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Is There a Standard of Rabbinic Practice Against Intermarriage? A History of the Rabbinical Assembly’s Prohibition on Interfaith Marriage[1]

Daniel Z. Stein

 

I was presented with my copy of Hatzne’a Lekhet: A Code of Professional Conduct for Members of the Rabbinical Assembly[2] during my final year of study at the Jewish Theological Seminary, as part of a seminar on rabbinic ethics. By nature, I am contrarian, so it is not surprising that my interest focused on the illicit thou shalt nots: What behaviors were deemed immoral enough to place my professional credentials and affiliation in jeopardy? With great interest, I turned to the so-called “Standards of Religious Practice,” which I understood to be the categories in Jewish law that held a special status in the Rabbinical Assembly (RA). This is how the Code describes the formulation of these standards:

 

“Standards of Religious Practice” are binding upon all members of the Rabbinical Assembly. Such standards are established through the Committee on Jewish Law and Standards with approval of the Assembly at an annual meeting… Violations of Standards of Religious Practice usually result in expulsion from the Rabbinical Assembly.[3]

 

Official publications of the Rabbinical Assembly list four such standards; they largely deal with issues of Jewish identity: May a rabbi officiate at an intermarriage? What is the status of Jews with a Jewish father and a non-Jewish mother? May a rabbi perform a marriage absent a rabbinic divorce?

I gave little thought to these standards until recently. The publication of the Pew Research Foundation’s A Portrait of Jewish Americans,[4] which highlighted the overwhelming intermarriage rate among non-Orthodox Jews, prompted me to take a deeper look at the development of these standards, and Standard (d) in particular—which states that “[r]abbis may not officiate at, participate in, or attend an intermarriage.”[5] I wanted to understand how, exactly, this ban on rabbinic participation in interfaith marriage came into being. Given the language in the Code, I thought the task would be simple enough: I would just read the minutes of the annual meeting at which the Rabbinical Assembly passed the standard. I soon discovered, though, that no evidence of such a vote exists. Instead, an understanding of Standard (d)’s evolution requires an in-depth study of the history of both the RA and its Committee on Jewish Law and Standards (CJLS). Such analysis ultimately calls into question the very legitimacy of the Standard; my research suggests that a reevaluation is necessary to determine if it is in any way binding on members of the RA.

David Golinkin’s encyclopedic anthology, Proceedings of the CJLS 1927-1970, sheds light on the persistent controversies that shaped the CJLS’s first decades. Perhaps the most vital dispute centered on the function of the committee’s decisions: Was every rabbi a ruler unto himself? Could the rulings of the CJLS be binding on Rabbinical Assembly membership? And, if rulings were “binding,” what precisely did that term mean? Did the Rabbinical Assembly have the right to enforce punitive action on a member who chose to ignore a “binding” decision?

This controversy emerged as early as 1927, when the RA established the CJLS as an advisory body on halakha for rabbis in the field. The resolution establishing the CJLS attempted to create a degree of cohesive practice among RA members; while the committee was to include rabbis representing a wide array of opinions, if it was to reach a unanimous decision on an issue, it was to be regarded “as the authoritative opinion of the Rabbinical Assembly.”[6] In any other instance, the CJLS was to issue both majority and minority opinions, both of which were to be considered valid.[7]

A unanimous decision of the CJLS could thus be considered “authoritative,” although the precise meaning of that term was unclear. In 1948, when the committee was reformed, the RA’s resolution strove for greater clarity; it included a clause declaring that “[d]ecisions rendered by the Committee unanimously shall be binding on all members of the Rabbinical Assembly.”[8] During the same voting session, though, the Rabbinical Assembly rejected a resolution that allowed for punitive measures if a rabbi failed to comply with a “binding” decision; this rejected resolution reads, in part:

 

Disciplinary sanctions against members who defy the unanimous decisions of the Committee shall not be the business of the Committee, but of a special court to be set up by the Assembly. In general, no sanctions shall be taken against any member unless his conduct or teaching sabotages the work and progress of Conservative Judaism as a movement to which we are dedicated.[9]

 

The RA, then, was willing to create “binding” decisions, but it was simultaneously unwilling to provide a vehicle for enforcing such decisions. In other words, even if a rabbi violated a unanimous decision of the CJLS, the Rabbinical Assembly, at least in 1948, was reluctant to take disciplinary action.

This tension—between the so-called “binding” decisions on the one hand and a lack of punitive measures on the other—led to ongoing confusion in the deliberations of the CJLS and the RA at large. The issue consistently simmered in RA debates, dividing the RA between those who believed that the CJLS’s primary function was as an advisory body, with ultimate power in the hands of local rabbis, and others who firmly asserted that an important function of the CJLS was the creation and enforcement of policy to foster denominational cohesion. At the1950 Rabbinical Assembly Convention, RA President David Aronson described how the movement was beginning to balance these competing viewpoints:

 

One of the chief problems which agitated our Convention last year was the scope, composition, and authority of the Committee on Jewish Law and Standards…. Obviously, the Committee cannot legislate in a manner which would be acceptable to all congregations ministered by our men. No individual body, or code was ever able to standardize the practices of synagogues and we doubt whether such standardization would be conductive to spiritual growth. Neither is the Rabbinical Assembly ready or willing to impose sanctions against its members who may deviate right or left from decisions—even unanimous decisions—of the Law Committee.

The decisions of the Law Committee can therefore be taken only as the collective, studied, and crystallizing judgements within the Rabbinical Assembly, judgements arrived at after due consideration of all the viewpoints represented in our movement….

