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Ethical Theories in the Conservative Movement

Abstract and Keywords

This chapter examines Conservative Judaism and ethic. Changing what Jews do and altering the reasons why they should do things differently was not an exclusively Reform endeavour; Conservative Judaism has also instituted innovations, especially since World War II. These changes are most evident in Conservative liturgy as well as in halakhic positions vis-à-vis women, homosexuality, and mamzerut (bastardy). Conservative thinkers and scholars of Jewish law, however, have taken diverse approaches as to how and when to make such changes, and so one cannot articulate a single “Conservative theory” of Jewish ethics. The chapter presents the author's own approach in contrast to those of some of the other representatives of Conservative Judaism, whose theories and legal rulings are discussed.

Keywords: Conservative Judaism, Jewish ethics, Jews, Conservative liturgy, halakhic positions, women, homosexuality, mamzerut

To know about the ethics of an institution, do not look just at its mission statement; look at its budget. Mutatis mutandis, to understand the ethics of the Conservative Movement, do not look just at its ethical theories; look at its liturgical and halakhic [legal] idiosyncrasies.1 Individual rabbis, often the leaders of the movement, have made varying and contradictory pronouncements—much like the venerable sages of the Talmud. But, if one seeks something of a consensus concerning the Conservative Movement and its relationship to ethics, one is better served by analyzing those documents that speak louder than any single legal theorist, as important as theory is. Thus this examination of Conservative Judaism and ethics begins not with theory, to which we will eventually arrive, but with the liturgical and halakhic innovations implemented since the end of World War II.2

Liturgical Modifications

The first morning blessings of the traditional prayer book thank God for making the male pray-er (1) not a gentile, (2) not a slave, and (3) not a woman. The Rabbinical Assembly and the United Synagogue of Conservative Judaism—the rabbinic and congregational arms of the Conservative Movement, respectively—published the (p. 226) Sabbath and Festival Prayer Book in 1946 that boldly began by modifying these blessings. The Conservative worshipper thanks God for making him or her in the divine image, a Jew, and a free person. These shifts, with varying degrees of precedence in liturgical history, foreshadow the universalism and egalitarianism of subsequent liturgical changes while remaining faithful to the traditional liturgy as much as possible.

Next, and more significant (although more subtle), is the change of texts prior to the first recitation of Kaddish d’Rabbanan. In traditional prayer books there had been rabbinic passages concerning animal sacrifices and the listing of Rabbi Ishmael’s thirteen principles of expounding the Torah. In both the 1946 Prayer Book and the 1985 Siddur Sim Shalom, the sacrificial passages were replaced by rabbinic teachings concerning ethics. Rabban Yohanan ben Zakkai, for example, is cited as saying that, in the wake of the Temple’s destruction and our resulting inability to engage in animal sacrifice, acts of lovingkindness serve to provide atonement. Alongside of Rabbi Ishmael’s thirteen principles is Rabbi Simlai’s claim that the Torah begins and ends with acts of lovingkindness. The message to the worshipper is that just as sacrifices atoned for Israel’s transgressions in the ancient past, today deeds of lovingkindness both atone for our transgressions and inform how we read the Torah.

Within the Amidah itself, we see the changes from the preliminary blessings reinforced. The 1946 Prayer Book inserts a plea for universal peace in the climactic final blessing rather than restricting peace geographically and ethnically to Israel. In both the later, separate editions of Sim Shalom for Sabbaths and Festivals (1998) and weekdays (2002) and in the Israeli Masorti prayer book, Va’ani Tefilatti (1999), the matriarchs have been included as an optional addition to the first blessing. More subtly, but grammatically necessary to maintain ideological consistency with egalitarianism, the Israeli Va’ani Tefilatti changes the word redeemer (go’el), which in Hebrew is exclusively masculine, to redemption (ge’ulah) in the first blessing. Rather than beseeching God to bring a male redeemer, Israelis now look toward a gender-neutral redemption. The chairman of the 1946 prayer book, Rabbi Robert Gordis, refrained from making such explicit changes because, he averred, the prayer book is poetry, not prose. “Thus, the emphasis in the prayer book upon the Messiah need not mean for us the belief in a personal redeemer.”3 Such poetic ambiguity is easier to maintain with the ungendered English messiah than with the gendered Hebrew go’el, in distinction to go’elet.

Finally, the concern with universalism, egalitarianism, and lovingkindness explicit in Conservative liturgy is reflected not only in what the prayer books have replaced (the preliminary blessings and the study sections before Kaddish d’Rabbanan) and inserted (references to the matriarchs and a plea for universal peace in the Amidah), but also in what they have consciously chosen to exclude. The 1984 Artscroll Siddur, an Orthodox prayer book, for example, returned to the Aleinu a passage that had been edited out centuries earlier because it was deemed to be offensive to Christianity. The Conservative Movement refrained from restoring the polemical passage to the Aleinu. (p. 227)

Halakhic Decisions

Since the end of World War II, there have been at least three major halakhic issues that have both polarized Conservative Rabbis and distinguished Conservative Judaism from Orthodoxy. Those issues are driving an automobile/using electricity on the Sabbath, allowing women into the rabbinate, and legitimizing homosexual relations. The last two issues are particularly valuable for this investigation because they represent ethical issues explicitly dealt with as such by the nonhalakhic movements within Judaism. Reform and Reconstructionist seminaries began ordaining women in 1972 and 1974, respectively, as a matter of fairness and gender equality.4 Similarly, with regard to homosexuality, the Reform and Reconstructionist movements officially welcomed homosexuals into their congregations and onto their pulpits as a matter of fairness, without any significant halakhic argumentation, well before the Conservative Movement took these steps.5 However, as we examine the halakhic discussions, we will see that on both issues, gender equality and acceptance of homosexual behavior, the Conservative Movement’s legal reasoning involves qualifications and restrictions that significantly vitiate women’s and gay rights. The liturgy’s poetic emphases on egalitarianism and lovingkindness have been far more difficult to effect within the world of halakhah.

