A Brief Comment on a Recent Teshuva by the Law Committee of the Rabbinical Assembly on Whether a Convert Can Serve on a Rabbinical Court for Conversion.
Guest post by R. Michael J. Broyde
Rabbi Michael Broyde is a law professor at Emory University, was the Founding Rabbi of the Young Israel of Toco Hills and is a dayan in the Beth Din of America.
A few years ago I published on this blog a halachic analysis about whether a convert can serve on a bet din for conversion (link), a subject that that had been the matter of some internal analysis within the Beth Din of America and a column in the Jewish Week by Rabbi Avi Weiss. Subsequent to my analysis, much more has been written and the topic has developed quite an interesting halachic trajectory. Recently, the Law Committee of the Rabbinical Assembly published a teshuva on this topic by Rabbi Joseph H. Prouser (see: link-PDF) in which the RA Law Committee notes my view (and cites me nine times) and disagreed (19-0) with it and instead ruled that a convert may, even lechatchila serve on a bet din legiyur, agreeing with the analysis of Rabbi Weiss.
I want to use this short piece not to reflect on the correctness of the specific result – I think it is better to be strict lechatchila, but I understand the contrary view and see it endorsed by some great achronim so I would hardly call it “wrong,” (just a bad idea for the convert) – but on some conceptual weaknesses of the teshuva written by the Rabbinical Assembly Law Committee. Indeed, truth be told, I found it to be a remarkably weak responsum, even as I found its conclusion plausible as a matter of halacha.
I found five basic flaws with the teshuva.
First, this twenty-two page teshuva makes no mention of any of the achronim who actually discuss this issue. Reseach by many different scholars over the last few years have unearthed more than twenty teshuvot from the previous and current generations who have discussed this issue halacha lemaaseh. This list includes (in no particular order) Bet Mordechai 1:80, Piskei Din Yerushalayim Dinai Mamonut uBerurai Yahadut 5:40 and 7:107, Maaneh Eliyahu 88, Lev Aryeh 88, Sheerit Yisrael YD 22, Chukat Hager 6:10, Luach Yerushalayim 10 (5710), Tzitz Eliezer 13:80, Tiferet Tzvi 1:72, Nachalat Tzvi 1:226, Shalmei Shmuel 45, Bemareh Habazak 3:82, Mishnat Hager 3:19, Minchat Shlomo 225, Rabbi SY Elyashiv Hearot LaMesechet Kidushin 436, Otzar Piskei Gerim 47 (page 207), Chachmat Shlomo YD 268:3 and Rabbi Hershel Schachter, Kol Tzvi 5762 (299-301). Others are yet to be discovered, I suspect.
Not a single one of these sources is discussed in the teshuva of the RA. The one teshuva discussed – Tzitz Eliezer 19:48- does not deal with this matter and the author seems unaware of the fact that in Tzitz Eliezer 13:80, Rabbi Waldenberg does directly discuss this matter. The fact that the Rabbinical Assembly Law Committee can undertake to write a teshuva and endorse it by a vote of 19-0 on any topic without discussing what more than a dozen achronim have said surprises me. To me, the first step to formulating an opinion on a topic in which the Gemara and classical rishonim are silent on, is to survey the achronim on any given topic. Instead, in this teshuva, Rabbi Avi Weiss and I are the only living Orthodox Jewish law authorities cited (gulp!), me nine times and him twice. To be fair, the Conservative movement has often claimed a preference for engaging the Talmudic literature and the rishonim directly, with little if any engagement in achronim. However, this does not explain the RA’s teshuva here. The fact that the teshuva engages myself, Rabbi Weiss, and Rabbi Waldenberg implies that the author of this responsum was interested in engaging achronim; unfortunately, this selective engagement strongly implies “less than robust” research into the topic by its author.
Second, this teshuva makes no mention of the vast secondary literature that has been published on this topic over the last few years. It is aware of my posting on this blog, but seems never to have seen my article “May a Convert be a Member of a Rabbinical Court for Conversion,” Journal of Halacha and Contemporary Society 59 (2010): 61-78 or the section of Rabbi Michoel Zylberman’s excellent new sefer, Tuv Lev al Masekhet Pesaḥim (New York, 5771), 114-117 or Rabbi Linzer’s reply to my article widely shared over the internet, or the two recent articles in the Israeli Journal Avnei Mishpat (Rabbi Shlomo Pick, “A Convert as a Dayan for Financial and Conversion Matters” 14:56-87 (5772) or Rabbi Yitzchak Roness, “Including a Convert as a Dayan in a Bet Din for Conversion”14:88-95 (5772)) or Rabbi Avraham Arush “May Convert participate as a Dayan for Conversion” Techumin 32:329 (5772) or the forthcoming article (also widely circulated) by Rabbi Zev Farber in the inaugural issue of Keren or even Rabbi Yisrael Meir Yonah’s older article “Including a Ger on a Conversion Court”, Beit Hillel 24-25 (5766).