Let me add this, however. While we do not apply sanctions against members who refuse to accept even a unanimous decision of the Law Committee, such a unanimous decision is considered the official opinion of the Rabbinical Assembly, and may be quoted as such.[10]

 

At the 1952 convention, rabbis again debated the nature and role of the Committee on Jewish Law and Standards. At issue, again, were the two competing roles of the committee: on the one hand, it was meant to serve as a body for enforcing Jewish Law. On the other, it was meant to establish religious standards for the movement. Rabbi Mordecai Kaplan struck at the heart of the issue:

 

Rabbi Simon pointed out that that it is not within the scope of this committee or the entire [Executive] council to apply sanctions. Now, if that is the case, why not do the logical thing and not speak of a Law Committee, but speak of a Committee on Standards. There has to be a certain degree of unanimity, but the idea of law carries with it inner contradictions. If it is law, it ought to have sanctions. If you cannot apply sanctions, you don’t have law….

There should be a committee on law that should deal with marriage, etc., or there should be a committee on standards. The committee on standards is the one that we are dealing with regard to these problems [questions of ritual observance] and we will get much further, we will be able to work out in the course of time a set of uniform standards which will be flexible, but which will not raise the entire question of their being binding or not being binding. We need unanimity, but we can’t possibly have it under the conditions in which we live.[11]

 

In his address to the 1955 Convention, Rabbi Simon Greenberg again cautioned against excessive legislative action by the Rabbinical Assembly:

 

The reports of the commissions and committees of the Rabbinical Assembly can well become normative without becoming authoritative first for its own members and, through them, for many of our congregants.

I believe that there is a fair sized group amongst us that would prefer to have it otherwise that would be happier if instead of functioning primarily through committees and commissions, the Rabbinical Assembly would express itself through actions of the convention. They would want to see the Rabbinical Assembly through its convention become a legislative body not only for its own organizational needs, but also in matters of law, ritual, and perhaps even ideology. I would therefore formulate as a second basic principle whereby the Assembly should guide itself in the future, the proposition that any step that would tend to make the Rabbinical Assembly a legislative body in matters other than those immediately affecting its organizational needs would be a step in the wrong direction.[12]

 

While many within the RA seemed to feel that it lacked punitive authority, by 1962—with no subsequent policy changes—the leadership of the RA was contemplating how disciplinary measures against rabbis could be carried out. Jules Harlow, then the secretary of the CJLS, wondered:

 

What happens if somebody does not follow a unanimous opinion? I have not yet heard of a test case. This past year, the Executive Council, I believe, recommended that any charges one would care to make should be submitted to the Ethics Committee. It is not the business of the Law Committee to deal with infringements.[13]

 

But in 1967, we again see that approach questioned. Reflecting on the nature of “binding” decisions, CJLS Chair Benjamin Kreitman observed, “[n]either the subcommittee nor the committee at large has been able to come up with a serviceable definition of ‘binding.’ For the time being this term remains in the realm of moral persuasion.”[14]

Though these examples will suffice, the Golinkin anthology recounts numerous conflicting opinions centered on the RA’s ability to enforce unanimous decisions of the CJLS. At the same time, an equally challenging problem arose around the requirement for unanimity: if even one member of the CJLS disagreed with an overwhelming majority, he could, in essence, become a veto of one, preventing the committee from creating a “binding” ruling. Ultimately, these two parallel challenges proved to be too overwhelming for the committee to bear, and, in September of 1970, the committee found itself at loggerheads. Not coincidentally, issues around interfaith marriage and Jewish identity would ultimately push the CJLS to its breaking point. Rabbi Wolfe Kelman, Executive Vice President of the RA, described the events at a meeting of the Rabbinical Assembly’s executive Committee:

 

In September of 1970, two matters came to the attention of the President of the RA: 1) whether a member of the RA could officiate at the marriage at which one partner was a non-Jew (not converted); 2) whether conversion was valid tevilah.

On October 28, 1970, both questions were put before the RA Committee on Jewish Law and Standards. A unanimous decision on the first question held that marriage without conversion was contrary to our understanding of Jewish Law. On the second question—of conversion without tevilah—there was one vote against making tevilah mandatory. The vote elicited considerable ferment and intense discussion in the committee.

The Executive Council, at the meeting of November 11, 1970, heard a report of the Law Committee which indicated that the committee had voted unanimously against officiating at a marriage without conversion and that his ruling was henceforth binding on RA members. That statement was inaccurate, since a unanimous decision of the Law Committee must be voted on at two consecutive meetings before it becomes binding. The committee report further said that there was unanimity on tevilah, since the interim, the single negative vote, had been changed to an abstention. This was also an inaccurate statement, since there had not been a unanimous vote at the October 28 Law Committee meeting.

At the subsequent meeting of the Law Committee on December 2, 1970, the rabbi who had voted against mandatory tevilah indicated that he had changed his vote in order to make the ruling unanimous, and gave reasons why he had done so. This was followed by a considerable discussion about the propriety of changing a vote between meetings of the committee. The committee voted a retroactive ruling that it would be acceptable in this one case, but would ne be permitted in the future. Henceforth, a change in vote may be made only at a subsequent meeting of the committee, not in the interim period.

The Chairman of the Law Committee then placed both questions to a second required vote. The committee voted unanimously against permitting Conservative rabbis to officiate or participate at a marriage where a non-Jewish partner had not been converted.