Rabbi Joel Roth’s legal analysis concerning the ordination of women is largely regarded as the Jewish Theological Seminary’s justification for doing so beginning in 1985. What is most interesting for our present purposes is Roth’s insistence that “the issue of male-female equality plays no part in my thinking on the subject.”6 Roth asserts that he is attempting to provide an avenue for women to express their own sense of being commanded by God without yoking all women to the mitzvot from which they had traditionally been exempt. Roth “dread(s) the thought” of creating a new class of sinners.7 He argues that there is no halakhic impediment for women voluntarily to accept as binding the commandments that traditionally obligated only men. If and only if a woman has imposed upon herself all the commandments that oblige a man (clearly excluding circumcision but including the duty to don tefillin during daily morning prayer and possibly the duty to procreate, both of which traditionally apply only to men) may she then assume the privileges inherent in the halakhic system necessary to become a rabbi.8 Although there is a general (mis)perception that Conservative Judaism is egalitarian, Roth’s strategy does not rely on issues of fairness or comprehensive equality between genders. Mixed seating (men and women) has characterized Conservative congregations from the early twentieth century, but it is difficult to define Conservative Judaism as ideologically (as opposed to aesthetically or practically) egalitarian.9 The default attitude of Conservative halakhah toward women remains the same as that of Orthodoxy: women are exempt from most time-sensitive prescriptions, which precludes them from some essential rabbinic duties.

In Roth’s eagerness to prevent creating a new class of sinners, his legal reasoning may have turned women’s participation in synagogue life into a farce. There (p. 228) was a strong temptation by many who claimed to follow Roth’s ruling to engage in a “don’t ask, don’t tell” policy that allows women to lead prayers even though the vast majority of Conservative women, like Conservative men (!), do not consider themselves obligated to prayer thrice daily. According to Roth’s logic, when a brother and sister commit to saying Kaddish once a day for the eleven months following their father’s death, and to further honor their father’s memory they commit to leading the prayer service but do not otherwise live a halakhic life, only the brother should be eligible to lead prayers.10 But, the reality is that no one asks the sister if she has committed to praying three times daily. Thus she will be warmly greeted as the prayer leader. According to Roth, however, she should be ineligible to serve in that role. What, then, is the halakhic status of a rabbi who knowingly allows such a woman to lead services? Is he or she a sinner? What about the other members of the prayer quorum—have they fulfilled their obligation to pray?

Although the mechanism that Roth used was relatively narrow in its legal scope, the practical effect was far reaching. Rabbi Roth himself taught me that the Interstate Commerce Clause was used by the U.S. Supreme Court to prohibit restaurants from racial discrimination against customers.11 His point was that when working within a legal system, one uses the tools available to accomplish the desired goal while preserving the integrity of the system. But in our case, the method seems to rely on a wink and nod that impugns the entire halakhic system.

The other issue that has exercised the Conservative Movement relates to its posture toward homosexuals. In December 2006 there were two mutually exclusive legal rulings approved by the Jewish Committee on Laws and Standards (more on this body and its function later in the chapter). The first, authored by Rabbi Joel Roth, expressed sympathy for the plight of homosexuals but preserved the tradition’s opposition to all homosexual behavior. The second paper, authored by Rabbis Elliot Dorff, David Nevins, and Avram Reisner, offered a much more innovative approach that promoted ethical concerns without allowing ethics to trump biblical law as understood by the Rabbis. In doing so, one sees a striking parallel with the method of Rabbi Joel Roth in his approach to women in the rabbinate. Depending on one’s perspective, the Dorff et al. responsum was as much a legal fiction as was Roth’s responsum on women and the rabbinate.

The Dorff et al. responsum hinges on the rabbinic principle that a person’s dignity is so important that it supersedes biblical prohibitions (see, e.g., B. Shabbat 81b). The Talmud, however, immediately qualifies that statement to refer only to the biblical commandment in Deuteronomy 17 to obey the judges of each generation. The authors of the Dorff et al. responsum therefore argue that this halakhic principle allows them to suspend rabbinic, although not biblical, prohibitions that would prevent homosexuals from enjoying loving, committed relationships. The authors contend that although the biblical prohibition of anal intercourse remains in place (Lev 18:22), in the name of preserving the dignity of homosexuals contemporary rabbis should use their authority to suspend the rabbinic restrictions involving other acts of same-sex physical intimacy. (The responsum makes clear that bisexuals who are able to have fulfilling sexual relationships with members of the (p. 229) opposite gender are not permitted to engage in homosexual activity.) The conclusion of the responsum is that homosexuals may engage in acts of physical intimacy, although not biblically prohibited anal intercourse, and be eligible for all honors and privileges available in the community. Shortly after the Committee on Jewish Law and Standards passed this responsum, both American Conservative seminaries declared homosexuals welcome to apply to rabbinical school. In 2012, the Israeli Conservative/Masorti seminary made a similar shift. (To date, the Hungarian and Argentinean seminaries are still closed to openly gay students.)

