Guest post by R. Gidon Rothstein
Rabbi Dr. Gidon Rothstein is the author of We’re Missing the Point: What’s Wrong with the Orthodox Jewish Community and How to Fix It, Educating a People: An Haftarot Companion as a Source for a Theology of Judaism, and two works of Jewishly-themed fiction, Murderer in the Mikdash and Cassandra Misreads the Book of Samuel.
In a recent post in this space, Dr. Alan Jotkowitz—whose friendship I have valued for thirty years—wrote to call for a compassionate, inclusive approach to Orthodox homosexuals, an approach that can be found in reaction to other sins that have become prevalent in the Jewish community (link). Rather than oppose or object to the sinners, inclusivism suggests that we seek ways to retain sinners as part of our Jewish communities, even as we hope they (and we) will learn to relinquish our sins.
Dr. Jotkowitz noted the famous ruling of R. Yaakov Ettlinger, Responsa Binyan Zion haHadashot 23. R. Ettlinger suggested that the public Shabbat violators of his time (Reform Jews) could be considered tinnokot she-nishbu, children who grew up without knowledge of the religion.
This solved several technical problems. Most directly, traditional halachah prohibited using wine touched by a public Shabbat violator, since that violation was taken as a rejection of the entire Torah. This helped avoid the need for Jews who still strove to follow traditional observance to completely separate themselves from those who had abandoned that observance (in that case, Reform Jews).
Dr. Jotkowitz also noted a ruling by R. Moshe Feinstein which similarly averted a need for some Jews to distance themselves from others. Since Reform and Conservative divorces are invalid by Orthodox standards, for various reasons, any children born of second marriages in these communities would be seen, halachically, as the issue of an adulterous affair, meaning they cannot marry other Jews. In several responsa (as early as Even HaEzer 1;76, in 1956), R. Moshe found technical reasons to invalidate the first marriages. Once that is true, children from that first relationship are, halachically, born out of wedlock—a more minor problem in halachah—and the children from the second marriage (even if that second one was under Orthodox auspices) are fine.
Both R. Ettlinger and R. Feinstein’s rulings had the net effect of forestalling a rift among Jews, bridging what might otherwise have been a further gap between those who observe certain laws and those who do not.
I share Dr. Jotkowitz’ feeling that this has had important positive effects, among them Jews’ ability to maintain connection and caring for each other even in the face of sharp differences in our sense of observance. Many Jewish communities of the 70s and 80s, as he noted (and still many today, although less so in the larger cities of North America), housed Jews of widely ranging levels of observance, living in harmony and brotherhood, as did many families. I hope we all agree that that is a positive and salutary result, one we would like to foster.
Without stepping away or retracting any of that, I think Dr. Jotkowitz has raised an important question, one too little discussed, the parameters of inclusivism. To make valid choices about when to ignore certain types of transgression in the name of communal harmony, I think we need to educate ourselves further in some of the complications of that strategy.
Who’s a Tinnok She-Nishbah?
First, I worry—and let me stress, I am reacting to my experience of those who promote certain types of inclusivism, not to Dr. Jotkowitz, R. Sacks, or any other specific items from his article– that many of us fail to fully engage what the inclusivist poskim actually ruled. Many people I know take the result they like, without taking in the substance that came with it. R. Ettlinger, for example, allowed the wine of Jews who publicly violated Shabbat by suggesting they could be categorized as tinnokot she-nishbu, people raised outside of Jewish values, who therefore could not be fully blamed for their transgressions.
This built off of how Rambam ruled regarding the Karaites of his time. In Hilchot Mamrim 3;3, Rambam noted that the original Karaites and their followers were outright sinners, who would have to be treated with all the opprobrium of traditional halachah. Their descendants, however, had been raised as Karaites. They were therefore like Jews raised among non-Jews, so that they could not be expected to know what God wanted of them.
I don’t need to disagree with either ruling to see how it is often used differently than it was intended. For example, Rambam limited his moderation of the Talmudic harshness to succeeding generations, not the original one. Those who first broke halachic bounds, in this inclusivist view, would still have to be treated with all traditional severity.
R. Ettlinger wrote his responsum at a similar juncture of halachic history. It is dated 29 Marcheshvan, 5661 (or November 14, 1860). By that time, Reform had been around in Germany, in one form or another, for arguably half a century, roughly two generations, and had become the dominant force in Jewish communal life. The Shabbat violators of 1860 would be following decades of precedent, and were conforming to the majority of Jews around them.
Jews Raised in Observant Homes
Reasonable halachic authorities might disagree with R. Ettlinger’s view, but my point is that even those of us who do accept his ruling have to consider and live with its full ramifications. Aside from that requiring us to treat the first generation of sinners harshly, the tinnok she-nishbah characterization would seem to mean that anyone raised in a proper or reasonable Torah environment could not be considered such.