On the second question (tevilah), one member of the Law Committee, who had not been present at the October 28 meeting, voted negatively, despite lengthy and intense pleading by those present to vote a unanimous ruling. The Chairman and several members of the Law Committee then made it clear that they would not serve on a committee that could not reach unanimity even on such a question. Their dissatisfaction also stemmed from previous occasions where the votes of two or three members could block a unanimous decision on vital questions. At the close of the meeting, more than a majority of the Law Committee submitted their resignations to the President of the RA[15]

 

It was in this contentious context, then, that the CJLS passed “binding” votes against intermarriage—even while uncertainty ruled the day on the meaning of the term.[16] At the same time, the Rabbinical Assembly at large found itself facing a dilemma: what would be the status of the CJLS? The RA formed The Special Committee on the Future of the Rabbinical Assembly Committee on Jewish Law and Standards to explore policy to address the procedural problems that had plagued the CJLS. Its report, which appeared in Conservative Judaism in the spring of 1971, sought to address many of the ambiguities that had marked the Committee’s history. Robert Gordis explained the goals of a reformed Committee on Jewish Law and Standards:

 

We need to move much more vigorously than heretofore toward the establishment of generally recognized and accepted norms of Conservative practice that will bear the earmarks of our approach to the halakhah, which is not identical with that of other movements in Jewish life. This does not diminish our regard for other interpretations of the tradition maintained in contemporary Jewry.

Finally we must make certain that the Rabbinical Assembly not surrender its attachment to the principles of diversity and freedom, or engage in imposing norms of conformity upon the practice of individual members of the Rabbinical Assembly and our lay constituency by subtle or gross forms of “heresy-hunting.”

The last two principles may appear to be in contradiction with each other. Actually, they are in creative tension with one another. Indeed, it is the balance between them that is the essential characteristic of our movement, which sets it apart from the movements on the right and on the left. Since we regard both goals of law and liberty as legitimate and indispensable, our task is to find a formula by which both principles can be safeguarded.

 

Towards those ends, the Special Committee made several policy recommendations on when an opinion of the CJLS would be binding on the RA’s membership. It also made a specific suggestion about what would occur should a member choose to ignore such a decision:

 

There obviously can be no norms without some means of enforcement. It therefore follows that if a member of the Rabbinical Assembly violates the decisions of the Law Committee he should, upon presentment of a complaint, be asked to appear before a special Committee on Practice, which would be created by the Rabbinical Assembly as a body independent of the Law Committee. At this meeting the facts would be explored. If found to be true, the colleague would be asked to modify his course of action which violates the practice established by the Law Committee as normative for the Rabbinical Assembly. If he found it impossible to do so, he might be asked to submit his resignation from the Rabbinical Assembly, or some other sanction could be invoked.[17]

 

The recommendations of the committee would ultimately be brought to a vote at the Rabbinical Assembly Convention of 1972. As will be discussed below, the Committee’s recommendations would be accepted, but with a crucial difference: for a policy to merit disciplinary action, it would have to be adapted by a supermajority of RA’s membership.

With these policy changes looming on the horizon, the reconstituted CJLS resumed its work in December of 1971. Anxious to resolve the controversies of a year prior, it revisited the issues that had caused its collapse by taking up challenges around interfaith marriage and conversion. While none of the attendees presented papers, the Committee voted unanimously that “That no member of the RA may officiate at the marriage between a Jew and a non–Jew.”[18] During the deliberations, critical attention was given to two points: first, by privileging the term “officiate” over “participate,” many felt that the Committee “left open many questions regarding [a rabbi’s] ‘participation’ in the marriage or performing a civil ceremony.”[19] The Committee, though, was anxious to make the policy “binding,” and felt that it was important for the language in the resolution to be consistent with the wording from the 1970 meetings. As a result, the Committee chose to leave the language unchanged. The CJLS considered its vote to be the official second reading, standing in place of the controversial meeting of December 1970. It was carried unanimously, and the minutes indicate that the Committee considered “the rule…binding on all members of the RA.” At the same time, it left the window open for further discussions on the issues of rabbinic participation and attendance at interfaith marriages.

The CJLS met again on January 20, 1972, taking the unique step of passing papers on interfaith marriage after already voting on their substance the month prior; it unanimously adopted papers by Rabbis Immanuel Lubliner and Aaron Blumenthal. The Lubliner paper is noteworthy in its strident, sarcastic tone, and contains many clauses that contemporary rabbis might find dubious. Reflecting on a rabbi who would offer his blessing to an interfaith marriage, he ruminates:

 

Considering the consensus of…opinions our sages concerning the [interfaith] relationship about to be blessed by the Rabbi [sic], any benediction pronounced on such an occasion would be in the nature of Khilul HaShem b’farhesia [public blasphemy], as if he had said: Blessed art Thou O Lord…who hast commanded us…al mitzvat z’nut [regarding the laws of harlotry].[20]

 

Later, considering the validity of imposing the prerequisite of conversion for marriage, he writes:

 

There is no body of people nation, party or organization which does not require certain pre-requisites [sic] for belonging. The Black Panther Party, the Weathermen, the Kiwanis, the Garden Clubs, all of them make certain demands before anyone is permitted to join, whether these be difficult or easy conditions to fulfill. To exempt the institution from all such conditions is preposterous.[21]

 

Rabbi Blumenthal’s paper (more of a statement, really)—prohibiting officiating or even attending an interfaith marriage—was passed as a first draft. While no less restrictive in its content, its tone was considerably more sympathetic than Lubliner’s, noting that “every effort should be made to retain contact with the intermarried couple,” and that they “deserve our deep concern.”[22]

The text of Blumenthal’s paper, it seems, became the basis for the RA’s policy on intermarriage that exists to this day; in addition to restrictions on officiating interfaith marriages, it bans rabbinic attendance at such events, as well as at any associated social events. It reads, in part:

 

It is the unanimous judgment of the CJLS that a member of the RA may not officiate at the marriage of a Jew to a non-Jew, that he may not co–officiate with any other clergyman, nor may he officiate or be present at a purely civil ceremony. Furthermore, he may not grace his presence at any social celebration immediately before or after such nuptials.