Not a single article in the secondary literature is cited. Sadly, the teshuva does not cite any modern Jewish law writings on this topic – just a Jewish Week column by Rabbi Weiss and a Hirhurim post by me seem to make up the secondary literature with which this article engages. One would think that before one writes a teshuva – Conservative or Orthodox – one would read the secondary literature.
Third, the article undertakes no grappling with the three standard classical sources that might incline one to be strict – the view of the Rambam (Sanhedrin 2:9) that any Rabbinical court that has a convert sitting on it is a pasul bet din, the view of the Shach (YD 268:9), as some understand it, that conversion is analogous to chalitza for rabbinical court matters and the direct view of the Chachmat Shlomo written many centuries ago that a convert may not sit on a bet din for conversion. Of course, there have been responses to the above positions and alternative interpretations offered in the secondary literature, but nothing is addressed in this teshuva.
Fourth, the article shows no understanding of why many achronim are strict; to successfully state the case to be lenient, one must first understand the grounds to be strict. The teshuva seems to think that my view (articulated in this blog three years ago)—to be strict lechatchila and meikil bedieved—is itself the strict view, when in fact there are a significant number of poskim who think that a conversion done by a rabbinical court one of whose members is a convert, is simply a nullity. Both the Chachmat Shlomo and Rav Elyashiv are strict on this matter (as well as many others) even bedieved. Why? The author shows no understanding of both sides of the argument and indeed offers no indication that anyone is actually strict beyond that which is found in my blog post.
Fifth, the writer advances a collection of weak analogies to sitting as a dayan for conversion. He considers such conduct like any other appointed office or he analogies the doctrine of “unique in one’s generation” (the gadol hador) to merely any rabbi appointed to office, and he then misanalyzes the various ways to grasp the chalitza exception, which leads to the mistake of thinking that a bet din legiyur is not judging according to all. (For example, one could easily adopt the view that the repeated use of the word “yisrael” in chalitza excludes not a convert, but just one who has a non-Jewish ancestor, as the Shulchan Aruch records in EH 169:2, and a convert is excluded by dint of the general rule (see Rambam, Sanhedrin 2:9) against sitting on any bet din. So too, does one really think that a dayan for conversion matters does not need to agree to the conversion, but is merely witnessing? Or, even more difficult is the use of the doctrine of “appointment to shared office” since in a conversion matter the decision to convert has to be unanimous and each judge exercises a functional veto.)
Other doctrines, widely quoted by achronim as grounds for being lenient are not quoted at all.
I thought, on some basic intellectual level, the concurrence by Rabbi Reuven Hammer (see link-PDF) was more honest. He disagrees with the Talmudic rule and thinks that a convert can never be discriminated against. The limitations and methodology of classical halacha do not restrict him, so he does not bother to cite them. Rabbi Prouser seems interested in offering a classical halakhic analysis, but does not present the sources to see what has been said and why.
In short, whether one agrees that a convert may serve on a panel for conversion or thinks they may not—or agrees with me that the matter is unclear and thus lechatchila one should be strict—the Rabbinical Assembly Law Committee teshuva on this matter has contributed little to the conversation.
On the substantive matter under discussion, nothing I have read in the recent literature has caused me to change my mind. Whether a convert can serve as a member of a bet din for conversion is subject to a wide and complex two sided dispute. One dispute is about the nature of a bet din for conversion: is it like a financial court or a death penalty court or a chalitza court? The contemporary poskim divide on this and my view is that this dispute is both unprecedented in the rishonim and also hard to resolve. The second issue is whether a convert is generally ineligible to serve on any bet din (and his license to serve on a bet din for converts for financial matters is permitted by the right of people to accept one who is ineligible) or is a convert really allowed be a dayan and the proof is that he can sit on matters involving converts. My view is that this dispute too is hard to resolve and is the subject of a subtle linguistic dispute between Rambam, Sanhendrin 2:9 which states:
בית דין של שלשה שהיה אחד מהן גר הרי זה פסול
and Shulchan Aruch, Choshen Mishpat 7:1 which adds a single important word and states:
בית דין של ג’ שהיה אחד מהם גר, הרי זה פסול לדון לישראל
Because of these two substantive disputes and the variety of views taken by the achronim, this matter remains open. Some think that a convert may sit as a dayan on conversion matters even lechatchila and others think that a conversion with a convert as a member of the bet din is invalid even bedieved (and others in between). The approach taken by the recent work Mishnat Hager, a fine encyclopedic work on rules of conversion, strikes me as still correct and balanced. He states (3:19):
A court for conversion that includes among its judges converts, there are various opinions as to whether it is eligible to judge and accept converts. In a case where at least one of the judges was a born Jew, one can be lenient in a time of urgent need [bishat hadechak] to have two judges who are converts.
