Guest post by Rabbi Michael J. Broyde
In a Op-Ed in The Jewish Week two weeks ago, R. Avi Weiss criticized the RCA for their policy regarding convert who were converted by a beis din that included a rabbi who is himself a convert (link). R. Barry Freundel and R. Shlomo Hochberg responded last week (link). The following post is R. Michael J. Broyde’s discussion of the detailed halakhic side of the issue. The post was initially written for the RCA Rabbis email list and represents Rabbi Broyde’s initial and tentative analysis of the question of whether a convert may serve on a beis din for conversion. Rabbi Broyde welcomes comments and can be reached at this e-mail address: link. He asked that it should be made clear that while this post addresses important matters of status le-halakhah, in truth every person’s status issue should only be addressed halakhah le-ma’aseh by a competent posek and not on a blog or an email distribution. – Gil
May a Convert Serve On a Bet Din For Conversion?
This letter is intended to summarize this topic, so that we can understand the underlying halachic issue. After a summary of the poskim, I write some thoughts of my own on this issue and I conclude by noting my disagreement with the written remarks of another rabbi on this halachic matter.
Click here to read moreUnderstanding the Dispute: May a Convert Serve On a Bet Din For Conversion in the Classical Sources
The Gemara in Yevamot 102a recounts to us that as a matter of Torah law a convert may only sit as a dayan judging other converts, but not born Jews. For chalitza matters, a convert may not sit as any one of the dayanim even if the woman who is having chalitza done to her is a convert herself. Rashi (Yevamot 101 sv ger dan) understands the Gemara in Yevamot as limited to dinei nefashot, but a convert may judge on financial matters. Tosafot (Yevamot 45b sv keivan and other places) disagrees and rules that that a convert may not judge born Jews even on financial matters. As the Rosh notes (Yevamot 12:2) on financial matters, a ger may judge even born Jews if they accept him as a judge, as with kabbalah one may accept a person who is not otherwise allowed to serve.
The Tur and the Shulchan Aruch (YD 269:11, CM 7:1) both accept that the view of Tosafot is correct and that a ger may not judge a born Jew even on financial matters (unless the Jew accepts him [as the nosei keilim note]). Rabbi Akiva Eiger (YD 269:11) advances the classical explanation, which is that judging is a form of serarah which a convert is not able to do, since judges are now like kings. The Shulchan Aruch recounts that, of course, a convert may not serve on a bet din for chalitza either and if a convert does a chalitza it is pasul even bedieved.
There is no direct discussion in the rishonim or the classical codes of the question of whether a ger may sit on a bet din panel for conversion.
The first to discuss this issue is Rabbi Shlomo Kluger in his Chochmat Shlomo (YD 268:3) who notes that whether a convert can serve on a bet din for conversion depends on the dispute between Rashi and Tosafot discussed above. What he means, I assume, is that that whether a convert can sit on a panel for conversion depends on whether a convert can sit on a panel for financial matters. This approach argues that since the halacha is established like the view of Tosafot and not like the view of Rashi, a convert must not be allowed to sit on a panel for conversion. The basic rationale is that conversion is called mishpat in the Gemara and thus is analogous to dinei nefashot. (Rabbi Akiva Eiger (cited above) seems to be quoting him and thus indicating that he agrees with this logic.)
This view is also taken by Bemareh Habazak vol. 3 at page 136 (this volume is the last one where every teshuvah published was approved by Rav Shaul Yisraeli ztâ€l.) That teshuvah also notes that such a conversion is valid bedieved, based on the possibility that Rashi is correct or the view that a conversion is valid min-hatorah with just one dayan. (In truth, I find this view that such a conversion valid bedieved based on these two factors to be beyond my ability to fully understand, as both Rashiâ€™s view and the view that a conversion is valid with just one dayan are rejected lehalacha by the Shulchan Aruch and almost everyone else. Below, there are other rationales to explain such a bedieved view.)
A second approach (which seems to be adopted by Rav Elyashiv, see Hearot Lemasechet Kiddushin, page 436) argues that a conversion is closer to a chalitza in function in that the role of the bet din is not to judge anyone at all, but merely to note what is happening, and as a maaseh bet din (just like chalitza) only born Jews may serve. In this view, just like a chalitza is invalid even bedieved with a ger on the panel (even for a convert or with kabbalah), so too a conversion is invalid even bedieved with a convert on the panel. This view is suggested as well by one view in the Bet Din Shel Yerushalayim (in Dinei Mamonot Ubirurei Yuchsin 7:416). In this view, the dispute has nothing to do with whether a convert may serve on a financial bet din at all; rather all agree that since a conversion involves a status change and the bet din is serving as the gatekeepers into a status change almost in the place of God, kivayachol, a ger may not engage in that role. Rabbi Hershel Schachter adopts this view in Kol Tzvi 5762 at page 299 and this is adopted by the Shalmei Shmuel 45.
The third view is the view of Rabbi Gedalya Felder ztâ€l (Nachalat Tzvi 1:226-227; note, this teshuvah is only found in the second edition of this sefer and not the first). He adopts the view that a conversion is similar to a financial matter and the convert in waiting is no worse than an actual convert, and thus he may accept another convert to judge him for conversion. It is no different than any case where a convert may judge a fellow convert on financial matters. He quotes a very brief teshuvah on this in Sheâ€™erit Yisrael YD 22 to that effect as well. In this view, conversions are not only like monetary matters, but they are like monetary matters involving a gentile, which a gentile may judge a fellow gentile. This view is also taken by Shut Bet Mordechai 1:81 and the Aderetâ€™s Maâ€™aneh Eliyahu 81 (albeit both bedieved). As a reasonable proof to this view, I would note that both
the Shach and the Taz in YD 268(9) when discussing which parts of conversion can take place at night seem to analogize conversion dinei torah to financial dinei torah as a matter of normative halacha at least bedieved.