A rabbi is a rabbi and a cantor is a cantor. Neither can divest himself of his essential role. There is no other way to interpret the presence of a Rabbi or a Cantor at a marriage or its social celebrations other than as a form of approval or acquiescence. This he may not do in the case of intermarriage. [23]

 

It is worth noting two factors that may also have impacted the CJLS. First, beginning in 1968, the Reform Movement’s Central Conference of American Rabbis had begun an intensive study on the future of the rabbinate. Although in 1972 the findings were inconclusive, there were hints about the direction the Reform movement was heading. At its 1971 convention, for instance, the CCAR declined a request from its president to pass a renewed prohibition against interfaith marriage; while it called officiating at such marriages “discouraging,” the convention would not bar them.[24] The issue was to be revisited with more depth at the CCAR’s 1972 convention, when a survey of its membership would be presented.[25] Secondly the Rabbinical Assembly had not yet solved its own issues of internal discipline—as the members of the CJLS knew, this issue was to be a primary focus of the March 1972 Rabbinical Assembly Convention. Perhaps, sensing change on the horizon both internally externally, the members of the CJLS felt an urgency to act. So in February 1972, just days before the Convention, Judah Nadich distributed a memo to the RA membership clarifying the position of the CJLS.[26]

During the 1972 Convention, the Rabbinical Assembly as a whole came to a consensus on how, and under what circumstances, the Ethics Committee could enforce a decision of the CJLS. The convention debated and voted on the various proposals for the CJLS emerging from the work of the Special Committee. After deliberations, the Rabbinical Assembly ultimately created a category known as “Standards of Rabbinic Practice,” violations of which were considered inconsistent with membership in the RA. The RA established rigorous guidelines for elevating a particular ruling of the CJLS into a Standard. Under the new rules, an opinion had to overcome several hurdles: A two-thirds majority of present members at a CJLS meeting had to affirm a position was worthy of becoming a standard; subsequently, a second vote was to be taken of the entire CJLS by mail to determine if the standard would leave committee. This vote required an 80% majority. Finally, if both these thresholds were met, a proposal would be presented to Rabbinical Assembly Convention for ratification. Only then would an opinion become a Standard of Rabbinic Practice for which a non–complying rabbi could be disciplined.[27]

In August of the same year, the CJLS examined in what ways this new policy would impact prior unanimous—or “binding”—decisions of the CJLS, including the recent ban on intermarriage. The implications the decision would have for rabbis in the field were also unclear. The committee was unable formulate a concrete policy on interfaith marriage, and resolved that more time was needed to reach a decision; the item was tabled. The minutes indicate, “Rabbi Blumenthal urged that the question could not be reconsidered for two years, under our rules of procedure. The Chair agreed to wait with this matter until the entire question of procedures has been studied.”[28]

At the same time, the CJLS was trying to understand how the creation of Standards impacted its own procedures. RA President and CJLS Chair Gerson S. Levi and RA Executive Vice President Wolfe Kelman shared with the committee their understanding of the new policy, emphasizing the view that “all previous rules of procedures had been voided by the Convention [of 1972].”[29] At least through 1974, the CJLS accepted the view of Rabbi Kelman: for the ban on intermarriage to be enforceable, it would have to be elevated to a Standard according to the rules of the convention of 1972. Accordingly, after the prescribed two years had passed, in March of 1974, the CJLS resolved that the unanimous decision reached between 1970 and 1972 be elevated to a Standard of Rabbinic Practice.[30]

According to the minutes of the March 1974 meeting, the resolution carried by vote of 7-1. Close scrutiny reveals that the adoption of this resolution was problematic for a variety of reasons. First, as Philip Sigal noted at the time, the motion might have been out of order without a specific responsum on which to vote.[31] Secondly, the rule of 1972—cited above—requires that a two-thirds majority of those present (not those voting) affirm a new Standard. Though abstentions are not recorded in the minutes, the record indicates that thirteen members attended the meeting.[32] Under the committee’s rules, the motion should not have carried. Finally, the rules adopted in 1972 require two additional tests: a mail ballot of CJLS members and a formal adoption at the annual convention.

Today, it is impossible to ascertain whether or not the mail ballot took place,[33] but it is clear that the 1974 convention did not vote on the Standard—meaning it was never formally adopted. In personal correspondence, Rabbi Edward Gershfield—a member of the CJLS in 1974—confirmed this detail: “When the issue of performing intermarriages came up, it was felt by many that such an action would be going too far (e.g., interfering with one’s livelihood, etc.) and it was taken off the agenda.”[34]

Despite this, the Convention of 1974 was unique in at least one way: although no formal vote was taken on intermarriage, the Rabbinical Assembly as a whole voted on the recommendation of the Executive Committee to expel Rabbi George Gershon Rosenstock for failing to appear before the ethics committee after performing an intermarriage. Apparently, this was the first time in the history of the RA that a rabbi had been expelled for such an offense.[35]

Although Standard (d) was never formally adopted, many within the RA still used the various resolutions passed between 1970 and 1974 as a basis for a Standard of Practice. Ambiguity around the Standard’s origins, though, persists in RA publications. In fact, in 1985, Rabbi Joel Roth, then chairman of the CJLS, stated as much in a letter to Rabbi Armond E. Cohen:

 

Until the Convention of 1972 (which took place after February 24, 1972), the Standards of Rabbinic Practice were promulgated by unanimous vote of the Law Committee, and were not subject to ratification by the membership at large. Though the procedure for the adoption of Standards of Rabbinic Practice was modified by the convention of 1972, the modified procedure was not made retroactive. Thus, the statement in the minutes of the Law Committee of February 24, 1972, though never ratified by the membership, remains in force as a Standard of Rabbinic Practice, and violation of it is inconsistent with membership in the Rabbinical Assembly.[36]

 

