agree with the above, though I am doubtful as to the degree to which a true
decisor can distance himself from his personal inclination. On the contrary, I
believe one can demonstrate that the "personal inclination" often
forms an integral part in a great decisor's process of decision making.

But more basically I would state that what I
wish to stress is that humane understanding and empathy are integral and
legitimate components in halakhic thinking.

Here I would like to add a quotation from the
great jurist, Judge Mosheh Silberg, in his Kach Darko shel Talmud,
Jerusalem 1962, p.134. (my translation):

Every legal norm,
even the most equitable one, is likely, under certain circumstances, to lead to
a perversion of the law. For the law is something generic, a standardized
garment prepared in advance, and approximately suitable for the average person.
But it is not accurately suited to the specific requirements of an individual,
to the actual form of his limbs etc. Hence, the universal cry for an adjusted
equity, for that special adaptable "spice", made to overcome the
unavoidable obstacles posed by the law.

I shall not enlarge on this theme ……, but refer
the reader to the two seminal volumes by Prof. Aaron Kirschenbaum, Equity in
Jewish Law: Halakhic Perspectives in Law: Formalism and Flexibility in Jewish
Civil Law, and Equity in Jewish Law: Beyond Equity: Halakhic
Aspirationism in Jewish Civil Law, Hoboken New Jersey and New
York,
1991.

[1]

 This follows on my article in Conversations 3,
2009. pp.1-11, "Modern Orthodoxy: A Crisis in Leadership."

[1]

 He brings no source for this length of time,
but compare what he writes in his responsum in Even ha-Ezer vol.3, sect.12,
p.435:

It would seem that
when a woman fears to give birth, since she is greatly distressed… and this
distress will continue for many years, and possibly for all her life, she may
use moch… For in the case of such distress she is not duty bound to her
husband's [wish for] sexual intercourse which will cause her to be pregnant.
And I would advise the use of spermicidal cream… for three years, and hopefully
she will get better and have healthy children, and she will not fear for a
longer time than this…

[1]

 [I was privileged to be acquainted with R.
Moshe Feinstein' s positions in depth. I frequently discussed these matters
with him in the years 1971 and 1974. In his Iggrot, Even ha-Ezer part 4
sect.72, he wrote:

As to the matter of a
woman's taking birth-control tablets (pills), even though there is no issue of
wasting sperm, since the sperm goes into the woman's womb, nonetheless, without
great need, one should not do this too, as one should not seek such clever
devices, even though…. one may not obligate a woman to suffer beyond her
abilities, but still this is an attempt cleverly to act against the will of
God.

This passage summarizes his views with absolute
simplicity. A normal healthy person who does not have the sort of illness that
permit him to transgress various prohibitions of rabbinic and even of biblical
status, lest his disease becomes more serious and even life-threatening, is
obligated to keep the Torah commandment, and not to pamper himself, making
himself out as weak. A Jew must use all his forces to strengthen himself to
keep the Torah and its commandments. This includes having children in a normal
fashion, in accordance with God's will, without the use of methods of
birth-control. All this, not merely because of the formal prohibitions, but
also because of the duty to "be perfect with the Lord thy God" (Deut.
18:13), which the Sifre explains thus: "Do not
seek to know the future, but go after Him be-temimut, with innocent
integrity, and so you will be with Him and in his ways." This I heard from
him many times.

An exception to this rule is the sick person,
who is permitted to seek out medication for his sickness, and not to act in
"innocent integrity", since such behaviour would be blind
irresponsibility.

See what he wrote in a different case (Iggrot
part 4 sect. 10):

And it seems to me
that even though a small minority are born this way, and one might apply the
verse "be perfect with the Lord thy God"… nonetheless, since now it
easily possible to examine [the outcome], we may regard his lack of examination
as blinding one's eyes to what may be seen.

Hence, when R. Moshe suspected that a woman was
pampering herself, he would state to her husband that he should not practice
birth control, but trust in God. This, indeed, seems to be the point in the
story related by Rav Shurkin. It is true that the description is short and
brutal, but this is perhaps a result of a lack of literary ability rather than
perversion of the truth. The question is when is a woman, who claims weakness,
to be regarded as a sick person who is free of the obligation of "temimut".
There is no doubt that psychiatric depression that requires medication can be
viewed as sickness. Indeed, Rabbi Moshe was even more lenient in this matter,
and ruled that every time that emotional pressure led to irrational behavior
(or more precisely, to behavior unfitting the normal psychological behavior of
a mother to her children), the woman may be regarded as sick. This question
goes much further than that of Dr. Sofer in his book, except that he is far
more lenient in permitting birth control and abortion following the views of
Rabbi Waldenberg, a position which was totally rejected by Rabbi Moshe.

At all events, concerning the style reflected
in his response, I have not met a person more adamant in holding to his views,
and, on the other hand, more gentle and considerate at the same time, than
Rabbi Moshe Feinstein. He was most adamant when he understood the truth to be
on his side, but the formulation was gentle and considerate beyond imagination.