Dorff later acknowledged that he is bothered by maintaining the restriction against anal intercourse, since he knows full well that such a condition is likely to be widely ignored.12 Indeed, much earlier in Dorff’s career he wrote that “we should not engage in overdoses of legal fictions, as we have been wont to do in the past.”13 Nevertheless, since Dorff feared (correctly) that he would not have had the necessary votes from the Committee on Jewish Laws and Standards were he and his co-authors to argue for nullifying the biblical prohibition, he did “what [could] be done and [took] satisfaction from the progress that a partial step in the right direction [achieved].”14 This strategy is similar to Roth’s vis-à-vis women in the rabbinate: both achieved their goal by legal means that then allowed others to employ what Dorff refers to as “wise silence” in order to obviate the halakhic restrictions that allowed the responsa to be passed in the first place.15 Wisely silent rabbis would refrain from asking invasive questions about a woman’s halakhic observance or gay men’s sexual activity, thus conniving in the halakhic charade.16

A third halakhic issue, that of bastardy (mamzerut), throws into relief the tension between ethics and the Conservative Movement’s general approach to halakhah. Rabbi Elie Spitz argues that the halakhah should not punish a bastard because of the deeds of his or her parents. Spitz cited both Dorff and the Modern Orthodox thinker Eliezer Berkovits to argue that the halakhah must respond to what the judges of the day perceive to be unethical. On the issue of mamzerut, Spitz advocates rendering the law procedurally inoperative. In the event that a congregant should reveal to his rabbi that he is a mamzer, according to Spitz, the rabbi’s response should take the following form: “I did not hear and will not hear anything that you say regarding your possible status as a mamzer. You are a full Jew. In the Conservative Movement, we do not consider the category of mamzerut as operative, because we are committed to judging each person on his or her own merits as a result of the moral teachings of our tradition.”17

If the category of mamzerut is inoperative, then why must the rabbi in the example claim to “not hear” anything in regard to mamzerut? Why not hear and acknowledge the voice of the congregant, and respond that the status of mamzerut is no longer operative in the Conservative Movement? Neither Rabbis Joel Roth nor Avram Reisner, a co-author with Dorff concerning homosexuality, were willing to render the biblical law of bastardy inoperative. In this case, Dorff’s “wise silence” has morphed into wise deafness. There is talmudic precedent for such self-imposed deafness. In the Talmud, one rabbi ordered witnesses to stuff their ears with gourds to prevent them from hearing a recalcitrant husband cancel a (p. 230) writ of divorce that the rabbi had forced him to provide his wife (B. Gittin 34a). The rabbis of the talmudic period were also loath to admit uprooting a biblical law.18 Nevertheless, in my opinion, some methods, even if precedented, are unworthy of perpetuating.

The Latest Halakhic Initiatives and Hekhsher Tzedek

Lest one imagine that Conservative Judaism is dedicated exclusively to lightening the yoke of the law,19 there have been a number of recent decisions leaning in the opposite direction. Rabbi Seymour Siegel, a staunch advocate that “the aggadah [Jewish lore and theology] should control the halakhah—not vice-versa,” argued that smoking should be forbidden because it is dangerous to both the smoker and those around the smoker.20 In addition to this prohibition, there has also been a prescription mandated in the field of health, namely, post-mortem organ donation. Rabbi Joseph H. Prouser contends that it is obligatory for Jews to donate their organs upon their own death, and arrangements should be made while one is still alive to that effect.21 Furthermore, the family that refuses to allow the deceased’s organs to be harvested is in violation of “Do not stand idly by the blood of your neighbor” (Lev 19:16).

Shifting from the personal to the commercial, the Conservative Movement and the United Synagogue of Conservative Judaism have recently launched an initiative that brings business ethics into the realm of religion. Rabbi Morris Allen, outraged by a national scandal involving a kosher meat packing plant in Iowa, formulated a process by which kosher foods could earn a seal of approval (hekhsher) for their business methods. This new seal, Magen Tzedek, guarantees to the consumer public that the company is conscientiously providing for the health and safety of their employees through proper work conditions, training, wages, and benefits.22 Furthermore, Magen Tzedek takes into account the environmental impact of the production process as well as the transparency of the company’s finances. Not insignificantly, this move within the Conservative Movement has inspired rabbis within Orthodoxy to devise a similar initiative, Tav HaYosher.

Jill Jacobs has been instrumental in bringing these issues of labor management back to the halakhic agenda. Not only has Jacobs authored a far-reaching responsum on how Jewish-owned businesses and Jewish institutions should relate to the laborers who sustain their operations; 23 she has also penned a more popular work to bring these issues to a wider audience.24 One hundred years after the tragic Triangle Shirtwaist fire of 1911, in which Jews were both owners and victims, the Conservative Movement is jockeying for a position of moral authority in the workplace. More and more contemporary rabbis, like Jacobs and Rabbis Aryeh Cohen and Sharon Brous of Los Angeles, are putting social justice at the very center of their rabbinate.25 As Jacobs writes, “Ritual commandments are useless unless they sharpen our (p. 231) awareness of the condition of the world, increase access to the divine pathos, and engage us in working toward the biblical vision of a redeemed world.”26

Ethical Theories

In the appendix to Rabbi Elliot N. Dorff’s Matters of Life and Death: A Jewish Approach to Modern Medical Ethics, he presents four different relationships that may obtain between religion and ethics.27 Although Dorff advocates (1) a mutually reinforcing dialogue between religion and ethics, others argue that (2) religion and ethics are independent spheres, (3) what religion says or demands is, ipso facto, moral, and (4) morality is a logical prerequisite for religion. Consistent with his rejection of these last three positions, Dorff is committed to changing the halakhah that the rabbis of each generation consider immoral.28

Rabbi Joel Roth, on the other hand, while recognizing the role of ethics in the halakhic process, rejects the notion that ethics, by itself, can justify halakhic change.29 In his 2006 statement on homosexuality, he insists that allowing ethics or theology to determine the movement’s halakhic positions represents a clear violation of the rules of the halakhic system as evidenced throughout the history of Jewish legal development. (Moreover, in both his 1992 and 2006 responsa on homosexuality, Roth claimed that the prohibition on homosexual behavior was not immoral.)