According the CJLS Summary Index, the official guide to the rulings of the CJLS, this novel understanding of procedure is the official source for Standard (d).[37] If so, it may be procedurally problematic for several reasons. Rabbi Roth refers to “Standards of Rabbinic Practice” existing prior to 1972. This category did not exist before the 1972 Convention—in fact, the term is conspicuous by its absence even in the many written reflections produced in advance of the convention. Prior to 1972 there were only unanimous and therefore binding decisions of the CJLS. There was no consensus, however, on what the term “binding” meant. Because the CJLS had voted down the motion allowing for sanctions in 1948, prior to 1972, it was unclear if the RA had the authority to force rabbis to comply with unanimous decisions. This was the very problem that the 1972 Convention sought to rectify. The rules creating the Standards of Practice clearly allowed for sanctions, making “Standards” materially different than past “binding” decisions. Secondly, Rabbi Roth suggests that the policy adopted at the 1972 Convention was not retroactive; as noted above, both Rabbis Kelman (the RA’s chief executive) and Levi (the chairman of the CJLS) believed that it was retroactive (“Rabbi Kelman stated his view that all previous rules of procedures had been voided by the Convention”). Why else would the CJLS have raised the issue again in 1974? It appears that the committee itself knew that it stood on clay feet when it came to establishing a “Standard.” Finally, the RA has never considered another unanimous decision of the CJLS to be a “Standard.” Beyond the policy on interfaith marriage, there were many other unanimous decisions—both restrictive and permissive— between1948 and 1972, none of which have been considered “Standards.”[38]

Because of its murky and elusive origins, Standard (d) has generated widespread confusion in the official publications of the RA and the Conservative movement. A few examples will suffice: in 1989, the CJLS—in a responsum by Jerome Epstein—states that the paper of Immanuel Lubliner (voted on in January 1972) opposing intermarriage “was later made into a Standard of Rabbinic Practice.”[39] As a source for this later policy change, Rabbi Epstein cites the minutes from the March 1974 meeting mentioned above;[40] he cannot cite the approval of the Convention because, as Rabbi Roth notes, the convention never approved the Standard.

More recently, in the Rabbinical Assembly’s guide to Jewish practice An Observant Life, we find, again, a wholly inaccurate attribution for the origin of the Standard. This time, the source cited is Joel Roth and Akiba Lubow’s Standard of Practice on patrilineal descent from 1985.[41] Although the “Standard” mentioned was adopted in 1985 according to the rules of 1972,[42] it deals exclusively with Jewish identity and patrilineal descent. Nowhere does it mention, or even allude to, interfaith marriage.[43] It certainly never even implies that “Conservative rabbis are absolutely forbidden from officiating at or participating in intermarriages.”[44]

The Standards of Rabbinic Practice are of tremendous importance for members of the Rabbinical Assembly. They assert firm guidelines and boundaries for Conservative Judaism and its affiliated organizations. In creating them, the Rabbinical Assembly thoughtfully crafted policy, and established a high bar for consensus—as Rabbi Fishel Perlmutter once noted in a different context: “Some wags believe that a resolution to express ‘gesundheit’ to a sneezing colleague would find 75% in favor hard to attain.”[45]

The standard barring interfaith marriage never cleared such procedural hurdles within the Rabbinical Assembly.[46] It is possible that, today, the RA’s membership and the CJLS believe such a standard necessary. If they do, it should be affirmed in accordance with the rules established in 1972. It is equally possible, though, that today’s Rabbinical Assembly might be unwilling to impose sanctions on its membership for the performance of an interfaith marriage, given the radical change in demographics over the past 40 years and the unstable ground on which the standard rests.

 

 

 

Rabbi Daniel Z. Stein is the spiritual leader of Congregation B’nai Shalom in Walnut Creek, California.

 

 

 

[1] I am particularly grateful to Mordecai Martin, without whose assistance this research would not have been possible. Mo spent many hours digging through microfilm at the Jewish Theological Seminary Library on my behalf; he has my gratitude. I am also grateful to Professors Roger Simon and Robert Weiner, who read early drafts of this paper. I am equally in debt to Rabbis Jonah Rank and Joshua Cahan, who guided me with important clarifying questions, and have provided this important forum for applied Jewish studies. Any errors, obviously, remain my own. Finally, I am deeply in debt to my friend Norm Seidel, of blessed memory. Norm was principally opposed to illogical ideas, and our many conversations on jurisprudence inspired me throughout this project.

[2] The Rabbinical Assembly, A Code of Professional Conduct for Members of the Rabbinical Assembly. (The Rabbinical Assembly, 2011). Available online as of May 17, 2017: http://www.rabbinicalassembly.org/sites/default/files/public/ethical_guidelines/Code%20of%20conduct-2011-public.pdf. Emphasis added.

[3] Ibid., 2.

[4] The Pew Research Center, A Portrait of Jewish Americans. (The Pew Research Center, October 2014). Accessed online on May 17, 2017: http://www.pewforum.org/files/2013/10/jewish-american-full-report-for-web.pdf.

[5] Ibid..

[6] Committee on Jewish Law and Standards, Proceedings of the Committee of Jewish Law and Standards, 1927–1970, vol. I. Ed. David Golinkin, (New York: The Rabbinical Assembly, 1970), 4. The early years of the

[7] Ibid., 4.

[8] Ibid., 276; 276-297.

[9] Ibid., 276; 276-297.

[10] Rabbi David Aronson, “President’s Report to the 1950 Rabbinical Assembly Convention,” quoted in Golinkin, 327-328.

[11] Mordecai Kaplan, qtd, in Golinkin, 358-359.

[12] Rabbi Simon Greenberg, Report of the CJLS, 1955. Qtd in Golinkin, 397-398

[13] Ibid., 501.

[14] Ibid..