Further concerning the baal teshuvah ,
who believed himself to be a Cohen and married a convert, in all due fairness
one has to explain R. Mosheh's reasoning for permitting him to continue to live
with her. R. Mosheh ruled that one should not regard a person to be a Cohen on
the basis of the testimony of persons not qualified to give testimony, and in
that particular case the knowledge that he was a Cohen came from his father who
by Jewish law was in no way qualified to give any sort of testimony. It is
possible that the father's lack of qualification was not merely because he was
likely to lie, but also because he was not aware of the significance of kehunah,
(namely that one requires a father who is a Cohen, and a mother who is eligible
to be married to a Cohen). Without elucidating the reason for R. Mosheh's
ruling, one might think that he ruled leniently in order not to cause pain.
S.R.] This, I believe to be a fine example of how R. Mosheh used his brilliant
halakhic thinking to reach a compassionate solution, even if compassion was not
the motivation for his ruling.

[1]

 See further Getzel Ellinson's article in
Jewish Social Studies 46/1, 1984, pp.51-60, entitled "Natural Family
Planning as Reflected in Contemporary Jewish Responsa.

[1]

Rambam ibid.15:1, writes: A woman who permitted
her husband after their marriage to desist from intercourse, this is permitted.
Under which circumstances? When they have children and have carried out the
mitzvah of procreation. But if not, he is obligated every time until they have
children…. See also Ellinson ibid. pp.38-40. And see further his booklet,
"Procreation in the Light of the Halacha: Family Planning and Birth
Control", Jerusalem 1977. pp.20-27 and further in David Feldman, Birth Control in Jewish
Law: Marital Relations, Contraceptions and Abortion as set forth in the classic
texts of Jewish Law, London 1968.

[1]

 See also his responsa in vol.2, sect. 11-13,
where he permits the use of birth-control to a woman who has given birth to
sons and daughters, "and now does not under any circumstances want any
more, and her nerves are badly and seriously affected" (ibid. p.35), and
the doctors agree that there is a danger that "she will reach a stage of
insanity." He has a long and conflicted discussion, but finally gives his
permisstion for one year hoping that she will be cured during this period
(p.42). He concludes that, even though R. Shemuel Engel (Responsa Maharash
vol.7, London 1954, sect.85-86) tended to stringency, he finally permitted the
use of a diaphragm. See further, Responsa Tevuot Shemesh, by R. Shalom Messas,
Even ha-Ezer, Jerusalem 1981, sect.151, and R.S.Z. Auerbach, Minhat Shlomo
vol.3, Jerusalem 1999, sect. 103 subsect.1 p.21;  Abraham Steinberg, Encyclopedia Hilkhatit
Refuit, vol.4, Jerusalem 1994. pp.115-127, citing R. Yitzhak Isaac Weiss,
Minhat Yitzhak, vol.5, Jerusalem 1978, sect. 113 , concerning a woman's
"weakness,  lack of energy,
tiredness, nervousness, even though there is no real danger, one may consider
the issue because of extreme distress, according to the discretion of the rabbi
(ibid. p.228), but restricted to the use of pills". And cf. ibid. vol.4, Jerusalem 1979, sect.40, p.22, on the dangers of
insanity as pikuah nefesh, threat to life.

[ Here you have cited many fine references to
rulings permitting the use of birth-control when there is suspicion of mental
illness. But there is a great gap between mental illness and mere unwillingness
to have additional children.  S.R.]
Certainly. However, in the case as reported above the husband claims his wife
is sickly and suffers from weak nerves – not that she is "merely
unwilling."

[1]

 To strengthen my argument I would refer one to
his responsa in Even ha-Ezer vol.1, sect.13, and ibid. sect. 63-64, where he
permitted the use of moch in cases of danger, and ibid. vol.2, sect.25,
67 etc.

[1]

 In the Journal Or Yisrael, vols. 8/4, 10/1,
2004-2005, pp.13-126, 31-98, some twenty-three responsa were published. (As to
the various views on the status of meshamshei avodah zarah,
belonging to a Jew, see the responsa of R. Avraham of Sochochev. Avnei Nezer,
Hoshen Mishpat sect.99, Jerusalem 1959, p.135, and Shulhan Arukh 146.2.)

[1]

 I shall not relate to the question of whether
the wearing of any kind of sheitel is halachically appropriate, or whether a
sheitel of any kind of human hair is permissible. These issues require a
separate discussion and are not within the scope of this article. See, for
example, the booklets of Rabbi Pesach Eliyahu Falk, Sheitels: A Halachic Guide
to Present-Day Sheitels, Gateshead 2002; Oz ve-Hadar Levushah: Peot, Gateshead
2004.

[1]

 [ I agree with this criticism entirely.
Furthermore, an examination of several responsa reveals that there is an
element of "I told you so", resulting from the view that a sheitel is
in any case forbidden, and how much more so if they are costly ones made out of
human hair. And even should one argue that the lack of examining the facts is a
well-established tradition, this is unforgivable in our days where the
information is readily available.  S.R.]