In a book review of Rabbi Moshe Zemer’s Evolving Halakhah: A Progressive Approach to Traditional Jewish Law, Roth offers a critique of this Reform rabbi’s thinking that applies equally well to Conservative legists like Dorff and Rabbi Gordon Tucker, who reject Roth’s brand of legal positivism. Zemer cites Rabbi Seymour Siegel, who, as we have seen, argued that the halakhah must submit itself to our understanding of ethics. Roth may sympathize with the end, but he cannot abide by the means.

If the classical sources of the law can support the view which the modern “knows” must be the law, there is no need to deal with such side issues as the weight of precedent or hilkheta ke-vatra’ei (the law follows the latest authorities) because they do not really matter. The modern is certain what the law must be, and finding support for it is sufficient. Accepted decision-making principles are not relevant because conscience and moral certainty are determinative. And, if the classical sources of the law cannot support the desired conclusion, that too is no problem. After all, modern scholarship has demonstrated conclusively that halakhah has a history and has always evolved.30

Roth, subsequent to resigning from the Committee on Jewish Law and Standards following the split decision on homosexual behavior, charged that rabbis who adjudicate predicated exclusively on their own conscience and moral certainty are playing God.31

Recently, Rabbi Tucker has cited an eighteenth-century rabbi, Yehezkel Landau, in a striking formulation that asserts, much like Roth, that aggadah/ethics have no (p. 232) determinative halakhic force.32 Tucker laments this legal posture and argues that a religious legal system hides its face from its collective understanding of God’s will by hamstringing itself to the posited rules and precedents of a legal system (àla legal positivism) rather than adopting a more self-consciously Dworkinian posture that incorporates principles/ethics/aggadah in legal decision-making. In particular, Tucker argues that agaddah, especially in hard cases, should enhance traditional halakhic methodology.33

It is worthwhile to examine a particular halakhic decision rendered by Yehezkel Landau to appreciate how his own practice undermined his theory. When asked if Jews were allowed to hunt for sport, his intuitive response was, “Barbaric! How can a Jew justify taking the life of one of God’s creatures for recreational pleasure?! It’s immoral.” But, as Tucker has pointed out, morality is not a halakhic category for Landau, so he is unable to prohibit the practice on the basis of that criterion.

Landau proceeds to recount the story (aggadah!) of Esau’s encounter with Jacob upon returning famished from the hunt. When Jacob offers to exchange his lentil stew for Esau’s birthright, Esau responds, “I’m going to die—what good to me is the birthright?” (Gen 25:32) Although there are medieval commentators who interpret this statement as the hyperbole of an impetuous and myopic boor, there is another stream of biblical commentary that argues for the literal sense. Commentators like Abraham ibn Ezra suggest that Esau understands that hunting is dangerous business and that he is likely to predecease his father, thereby rendering his birthright worthless. Better, Esau shrewdly reasons, to get something for the birthright now. Landau uses this commentary on an aggadic passage in Genesis to conclude that hunting is dangerous for the hunter,34 and placing oneself unnecessarily in a dangerous situation is a clear violation of the halakhah! Thus, sport hunting is prohibited not because of the senseless murder of the hunted animal, but because of the potential danger to the hunter.35 One wonders how Landau would argue the issue today, given hunters with high-powered telescopic rifles riding in jeeps akin to armored personnel carriers.

Rabbi Tucker, in his contribution to the homosexuality dialogue, notes that previous watershed decisions used a similar methodology to the one Landau employed to prohibit hunting.36 But there is something deeply dissatisfying and disingenuous about the use of such legal contortions in a religious legal system. There may have been a place for wise silence, Maimonidean duplicity, and halakhic contortions in the premodern era, Tucker maintains, but not today. According to the National Jewish Population Survey of 2000–2001, of those Americans who identify their religion as Jewish, 44 percent describe their outlook as secular or somewhat secular. (The figure is 16 percent among non-Jewish adults.)37Halakhic gymnastics often alienate those secular Jews—and many religious Jews, too!—who long for ethical inspiration from Jewish leadership but reject premodern assumptions, outlooks, and methodologies. Tucker argues that we should be both honest and consistent in our approach to Torah and halakhah. The academic study of the Bible, which the Conservative Movement long ago adopted, rejects any qualitative distinction between biblical and rabbinic law.38 By and large, so does the American Jewish community. The (p. 233) traditional halakhic distinction between these two realms, precisely the distinction upon which the Dorff et al, responsum turns, is, therefore, problematic.

Both the Torah and its rabbinic literary successors (midrash and Talmud) represent human attempts to reflect the divine will. Ontologically, the status of both texts and genres is equal. The Torah does not necessarily represent a more transparent or reliable path to God’s will than does later rabbinic literature. Tucker’s critique of current halakhic methodology includes a plea for showing mercy to all God’s creatures (an aggadic principle with halakhic force),39 including homosexuals, even if doing so involves uprooting a biblical prohibition that is determined to no longer embody God’s will as understood by fallible humans. It was precisely that deep resistance to uprooting a biblical prohibition that resulted in Tucker’s responsum’s failing to garner enough votes for passage.