These three views have a drastically different understanding of what a bet din for conversion is to be compared to as a matter of halacha, and then different views on how such an analogy works.
Some Final Observations Now That the Summary is Over
It seems to me [and to preempt any questions, I am speaking just for myself and for no organization that I am involved in: neither Emory University nor its law school, nor its law and religion program, nor the Beth Din of America nor the Young Israel where I am the Founding Rabbi necessarily agree with my thoughts] that given since this dispute is without clear precedent, one can say for certain that as a matter of halachic policy it is a bad idea to allow a convert to serve on a bet din.
The rationale for this seems clear. Given the fact that there are many, many eminent poskim who think such a conversion is invalid even bedieved, it would be a terrible disservice to any convert to intentionally staff their conversion panel with such a rabbi. It makes such a conversion invalid according to many poskim for no good reason. An indisputably valid panel is a wise idea in every case and for every convert lechatchila. (This is even more so true in this matter where a hachraâ€™ah based on logical rules seems so hard.)
The intentional decision to place a rabbi who is a convert on a conversion panel is nearly a form of rabbinic malpractice in my view; since so many competent and qualified rabbis are present in our times, why staff a rabbinical court with one whose qualifications are to be questioned as a matter of halacha?
Making conversion certainly valid and not merely valid according to some authorities would seem like a wise idea whenever possible. (Indeed, I have the sense from reading even Rabbi Felderâ€™s teshuvah, that even he would agree with this and he was writing in a time and place where finding people who were eligible to serve as dayanim was hard, and what he was saying is â€œbetter a ger than someone who is not really shomer Shabbatâ€œ.) That is certainly the view of the other poskim who adopt his logic (as cited above), as well as the conclusion reached by Rav Shaul Yisraeli in Bemareh Habazak.
To me, the proper policy is to treat the case where a convert has served on a panel for conversion as a bedieved case. A mistake happened (either because the dayanim involved did not know the halacha, or did not know that this rabbi was a ger, or both) and now, after the fact, we need to decide what to do. Of course, the first thing we should do is make sure such a mistake does not happen again.
It is my view that in such a case one ought to say two things, both correct, but at tension.
First, I think one says that bedieved this conversion is valid, and this person is Jewish bein lekula bein lechumra, since most poskim accept this view bedieved. This is the view of the majority of poskim who actually address this question, and while their logic is not provably correct, it is not provably wrong either. It seems a logical bedieved rule, as many have noted. (Let me add as a proof to this ruling the silence of the Shulchan Aruch and Tur, both of whom note that a ger may not sit on a chalitza even bedieved, but make no mention of the fact that such is true for a conversion, also.)
Second, I would also instruct this convert that there is a significant strain of thought within the rabbinic world, held by Torah giants over many centuries, that this conversion was actually invalid even bedieved, and thus this convert must re-immerse in a mikva in front of an unquestionably valid panel to eliminate any such doubt. Converts and the Jewish community as a whole are ill served by having a conversion that others will not accept (if they can have a conversion accepted by all poskim with no effort). Thus, a gerut lechumra made up of re-immersion only is highly encouraged.
I think that approach is a proper policy in such cases.
One Final Note of Amazement
I am stunned, to be honest, by the formulation of the halacha taken by my fellow RCA member, Rabbi Weiss, in his Jewish Week article. He writes in his halachic analysis of this issue:
A convert may serve on a Beit Din when the judgment is regarding another convert (Talmud Yebamot 102a, Yoreh Deah 269:11 and Hoshen Mishpat 7:1). Additionally, a convert may be a judge on a non-coercive Beit Din, i.e. one to which the person appearing before the court has willfully submitted him or herself (Shakh CM 7:1; Sema CM 7:4 and Shakh YD 269:15). A convert serving on a Beit Din of conversion should thus be valid for both of these reasons. While some halachic authorities still argue to invalidate a convert to be on a Beit Din for conversion, it is obvious that those who maintain the convertâ€™s validity as a judge have the weight of the halachic sources behind them. It is harsh enough for the RCA to declare that henceforth, from the time of the new RCA standards, that a rabbi who has converted cannot be on the Beit Din.
From the last two sentences (â€œit is obvious that those who maintain the convertâ€™s validity as a judge have the weight of the halachic sources behind themâ€ and then his use of the words â€œharsh enoughâ€ to discuss the RCA policy of not allowing converts on such panels) Rabbi Weiss appears to ruling as a matter of halacha that it is lechatchila proper for a convert to serve as a dayan on a bet din panel and he disagrees with the rule that says converts should not serve on panels for conversion lechatchila. (If he agrees with the rule that they may not serve lechatchila, why would he call such a rule â€œharsh enoughâ€?)
I can not understand how any rabbi could be moreh halacha lemaâ€™aseh lechatchila that a ger can sit on a panel for conversion, given the many poskim who think such a conversion is pasul even bedieved and almost all poskim think that such conduct is improper lechatchila. Such a ruling does not serve converts or Klal Yisrael well.