[1]

 The summit was convened under the auspices of
the World Council of Religious Leaders: An Initiative of the Millenium World
Peace Summit, headquarters New York, whose director general is Bawa Jain.

[1]

 They base this assertion on passages from the
most ancient and canonical of their sacred writings, whose formulations surely
attest to such belief. The following are some examples that they offer:

Rgveda Sambita

   There
is one reality; the wise speak of it in various ways. Rg. Veda.I.164.46c

Chandogya Upanisad (Sama Veda)

Only one non-dual
limitless reality. ChU 6.2.1

Brhadaranyaka Upanisad (Shuklayajur Veda)

There is no second
thing here at all. BrU 4.4.19

Taittiriya Upanisad (Krsnayajur Veda)

The one that is in
this person is the one that is in the universe; he is one. TaiU 2.8.5

Katha Upanisad: (Krsnayajur Veda)

He has no sound, no
texture, no form, is changeless, free from taste, time and smell, has no
beginning or end, is beyond the intellect and absolutely constant. KaU 1.3.15

A series of verses (2.2.9-12) in this Upanisad
uses illustrations to show that the one being is both immanent and
transcendent.

Just as fire, which
is one, having entered the world, assumed a form corresponding to each of its
manifestations, so too the being self within all beings, who is one, assumed a
form corresponding to each, yet is apart (transcendent). KaU 2.2.9

Just as air, which is
one, having entered the world, assumed a form corresponding to each of its
manifestations, so too the being within all beings, who is one, assumed a form
corresponding to each, yet is apart (transcendent). KaU 2.2.10

Just as the sun,
which is the eye of the world, is not touched by the defects of external things
that are seen, so too the being within all beings, who is one and transcendent,
is not touched by the grief of the world. KaU 2.2.11

One being within all
beings, who is the master, who makes a single form manifold – those wise ones
who recognize clearly that one who abides in themselves, have lasting
happiness, not anyone else. KaU 2.2.12

Svetasvatara Upanisad (Krsnayajur Veda)

The one effulgent
being, hidden in all beings, all-pervasive, the being/self within all beings,
who presides over actions and their results, who dwells in all beings, the
witness, consciousness, who is absolute and free from attributes, SvU 6.11

Kena Upanisad (Sama Veda)

That which is not
revealed by speech, and by which speech is revealed; know only that as
Brahaman, not what people worship as an object. KaU 1.5

That which is cannot
be thought of by the mind, and because of which, they say, the mind thinks:
know only that as Brahman, not what people worship as an object. KaU 1.6

That which one does
not see with the eyes, and because of which the eyes see; know only that as
Brahman, not what people worship as an object. KaU 1.7

Mundaka Upanisad (Atharva Veda)

The one who cannot be
seen or grasped, who has no lineage or class, no ear or eye (no limitation in
knowledge) or hand or foot (no limitation in power), is free from time,
all-pervasive, extremely subtle, changeless and the source of all beings, the
wise ones recognize clearly. MuU 1.6

However, this is by no means simple, for, as
pointed out to me by Prof. Meylekh Viswanath, in a private communication (Feb.
10, 2007) there are many different "sampradayas" or traditions. He
explained as follows:

Although the
Shankaracharya had, in fact, not come to the Summit due to ill-health, there were acharyas (heads
of ashrams) from many other traditions. Many of them were from the tradition of
Shankara (6th century, C.E.), but some were from other traditions,
such as Madhva and Swaminarayan. The tradition of shankara is called
"advaita" or non-dualism. This refers to the essential identity of
the Self (Atman) and the Whole (Brahman). Advaita teaches that the world is
seen as multiple because of avidya (ignorance). However, in reality, everything
is a manifestation of the attributeless and formless Brahman. In fact, the
Chandogya Upanishad says "Tat tvam asi," which can be translated as
"Thou art That," i.e. asserting the identity of the Thou (The Self)
and the That (Brahman). (The Upanishads are canonical texts that, along with
the Vedas and the Bhagvad Gita are acknowledged by all Hindus are representing
the revealed Truth.)

Now, this is definitely
problematic for Judaism, which in its Orthodox form insists on the distinction
between the Created and the Creator.

[I am not sure this
is universally accepted. Haham David Nieto, 1654-1728, claimed that God and
Nature are one and the same. Some called him a heretic, but the Hakham Zvi
defended him, in his Responsa no.18. 
D.S.] It was therefore surprising to me to hear Swami Dayananda
Saraswati, the foremost Hindu leader at the Summit (in the absence of the Shankaracharya)
present an alternative interpretation of the mahavakya (or great utterance)
"Tat tvam asi" usually translated as "Thou are That,"
equating the human being with the Supreme Consciousness, known as Brahman.  According to the alternative interpretation
that Sri Dayananda Saraswati placed on this mahavakya or "great
utterance," this does not mean the identity of Man with Brahman. In fact,
he said that the fact that the two were placed in some kind of equivalence
itself indicated that the two were not identical; else the statement would be
nonsensical. What it means is that both of them share at a fundamental level
that unboundedness of essence. "Tat tvam asi" is true, only at a
transcendental level, but not at an individual level.