Aside from the fact that the responsum by Dorff et al. was officially approved by the Conservative Movement’s Committee on Jewish Law and Standard and the one by Tucker was not, practically, the difference between them is that Tucker’s approach allows for anal intercourse between gay men because it dispenses with the traditional distinction of biblical versus rabbinic prohibitions and uproots them both. Thus, not only is his approach more consistent with the way in which the Conservative Movement teaches about the Torah; it is more honest about gay sex. Indeed, it might be argued that by allowing homosexual physical intimacy while retaining the prohibition on anal intercourse, the responsum by Dorff et al. is in violation of the halakhic prohibition against placing a stumbling block before the blind.40

The dividing line among Conservative theorists is whether or not rabbis’ moral sensibilities are sufficient to uproot a traditionally understood biblical prohibition. (Within traditional halakhah, it is much easier to prohibit what was permitted than to permit what was prohibited.) Rabbi Roth remains the most articulate, though increasingly isolated, legal theorist in the Conservative Movement to reject such a possibility. There are different approaches utilized by those who are willing to give their own sense of morality a trump card over biblical prohibitions. Some, like Dorff and Spitz, rely on legal fictions while preserving the biblical/rabbinic distinction; others, like Tucker, promote aggadah and reject the biblical/rabbinic distinction. I would like to suggest a third approach that also rejects the biblical/rabbinic distinction but that preserves and rehabilitates the classical halakhic method of midrash.

Many literary theorists see parallels between rabbinic midrash and modern literary theory. As Moshe Greenberg wrote citing James D. Smart, “the meaning and significance of a passage (an event, an utterance) may not be realized until activated by later circumstances or contemplation.”41 In the imagery of the Talmud, the Torah is like a fig tree that has multiple crops. Each time one returns to the tree, one finds new fruit (B. Eruvin 54 a–b). Rabbi Abraham Joshua Heschel gives this botanical metaphor an evolutionary edge. “The Bible is a seed, God is the sun, but we are the soil. Every generation is expected to bring forth new understanding and new realization.”42 When the soil changes, it affects the fruit, which means that the seed inside the fruit, responsible for the next generation, also changes. In Heschel’s image, we are the soil, and we have changed both by virtue of our acceptance of (p. 234) biblical criticism and our recognition of the immorality of denying homosexuals a legitimate avenue for intimate partnership. The change in the soil affects the fruit and its seed. We have a different Torah than our ancestors had, or, more precisely, the Torah means something different to us than it did to our ancestors.

I understand “Do not lie with a male as one lies with a female” (Lev 18:22) to mean that a man who does have sex with females, namely heterosexuals and bisexuals, is prohibited from having sex with males. This verse is not, however, addressing gay men. What is my logic? If the text were addressing gay men, what would be the force of the otherwise superfluous verbiage “as one lies with a female” in the prohibition? The text could have just said, “Do not lie with a male.”43 Do I believe that this reading reflects the conscious intention of the author/s or editor/s? No. But I do believe that such a reading is consistent with what literary theory has helped us understand about the nature of literature in general and, more importantly, how the classical Jewish sages read the Torah in particular.

There are four advantages to my reading over Dorff’s and Tucker’s: (1) I do not rely on the intellectually problematic distinction between biblical and rabbinic law as does the responsum by Dorff et al.; (2) my reading argues that there is not a prohibition on gay anal intercourse—and thus my reading does not uproot a biblical prohibition as does the suggestion by Tucker—since this verse is not to be read as directed toward homosexuals;44 (3) the traditional bias toward heterosexism is preserved by claiming that this prohibition is directed toward bisexuals. (Tucker does not address this point.) (4) Another virtue of this reading is that it employs traditional halakhic methodology by making an ukimta, a legally restrictive interpretation, from seemingly superfluous words. Many halakhists may point to this use of halakhic midrash as a fatal disadvantage because I sideline two thousand years of interpretive consensus in favor of an innovative and idiosyncratic reading. One response to that critique can be found in the Committee on Jewish Law and Standards.

Committee on Jewish Law and Standards

Since 1927, the Conservative Movement has helped guide the halakhic decisions of its members. In the published responsa since World War II, the following disclaimer regularly appears: “The Committee on Jewish Law and Standards provides guidance in matters of halakhah for the Conservative Movement. The individual rabbi, however, is the authority for the interpretation and application of all matters of halakhah.” In other words, the Committee gets a vote, not a veto, on the actual application of legal rulings.

Decisions of the committee are not binding; they are advisory. Because they have only advisory capacity to the rabbis in the Rabbinical Assembly, there is no need for a majority of the committee members to vote in favor of a responsum for it to be considered a viable option. Currently, if six of the twenty-five voting members of the committee vote for a given responsum, that is sufficient to provide (p. 235) institutional endorsement upon which an individual rabbi may rely. Rabbi Tucker describes this situation as “modified majoritarianism without authoritarianism.”45 This communal mechanism provides a significant measure of control over idiosyncratic readings such as the one I offered above. Aharei rabbim l’hatot—incline after many rabbis, in this case six. The committee’s work also distinguishes Conservative Judaism from Reform, where individual Jews, as opposed to trained rabbis, are free to determine their own religious practice.46