When such people abandon observance (as signified by public Shabbat violation, for one example; we don’t have room here to discuss who is or isn’t a mumar le-hach’is, a willful violator of any Torah commandment, which would also incur forceful halachic reactions), R. Ettlinger doesn’t seem to provide any haven for those who want to avoid ostracizing them.
Yet today, we see Jews raised in a seemingly Torah-observant world who then reject some or all of Torah observance (including Shabbat). For many mitzvoth, we can claim they aren’t sinning rebelliously, they are yielding to temptation. For some sins, such as public Shabbat violation, that doesn’t work. Rather than being distanced from our communities—not drinking wine they touch, not including them in a minyan, for example– the dominant assumption seems to be to continue to maintain as much of a relationship as possible, and so on.
R. Ettlinger’s ruling, it seems, has slowly been expanded, with rabbis stretching the definition of tinnok she-nishbah to include people who received a Jewish education and grew up in an observant home. The surrounding culture is so enticing, we are told, that even a Jewish education, being raised in an observant home, do not suffice to categorize leaving the religion as a willful act.
We might debate that last point, too, but I am more interested in noting what it means to accept it.
If They’re All Tinnokot She-Nishbu…
If we excuse others from the traditionally harsh reaction to their public sins with the claim that our Jewish environment today is so lacking that we cannot pass on our traditions, two conclusions ensue: First, it would seem to require us to radically reconsider how we structure our communities and educational systems. After all, it is convenient not to have to respond to sin forcefully, but it is also a Jewish obligation to pass tradition to the next generation.
If we honestly believe we live in cultures that make it impossible to educate our children with any confidence that they will not be tinnokot she-nishbu, we either have to move to an environment that allows us to pass on the system or tear down our current educational framework and build an effective one. We certainly cannot allow a status quo in which we categorize all the products of our educational system as plausibly tinnokot she-nishbu.
Second, if we are going to consider public sinners as tinnokot she-nishbu, that perspective has to carry over into other issues, such as whose voice we consider relevant to issues facing the Jewish community. In a Jewish community that welcomes public sinners (since they were raised in a deficient environment), those sinners opinions on Jewish matters have to be handled with care, differently from the rest of the community, since we have made clear that we don’t consider them Jewishly educated enough to be responsible for their own actions.
That doesn’t mean we would reject their views out of hand—non-Jews can have valuable opinions on Jewish communal issues, as Yitro did. But it does remind us that we have categorized them as people lacking in necessary background, and we have to treat them that way wherever it is relevant.
I mention this because I believe it runs deeply counter to how most Jews today experience fellow Jews, including the ones who do not strive to observe the religion. Many Jews would be horrified by the idea that we should see other Jews as less equal, whose opinions about Judaism should be assumed, a priori, to be less valid than ours. But if their education and background are so deficient as to excuse their sins, their opinions carry the danger of being similarly deficient.
How Much Connection Is a Minimum?
A second point about R. Ettlinger’s approach is that he wasn’t satisfied with labeling Reform Jews tinnokot she-nishbu; he added that they affiliated themselves with Jewish practice in ways that showed that their Shabbat violation was not a rejection of fundamentals of Jewish belief (he gives the examples of praying, reciting Kiddush on Shabbat, performing circumcision correctly, and having proper marriages and divorces).
I do not know the history well enough to know if he was correct in his assumption about the faith of the sinners of his time. I do know that he is implying that if we knew that Jews had rejected the faith of Judaism and not just the practice, we would need to react stringently even to those with valid excuses for how they came to be where they are. Yet in our times, many Jews—even technically and publicly observant ones—are open about their rejection of fundamentals of Jewish belief. R. Ettlinger’s responsum implies that we should have to treat them as Rambam outlines in Hilchot Mamrim, Chapter 3.
Enthusiastic or Reluctant Inclusivism
It is also too-little remarked that while R. Ettlinger offered this idea as a way to avoid having to throw out wine touched by such Jews, he did not recommend it. In fact, he said that one who still treated such Jews as sinners (and refused to use their wine) should be blessed; he only wanted to note room to be lenient. Lest we take that as his way of avoiding seeming too innovative, I note R. David Zvi Hoffman’s comments on including such Jews in a minyan.
In Melamed le-Ho’il 1 (Orach Chayim) 29, R. David Zvi Hoffman cited R. Ettlinger’s teshuvah to support including such Jews for the quorum for communal prayer, but recommended, if possible, avoiding relying on it. The responsum is undated, but R. Hoffman was forty-five years younger than R. Ettlinger, and was no rejectionist. It would seem that years, probably decades, after R. Ettlinger offered his idea, R. Hoffman was still leery of including publicly nonobservant Jews in a minyan. That is far from the inclusivism we practice today, and bears remembering as we shape our lives. (Again, I am not saying we should stop including people in a minyan; I am calling only for awareness of what we are doing, and the costs that come with the benefits).