Be that as it may. See following note.

[1]

 The fact that they believe in one supreme
being does not automatically absolve them from being regarded as idolators, if
they do indeed worship idols. Such, at any rate, is the opinion of Maimonides
in Hilkhot Avodah Zarah 1.1 (transl. M. Hyamson, Jerusalem 1965, p.66a):

In the days of Enosh,
the people fell into gross error, and the counsel of the wise men of the
generation became foolish. Enosh himself was among those who erred. Their error
was as follows: "Since God", they said, "created these stars and
spheres to guide the world, set them on high and allotted unto them honour, and
since they are ministers who minister before Him, they deserve to be praised
and glorified, and honour should be rendered them; and it is the will of God,
blessed be He, that men should aggrandize and honour those whom He aggrandized
and honoured – just as a king desires that respect should be shown to the
officers who stand before Him, and thus honour is shown to the king." When
this idea arose in their minds, they began to erect temples to the stars,
offered up sacrifices to them, praised and glorified them in speech, and
prostrated themselves before them – their purpose, according to their perverse
notions, being to obtain the Creator's favour. This was the root of ifolatry,
and this was what the idolators, who knew its fundamentals, said. They did not
however maintain that there was no God except the particular star (which was
the object of their worship). Thus Jeremiah said "Who would not fear thee,
O king of nations? For it befitteth Thee; for as much as among all the wise men
of the nations and in all their kingdom, there is none like unto Thee. But in
one thing they are brutish and foolish. The vanities by which they are
instructed are but a stock" (Jerem. 10:7-8). This means that all know
that Thou alone are God: their error and folly consists in imagining that this
vain worship is Thy desire. [My emphasis. D.S.]

However, they would argue that they do not
"worship" idols, but use images as means of communication with the
supreme being, and as aids to concentrate their thoughts on the single "
limitless reality." Furthermore, they assert that the objects of their
ritual devotion, such as elephants, monkeys, cows etc., are not gods, but that
we do not understand the various Sanscrit terms that distinguish between the
notion "God" and that of "agents of communication". I hope
to discuss this in detail elsewhere. Be that as it may, we should also consider
the position of the Meiri vis-à-vis idolatry, discussed below in the section on
the Lookstein affair.

[1]

[Clearly
there is an additional question, namely: is the view of the "scholarly
class" that which is the determinant, or the understanding of the general
public who donate their hair to the Temple. I am not an expert on India, but I have read many books on the land and
the prevalent beliefs there, and think, that even the literati and the
intellegentsia among them are certain that their religion is idolatrous.

 An
additional question is the degree of stringency with which we should relate to
questionable (safek) idolatry. Can we relate to benefit from idolatry in
the same manner of leniency in times of need and monetary loss, as in other
similar cases. It seems likely that in cases of suspicion of idolatry one deals
more stringently. This is not related to the permission to do business with
gentiles on the eve of their holy days, lest there be loss of livelihood, for
in such a case there is no suspicion of transgressing a biblical prohibition,
but only the danger of leading others astray (as R. Mosheh defined it in his
Dibrot Mosheh, Shabbat sect.2). The prohibition 
against partnership in something forbidden, when the business dealings
are mandated by economic pressure, does not demonstrate a partnership or
tolerance of idolatry. Not so when one benefits from idolatrous offerings (tikrovet
avodah zarah) which is an independent prohibiton, for which it would be
difficult to rule leniently even when great personal loss is involved.  S.R.] Much of the discussion referred to
above in note 9, centers upon whether the Tirupati case actually involves tikrovet
avodah zarah. If that were to be positively demonstrated, then, of course,
R. Shabtai's remarks would be very pertinent.

[I am not persuaded, since there still remains
an element of uncertainty for reasons mentioned above. And even in the case of possible
(safek) idolatry I do not think one can take a lenient position,
notwithstanding there being serious financial loss.  S.R.]

[1]

 Shulhan Arukh Hoshen Mishpat 166:51; Orah
Hayyim 156:1; Tosafot Megillah 28a s.v. Teiti Li; Tzitz Eliezer vol.15 sect.
48, according to Tana de-Bei  Eliyahu
chapter 6 [8], ad fin. ed. Ish Shalom, Vienna 
1901,  pp.45-46; Braude &
Kapstein transl., U.S.A. 1981, p.144: As a Jew who was not to 
enter into partnership with a heathen; Tora Shelemah, by M.M. Kasher,
vol.3, Jerusalem 1934. p.860 no.123.