This modified majoritarianism leads to the possibility that mutually exclusive halakhic positions will simultaneously be endorsed by the committee, as indeed happened during the 2006 vote on homosexuals.47 Tucker, writing in 1993, explains the virtues of this artifact of the post-prophetic and pre-messianic era. “[Rabbinic majoritarianism] is the interpretation under which [modified] majority decisions are a best approximation to a truth which God has decided to leave indeterminate to humans, and are thus both the culminations of rounds of debate and dissension, and the preludes to further such rounds.”48 (The Conservative Movement has nothing like a doctrine of Papal Infallibility, although there is an uncomfortable similarity between that doctrine and the Daas Torah of certain Orthodox sages.) The Committee recognizes that an individual rabbi may still rely on his own reasoning, as has been the case for much of Jewish history. There is no tyranny of the modified majority since not even a majority of the Committee “should be granted a monopoly on legal competence and authority.”49

Richard L. Claman, a Jewishly educated attorney who participates in the discussion of Conservative Judaism’s legal philosophy, pushes Tucker’s principled defense of the committee further. Tucker’s argument is based on the epistemological indeterminacy of the divine will. Claman argues, following Sir Isaiah Berlin, that some values are incommensurate with one another and hence incapable of being exhaustively compared—for example, the stability of a legal system versus the dignity of the human being. Thus, there is a philosophical basis for a value-pluralism that is not necessarily relativistic. (Not all values are equal or commensurate.) According to Claman, within Conservative Judaism there exists a value pluralism that becomes concretized in mutually exclusive halakhic opinions. “Value-pluralism in halakhah requires, I suggest, not just an acceptance of pluralism in outcomes, but also a pluralism in reasoning and discussion.”50

The Road to the Future

Value-pluralism combined with modified majoritarianism without authoritarianism allows for the Conservative Movement to shelter and nourish competing ethical theories, halakhic methodologies, and legal decisions. In the Talmud, value-pluralism was reflected in the statement that “These and those are words of the living God” (B. Eruvin 13b). But, at least in the case of Hillel and Shammai, the (p. 236) law was decided according to one side. In the expansive, democratic landscape of American Judaism, there is no need to retain that limitation. The philosophy of the committee resonates deeply with the value-pluralism of the Talmud, halakhic practices in the far-flung Jewish communities of the Diaspora, and American culture.

Judaism by committee creates a movement where the interplay between halakhah and ethics will continue to be an open question. The inclusion of the matriarchs in the Amidah is optional, mutually exclusive responsa are approved, and desired halakhic outcomes are attained by what some see as methodologically dubious means. In the secular soil of American Judaism, the honesty and integrity with which the movement approaches future ethical question will, in some measure, determine Conservative Judaism’s viability in the twenty-first century. Will the leaders of the movement be able to embrace both the Tree of Knowledge, which tells us that the Torah is neither uniquely divine nor authoritative, and the Tree of Life, which insists on the preeminence of ethics? Or, will we grow gourds and cultivate silence?

Suggestions for Further Reading

Conservative Writers Treating Specific Moral Issues

Dorff, Elliot N. 1998. Matters of Life and Death: A Jewish Approach to Modern Medical Ethics. Philadelphia: Jewish Publication Society.Find this resource:

    Dorff, Elliot N. 2002. To Do the Right and the Good: A Jewish Approach to Modern Social Ethics. Philadelphia: Jewish Publication Society.Find this resource:

      Dorff, Elliot N. 2003. Love Your Neighbor and Yourself: A Jewish Approach to Modern Personal Ethics. Philadelphia: Jewish Publication Society.Find this resource:

        Dorff, Elliot N. 2005. The Way into Tikkun Olam (Repairing the World). Woodstock, VT: Jewish Lights.Find this resource:

          Dorff, Elliot N., and Louis E. Newman. 1995. Contemporary Jewish Ethics and Morality: A Reader. New York: Oxford University Press, chaps. 22–24, 26–27, and 32.Find this resource:

            Dorff, Elliot N. and Louis E. Newman. 2008. Jewish Choices, Jewish Voices: Body, Money, Power. Philadelphia: Jewish Publication Society, 3 vols.Find this resource:

              Dorff, Elliot N., and Danya Ruttenberg. 2010. Jewish Choices, Jewish Voices: Sex and Intimacy, War and National Security, Social Justice. Philadelphia: Jewish Publication Society, 3 vols.Find this resource:

                Feldman, David. 1968. Birth Control in Jewish Law. New York: New York University PressFind this resource:

                  .

                  Subsequently republished as Marital Relations, Birth Control, and Abortion in Jewish Law. 1974. New York: Schocken.Find this resource:

                    Gold, Michael. 1988. And Hannah Wept: Infertility, Adoption, and the Jewish Couple. Philadelphia: Jewish Publication Society.Find this resource:

                      Gold, Michael. 1992. Does God Belong in the Bedroom? Philadelphia: Jewish Publication Society.Find this resource:

                        Jacobs, Jill. 2009. There Shall Be No Needy: Pursuing Social Justice through Jewish Law and Tradition. Woodstock, VT: Jewish Lights.Find this resource:

                          Mackler, Aaron. 2000. Life and Death Responsibilities in Jewish Biomedical Ethics. New York: Jewish Theological Seminary of America.Find this resource:

                            http://www.rabbinicalassembly.org/law/teshuvot_public.html Many of the responsa of the Conservative Movement on specific issues, many of them moral issues, can be accessed at: http://www.rabbinicalassembly.org/law/teshuvot_public.html. (p. 240)

                            On the Rabbinical Assembly website, there is also a link to more information about social action policies and, under “Kashrut,” there is more information on Hekhsher Tzedek.

                            Responsa of the Israeli Conservative Movement can be found at: http://www.responsafortoday.com/eng_index.html.