[15] Wolfe Kelman, Minutes of the Rabbinical Assembly Executive Committee, March 1970, box 3, folder 9, Rabbi Isaac Klein Papers 1925–1979, University at Buffalo Library, Archival and Manuscript Collection. Accessed via Microfilm, The Jewish Theological Seminary Library.

[16] That vote, in and of itself, was not entirely clear. Edward Gershfield, then a member of the committee, observed the following: “At recent meetings, the Committee ran aground on the need for unanimity in order to make binding decisions (a concept which is itself not entirely clear), and a wave of resignations has ensued.” Edward Gershfield, “Rebuilding the Law Committee,” Conservative Judaism 25:2 (Winter, 1971): 59.

[17] Robert Gordis, “Report of the Special Committee on For the Revitalization of the Law Committee,” in Conservative Judaism, Spring 1971. Further reflections by members of the CJLS and others appear in the Winter, 1972 volume.

[18] Minutes of the Committee on Jewish Law and Standards, December 21, 1971.

[19] Ibid.

[20] Immanuel Lubliner, “A Memorandum on the Participation of a Rabbi at an Interfaith Wedding Ceremony Together With a Non–Jewish Clergyman,” unpublished responsum provided by the Rabbinical Assembly, 1972, p. 2.

[21] Ibid., p. 6.

[22] Aaron Blumenthal, untitled memo, February 14, 1972, box 3, folder 18, Rabbi Isaac Klein Papers.

[23] Ibid..

[24] The Jewish Telegraphic Agency, “CCAR Postpones Vote on Intermarriage, WJC Membership,” June 28, 1971. Accessed May, 2017: http://www.jta.org/1971/06/28/archive/ccar-postpones-vote-on-intermarriage-affiliation-with-wjc.

[25] The Jewish Telegraphic Agency, “Reform Rabbis Postpone Decision on Mixed Marriage Ban,” June 15, 1972. Accessed May, 2017: http://www.jta.org/1972/06/15/archive/reform-rabbis-postpone-decision-on-mixed-marriage-ban-on-mixed-marriage-ban.

[26] It is worth noting that the text of the Nadich memo is slightly different than the text distributed at the January CJLS meeting, and seems to be more permissive around the issue of rabbinic attendance at an interfaith marriage. It reads:

 

It is the unanimous judgement of the Committee on Jewish Law and Standards that a member of the Rabbinical Assembly or of the Cantor’s Assembly may not officiate at the marriage of a Jew to an unconverted non-Jew, that he may not co-officiate with any other clergyman, nor may he officiate or be present at a purely civil ceremony, nor may the Conservative Synagogue be used for such a marriage.

Neither a Rabbi nor a Cantor can divest himself from his role as representative of the Jewish faith and claim to perform such a marriage in a civil capacity. There is no other way to interpret the presence of a Rabbi or a Cantor at a marriage other than as a form of approval.

 

Memo of Judah Nadich, February 24, 1972, box 3, folder 18, Rabbi Isaac Klein Papers.

[27] The Rabbinical Assembly did not publish proceedings of the 1972 convention; a general description of events can be found in: Jewish Telegraphic Agency, “RA Sets Standards of Rabbinic Practices,” March 17, 1972. Accessed September 11, 2014: http://www.jta.org/1972/03/17/archive/ra-sets-standard-of-rabbinic-practices.

[28] Minutes of the Committee on Jewish Law and Standards, August 28, 1972, box 3, folder 18, Rabbi Isaac Klein Papers.

[29] The minutes report:

 

Rabbi Levi distributed copies of the resolution passed by the Convention of 1972, in which the structure and certain basic procedures of the Law Committee were laid down. He pointed out that all additional rules of procedure would have to be submitted to the Executive Council, and declared his intention to appoint a sub-committee for the purpose of drafting such rules. Rabbi Kelman stated his view that all previous procedures had been voided by the Convention. Rabbi Levi felt this view was the one with which he agreed, but he was aware of a contrary view which held that all previous rules of procedure were valid until explicitly set aside. However, he was convinced that the issue would quickly become academic, as soon as the sub-committee had reported.

 

Ibid.. I could find no record, in subsequent meeting minutes, of such a sub-committee report.

[30] “A motion was made by Rabbi [Ben-Zion] Bokser (1907-1984) to elevate the unanimous decision of the committee prohibiting intermarriage to a Standard of Rabbinic Practice as provided by the resolution adopted at the 1972 convention.” Minutes of the Committee on Jewish Law and Standards, March, 1974, box 3, folder 18, Rabbi Isaac Klein Papers.

Interestingly, at the same meeting, a motion was made to elevate certain practices of conversion into Standards of Rabbinic Practice. These requirements would ultimately be included in Roth and Lubow’s Standard cited below; it took more than a decade, though, for them to be brought to the RA Convention for a vote.

[31] Ibid.

[32] Ibid..

[33] The RA was unable to provide evidence of such a vote.

[34] In preparing this paper, I contacted many of the surviving members of the CJLS from 1972-1974. Few offered personal recollections of the events. However, Rabbi Edward Gershfield offered this recollection:

 

As for your question, I will try to respond, relying on memory, which is subject to correction.

In general, since theoretically the RA was dedicated to observing the traditional halachah (unless modified by rulings of the CJLS), it was accepted practice that the CJLS did not have to restate the halachah on every point. It was also clear that performing intermarriages was prohibited by the halachah and if performed, were null and void. However, at that time there had been complaints that there were one or more colleagues who were performing such marriages, and it was thought appropriate to restate the prohibition in a ruling of the CJLS, in a sense, to emphasize it. This was done at a meeting of the CJLS.