[1]

 This is an exceedingly complex problem,
depending, among other things, on the status of limited companies, etc. See the
detailed discuss of R. Ezra Basri, Dinei Mamonot, vol.2, Jerusalem 1976, pp.315-321.

[1]

 Further on the Meiri's attitude to
Christianity, see Y. Ta-Shma, Tarbiz 47, 1978. pp.197-210. ibid. 49, 1980.
pp.218-219; E. Urbach, Sefer ha-Yovel le-Katz, Jerusalem 1980. pp.34-44; Y. Blidstein, Zion 51, 1984,
pp.153-166; D.Z. Hilman, Tzefunot 1/1, 1989 pp.65-72; S.Z. Havlin's editions of
the Meiri's Sefer ha-Kabbalah, Jerusalem 1995, pp.21-22 note 70; idem ed. Beit
ha-Behirah Avot, Jerusalem 1995. p.129 note 127; M. Halbertal, Bein Torah
le-Hokhmah: R. Menachem ha-Meiri ve-Baalei Halachah ha-Maimoniim be-Provence, Jerusalem 2000, pp.80-108.

[1]

 This very complex halakhic issue has recently
been dealt with in great detail by R. Moshe Wiener, in his volume Sefer Sheva
Mitzvot Hashem, vol.1, Jerusalem 2008, pp. 89-104, especially note 9, and see
also ibid 132-134, and note 110 ibid. See also R. Hayyim Benyamin Goldberg,
Bein Yisrael la-Nokhri, vol.3 (Hoshen Mishpat), Jerusalem 2003, p.276 note
2.  An interesting and novel approach to the
whole Jewish understanding of idolatry is to be found in R. Dr. Michael
Avraham's article, "Ha-Im Yesh Avodah Zarah 'Neorah' ?", Akdamot 18,
2007, pp.65-86, (and pp. 78-81, 84 on the Meiri).

[1]

R. Moshe Feinstein, Iggrot Moshe, Yoreh Deah
vol.3, sect. 129 subsect.6, p.382, forbids entering into a church, even just to
look at its ornamentation etc. See at the end of that section where clearly he
was advised by his Son R. David against any sort of dialogue with Christians.
This, undoubtedly, is the prevalent view among the poskim, as may be seen from
the references in Bein Yisrael le-Nokhri, vol. Yoreh Deah, Jerusalem 1994, pp.375-376 notes 20,21. Nonetheless in
view of the above discussion, I believe the issue needs to be reevaluated.

[1]

 [ Here again, I do not wholy agree with the
position of the RCA. However, consistent policy with regard to relations with
other religions is important. At all events, in my opinion R. Moshe Feinstein's
position was that there are no "religions", just one religion, and
one may not grant legitimacy to another religion. Hence, dialogue is not
permissible, and accordingly also participation in a ceremony of this nature in
a Church. The courageous refusal on the part of Jewish Orthodoxy to take part
in Obama's ceremony would be seen, perhaps, in much the same way as the brave
refusal of a community which regards its religion on the true one in a state
that grants religious freedom to its citizens by law.  S.R.]

[1]

 See the very interesting remark cited by R.
David Cohen, in his Ha-Akov le-Mishor, Brooklyn, Jerusalem 1993, p.34, in the
name of R. Moshe Feinstein, that we do not rule like R. Shlomo Luria in his Yam
shel Shlomo to Bava Kama chapter 4 sect.9 (on Bava Kama 38a), and the note in
Encyclopedia Talmudit vol.22, Jerusalem 1995, 7.0 note 193. And though the
issues are not identical, in that there was no immediate life-threatening
danger to the Jewish community which might result from R. Lookstein's refusal,
nonetheless, there is clear evidence of rabbinic consensus actively to avoid
possible negative friction with non-Jewish governmental authority. On  mishum aiva, see Encyclopedia Talmudit
vol.1, second ed., 492 et seq., vol.13. 360 note 439. On mi-shum darkei
shalom , see ibid. vol.7, 722-724.

[1]

 [ Here too I think that one cannot necessarily
use these arguments concerning the Jewish Community's dealing with the United States of America, where freedom of religion is enforceable by
law. An atheist, who for reasons of conscience refuses to enter a church would
not be regarded negatively, in my opinion; how much more so a God-fearing Jew.
However, I am not sufficiently acquainted with the social and political reality
in order to express a definitive view. 
S.R.]

1. A recent conversion case

Recently, a Hareidi rabbinical court in Monsey, NY, required that a family (which includes a parent who converted to Judaism) commit to educate their children in a Hareidi school, un-enroll their children in the modern Orthodox school, and leave the community with which they affiliate. The Hareidi rabbinical court did not even contact the modern Orthodox community, school, or rabbinate to fact find regarding the family. The modern Orthodox school feels rejected, dejected, angry, and is in a quandary as how to respond. A suggested response is to disallow and to reject the conversions of the offending rabbinical court

2. What are kosher conversion standards?

The threshold of conversion observance standards and requirements is a dicey issue, both sociologically and halakhically. If the convert, in the presence of a court of three observant laymen, accepts the commandments, i.e., Judaism as a divinely ordained system, that person is Jewish. From this perspective, retaliation against the Monsey rabbinical court by "invalidating" their actions [heftsa] is wrong for several reasons:
•the court has a right to its standards
•vengeance is forbidden by Torah law
•unless it can be determined that the Monsey ultra-Orthodox rabbinical court violated, knowingly and with malice, the statutes of known, settled Oral Torah law, their converts are Jewish and punitive reciprocity cannot be sanctioned.
•We do not issue Jewish religious rulings "from the gut," in response to a slight or as retaliation, when innocent, third parties are unintended victims.