                            Conservative Writers on the Relationship between Jewish Law and Ethics:

                            Cherry, Shai. 2007. “The Daughters of Zelophehad,” in Torah through Time: Understanding Bible Commentary from the Rabbinic Period to Modern Times. Philadelphia: Jewish Publication Society, pp. 161–88.Find this resource:

                              Cosgrove, Elliot. 2007. “Conservative Judaism’s ‘Consistent Inconsistency.’” Conservative Judaism 59:3 (Spring), pp. 3–26.Find this resource:

                                Dorff, Elliot N. 2007. For the Love of God and People: A Philosophy of Jewish Law. Philadelphia: Jewish Publication Society. See also the appendicies to his books, To Do the Right and the Good and Love Your Neighbor and Yourself, both of which are listed above.Find this resource:

                                  Dorff, Elliot N., and Louis E. Newman. 1995. Contemporary Jewish Ethics and Morality: A Reader. New York: Oxford University Press, chaps. 2–5 and 9–12.Find this resource:

                                    Greenberg, Simon, ed. 1987. The Ordination of Women as Rabbis: Studies and Responsa. New York: Jewish Theological Seminary of America.Find this resource:

                                      Roth, Joel. 1986. The Halakhic Process: A Systematic Analysis. New York: Jewish Theological Seminary of America.Find this resource:

                                        Tucker, Gordon. 2007–2008. “Can a People of the Book Also Be a People of God?” Conservative Judaism 60:1–2 (Fall/Winter), pp. 4–25.Find this resource:

                                          Notes:

                                          (1.) In this case, Conservative Judaism’s consensus document, Emet Ve’Emunah, predictably posits that Judaism embodies “the highest moral principles,” but then proceeds to equivocate on how to effect those principles. Emet Ve’Emunah (New York: Jewish Theological Seminary of America, 1988), p. 22.

                                          (2.) My comments are largely restricted to Conservative Judaism in the United States.

                                          (3.) Robert Gordis, “A Jewish Prayer Book for the Modern Age,” in Understanding Conservative Judaism, Max Gelb, ed. (New York: Rabbinical Assembly, 1978), p. 146.

                                          (4.) Jonathan D. Sarna, American Judaism: A History (New Haven, CT: Yale University Press, 2004), pp. 339–44.

                                          (5.) The history of the Reform movement and homosexuality can be traced by viewing the resolutions adopted by the Central Conference of American Rabbis at http://ccarnet.org/rabbis-speak/resolutions/. For the Reconstructionist position, see http://jrf.org/GLBT-Inclusion.

                                          (6.) Joel Roth, “On the Ordination of Women as Rabbis,” in The Ordination of Women as Rabbis: Studies and Responsa, Simon Greenberg, ed. (New York: Jewish Theological Seminary of America, 1988), p. 170.

                                          (7.) Ibid., pp. 166f.

                                          (8.) Ibid., p. 172.

                                          (9.) Indeed, in no circumstances are women allowed to initiate divorce proceedings against their husbands, a rule that again undermines any claim toward complete egalitarianism.

                                          (10.) Roth acknowledges this problem—Roth, “On the Ordination of Women” (at note 6 above), pp. 168f.—but insists his primary concern is for the “halakhic status of behaviors” (p. 169).

                                          (11.) Katzenbach v. McClung, 379 U.S. 294 (1964).

                                          (12.) Elliot N. Dorff, For the Love of God and People: A Philosophy of Jewish Law (Philadelphia: Jewish Publication Society of America, 2007), p. 235. Dorff cites studies that suggest a significant percentage of homosexual men do not engage in anal intercourse. He concludes that “this means that our position is not a legal fiction.” I disagree with his conclusion.

                                          (13.) “Towards a Legal Theory of the Conservative Movement,” Conservative Judaism 27:3 (1973), p. 75.

                                          (14.) Dorff, For the Love of God and People (at note 12 above), p. 235.

                                          (15.) Ibid.

                                          (16.) Rabbi Joel Roth, in a private communication (1/9/2011), assures me that not only was this not his intention but that Rabbi Gerson Cohen at Camp Ramah did ask women if they should be counted in the minyan based on the Roth responsum. Nevertheless, it seems to me a predictable consequence of the Roth responsum that it would be widely exploited as an indiscriminate invitation for synagogue egalitarianism, which it has indeed become.

                                          (17.) Elie Spitz, “Mamzerut,” Responsa of the Committee on Jewish Law and Standards, 1991–2000 (New York: Rabbinical Assembly 2002), p. 585.

                                          (18.) B. Yevamot 89b.

                                          (19.) There is a well-reasoned theory for this posture. See Richard L. Claman, “Vinegar and Wine, Leniency and Piety: Justifying a Bias Toward Lightening the Yoke,” Conservative Judaism 56:3 (Spring 2004), pp. 63–80.

                                          (20.) Seymour Siegel, “Ethics and the Halakhah,” in Conservative Judaism and Jewish Law, Seymour Siegel and Elliot Gertel, eds. (New York: Ktav Publishing House, 1977), p. 127. The teshuvah can be found at http://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/19861990/siegel_smoking.pdf?phpMyAdmin=G0Is7ZE%2CH7O%2Ct%2CZ1sDHpI8UAVD6.

                                          (24.) Jill Jacobs, There Shall Be No Needy: Pursuing Social Justice through Jewish Law and Tradition (Woodstock, VT: Jewish Lights Publishing, 2009).

                                          (25.) These rabbis all contributed to Righteous Indignation: A Jewish Call for Justice, ed. Or N. Rose, Jo Ellen Green Kaiser, and Margie Klein (Woodstock, VT: Jewish Lights Publishing, 2008). See also Aryeh Cohen, Justice in the City: an Argument from the Sources of Rabbinic Judaism (Boston: Academic Studies Press, 2012).