At the same time, there was considerable activity to change the way the CJLS operated. The issue was the enforcement of CJLS rulings, which some thought was ineffectual. Therefore it was decided that an additional layer of prohibition (and enforcement) should be created. The result was a decision that if any rule passed by the CJLS were then passed as a “standard of Rabbinic practice”, and subsequently affirmed by a positive vote at the full RA Convention, any member who violated that rule would be subject to expulsion from the RA. When the issue of performing intermarriages came up, it was felt by many that such an action would be going too far (e.g., interfering with one’s livelihood, etc.) and it was taken off the agenda.

[35] Jewish Telegraphic Agency, “Rabbinical Assembly Ousts Three Rabbis.” May 9, 1974. Accessed online, May 2014: http://www.jta.org/1974/05/09/archive/rabbinical–assembly–ousts–3–rabbis. It is worth noting that Rabbi Rosenstock was not expelled from the RA for performing intermarriage per se, but rather, for failing to appear before the ethics committee to answer charges leveled against him. See Proceedings of the Rabbinical Assembly XXXVI (1974, Published 1975), 228.

[36] Correspondence of the Chair of the Committee on Jewish Law and Standards, May 5, 1985. Available from the Rabbinical Assembly. By 1986, Rabbi Roth had adopted a slightly different theory about the standard:

 

The two other Standards of a halakhic nature that now exist within the Rabbinical Assembly forbid officiating at the marriage of a Jew to a non–Jew and officiating at the remarriage of a divorced person whose prior marriage has not been halakhically terminated. It never occurred to anyone to insist, or even to suggest, that papers had to be written defending our stand forbidding intermarriage or our position requiring a get or hafka’at kiddushin. Papers are required to deal with new halakhic issues, to clarify ambiguous areas, or to recommend change— they are not required to reaffirm clear, unambiguous, and time-honored precedents.

 

This is a rather surprising statement. In 1972 the CJLS did, in fact, consider a paper by Rabbi Lubliner in opposition to intermarriage. In 1974, when the CJLS attempted to elevate its positions on conversion and intermarriage into Standards, Philip Sigal suggested that both motions were out of order without papers on which to vote. Although Sigal was overruled on both occasions, it is clear from the minutes that he suggested—and even insisted—on reviewing papers. See Joel Roth, “Correspondence,” Conservative Judaism 39:1 (Fall, 1986): 125-127.

In preparing this paper, I contacted Rabbi Roth, who—at least at the time of our conversation—continued to stand by the position expressed in his letter.

[37] The Summary Index offers two different statements on intermarriage. In the section titled “Intermarriage,” it notes the following:

 

A member of the Rabbinical Assembly or Cantors’ Assembly may not officiate at the marriage of a Jew to a non–Jew, may not co–officiate with any other clergyman and may not officiate or be present at a purely civil ceremony. A recommendation for expulsion may be made on these grounds. (Standard of Rabbinic Practice; Statement by Rabbi Aaron Blumenthal, Feb. 24, 1972).

 

The Committee on Jewish Law and Standards, Summary Index, (1994) 6:6.

In the section titled “Marriage and Divorce,” however, a different statement is offered, reflective of the problematic nature of the Standard:

 

A member of the Rabbinical Assembly or of the Cantors Assembly may not officiate at the marriage of a Jew to an unconverted non–Jew, nor may he/she co–officiate with any other clergy person, nor may he/she officiate at or be present at a purely civil ceremony, nor may the Conservative synagogue be used for such a marriage. (Minutes of the CJLS, 022472B; see RA Code of Conduct. Correspondence of the Chair, .050185.)

 

Summary Index, 9:13.

The first edition of the Summary Index (1994) seems to be the first official publication of the RA to cite Rabbi Roth’s letter as the source for the Standard. The 1998 edition notes, in underline, that Rabbi Roth’s letter is not an official position of the CJLS.

[38] A complete list of these nearly two dozen opinions can be found in Robert B Slosberg, “Responsa and Papers of the Committee of Jewish Law and Standards,” Conservative Judaism 34:1 (September–October 1980): 43-54. The majority of these decisions are lenient rulings; of the few restrictive rulings, most have been revisited by the CJLS without procedural question.

In a phone conversation, Rabbi Roth argued that all unanimous decisions prior to 1972 are to be considered “standards,” and that while a rabbi may adopt a more rigid position than a decision demands, one may not be more permissive. The RA, however, has not called any other unanimous decision a “standard,” or prevented the CJLS from ruling against prior unanimous decisions—even with less than unanimity.

In 1963, for instance, the CJLS unanimously adopted a policy on brit milah that includes the following strong language:

 

Under no circumstances is [a rabbi] to give assent to a circumcisions when performed on other than the eighth day or by a religiously unauthorized person. He certainly may not officiate or otherwise take part in such a ceremony for a child. By word and by deed the rabbi must stand in protest against the violation of this basic rite in our religious tradition.

 

Given the logic in Rabbi Roth’s letter, this policy should be a “Standard.” While the CJLS seemed to retreat from this hardline position in 1983, it reversed this decision with near unanimity in 1984 and affirmed the more restrictive stance established in 1963.

Despite this, in 2001 the chair of the CJLS issued a ruling apparently based on the overturned teshuva of 1983:

 

A hatafat dam brit is required for a baby boy who received a hospital circumcision before the eighth day, and without brachot. The responsibility to perform the mitzvah of brit milah remains. However, if the parents will not permit hatafat dam brit, then the baby boy may still be named in the synagogue at a Shabbat minhah service. We recognize the need to keep the family identified with the Jewish community, and that the child is still a Jew and did not himself chose not to have a brit milah. However, the family should be sent a letter informing them that hatafat dam brit is required for the boy before he becomes a bar mitzvah. (Correspondence of the Chair, .081401. Not an official position of the CJLS.)

 

If the RA truly considers unanimous rulings prior to 1972 to be “standards,” surely such decisions would require more than a reversed “tentative teshuva” and a ruling of the chair to overturn.