The convert to Judaism stands again at Sinai, re-enacting the Sinai Torah pact, by accepting the Torah as a system. Both Moses b. Amram and R. Moses b. Maimon realized that the Torah/book/document/heftsa was committed to writing just before the former Moses died. The case of the yefat to'ar, the captive war bride who converts after a month, demonstrates this Biblical doctrine. This war bride was given a month to mourn her former life before she converted and became an Israelite wife. Kabbalat ha-Mitsvot does not mean that the candidate agrees to follow every law according to every possible opinion; it means accepting Judaism as a system. In his responsum, Pe'er haDor 132, based upon bBaba Kama 66b, Hilkhot Gezela ve-Aveida 1:5 and 2:2, 6, 8, Maimonides prefers an inadequate conversion in which the formal technical requirements are observed to an intermarriage.

Rabbi Isaac Schmelkes [Bes Yitzkhok, Yoreh Deah 100] rules, against all precedent, that the subsequent non-observance of a convert nullifies a conversion, even after the fact, and disqualifies the Jewishness of that person's progeny, and their marriages, should the convert be a woman. Ironically, the nullification of marriages to solve the aguna problem is rejected by this version of Orthodoxy. To compound the irony, marriage nullification does enjoy some precedent in Talmudic literature and was advocated by two modern Orthodox gedolim, Rabbi Menachem Elon and one of my personal rabbinic heroes, Rabbi Meir S. Feldblum, zatsa"l. In an oral communication, Rabbi Shelomo Risken learnedly and lovingly also called for adopting this approach, of nullifying marriages, to solve the aguna problem.

The difference between these two Orthodoxies, one parochial and one cosmopolitan, is in the orientation to the sacred canon and to the received culture. If marriages are declared to be invalid because conversions are invalidated by invoking R. Schmelkes' reformation of Jewish law, parochial Orthodoxy, like the cosmopolitan Orthodoxy, is willing to nullify marriages and create the taint mamzereut/legal illegitimacy. The two Orthodoxies differ in their agenda. While both Orthodox Judaisms are using radical methods, the ideologies underlying the shared radicalism are themselves radically divergent. Parochial Orthodoxy wants Judaism to be exclusive and will de-authorize the law to attain its ends, while cosmopolitan Orthodoxy seeks to be inclusive, using the letter of Torah law as its welcoming guide, to use Rabbi Daniel Sperber's wise, apt idiom, to make Judaism "user friendly."

3. The Rabbi Amsalem Case

A Sephardic Rabbi and MK Rabbi Hayyim Amsalem (Shas) asked for relaxed conversion standards for men who have served and risked their lives in the Israeli army. This position is strikingly similar to the position of R. Obadia Yosef, Yabi'a 'Omer 8 YD 24, 33-34, who cites and endorses Maimonides' Pe'er ha-Dor, 132, cited above. It strains credulity that R. Schmelkes' reform, that kosher conversions may be retroactively nullified if the candidate proves to be insufficiently observant, has the standing to override Maimonides' ruling. By appealing to zera Yisrael, R. Amsalem's position is grounded in the Maimonidean Pe'er ha-Dor case cited above. If these ethnic but not halakhic Jews are prepared to die for the State of Israel, the lenient precedents suffice to allow them to make the adjustment to live in the State of Israel. Rabbi Amsalem's standards are:

•sanctifying the wine on Shabbat
•fasting on Yom Kippur
•observing the holidays
•keeping a Kosher for Passover home

4. The Hareidi critique of Rabbi Amsalem and its implications

In the "Lithuanian" or so-called "intellectual," non-Hassidic version of Hareidi Judaism's newspaper, Yated Neeman, it is reported that "Rabbis and rabbinical judges expressed their disgust with MK Haim Amsalem's impetuous and blasphemous declaration to apply leniencies when converting goyim from the former Soviet Union who serve in the IDF." Rabbi Nahum Eisenstein, taken to be an expert in conversions who is loyal to the Ashkenazi Hareidi rabbinic elite, claimed that Rabbi Amsalem's remarks were [1] controversial statements, [2] a "publicity stunt" and [3] designed to advance his personal career. Furthermore, "unnamed rabbis and rabbinical judges ... [said] that Amsalem's comments were
•"a mockery of Halakha handed down from generation to generation that conversion necessitates full adherence to an Orthodox lifestyle."
•"Amsalem has caused incalculable damage to the Orthodox position on conversions," said Eisenstein, who helped write the Yated article.
•"He [Rabbi Amsalem] gives the impression that our demand that every convert must accept the yoke of mitzvot is nothing but an unnecessary stringency.
•By saying those things while at the same calling himself rabbi, he is cheapening the rabbinical institution. "He is worse than a Conservative Jew."