This balance – recognizing that there is a dispute which is hard to resolve and for which there is no firm tradition as to how to resolve it – ought to incline the posek to be strict lechatchila and meikil bedieved, and to treat a shat hadechak like a bedieved. The fact that some of the articles written after mine are inclined to be lenient does not change my basic view (quoted from the conclusion of my article above), which is as follows:
Since this dispute is without clear precedent, it is certainly wise to err on the side of caution and mandate that only born-Jews serve as dayanim in cases of conversion. Given that there are eminent poskim who consider such conversions invalid, even after the fact, it would be a disservice to any potential convert (as well as to the Jewish community) to intentionally staff a conversion panel with such a rabbinical judge, especially since there are an abundance of competent and technically qualified rabbis available.
It is worth explaining more fully the rationale behind being strict on a practical level in such a case (in all but the rarest cases). This stringency reflects a general halachic process issue, which is easily overlooked. As I have discussed, there is a dispute about the validity of a conversion in which a convert was a member of the bet din. It is very difficult to resolve this dispute, since very few classical sources discuss this particular issue, and a practical consensus has not developed in modern times. Some permit a convert to sit on a conversion panel even lechatchila while others invalidate such a conversion even bedieved.
So what is a typical bet din supposed to do? In an ideal halachic world, the answer would be that each bet din should determine which posek they should follow (“aseh lecha rav”) and the bet din should consult its own regular poskim. The problem with this approach is if that becomes the actual practice, then those who are lenient on this matter produce converts who are still gentiles according to those who are strict. Consider, for example, a hypothetical bet din for conversion, which is staffed exclusively by students of Rabbi Felder. Rabbi Felder certainly was an eminent and respected posek. If they follow the rule of aseh lecha rav this bet din ought to permit converts to sit on such a conversion panel, because that is Rabbi Felder’s reasonable understanding of the halacha. Yet, if this hypothetical bet din in fact does such conversions under this rule, they know full well that another hypothetical bet din, staffed by students of Rabbi Elyashiv (also an eminent posek) would still consider such converts to be gentiles. This result is certainly bad for the general Jewish community, and further it is unfair to the convert at hand. This is true even for a bet din that is absolutely certain itself that converts may serve on a conversion panel (as their posek so told them directly).
In this sense, conversion matters ought to follow the rule found in Jewish divorces: a bet din strives as a matter of normative practice to issue gittin that are valid according to all views; it is only in cases where a get cannot be issued consistent with such a standard that any lower standard should be employed. Similarly, a bet din for conversion should only consist of individuals that are valid dayanim according to the strictest halachic interpretation, unless no other valid dayanim are present and a conversion has to be performed (a very rare case). If the bet din relies on the strictest rules when there is no reason not to, they can be sure that the gittin and conversions that they preside over will be valid and respected within the entire Jewish community as opposed to only being accepted within a smaller segment of the population.
In the unfortunate case where a convert has served as a dayan on a panel for conversion, the proper policy is to treat this conversion as a bedieved matter. We ought to respond to this scenario in two ways. First, after the fact we ought to accept that the conversion is valid and the person is Jewish, since most poskim accept this view at least bedieved. Other than Rabbi Elyashiv, one is hard pressed to find a posek of this or the immediately previous generations who doubted the validity of such a conversion, at least bedieved. As Rabbi Yisraeli notes, this seems to be a logical after the fact approach. In further support of this conclusion, a vast majority of the poskim who have explicitly addressed this issue adopt this position as the bedieved rule.
Second, I would also instruct the convert that, since there is a significant strain of thought within the rabbinic world, held by Torah giants over many centuries, that this conversion is in fact invalid, it is proper that the convert reaccept the commandments in front of an unquestionably valid rabbinical court and re-immerse in a mikva to eliminate any such doubt, especially before marriage. Converts and the Jewish community as a whole are ill-served by having a conversion that others will not accept (especially if they can have a conversion accepted by all with no additional effort).
We should be blessed to live in a time where all conversions are for the sake of heaven and all conversions are handled by conversion panels qualified to do so.