Rabbi Alan Kimche of London shared an interesting observation with me last week. When 11 leading roshei yeshivah issued their 1956 psak against participation by Orthodox rabbis in umbrella rabbinical organizations that included Reform and Conservative clergy the perceived threat was the confusion between Conservative and Orthodox. Today however the greatest danger of confusion lies within the ranks of those who style themselves as Orthodox — between the so-called “open Orthodox” and the rest of us.
Rabbi Kimche offered as exhibit one of the writings of an “Orthodox feminist” — a woman who covers her hair and who is as far as he knows mitzvah-observant — who writes that the Torah received at Sinai suffers from an inherent bias because it was filtered through Moshe Rabbeinu’s male consciousness. The time has now come she says to redress this imbalance through a feminine Torah.
As exhibit two I point to a recent online post by one Shmuly Yanklowitz in which he explains why he feels compelled davka as an Orthodox rabbi (his Web page lists semichah from Rabbi Avi Weiss’s Yeshivat Chovevei Torah Rabbi Shlomo Riskin and Rabbi Nathan Lopes Cardozo) to ardently advocate for same-gender marriage. Yanklowitz’s sole nod to “Jewish tradition” is that he will not officiate at such marriages.
Reading this post I experienced a sense of déjà vu: This must have been what it was like to read the Conservative movement’s “psak” in the 1950s permitting driving a car on Shabbos for synagogue attendance only (a restriction observed by no one). No doubt that document was filled with citations to core Jewish principles such as the importance of praying in a minyan. The only problem was that no matter how many such citations were amassed according to the principles of the Shulchan Aruch the issue is crystal clear: igniting an internal combustion engine constitutes a d’Oraisa transgression of lighting a fire.
Yanklowitz does not even make the effort to cite Jewish sources to argue for his position. Nor does he explicitly acknowledge the insurmountable difficulty with his position: The Torah prohibits in the strongest possible language the very relationships that he would have civil law recognize and according to all authorities such relationships constitute violations punishable by death of the seven mitzvos incumbent on gentiles as well. All he writes on this matter is “We have no right to coercively prevent by force of civil law an individual from enjoying true happiness and fulfilling their life potential when it poses no harm to any other.”
He effectively argues that moral judgments based on religious teachings cannot serve as the basis of civil law. Harvard professor Laurence Tribe made a similar argument almost four decades ago in a misbegotten effort to defend the US Supreme Court’s abortion jurisprudence: Since beliefs about when life begins are essentially of a religious nature they cannot be the basis of a statutory prohibition on abortion. That argument made little sense then and little more now for it unfairly gives preference to the value judgments of atheists over those of religious citizens.
Nor is it true that legalization of such marriages harms no one else or has no coercive impact on them. Every time a particular relationship is granted legislative status it opens the gates for coercion against religious citizens. For instance religious Jews and Catholics would be prevented from refusing to rent property to couples whose relationship violates their deepest religious beliefs. Their only choice would be either to remove their property from the rental market or to be prosecuted for violation of fair housing statutes.
BUT THE TECHNICAL LEGAL arguments should detain us much less than the form of Yanklowitz’s argumentation. Over and over he refers to general Jewish principles — e.g. tzedek rachamim pikuach nefesh the emphasis on family life — for support of his position. His reasoning thus sounds indistinguishable from the argument I recently heard from a Reform cleric that the Torah as she understands it prohibits the State of Israel from taking steps to expel illegal immigrants.
The distillation of abstract principles removed from any halachic context and Torah sources leaves nothing but individual moral intuitions. The followers of Moses Mendelssohn claimed that they were following in the philosophic tradition of Maimonides in seeking the abstract principles of monotheism removed from halachic observance. Apparently they forgot that the same Maimonides was the author of Mishneh Torah the classic compendium of halachah. Within a generation or two most of them had made their way to the baptismal font.
Rav Chaim Volozhin in Nefesh HaChaim in the chapters leading up to Shaar Daled stresses that all the elevated intentions in the world cannot be allowed to supplant the primacy of the maaseh mitzvah. He was not addressing the nascent Reform movement which had not yet spread to Eastern Europe. But his warning of the dangers inherent whenever we forget that the maaseh mitzvah the halachic act is fundamental applies equally to Reform.
Reform acknowledges no such thing as halachah a binding command. Each Jew is bound only so far as he chooses to be bound and for only so long. And Yanklowitz’s blog post is rife with the same antinomian bias in favor of each Jew as the creator of his own religion. He quotes Rav Saadiah Gaon for the proposition that faith and reason must be reconciled and where the text cannot be reconciled with reason it must be reexamined. And he cites Rav Avraham Yitzchak Kook as opposing compromise of one’s “personal natural moral sensibility” in the name of “piety.”
These summaries are of course gross distortions. He points to no examples of Rav Saadia Gaon uprooting halachah on the basis of his reason. True Rav Kook rightly did not view the Torah permission of slavery as requiring a believing Jew to align with Southern slaveholders but he never came remotely close to sanctioning what the Torah explicitly prohibits.
Yanklowitz’s gleanings however point us to his ultimate position: Shmuly Yanklowitz’s reason and “moral intuition” (his term) are the ultimate arbiter. And that heads us down the road to Reform.
Finally Yanklowitz offers his justification for bringing the Torah up-to-date (as Rav Samson Raphael Hirsch sarcastically described the German Reform of his time): Current American culture is no longer willing to accept Biblical definitions of marriage as the basis for civil legislation and religious traditionalists will lose all credibility if they insist on those definitions. For starters he ignores that virtually every society in human history — not just those established by Biblical believers — has limited marriage to a man and a woman. And even today in the overwhelming majority of states including hyper-liberal California in which the matter has been put to a vote (as opposed to being decided by judicial fiat) voters have rejected nontraditional definitions of marriage.
But most importantly he is wrong about what causes religious leaders to lose all credibility as the rapid decline of the heterodox movements demonstrates. Religious leaders lose credibility when they become nothing more than weathervanes holding their fingers in the air to determine which way the zeitgeist is blowing. At that point they have ceased to be leaders or bearers of any moral message at all.
As Yanklowitz himself writes “The essence of religious conviction is that we must do what is right not what is popular.”
Precisely. And when forced to choose between Hashem’s determination of what is right and Shmuly Yanklowitz’s I choose the former.