From the above comments we learn the following lessons regarding the actual tenets of Hareidi religion:

1. Being controversial is improper. Following this rule, most Orthodox leaders may not take positions unless they are cleared and endorsed. Note well that every biblical hero, from Moses to Daniel, was controversial.
2. It is fitting and appropriate to negatively interpret and then demean the unstated intentions of a political opponent. In Judaism, we must first demonstrate and not proclaim error, and we may not demean ourselves inadvertently by demeaning others intentionally.
3. It is proper to declare that R. Amsalem, who is denied his rabbinic honorific by the editorial, is an implicit unbeliever who modifies God's word, which he does not accept, for personal, pecuniary, careerist motives. In historical Judaism, only God and His designated prophets are endowed with the Spiritus Sanctum/Holy Spirit/Ruah ha-Kodesh whereby one human may divine the inner thoughts of another human
4. When criticizing others who are ideologically challenged, one may do so with anonymity in order to spare oneself accountability, reprisal, or responsibility. According to Shulhan Arukh Hoshen Mishpat 34, one is not religiously suspect unless one violates an explicit norm of the halakhic system, and does so knowing that the act is wrong. Therefore, disagreeing with R. Schmelkes' 19th century innovation is not only not sinful, it would to this reviewers' view be mandatory.
5. God's revealed covenant is defined not as the norm of the canonical Oral and Written Torah library, but as the culture and lifestyle that the right reverend rabbis robustly revere. This position seems to undermine the Sinaitic covenant in three ways:
a. It confuses the "Tradition" of mimetic culture, which is convention, with the "Tradition" that is canon, ending with Rabina and Rab Ashi,
b. It imputes virtual infallibility and divine approval for whatever Jews do. Leviticus 4 and Horayyot 2-3 seem to suggest that God has a more precise benchmark for Jewish normativity.
c. The position taken, what de facto is normative in Hareidi society, is de jure binding on all Israel, echoes the Catholic Israel approach of Solomon Schechter and the "Peoplehood" doctrine of the Reconstructionist founder, Mordecai Kaplan.
6. Since Rabbi Amsalem disagrees with the theologically correct rabbis who are "Orthodox," i.e., in exclusive possession of theologically correct doctrine, he is [a] not Orthodox and [b] may not be accorded the rabbinic honorific, which is reserved for really Orthodox rabbis. Since Rabbi Amsalem is observant of Jewish law, which most but not all Conservative rabbis are not, he is worse, more dangerous, and more threatening than Conservative rabbis, because he frontally challenges the Hareidi claim to political hegemony over the Jewish people.
7. Challenging the Hareidi consensus causes "incalculable damage to the [sic, my emphasis] position" on conversions. The Hareidi position on conversions is not the historical position of Judaism on conversions. Abraham Sherman, the Hareidi ideologue who defamed R. Haim Druckman, conceded as much in a lecture at Mosad Harav Kook. R. Sherman pointed out that there were two opposing views in Jewish thought to converting non-Jews to Judaism. One approach sees conversion as a very positive act that should be encouraged because it brings people closer to the true monotheistic faith. However, R. Sherman argues that for the unity of the Jewish people, all should defer to the Hareidi rabbinic elite. Therefore, by his own words, Judaism's normativity is found not in canonical, normative books [heftsa] accepted by all Israel, but rather by canonical, normative people [gavra] who claim authority over all Israel.
8. Failure to defer to the divinely inspired intuition of canonical people is controversial, dangerous, and ultimately, for parochial Orthodoxy, heretical.

5. What is at stake in this Contentious Conversation?

At stake in this conversation is the nature of Orthodox Judaism and who has the right to speak as an authentic Orthodox Jewish leader. Hareidi Judaism preaches that we must not only avoid slander, motsi shem ra, false negative speech, but we must also avoid lashon ha-ra, negative speech that is true. By regarding opposition as heretical, for stigmatizing ideological opponents as outside the pale of Jewish Orthodoxy, the protection of Jewish law does not accrue to deviant religionists while objections to Hareidi positions on textual and theological grounds is objectionable "bashing," because as R. Sherman declared, all Israel must defer to his elite rabbis so that this elite may confer legitimacy upon them. Thus, in Hareidi Orthodoxy, "Tradition" is not a sacred library or even what our parents practiced; like the Magisterium of the Roman Church the self-selected elite, with inspired intuition, will selectively cite and apply the literary canon of Israel as it alone reads the canon. A philological reading of Judaism is heretical not because it denies God's voice, but because its findings and the readings of sacred texts that philology provides denies any elite the right to explicitly and exclusively appropriate God's voice, to determine, on instrumental grounds, which halakhic rules may be referenced [only high extra-halakhic conversion standards] and which rules may be suppressed [that conversions may not be nullified because of non-observance].

