Aggada and Halacha

The Conservative debate rests in two starkly contrasting philosophical approaches to Halacha.

By NEIL GILLMAN
The most immediate outcome of the debate on the status of the gay-lesbian community in Conservative Judaism, which came to a head in the recent decisions of the movement's Committee on Jewish Law and Standards (CJLS), was that the movement's schools may now welcome candidates for the rabbinate and the cantorate. But the more significant outcome for the long-range fortunes of the movement was to expose an internal debate regarding its philosophy of Halacha. That debate was not explicit in the two major teshuvot affirmed by the committee, the one by Rabbi Joel Roth maintaining the movement's prior (1992) decisions prohibiting same-sex relations and the ordination of gay rabbis and cantors, and the other by rabbis Elliot Dorff, Daniel Nevins and Avram Reisner overturning both prohibitions while maintaining the Torah's prohibition of sodomy. But it was joined in the conflict between the Roth teshuva and one other, authored by Rabbi Gordon Tucker, which the Committee declared to constitute a takanaor legislative enactment. The takana decision raised the bar for acceptance from six votes (for a teshuva), to 13 votes (from the committee's 25 members). Rabbi Tucker's teshuva failed to meet this standard. The crux of the Roth-Tucker debate rests in two starkly contrasting philosophical approaches to understanding the status of Halacha in Judaism and the rules governing halachic process. Roth is a legal positivist. He insists that there is a specific body of law, the Halacha, and a specific set of procedures, the halachic process, both of which rest on explicit divine authority. Roth's boundaries are clear and reasonably specific. While they permit some limited flexibility which accounts for certain disagreements within this framework, transgressing these boundaries would take the posek(decisor) outside the realm of authentic Jewish belief and practice. RABBI TUCKER, in contrast, views Halacha as embedded within a broader theological, ethical and cultural structure - what might be called an aggada. He invokes the work of legal theorists such as the late Robert Cover, who claimed that law always reflects a culture's broad and evolving identifying narrative, and the Israeli scholar Moshe Halbertal's claim that a positivist approach to halachic decision-making threatens the larger religious meaning of Halacha, which, after all, is its ultimate justification. Roth denies that any of these extra-legal factors are relevant to the halachic decision-making process. On theology, Tucker refers to the writings of a wide range of theologians and ideologues, most of them prior members of the faculty of the Jewish Theological Seminary, the school that created Conservative Judaism and trained its rabbis. The hallmark of seminary scholarship, from the outset, was the Wissenschaft(i.e. scientific-criticalhistorical) approach to the study of biblical and rabbinic texts and which effectively denies that Torah was the literal word of God. That theological assumption, Tucker claims, shaped the ideology of Conservative Judaism and the implicit, if not explicit, theology of most Conservative rabbis, including those who have served on the CJLS. He insists that Roth's claim that the Halacha's foundational premise, that the Torah is divine and infallible, never did and still does not reflect the movement's theology and culture. Tucker's teshuva also quotes extensively from the testimony of young American and Israeli gay Jews who have sought to live religiously and halachically grounded lives, but whose search for religious legitimacy is stymied. They are forced to choose between their innate sexual orientation and their Jewish commitments which condemn them to lives deprived of sexual fulfillment and the pleasures of family life. Tucker concedes that virtually all of the teshuvot adopted by the CJLS, including the still-debated decision permitting driving to the synagogue on Shabbat, have assumed the positivist paradigm. But positivism, he claims, is but one possible legal approach among many, one that is ill-suited to ensure that halachic decisions convey religious meaning. Tucker would also insist that human ethical considerations are inextricable from halachic decision-making. Roth would claim that the Halacha by definition is moral. Even though Roth's own teshuva was carried and Tucker's was ruled unacceptable, Roth, after the vote, together with three colleagues, resigned from the committee in protest over the committee's validation of the Dorff/Nevins/Reisner teshuva. He later explained that he could not continue to associate with a body that accepted a decision which did not fit his version of the legitimate boundaries for halachic decision-making. Rabbi Roth has since agreed to reconsider that decision. IT IS perilous to predict the future ramifications of this week's vote. One possibility is that the 13-vote requirement for a takana could itself be overruled by the forthcoming convention of the Rabbinical Assembly; on such issues, the will of the body "in Convention assembled" is the ultimate authority. Alternatively, the resignation of four members of the CJLS may result in a realigned committee that will be more sympathetic to Tucker's approach. Or again, the entire issue may be shelved for the present. But the underlying debate will not disappear. It is likely that the committee as a whole will continue to operate within a positivist framework - however flexibly it will choose to understand it. The major accomplishment of the Dorff/Nevins/Reisner teshuva, legitimizing the admission of gays and lesbians to the Conservative rabbinate and cantorate, is no small achievement. It reflected the authors' pragmatic conviction that "the best is often the enemy of the good." They constructed a coalition that was sufficiently wide to include a majority of the traditionalists on the committee. Its prohibition of sodomy is one more boundary in a body of law, which, like all legal codifications, abounds in boundary-making. In fact, however, there are only two conditions under which Rabbi Tucker's approach can continue to be ignored. The first is that the committee and the movement's rabbis as a body will simply continue to live with the tension: liberal in theology and traditionalist in practice. After all, who says we have to be consistent? The second is the more likely approach. The movement, following the school that shaped it, will simply continue its long-standing insistence that in Judaism, theology is the handmaiden of Halacha. Both of these options would be unfortunate. The first, because certainly our students and committed laypeople demand consistency from their teachers. It is our responsibility to present them with a coherent statement of what it means to be a religious Jew, and surely that means that our aggada and our Halacha should inform each other. The second, because if God is not present in our classrooms and our pulpits, where are we? The writer is the Aaron Rabinowitz and Simon H. Rifkind Professor and Chair of the Department of Jewish Philosophy at the Jewish Theological Seminary.