I think we similarly gloss over ramifications of R. Moshe’s responsa on the divorce issue. While his outcome was that children of second marriages would be allowed to marry other Jews, he did so by denying the validity of all marriages performed by Reform and Conservative rabbis, and the validity as witnesses of those who bore testimony to those marriages (indeed, as far as I can tell, it is well accepted that public Shabbat violators, even those we excuse as tinnokot she-nishbu, are nevertheless invalid witnesses).
To rely on R. Moshe’s responsum should, it seems to me, involve viewing all Conservative and Reform Jews as likely unmarried—is that what we do? It also involves looking at those who make their Shabbat violation public as so religiously deficient that we are unwilling to accept their testimony on any Jewishly significant matter.
This doesn’t have to extend further, or create tension among Jews; I know Jews who are strict about finding wheat that was grown before the previous 16th of Nisan (chadash), and would not accept as witnesses those who aren’t strict in that way. They are happy to befriend such Jews, and to by and large see them as fellow travelers in the service of God, just not to accept their testimony. All I’m saying is that if we rely on R. Moshe’s responsum to free some children from being mamzerim, we have to recognize what comes along with that.
The Costs of Inclusivism
The ways in which we take the conclusions of these responsa without their assumptions highlights another issue, that our inclusivism can and does dull our sensitivity to sin. The slow creep of these leniencies is to lull us not only into refraining from reacting to public sin, but then to excusing it, and eventually seeing it as not that big a deal.
We can see this in ourselves if we consider how we react to sins for which the Torah prescribes the death penalty or karet, Divinely administered excision. How many Jews today truly believe, deep inside themselves, that if a person violated Shabbat (such as by carrying in a public place or planting some seeds in the ground), or cursed a parent, or committed adultery, with witnesses supplying the proper warning, that that person deserves death?
My question, let me stress, isn’t whether we could or should find a technical way to administer the penalty (or avoid it), my question is—especially when there’s no way we’d administer that punishment– how many of us accept that one such act, done with full intent and awareness, deserves such a penalty?
We don’t, I submit, because we no longer see sin as serious, and part of that is that we have become used to watching others’ (and our own) sins, and excusing them. So and so violates Shabbat in public because he grew up that way, or because the college he went to lured him into thinking that way, etc., etc.. This is a loss that affects each of us, distancing us from the way God and the Torah wanted us to see the world.
The Disappearance of Remonstrative Communities
One last cost of inclusivism is in how much harder it makes it for us to fulfill another Biblical commandment. The Torah tells us that if we see fellow Jews acting wrongly, we are supposed to mention to them what they are doing wrong (as they are supposed to do for us). In Hilchot De’ot 6;7-9, Rambam codifies this as an halachic requirement. In private, interpersonal matters, we are allowed, even encouraged, to forgive the transgressor and avoid remonstrating; but when it comes to sins bein adam la-makom, matters of violating God’s commandments, no such alternative exists.
This is enormously difficult, in any time. Arachin 16b quotes R. Tarfon and R. Elazar b. Azaryah already bemoaning the absence of those who could either effectively remonstrate or accept such remonstration. Nonetheless, I believe that thinking of every sinner as a tinnok she-nishbah means we have fewer openings for remonstration.
To understand why, I note the complex halachic discussion around when we might refrain from remonstrating (see Orach Chayyim 608;2 and related sources). One of the legitimate reasons to stay silent, in certain cases, is the assumption that the other will not listen; if so, the person offering the information will have succeeded only at converting an unwitting or unknowing sin into a knowing (and therefore deliberate) one.
Viewing each other as tinnokot she-nishbu makes us that much more likely to be sure that our remonstrations will fall on deaf ears, and therefore to stay silent. This may be an accurate and appropriate strategy, but it shows how our inclusivism leads us, in at least one way, further from what the Torah envisioned for a Jewish society.
Each sin is different, each sinner is different, each group of sinners is different. To say more about how to balance inclusivism and the competing factors in any particular area of sin would require delving into the details of that sin and those sinners, in both their personal and group dynamics. All I wanted to do here was to show that inclusivism is both not as simple and not as cost-free as it seems at first blush.
First, the path to inclusivism is an halachic one; if you like the result, you have to take seriously the process that got you there. Second, separately, we need to be aware of how it impacts on our awareness of what God wants from us, and our ability to build communities that approach those ideals.
I do not claim to know how to weigh the costs and benefits against each other, certainly not to the extent that I would assume my own analysis should sway others. I write to share my impression that many of us aren’t making that calculation at all. In the name of being welcoming, of avoiding making others feel uncomfortable, many of us adopt inclusivism at all costs, without regard to its halachic tenability or its other implications. That, I hope I have been able to show, is sticking our heads in the sand, not making an educated choice about how to weigh the competing values in our courses of action.