                                          (26.) Jacobs, There Shall Be No Needy (at note 24 above), p. 48. Italics added.

                                          (27.) Elliot N. Dorff, Matters of Life and Death: A Jewish Approach to Modern Medical Ethics (Philadelphia: Jewish Publication Society of America, 1998), pp. 395–417. See also his Love Your Neighbor and Yourself: A Jewish Approach to Modern Personal Ethics (Philadelphia: Jewish Publication Society, 2003), Appendix, pp. 311–44, and his For the Love of God and People (at note 12 above), chap. 6 for further articulations of his view on the relationships between Judaism and morality.

                                          (28.) Dorff, Matters (ibid.), p. 399. Dorff is one of many rabbis who holds this position. For example, see also Bradley Shavit Artson, “Halakhah and Ethics: The Holy and the Good,” Conservative Judaism 46:3 (Spring 1994), pp. 70–88.

                                          (29.) Joel Roth, The Halakhic Process: A Systemic Analysis (New York: Jewish Theological Seminary of America, 1986), p. 301. He makes the same point in http://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/20052010/roth_revisited.pdf, p. 27. See also Israel Francus, p. 35 and Joel Roth, pp. 170f., in Greenberg, ed. The Ordination of Women as Rabbis (at note 6 above).

                                          (30.) Joel Roth, “Review of Moshe Zemer’s Evolving Halakhah: A Progressive Approach to Traditional Jewish Law,”Conservative Judaism 54:1 (Fall 2001), p. 113.

                                          (31.) Joel Roth, “Musings Toward a Personal Theology of Revelation,” in Edut BeYhosef: Rabbi Dr. Yosef Green: Essays Presented to Rabbi Dr. Yosef Green on the occasion of his eightieth birthday (Jerusalem, 2008).

                                          (32.) “Can a People of the Book Also Be a People of God?” Conservative Judaism 60:1–2 (Fall/Winter 2007–2008), p. 11, citing Noda Biyehudah (latter edition), Yoreh Deah 161.

                                          (34.) Landau incorrectly attributes this comment to Moses Nahmanides.

                                          (35.) Noda Biyehudah (latter edition), Yoreh Deah 10.

                                          (37.) New York: United Jewish Communities, 2001, p. 12.

                                          (38.) Nevertheless, Emet Ve’Emunah, the Conservative Movement’s statement of principles, posits that “the single greatest event in the history of God’s revelation took place at Sinai” (p. 19) Even Reform theologians, such as Eugene Borowitz and Naomi Patz, have great difficulty escaping from under the shadow of Sinai; see their Explaining Reform Judaism (West Orange, NJ: Behrman House, 1985), p. 102.

                                          (41.) “To Whom and for What Should a Bible Commentator Be Responsible?” in Studies in the Bible and Jewish Thought (Philadelphia: Jewish Publication Society of America, 1995), p. 239. Cited and discussed in Shai Cherry, Torah through Time: Understanding Bible Commentary form the Rabbinic Period to Modern Times (Philadelphia: Jewish Publication Society of America, 2007), p. 32.

                                          (42.) Abraham Joshua Heschel, God in Search of Man: A Philosophy of Judaism (New York: Farrar, Strauss, and Giroux, 1956), p. 274. Cited and discussed in Cherry, Torah through Time (at note 41 above), p. 189.

                                          (43.) Although Elliot Dorff graciously included my reading in his book, For the Love of God and People (at note 12 above), p. 242, n. 39, he mistakenly believed that I claimed this was the peshat, or contextual meaning. My reading is midrashic and, I argue, should have just as much claim to halakhic status as the midrashim of the ancient rabbis.

                                          (44.) As Tucker explains, even if there is not a qualitative or ontological distinction between biblical and rabbibic law, biblical law is the first sacred expression of law within our tradition and thus has a special place. http://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/20052010/tucker_homosexuality.pdf, 6.

                                          (45.) Gordon Tucker, “A Principled Defense of the Structure and Status of the CJLS,” http://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/19912000/tucker_defense.pdf?phpMyAdmin=G0Is7ZE%2CH7O%2Ct%2CZ1sDHpI8UAVD6. Rabbi Dorff frequently would say in class, “The vote in the CJLS helps us determine if this is just another one of Dorff’s crazy ideas, or if it is the will of God.”

                                          (46.) Elliot Dorff and Eugene Borowitz, a leading Reform theologian, engage in a contemporary version of the Buber-Rosenzweig letters on this issue. These letters are published in Elliot N. Dorff, The Unfolding Tradition: Jewish Law After Sinai (New York: Aviv Press, 2005), pp. 464–80. On this exchange, see discussion by Michael Marmur in chapter 11 above in this volume.

                                          (47.) Rabbi Adam Kligfeld voted for both the Roth and Dorff responsa. Clearly, Kligfeld was not endorsing the conclusions of both responsa; he was acknowledging that both responsa were legitimate expressions of Conservative halakhah.

                                          (48.) Tucker, “A Principled Defense” (at n. 45 above), p. 765.

                                          (49.) Ibid., pp. 771f.

                                          (50.) Richard L. Claman, “A Philosophical Basis for Halakhic Pluralism,” Conservative Judaism 54:1 (Fall 2001), p. 78. Joel Roth has recently focused attention on the borders of his own halakhic pluralism. “Gufei Torah: The Limit to Halakhic Pluralism,” in Tiferet Le-Yisrael: Jubilee Volume in Honor of Israel Francus, Joel Roth, Menahem Schmelzer, and Yaacov Francus, eds. (New York and Jerusalem: JTS Publications, 2010).