See “Brit Milah,” in Golinkin, vol. iii: 134; David H. Lincoln, “Naming of an Improperly Circumcised Child,” Committee on Jewish Law and Standards, Proceedings of the Committee on Jewish Law and Standards of the Conservative Movement, 1986–1990. (New York: The Rabbinical Assembly, 2001), 71-73; and Summary Index 8:2.

Similarly, in 1967, Rabbi Jack Segal authored a paper, unanimously adopted by the Law Committee, requiring a hearing before a beit din in order to exhume a corpse. Again, according to the approach advocated by Rabbi Roth, such a decision is to be considered a “Standard.” Yet, in 1996, the CJLS approved a paper by Rabbi Myron Geller that allowed a rabbi to make such a decision by himself, without a beit din. Only after the paper was passed, in an 18-1 vote, did Geller note the previous ruling of the CJLS. Geller writes:

 

After this paper was completed, I learned from Rabbi Mayer Rabinowitz that teshuva on disinterment by Rabbi Jack Segal had been approved unanimously by the CJLS. Rabbi Segal “suggests that every problem of disinterment be presented before a board of three rabbis, and that each case should be judged on its own merits.” In my view, the marah d’atrah should determine if this called for and may prefer ruling on the matter without recourse to a bet din.

 

If unanimous decisions of the CJLS prior to 1972 were considered “Standards,” surely it would have been known the CJLS! Yet the Committee ruled without even consulting the previous teshuva, and then took no corrective course once Rabbi Rabinowitz brought the prior teshuva’s existence to their attention. If the Committee understood such papers to be “Standards,” one might anticipate more debate around the abrogation of a norm.

See Jack Segal, “Disinterment,” in Golinkin, vol. iii: 195, and Myron Geller, “Exhuming the Dead,” in Kassel Abelson and David J. Fine, ed., Respona, 1991-2000, The Committee on Jewish Law and Standards of the Conservative Movement. (New York: The Rabbinical Assembly, 2001), 413.

Finally, in March of 1982, the CJLS passed a series of papers on keruv. The papers advocate a broad spectrum of practices: on one end, a paper by Rabbi Kassel Abelson seems to allow a patrilineal Jew of questionable status to marry a matrilineal Jew. On the other end of the spectrum, Rabbi Roth advocates barring an intermarried Jew from receiving honors in a congregation, except in the most limited of circumstances. None of the papers, though, make mention of a particular standard barring rabbis from officiating or attending interfaith marriages. See Proceedings of the Committee on Jewish Law and Standards, 1980-1990 (New York, The Rabbinical Assembly 2001) 129-167.

[39] Jerome Epstein, “Congratulations to Mixed Marriage Families,” in Committee on Jewish Law and Standards, Proceedings of the Committee on Jewish Law and Standards of the Conservative Movement, 1986–1990. (New York: The Rabbinical Assembly, 2001), 460.

[40] Ibid., 464. In preparing this paper, I contacted Rabbi Epstein. He stands by the claims made in his paper, and asserts that the editorial process of the CJLS would have corrected any factual errors that might have been present.

[41] The attribution reads:

 

Conservative rabbis are absolutely forbidden from officiating at or participating in intermarriages. (The rabbinic standard authored by Rabbis Joel Roth and Akiba Lubow and referenced above with respect to the question of patrilineal descent also bars members of the Rabbinical Assembly from being associated in either of these ways with intermarriages; cf. CJLS Responsa 1980–1990, pp. 379– 380.) Such a marriage is not a Jewish marriage and a rabbi’s authority to perform weddings is by definition limited to weddings that solemnize Jewish marriages.

 

See Carl N. Astor, “The Jewish Lifecycle,” in Martin S. Cohen, ed., The Observant Life: The Wisdom of Conservative Judaism for Contemporary Jews (New York: The Rabbinical Assembly, 2012). Kindle edition. In the process of preparing this paper, I contacted Rabbi Astor. At the time of our correspondence, he maintained the validity of his citations.

[42] Joel Roth and Akiba Lubow, “A Standard of Rabbinic Practice Regarding Determination of Jewish Identity,” in Committee on Jewish Law and Standards, Proceedings of the Committee on Jewish Law and Standards of the Conservative Movement, 1980–1988. (New York: The Rabbinical Assembly, 1988), 177–178.

[43] The Roth/Lubow Standard asserts the following; note that marriage is not discussed:

 

THEREFORE, BE IT RESOLVED that the Committee on Jewish Law and Standards recommends to the Convention of the Rabbinical Assembly that: (a) ascription of Jewish lineage through a legal instrument or ceremonial act on the basis of anything other than matrilineal descent; or (b) supervision of a conversion which omits tevilah in the case of females, or tevilah and brit milah in the case of males shall continue to be regarded as violations of the halakhah of Conservative Judaism.

They shall henceforth be violations of a Standard of Rabbinic Practice and be inconsistent with membership in the Rabbinical Assembly, it being understood that any member of the Rabbinical Assembly shall continue to possess the right to petition the Committee on Jewish Law and Standards for an opinion on any case of extraordinary circumstances.

[44] Astor, accessed electronically.

[45] Fishel Perlmutter, “Will Egalitarianism Compel the RA?” in Sh’ma: A Journal of Jewish Ideas 13:250 (March 18, 1983): 78.

[46] In this paper, I have tried to advance the argument that the Standard of Practice barring intermarriage does not exist. Of course, it is difficult argue a negative supposition. That being said, those who believe such a ban exists and should be enforced must note an important rule of jurisprudence: Affirmanti, non neganti incumbit probatio: the burden of proof lies with the one who affirms, not denies—stated in the Babylonian Talmud as “hamotzi me-chaveiro alav ha-re’ayah” (Bava Kamma 35a).