6. What is at stake in this contentious conversation?

According to Jewish law, the binding rules of Judaism are recorded in the Talmud. Post-Talmudic authority is reflected authority, providing windows and insights regarding Israel's covenantal obligation. By conceding that there have historically been two competing orientations to conversion to Judaism, R. Sherman denies the Judaism of the statute ultimate normativity. Rather, God's will is located in the social vision and inspired intuition of his own preferred rabbinic elite. They are empowered to defame dissenters, outlaw alternatives, and to declare without documented demonstration what devoted Jews ought to be doing.

This approach, that treats the thick culture of Hareidi society as if it were the essence of canonical Judaism, actually and ironically approximates the secular religion of Mordecai M. Kaplan, as noted above. For Kaplan, the "Jewish people" define Judaism and not the canonical text sacred library, which for Kaplan carries "a voice but not a veto." For R. Sherman, only the living textual charismatic, saintly person/gavra super rabbi, or godol, is authorized to read, parse, apply the canonical document/heftsa. Although the Torah was given to all Israel, its access is mediated by an unmediated elite. Like the Roman Catholic Magisterium, Hareidi "tradition," the living thick culture of the community as defined by divine right leaders, supersedes the revealed religious canon. Ironically, Hareidi religion appropriates a page from Conservative Judaism's political/theological playbook by affirming, against God's original Torah that is subject to neither addition nor to subtraction, [Deuteronomy 4:2] a doctrine of "continuous legal revelation," that is formally outlawed by the Oral Torah in the Ochnai oven narrative of bBava Metsia 59b.

Slandering a sage is a very serious offense according to Jewish law. Rabbi Joseph B. Soloveitchik was slandered by Nison Wolpin of the currently defunct Agudist Jewish Observer. R. Hillel Goldberg has slandered Rabbi Saul Lieberman; R. Abraham Sherman slandered Rabbi Drukman, and the late R. Elya Svei slandered Rabbi Norman Lamm of Yeshiva University. The unwillingness-or absence of nerve-of cosmopolitan Orthodoxy's rabbinate to defend the dignity of its own teachers brings the neutral observer as well as the parochial Orthodox to conclude that cosmopolitan Orthodoxy has more respect-or fear- of Hareidi intimidation than it own sense of what God expects of them. When commenting to a cosmopolitan/modern Orthodox dayyan, or rabbinical judge, that exempting yeshiva young men and Hareidi Orthodox women from Israeli military service, is improper-even though Rabbi Solomon Lorincz reported that his own mentor, Rabbi Abraham Karelitz, ruled that advocating a conscription of Hareidi youth renders the offending culprit a disqualified witness, the Jewish legal designation of an evil person, I was warned by this profoundly learned, exquisitely fine, and socially astute sage, "don't go there," i.e., avoid this issue like the blow of the plague. But the Talmud, Sota 44b, requires a military conscription during a defensive war, and without the breastplate oracle, the Urim and Tumim and the Supreme Court of halakhic Israel, sadly in recess until the fallen Davidic Temple is restored, all wars in Israel are defensive so that the situation demands universal conscription of yeshiva men and Orthodox women. Unless there is a renewed Supreme Court convened to override the Talmud, authentically Orthodox Jews who believe that God authored the Torah will defer to the sages of the Talmud and not to Rabbi Karelitz. Hareidi leaders have a right to disagree with Rabbis Soloveitchik, Lieberman, Drukman and Lamm if they wish, but they must do so in refined, textually argued, respectful demonstration of what they believe God's recorded voice is saying.

7. What should be done in light of current realities?

The Rabbinical Council of America must accept the conversions of all duly vetted and accepted members. It should defend the validity of all conversions performed by its members, and not buckle under to Hareidi pressures. Moreover, as a Zionist as well as Orthodox body, it must affirm the obligation of military service for any rabbi in Israel who earns a state rabbinic salary. Hareidi rabbis who refuse to serve in the Israel Defense Forces should not be eligible for employment by the State of Israel.

This article began with a problem created by a Hareidi bet din in Monsey. The question is: how is the Modern Orthodox community to respond? We must make clear that any Bet Din that knowingly violates Jewish law by insulting sages, by forbidding required military service in Israel, and demanding that its rabbis require deference and privilege-such a Bet Din does not meet the standard for piety and probity. The rulings of such a Bet Din should be disregarded by our community. If particular individuals choose to follow their rulings, that is their business. But we should encourage people to bring their issues to proper Modern Orthodox rabbinic leadership and proper batei din that adhere faithfully to our Torah texts and traditions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some History

In the Diaspora

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

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

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

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

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

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

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

In Israel

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

Why Tort?

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

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

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

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

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